THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
DIVORCE CAUSE NO. 63 OF 2013
NIGEL SUTTON……………………………………………CROSS PETITIONER/RESPONDENT
SLOWEY SHAUNA SUTTON…………………………CROSS RESPONDENT/PETITIONER
BEFORE LADY JUSTICE PERCY NIGHT TUHAISE
This is a cross petition for divorce filed by the cross petitioner against the cross respondent for a decree for dissolution of the marriage, an order of joint custody of the children of the marriage, an order maintaining the cross petitioner’s current financial contribution towards maintenance and alimony at Euros 1,500 per month, and for costs of the petition.
The background is that the cross petitioner/respondent (Nigel Sutton) and the cross respondent/petitioner (Slowey Shauna Sutton) were married at St Mary Church Newton Forbes County Lonford in the republic of Ireland. They cohabited in Uganda since 1995 and were blessed with two issues namely Ciara Kayleigh Sutton aged 11 years and Cian George Sutton aged 10 years. In 2013 Slowey Shauna Sutton (cross respondent/petitioner) petitioned for divorce against Nigel Sutton (cross petitioner/respondent), including custody of the children with visitation rights to the respondent, a maintenance order, permanent alimony, sharing of property, settlement of debts, and costs of the suit. The petition was opposed by the cross petitioner who included a cross petition in his reply to the petition. In his cross petition the cross respondent prayed for dissolution of the marriage, joint custody of the issues to the marriage and costs of the petition, but later amended the prayers to include an order maintaining his current financial contribution towards maintenance and alimony at Euros 1,500 per month.
When the matter was called for hearing on 28/10/2014, the petitioner’s counsel informed court that the petitioner/cross respondent was no longer domiciled in Uganda. She requested court to withdraw the petition. The respondent/cross petitioner did not object to the withdrawal upon which this court granted leave to the petitioner/cross respondent to withdraw the petition against the respondent/cross petitioner with costs to the respondent/cross petitioner. After listening to submissions of both counsel, this court also ruled that the cross petition against the petitioner/cross respondent still stands. It is the subject of this judgement.
When the cross petition was called for hearing, the cross respondent’s counsel informed court that the cross respondent was aware of the hearing date but was based in Ireland, was not able to proceed with the matter, and was no longer instructing counsel to defend the cross petition. This Court then allowed the cross petitioner’s counsel’s prayer to proceed ex parte on an amended cross petition. However, whether a suit proceeds ex parte or not the burden on the part of the plaintiff to prove the case to the required standards remains, as was held in Yoswa Kityo V Eriya Kaddu  HCB 58. The cross petitioner filed sworn witness statements and his counsel written submissions within time schedules set by this Court.
The cross petitioner’s case is that the marriage between the cross petitioner and the cross respondent had irretrievably broken down. This was due to the cross respondent’s cruelty and constructive desertion. This led to a loveless marriage that forced the respondent to move out of his matrimonial home since further stay was gravely affecting his mental and physical state. The cross respondent’s lavish and extravagant lifestyle greatly crippled the cross petitioner’s finances and he was denied the right to play an active role in the children’s life following the disintegration of the marriage.
The cross petitioner states in his sworn witness statement that he was married to the respondent on 11/06/1999 in a Christian marriage blessed with two issues, Ciara Kayleigh Sutton aged 11 years and Cian George Sutton aged 10 years. The marriage disintegrated into a loveless marriage characterized with acts of constructive desertion, cruelty and harshness which made his stay in the marriage detrimental to his peace of mind and general well being.
The petitioner also states on oath that though the cross respondent occasionally engaged in gainful employment, she has never made significant contribution to the needs of the family but rather continues to spend and send bills to the cross respondent, having no regard to the cross petitioner’s other financial responsibilities. The cross petitioner states on oath that he has spent colossal sums of money on items like the cross respondent’s lunches with friends, spas, pedicures, pilates, flowers, general family upkeep, maintenance, and tuition for the children. That the cross petitioner implored the cross respondent to make wiser financial expenditures to no avail. This crippled him financially and grossly affected his self worth and dignity, leading to grave physical and mental torture. He has, since the cross respondent’s relocation to Ireland, continued to make a monthly contribution of Euros 1,500 towards maintenance and alimony and he commits to maintain it.
The cross petitioner states that he has been the victim of the cross respondent’s insults on various occasions, one such occasion being on 26/05/2013 which caused him great mental torture. He was made to feel worthless in presence of the children and was blamed for their request to spend 30 extra minutes with him. He attached Annexture B to support this claim. The cross petitioner states that the cross respondent on various occasions became more abusive and hurled insults at him about his failure to be a good husband. He attached annexture C to support this claim.
The cross petitioner states that he has not had any conjugal rights with the cross respondent for more than eight months; that the cross respondent continues to make unilateral decisions about the children as though the cross petitioner does not exist. On 12/09/2013 she took them out of school to Ireland for the burial of their maternal great grandmother without the cross petitioner’s consent. In July 2013 she took the children to London without the cross petitioner’s consent, but she refused the cross petitioner to travel with the children to Portugal on grounds that she did not trust the cross petitioner though the latter had already purchased the tickets close to Euros 1000.
The cross petitioner states that the cross respondent resorts to using the children as a tool to impose further punishment on the cross petitioner, for example, her telling the children that they would leave Uganda in December 2013 for good was made unilaterally without consulting the cross petitioner or getting his approval, yet the cross respondent knew it would disrupt the children’s academic progress since it was mid - term. The cross petitioner states that he was forced to leave the matrimonial home following a multitude of problems arising from the loveless marriage since any further stay with the cross respondent was detrimental to his mental and physical stay. He contends that this makes the cross respondent guilty of constructive desertion. He also states that from 21/09/2012, he has never resumed cohabitation with the cross respondent which has consequently led to an irretrievable breakdown of the marriage.
Learned Counsel Peters Musoke for the cross petitioner, in his written submissions, reiterated the cross petitioner’s prayers for dissolution of the marriage on the ground of cruelty and constructive desertion. He cited various authorities and argued that a case of cruelty and constructive desertion had been made by the cross petitioner against the cross respondent.
Section 4 of the Divorce Act which sets out separate grounds for divorce for men and women was declared unconstitutional by the Constitutional Court in Uganda Association of Women Lawyers (FIDA) & 5 Others V Attorney General Constitutional Petition No 2/2003. This was on basis of Article 31(1)(b) of the Constitution which provides that a man and a woman are entitled to equal rights in marriage, during marriage and at its dissolution, in essence restating the constitutional prohibition of discrimination on the basis of sex enshrined in Articles 21 and 33 of the same Constitution. The legislature (Parliament) is yet to fill the lacuna created by the Constitutional Court’s decision. Courts have since been looking at the facts in totality to determine whether a marriage has irretrievably broken down. See Julius Chama V Specioza Rwalinda Mbabazi Divorce Cause No. 25/2011, Kainamura J.
On custody of children, Article 34 of the Constitution and section 3 of the Children Act provides that the best interests of the child shall be the primary consideration in all matters concerning children.
On cruelty, there is evidence adduced under oath by the cross petitioner that the respondent was on several occasions cruel to him. This is manifest in her denial of sexual intimacy to him, verbal abuse, all of which caused mental and psychological torture to the petitioner. Annexture B to his sworn witness statement reveals that the cross petitioner e mailed the cross respondent on 27/02/2013 requesting her to refrain from mentioning certain adult things in front of children, or ordering him to go and talk in the garden within the children’s hearing so that they feel the bad vibes between their parents. The cross petitioner stated in his sworn witness statement that he was insulted verbally upon returning the children to the cross respondent’s house from a visit. This caused him great mental torture.
It was held in Habyarimana V Habyarimana  HCB 139 that for conduct to amount to cruelty, there must be danger to life, limb or health, bodily or mental. In this case uncontroverted evidence has been adduced by the cross petitioner of the cross respondent’s denial of sexual intimacy to the cross petitioner, her verbal abuse against him, and her extravagant way of spending money without regard to the cross petitioner’s financial means, which caused mental and psychological torture to the cross petitioner. This would, according to the foregoing court decision, amount to cruelty.
On desertion, the cross respondent has adduced evidence that the cross respondent’s conduct forced the cross petitioner to leave the matrimonial home. The cross petitioner has adduced uncontroverted evidence that the cross respondent denied conjugal rights to the cross petitioner which forced the latter to abstain from sex and to eventually leave the matrimonial home since continuing to stay there would lead to his psychological breakdown. This amounts to constructive desertion on the part of the cross respondent. It was held in Perry V Perry  1 ALL ER 1075 that desertion does not necessarily mean and constitute withdrawal from a place, but constitutes withdrawal from a state of things.
There is also uncontroverted evidence that the parties are no longer living together. The cross petitioner moved out of the matrimonial home in 2012 even before the cross respondent left for Ireland. Prior to leaving the matrimonial home, the cross petitioner had not been sexually intimate with the cross respondent who always rejected his advances. The cross respondent has left the country for Ireland where she is staying with the children. It is clear the parties are living separate lives.
Thus, looking at the facts of this case in totality, the cross respondent’s acts of desertion and cruelty which also include her leaving the country with the issues to the marriage, lead to my finding that the marriage between the petitioner and the cross respondent has irretrievably broken down.
On the issue of custody, the cardinal principle enshrined in the Constitution and the Children Act as already highlighted is the welfare of the child. Also see Re M an Infant Civil Appeal No 22/1994, Supreme Court. There is undisputed evidence on oath that the cross petitioner has been providing and catering for the children’s financial needs even following their departure to Ireland with the cross respondent. The two children are aged 10 and 11 years. It is in their best interests, and for their welfare, in as far as it is practicable, for them to spend as much time with their father as they are doing with their mother.
The foregoing evidence adduced by the cross petitioner is not denied or rebutted by the cross respondent. Order 8 rule 3 of the Civil Procedure Rules provides that “every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated not to be admitted in the pleading of the opposite party, shall be taken to be admitted…” In Habre International Co Ltd V Ebrahim Alakaria Kassam & Others SCCA 4/1999 the Supreme Court held, inter alia, that “whenever the opponent has declined to avail himself of the opportunity to put his essential and material case, in cross examination, it must follow that he believed that the testimony given could not be disputed at all”.
The cross petitioner’s case has been subsequently proved before me to the required standard by the cross petitioner. I am satisfied that the cross petitioner has proved his claim against the cross respondent to the required standards on all the prayers. In the premises, on the uncontroverted evidence adduced by the petitioner, I find for the cross petitioner. Accordingly, judgment is entered as prayed against the cross respondent for the following orders:-
- A decree nisi is granted for the dissolution of the marriage between the cross petitioner and the cross respondent.
- The cross petitioner is granted joint custody together with the cross respondent, of Ciara Kayleigh Sutton and Cian George Sutton, the two issues of the marriage.
- The cross petitioner’s payments of 1,500 Euros per month to the cross respondent towards maintenance and alimony should be maintained.
- Costs of the cross petition are awarded to the cross petitioner.
Dated at Kampala this 6th day of July 2015.
Percy Night Tuhaise