A Ugandan judge has ruled that unmarried couples must document their business affairs to avoid unnecessary financial losses when they break up.
“Therefore, unmarried couples are advised to draft agreements expressing their understanding of or expectations about exchanges of economic value in their relationship,” said Justice Musa Ssekaana in a ruling dated April 6, 2023.
“If a couple has agreed how to govern the property aspects of their relationship and how to dispose of the property when the relationship ends, the law ought to help carry out that agreement, unless doing so would be contrary to any law of the land,” the Judge added.
It all started with one Frediman Bigala dragging his ex lover Lornah Namuwenge to court seeking recovery of Shs 43m which he deposited onto her account.
Bigala alleged that back in 2014, he and Namuwenge got into a relationship with an intention of getting married and begot a one Ariel Bigala in 2017.
Bigala contended that with the view of opening a business, both parties orally agreed to begin saving through the defendant’s account for business purposes and the same would only be withdrawn when the amount accumulated to Shs 100m and he had made several deposits to the tune of Shs 43m from his hard-earned money with the belief that Namuwenge would honor the business purpose and be faithful to him.
Bigala also alleged that he later discovered that Namuwenge was having a canal affair with another man and was in the process of getting married to that man.
He further claimed that Namuwenge was in the process and/or withdrew part or some of the said money for her personal use in total violation of the agreement with him.
Namuwenge speaks out
In her defence, Namuwenge denied Bigala’s allegations, contending that the monies deposited in her bank account were never meant for any kind of business.
She contended that during the subsistence of the said relationship with Bigala, she applied for and got a job from Finance Trust Bank which enabled her to finance Bigala’s “takeaway” business since he didn’t have a job at the time.
Namuwenge said that in consideration of the said business that was financed by her, Bigala was to deposit money in Namuwenge’s bank accounts held in Finance Trust Bank as profits from the business and also to be taking care of the child.
She further contended that in March 2016 after she lost her job and Bigala was not meeting his obligations of looking after Namuwenge and their child, she opted to use part of the savings from her account to look after herself and the child by paying rent, medical, basic needs among others.
On his part, Bigala argued that Namuwenge’s accounts belonged to him and sought to recover it as money and received or for breach of agreement/trust, fraud and misrepresentation. He sought from court a permanent injunction, general damages and special damages.
Bigala’s lawyer argued that by withdrawing the money, Namuwenge was unjustly enriched which was illegal and unlawful and that she had not proved her claims that she had funded the plaintiff’s business and the latter was entitled to its profits.
Bigala also contended that Namuwenge had also not proven her claims that she had used the money for their child’s maintenance and that during cross-examination she admitted that he had at all material times taken care of the domestic and medical expenses until she became elusive after diverting the savings.
Bigala said Namuwenge blocked him on the phone and changed the place of residence until he discovered that she was engaging in affairs with another man who could have used the savings to make marriage ceremonies.
The case mirrors what lovers usually go through as they try to build sustainable revenue streams for their young families.
In his ruling, Justice Ssekaana said since Bigala failed to prove that the money was for business purposes, he cannot claim that Namuwenge unjustly enriched herself when she withdrew and used the money for herself and their child’s upkeep.
“This court should not lend a hand to the plaintiff who is trying to take revenge because of a failed relationship to recover money given during a relationship without clear consideration,” ruled the judge.
Justice Ssekaana emphasised that “Unmarried or cohabitants have no right to recovery of money made or contributed in such a relationship unless it is jointly owned by registration or joint bank account or such other ownership which infers clear joint ownership.”
The status of ‘concubinage’ or ‘meretricious cohabitation’ afforded neither party any right to recover for services rendered to the other or contributions made for upkeep, unless the party seeking recovery was induced to provide services under a mistaken belief that the couple was validly married or by duress, according to the judge.
“The recovery has generally been denied under quasi-contract or constructive trust, since the courts will not aid a wrongdoer in an illicit relationship such as non-marital cohabitation or that a donative intent motivated the services and thus justified the retention of any benefit deriving from them,” the ruling reads in part.
Justice Sekaana also said the suit seems to have been premised on the disappointment and heartbreak caused by Namuwenge when she ended their relationship and married someone else and not a legal breach of trust.
The Judge also concurred with counsel for Namuwenge that Bigala’s lawyer misapplied Section 10 of the Contracts Act, saying, “It is quite unfathomable that the plaintiff orally agreed to a proposition worth Shs 100m without any formal agreement, such a ‘bedroom agreement’ should not be enforced in courts of law. In absence of proof of a contract, there cannot be a breach of contract.”
In his advice to lovers, the Judge observed: “However, most couples do not consider the economics of their relationship paramount when their relationship begins. In fact many fear that even mentioning such mundane matters would debase other, more important non-economic aspects of their association or relationship. Accordingly, cohabitants rarely make comprehensive express written agreements ordering their economic relations.”
The Judge said while a court should honour express oral agreements too, their existence and contents will usually be difficult to prove in court.
“A court might, of course infer an agreement, but inference can be an unreliable mechanism of ordering the economic relations of unmarried couples’,” he concluded. Each party will meet its costs of the suit.