The right to ‘unlove’: The constitutional case for no-fault divorce in Uganda

 Busingye Kabumba
 LLB (Makerere) BCL (Oxford) LLM (Harvard) LLD (Pretoria)
 Lecturer on Law, School of Law, Makerere University, Kampala, Uganda
 https://orcid.org/0000-0001-6807-0599
  busingye. This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AHRLJ Volume 21 No 2 2021
 Pages: 1181 - 1202
 Citation: B Kabumba ‘The right to ‘unlove’: The constitutional case for no-fault divorce in Uganda’ (2021) 21 African Human Rights Law Journal 1181-1202
http://dx.doi.org/10.17159/1996-2096/2021/v21n2a47
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I am grateful to Justus Akampurira for his invaluable research assistance. I also wish to sincerely thank Prof J Oloka-Onyango for very useful comments on earlier drafts of this article; as well as the editors of the African Human Rights Law Journal, and two anonymous reviewers, for equally important feedback. All errors and omissions in this article, of course, remain solely mine. Finally, I note that this article addresses an issue currently before the Constitutional Court of Uganda, in which I am one of the five petitioners – see Innocent Ngobi Ndiko, Nicholas Opiyo, Isaac Ssali Mugerwa, Busingye Kabumba and Stella Nakagiru v Attorney-General, Constitutional Petition 23 of 2020.

Summary

This article examines the constitutionality of the requirement to establish certain grounds – adultery, cruelty, desertion, bigamy and others – as a condition for the grant of divorce in Uganda. It begins with an examination of the existing legal framework, including reforms already achieved through public interest litigation, and certain changes sought to be effected via judicial activism. The article then proceeds to an analysis of the human rights issues implicated by a fault-based framework, and a consideration as to whether the public interest-based limitations in this regard pass constitutional muster. Ultimately, it is proposed that the only means of aligning this area of domestic relations law with the Constitution is through the elimination of fault as a requirement for dissolving marital bonds. Such reform would also be consistent with critical public policy concerns, including the welfare of children and the sanctity of marriage itself.

Key words: no-fault divorce; right to unlove; constitutionality; legislative reform; judicial activism; law and society

1 Introduction

(M)aybe we too busy being flowers or fairies or strawberries instead of something honest and worthy of respect … you know … like being people.

Toni Cade Bambara, Raymond’s run

Love is a beautiful thing. In its purest form, it brings out the best in us and smoothens our rougher edges. Its importance in human relations is self-evident. If this needed any demonstration, it would be found in the sheer volume of artistic and other work dedicated to the exploration of love’s various forms and expressions.

Yet, it seems that this powerful emotion finds scant attention in legal imagination. The 1995 Constitution of Uganda, for instance, does not even mention it once,1 and one would be hard-pressed to locate serious legal work dealing with the subject.2 In this neglected landscape, therefore, the articulation by Oloka-Onyango of a ‘right to love’ is a most welcome exception. As he rightly notes:3

While the ‘right’ to love appears in no known legal document – national, regional or global – there is no doubt that it is a universal human sentiment. If one was to perform a dissection of the right to love, it would be found implicit in several human rights principles – freedom of association and expression, the right to health, the right to privacy and especially in the right to human dignity. Despite the absence of the right in a normative form, it is a central feature of human existence, especially within the context of sexual expression. To deny its existence is to deny the very essence of our humanity.

To the ‘building blocks’ of the right to love identified by Oloka-Onyango, we would add another: the right to marry and to found a family. While love need not culminate in marriage, and while, indeed, several great loves historically chose not to commit formally in that regard, for many, marriage indeed is an expression of love and affection. At the same time, we would suggest that just as the right to love is inextricably linked to the fact of being human, the right to ‘unlove’ is similarly tightly woven into the tapestry of the human experience.

This article seeks to outline the contours of the right to ‘unlove’ in the context of the legal framework for undoing matrimonial bonds. It starts with an analysis of current Ugandan law relating to divorce, before continuing on to a consideration of the constitutionality of the predominantly fault-based legal regime. Ultimately, the article contends that the recognition of the right to ‘unlove’ – as manifested through providing for a ‘no-fault’ divorce regime – is the only means by which the legal framework for divorce in Uganda can be made consistent with the letter and spirit of the 1995 Constitution.

2 The largely fault-based Ugandan divorce regime

There are five kinds of marriage that can be contracted in Uganda, namely, (i) civil; (ii) Christian; (iii) Hindu; (iv) customary; and
(v) Islamic. The divorce regime under the first three and, to an extent, the fourth, is mainly governed by the Divorce Act,4 while Islamic divorce is largely informed by the tenets of Shari’a law. In this part I briefly outline the grounds for divorce under each of these marriages.

2.1 Civil, Christian and Hindu marriage

Section 4 of the Divorce Act originally provided that a husband could petition for divorce on the single ground of adultery.5 A wife, however, had to couple adultery with another ground such as incest; bigamy; ‘marriage with another woman’; rape, ‘sodomy’ or bestiality; cruelty; and desertion ‘without reasonable excuse’ for two years or more.6 A wife could also obtain a divorce where the husband had changed religion from Christianity to another, or where he had ‘gone through a form of marriage with another woman’.7

These provisions were successfully challenged in Uganda Association of women Lawyers (FIDA) & 5 Others v Attorney-General,8 the Constitutional Court finding the provisions to constitute sex-based discrimination, contrary to article 21 of the Constitution.9 Some confusion followed the FIDA case, that is to say, whether both parties were now required to couple adultery with a second ground, or whether adultery on its own would suffice for either party. In the end, case law appears to have settled on the position that either spouse is entitled to invoke any one ground under section 4 for the purposes of a divorce petition.10 These grounds must be established to a relatively high standard,11 and the Court must also satisfy itself that there has been no connivance, collusion or condonation (the so-called 3 Cs).12

Under section 8(1) of the Hindu Marriage and Divorce Act,13 subject to that section, the Divorce Act is applicable to Hindu marriages.14

2.2 Islamic marriage

Under section 2 of the Marriage and Divorce of Mohammedans Act (MDMA),15 all divorces from marriages between Muslims, which are given according to the rites and observances of the Mohammedan religion customary and usual among the tribe or sect in which the divorce takes place, shall be valid and registered as provided in that Act.16

There are four main types of divorce under Islamic law, namely, (i) divorce at the instance of the husband (Talaq); (ii) divorce by the consent of the spouses (Khula); (iii) divorce by judicial order at the instance of either spouse (Fask); and (iv) divorce through oath (Lian).17 Of these, the Talaq and Khula divorces are essentially based on the no-fault principle.18

In terms of section 18 of the MDMA, nothing in the Divorce Act shall authorise the grant of any relief under that Act where the marriage of the parties has been declared valid under the MDMA; but nothing in that section shall prevent any competent court from granting relief under Mohammedan law, and the High Court and any court to which jurisdiction is specially given by the minister by statutory instrument shall have jurisdiction for granting that relief.19

2.3 Customary marriage

The Customary Marriage (Registration) Act20 is silent both as to the applicability of the Divorce Act to such marriages, and with respect to the broader question as to how divorce under customary law may be effected.21

Nonetheless, the formal courts have jurisdiction to dissolve customary marriages22 and it appears that, in this regard, the parties are entitled to invoke any of the grounds under the Divorce Act. In addition, the parties may rely upon any other grounds applicable under the relevant custom.23

3 Tentative movements from a fault-based regime

It is clear from the preceding part that, with the limited exception of the Talaq and Khula divorces under Islamic law, the Ugandan divorce regime predominantly is fault-based. However, an analysis of case law reveals that there are some windows for obtaining no-fault divorces, based on certain judicial interpretations of the current legal framework.

The possibility of a judicial route to a no-fault divorce seems to have first been raised in the 2004 appellate case of Mbabazi v Bazira.24 In those proceedings counsel faulted the trial judge for having failed to find that the requirement for fault-based divorce was unconstitutional. She argued that where two adults had entered into a marriage union by free will, they ought also by free will to be able to dissolve the same without requiring proof of guilt of either party. Although the Court of Appeal noted that this was ‘probably … a valid argument which could be properly referred to the Constitutional Court’, no such reference was made on that occasion.

3.1 Emergence of ‘irretrievable breakdown’ as a basis for divorce

Since Mbabazi, however, some judges have innovated the ‘irretrievable breakdown’ of marriage principle as a basis for divorce, premised on a particular interpretation of the implications of the FIDA case. In Julius Chama v Specioza Rwalinda Mbabazi,25 for instance, Kainamura J noted that following FIDA, where several provisions of the Divorce Act had been nullified, and in view of the failure of legislative intervention following that case, a gap in the law was evident. To bridge this gap, courts had opted to ‘look at the totality of the facts’ before them in each case and to ‘determine whether the facts [led] to the finding that the marriage [had] irretrievably broken down’.26

At the same time, it appears that this basis for divorce still requires the establishment of some fault on the part of either party – although not strictly confined to the traditional grounds envisaged under the Divorce Act. In Julius Rwabinumi v Hope Bahimbisomwe,27 for example, Twinomujuni J observed that marriage was taken as having irretrievably broken down when the conduct of a party to the marriage toward the other made it intolerable for the parties to live together. He noted that from an observation of the two parties in that case, the two could ‘hardly reconcile’, each one’s feelings towards the other being ‘antagonistic and deep rooted’. This seems to suggest a requirement for blameworthy conduct on the part of at least one of the parties to the marriage.

Similarly, in Susan Annet Kayegi v Innocent Martin Wadamba28 Kainamura J observed that one of the agreed facts was that the union was ‘strained and had irretrievably broken down’ and that ‘both parties wanted the marriage dissolved’. However, he also noted that the Court ‘[did] not have to look far to satisfy itself on this matter’ since the petitioner admitted to having a four months-old baby who was ‘clearly not an issue of the marriage’. According to the judge, this meant that both parties had chosen to move on, and he thus was convinced that the marriage had ‘irretrievably broken down’ and had to be dissolved.

A slight variation in this regard is presented by Anne Musisi v Herbert Musisi and Another.29 In this case the fact of adultery had been admitted by both the respondent and the co-respondent. Mwangusya J (as he then was) noted that while this ground was ‘sufficient for dissolution of the marriage’ in terms of section 4 of the Divorce Act, the parties were also ‘agreed that their marriage had irretrievably broken down because of the long separation and the fact that all attempts to reconcile them had failed’. In consideration of these ‘two factors’, the judge proceeded to dissolve the marriage. It appears that Mwangusya J viewed ‘irretrievable breakdown’ as not necessarily requiring fault, but rather being premised on the actual prospects for meaningful reconciliation. However, this seems to be a minority – even if persuasive – judicial interpretation of the concept.

3.2 Judicially-sanctioned divorce-by-consent

In addition to the rather nebulous ‘irretrievable breakdown’ principle as a foundation for dissolution, there are instances where judges have granted divorce based on no other reason than the consent of the parties to the marriages. In Jane Basheija v Geofrey Basheija & Another,30 for instance, Kainamura J noted that ‘instead of pursuing a lengthy litigation’ the parties had reached a ‘partial consent’ upon which basis the court had entered a decree nisi dissolving the marriage. Under the terms of the consent, the sharing of property was to be determined by Court, which necessitated the present proceedings.

Similarly, in Chris Bakiza v Esther Nafuna31 Tuhaise J noted that the marriage had been dissolved in a ‘consent judgment’, in which the parties agreed to place the issue of distribution of the matrimonial home before an arbitrator. However, the arbitrator had not determined the substantive issue of the distribution of the matrimonial home, hence the subsequent litigation.

Likewise, in Julian Galton Fenzi v Natasha Marie Nabbosa32 the applicant sought orders for maintenance of the parties’ two children or, in the alternative, a redisposition of certain properties. In dismissing the application, Kainamura J observed that when the substantive case first came up for hearing, the parties had ‘opted not to pursue a lengthy litigation’ and, based on mutual consent, a decree nisi had been entered and subsequently made absolute. The applicant ought to have exercised due diligence to litigate on all issues pertaining to the divorce, including maintenance of the children. In the circumstances, the consent judgment between the parties represented a resolution of disputes as between the parties and was final and binding on all parties.

In addition to these explicit examples of judicially-sanctioned divorce-by-consent, a reading of Ugandan case law suggests that there are many more instances where parties have effectively been granted such divorces without this being expressly stipulated. This is strongly implied by the large number of ‘uncontested’ petitions in which dissolution has been granted after only the most cursory reference to the grounds under the Divorce Act and, in particular, scant inquiry into the existence of connivance, collusion or condonation.33 While these are not, strictly speaking, no-fault divorces, they present further indications of socio-legal responses to a decidedly antiquated divorce regime.

3.3 Re-assertions of the fault-based regime

The trends highlighted above – of divorce based on ‘irretrievable breakdown’ of marriage or the consent of the parties (including ‘uncontested’ petitions) – perhaps predictably, have been strongly resisted in certain judicial quarters.

A good example of this pushback is presented by the dictum in Ayiko Mawa Solomon v Lekuru Annet Ayiko.34 In that 2015 case Mubiru J noted that marriage continued to ‘serve valuable social, legal, economic, and institutional functions’ and that, as such, ‘the underlying public policy’ continued to ‘promote marriage and discourage divorce’ except where the parties strictly complied with the set statutory requirements for the grant of divorce. He further observed that although there were attitudes expressed in modern times ‘that divorce should not be based solely on traditional fault grounds such as adultery, cruelty, and desertion’ and that divorce should also be permitted in circumstances such as ‘parties’ incompatibility and irreconcilable differences’, this was not permissible in view of the prevailing statutory regime. He added that even where the respondent did not oppose the petition for divorce, that was not in itself sufficient to justify its grant by the court.

Mubiru J’s commitment to this strict reading and application of the provisions of the Divorce Act would be further demonstrated in the 2016 case of Richard Kana v Agnes Ezatiru.35 In 2012 the applicant had petitioned for divorce before the chief magistrate’s court in Arua, citing desertion and cruelty. The chief magistrate did not take any formal evidence from the parties regarding the grounds alleged. However, he did grant a decree nisi, noting that ‘sentiments [were] high’ and that ‘there [was] no opposition to the dissolution of the marriage’. On appeal to the High Court – on a question of division of property rather than the divorce itself – the resident judge criticised the procedure adopted by the chief magistrate, but nevertheless upheld the divorce decree and proceeded to resolve the residual property dispute. In the present matter, the applicant now alleged that the respondent had not rendered a fair account of the rental proceeds, as required by the resident judge’s order. Significantly, neither of the parties challenged the grant of divorce. Nonetheless, invoking the inherent power of the court under section 98 of the Civil Procedure Act, Mubiru J stressed that evidence in civil trials had to be taken upon oath or affirmation. The failure to do this at the chief magistrate’s court had rendered the proceedings in question so flawed as not to in fact constitute a trial. In the event, he set aside the decrees nisi and absolute as well as the orders regarding the allocation of the matrimonial property; and ordered that the file be remitted to the chief magistrate’s court with directions that the entire petition be heard afresh. The effect of Mubiru J’s 2016 decision was to basically return the parties to the position in which they had been back in 2012, when the divorce petition was initially filed. The parties who went to the court believing themselves to be divorced – and no doubt living their separate and individual lives as free individuals – now suddenly found themselves essentially declared to, legally, remain husband and wife.36

A similarly emphatic defence of the status quo – above any wishes of the parties in question, over any attempts at judicial activism, and in spite of any developments in other parts of the world37 – is presented by the 2020 appellate case of Rebecca Nagidde v Charles Mwasa.38 The appellant petitioned for divorce before the High Court in 2017, on grounds of adultery and cruelty. At the hearing, Matovu J concluded that the marriage had irretrievably broken down and asked counsel for the parties to prepare a decree nisi for his signature. He then proceeded to determine the issues relating to custody and the distribution of property. The appellant challenged the determinations relating to custody and property but, notably, not the divorce itself. On appeal, however, Egonda-Ntende JA (with Musota and Kasule JJA concurring) concluded that the decree nisi had been wrongly entered, and emphasised that before granting such decree, the Court had to be satisfied that the petitioner’s grounds as presented had been proven; that there was no connivance or condonation or collusion between the parties in presenting the petition; and that the petitioner had not themselves been guilty of adultery, or of an unreasonable delay in presenting the petition, or cruelty to the respondent, or desertion or separation or other misconduct. He went on to observe that while these conditions might ‘be or appear to be archaic’ they still represented the law on divorce as it stood, and courts were not permitted to ignore them and establish their own grounds for divorce such as ‘irreconcilable differences’. While this particular ground might exist in many other jurisdictions, absent an amendment to the Divorce Act or the passing of a new law providing for it, this ground ‘however attractive it might be’ was unavailable in Uganda.39

It is important to note that none of the key decisions supporting the more conservative, fault-based approach to divorce – Ayiko, Kana and Nagidde – made any reference to the provisions of the 1995 Constitution in this regard. Although they emphasised the requirements of statutory law, in particular the Divorce Act, they did not address the compatibility of this regime with a number of relevant constitutional standards. Evidently, in light of article 2 of the Constitution (the supremacy clause) these positions require reconsideration. It is to this enquiry – the constitutionality of the fault-based regime – that we now turn.

4 Analysing the constitutionality of fault-based divorce

The 1995 Constitution is a strange document – one that holds both the promise of Uganda, and reflects its critical failings. As a path towards, and guarantor of, a truly democratic dispensation, it has failed so many times, and at such critical stages, as to be effectively comatose. However, as a basis for the articulation and realisation of, especially, ‘non-political’ human rights, it continues to show many signs of life.

There now is a wealth of largely progressive jurisprudence elaborating and re-affirming almost all the provisions of the Bill of Rights. In the sub-sections below I identify a number of constitutional rights implicated by the fault-based divorce regime before proceeding to consider whether the public policy imperatives underlying the current legal framework justify the significant restrictions of the human rights identified.

4.1 Constitutional rights implicated

4.1.1 Right to privacy

One of the rights most critically affected by the fault-based regime is that to privacy.40 The requirement of proving fault opens up some of the most intimate aspects of people’s lives to scrutiny by not only the judicial officer(s) involved with the case but the public at large. For instance, to prove adultery a petitioner is required to provide various lurid details relating to sexual intercourse between their spouse and the co-adulterer. In addition, the law requires that a co-respondent be named in instances of adultery and it is immaterial, in this regard, whether they were aware of the married state of the respondent. These breaches of privacy have implications not only for the individuals in question, but for a whole range of other persons: their children, parents, siblings, and other relatives, friends, and in-laws.41

4.1.2 Rights to expression, association, liberty, freedom from torture and life

The current legal regime also implicates the rights to expression,42 association,43 liberty,44 freedom from torture,45 and life.46 Given Uganda’s history, these rights are often thought of in political terms, in the context of restraint or violation by the state and security agencies and in relation to the public sphere. However, they undoubtedly have powerful implications for, and resonance with, the ways in which individuals live and enjoy their private and intimate lives.47

One of the ways in which love may be manifested and expressed is through marriage. At the same time, the end of love could also best be expressed through separation and divorce. Indeed, the right to marry48 by necessary implication includes a right to divorce.49 This right to divorce – implicit in the rights to expression, liberty and association – is diminished by a fault-based divorce regime, which places unreasonable fetters in the path of adult persons who wish to consensually dissolve the bonds into which they in the first place consensually entered.

In addition, legal barriers to divorce might trap human beings in deeply toxic environments, inevitably endangering their right to freedom from torture and, in some instances, even to life. On the other hand, there appears to be a strong correlation between liberal divorce regimes and more positive welfare outcomes. For instance, studies conducted in the United States found statistically significant declines both in domestic violence and wives’ suicides following the no-fault divorce reform in that jurisdiction.50

4.1.3 Freedom of (and from) religion, and the constitutional guarantee of a secular state

The fault-based regime also has implications for the right to freedom of religion, 51 as well as the constitutional guarantee of a secular state.52 The requirement for fault as a condition for the grant of divorce is rooted in the Judeo-Christian notion of the sanctity of marriage. The Divorce Act which was received in Uganda in 1904 reflected only a temporal phase in the secularisation of divorce law in the United Kingdom53 – one which has since continued in that country,54 but which seems to have been stultified in Uganda. The result is that the current version of the Ugandan Divorce Act – and the fault-based regime in particular – continues to reflect the traditional Christian view of marriage as a sacrament,55 sanctity and integrity of which must be preserved and protected almost at all costs.

For its part, the Constitution places primacy on the notion of the free and full consent of the parties to the union and lays emphasis on the equality of parties, in this and in all other aspects, at the start of the marriage, during its subsistence and at dissolution. The Constitution centres, foregrounds and protects the individual(s) contracting the marriage, rather than the institution of marriage per se. Marriage, as envisaged under the Constitution, therefore is primarily a contractual arrangement, founded upon individual consent and to be treated as such regardless of the kind of union – Christian, Islamic, Hindu or customary – into which one enters.56

Indeed, as the 2009 Rwabinumi case emphasised, the choice to contract a religious marriage does not deprive parties of the ultimate protection of the Constitution.57 One reflection of this fundamental principle is to be found in the 2003 case of Dr Specioza Wandira Naigaga Kazibwe v Eng Charles Nsubuga Kazibwe,58 which involved the judicial termination of a Catholic marriage – one ostensibly indissoluble under the doctrine of that church. In such a situation, the church might well be within its rights to continue to consider the individuals in question to be married and, for instance, to deny them the benefit of being remarried to other persons in church. However, for the purposes of the secular state, such individuals would be legally divorced, and would be at liberty to remarry, or remain single, as they deemed fit.

It is this very co-existence – even in the face of opposed world views and beliefs – that is contemplated in and facilitated by articles 7 and 29 of the Constitution. It is this same co-existence, and the supremacy of the Constitution in a secular state, that mandate a movement away from the fault-based regime rooted in the Judeo-Christian conception of marriage.

4.1.4 Rights of women and children, and the freedom from discrimination

A fault-based regime has a particularly negative impact on the rights and welfare of women59 and children,60 and also contravenes the freedom from discrimination.61 Although facially neutral, the barriers to divorce continue to disproportionally affect women, and especially poor women.62 In effect, at a broader level, the requirement to prove fault as a condition for divorce constitutes class-based discrimination in so far as it might not effectively deter persons of means from dissolving their marriages when they so desire.63 In fact, this troubling aspect of the fault-based framework resonates with more explicitly discriminatory parts of Ugandan divorce law as established in the racist colonial state.64

Relatedly, the current legal framework for divorce treats children in a deeply problematic manner, often leaving them psychologically bruised for life. For instance, court documents usually refer to them not even as ‘children’ but ‘issues of the marriage’. On the other hand, studies have shown that where provision is made for no-fault divorce, children are better shielded from the more challenging aspects of what is an intrinsically difficult proceeding. It also provides a stronger basis for the continuation and promotion of wholesome family relations, the divorce notwithstanding. Indeed, in many situations the cohesion enjoyed by such family units – for they do remain as such – might be much stronger, and the bonds more genuine, than those subsisting in many marriages being sustained, or endured, for no other reason than the difficulty of the legal framework for divorce.

4.2 Between the state and the individual: Applying the article 43 test to fault-based divorce

Although a number of rights are affected by the fault-based divorce regime, it could be argued that the restrictions on these rights are reasonable and necessary, as envisaged under article 43(1) of the Constitution.65 Indeed, no doubt there are many good reasons why, as a matter of public policy, the state might promote and perhaps even protect the institution of marriage. These include public morality and public health. That said, article 43(2) of the Constitution emphasises that ‘public interest’ shall not permit, among other things, ‘any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society’.66

A key element of the article 43 test is whether the restrictions in question constitute the least restrictive means of achieving the relevant public objectives. In my view it would be difficult to argue that the requirement to prove fault as a basis for the grant of divorce is the least restrictive means of promoting public morality or even public health. In the first place, there is little evidence to suggest that a fault-based divorce regime promotes public morality or public health. Indeed, all indications are there that forcing adult human beings to remain in a union in which they no longer are interested has exactly the opposite outcome. For instance, an increasing number of people might either opt not to marry in the first place or, if already married, choose to ‘divorce in fact’ without bothering to do so in law.67

Second, even if the state were minded to promote the institution of marriage, there are a whole range of approaches that it could employ which might achieve the same objective, with less problematic implications for the range of human rights at issue. Indeed, it is worth noting that in many instances the state already extends a range of privileges and protections to married people. Under the Evidence Act, for instance, in criminal proceedings the spouse of an accused person may not be compelled to testify for the prosecution without the consent of the accused person.68 Married people are also generally preferred in the context of adoption, are protected under land law and mortgage law, and enjoy certain advantages in the arena of contract law.69

Third, and related to the second point above, any relief or protection that might be obtained through a fault-based divorce system is available to the parties through a number of other legal courses of action that do not have the deleterious effect of forcing adult human beings into toxic factual and legal proximity. These include court-based or mediated disputed resolution over property;70 general civil proceedings, such as constitutional and tortious claims, for any wrongs or harm;71 and even criminal proceedings in the context of physical or sexual assault.

It may also be noted that, as a matter of public policy, providing for no-fault divorce does not constitute an attack on the sanctity of marriage. Indeed, in many ways it is a defence of it. The current legal system encourages discord rather than harmony, and disincentivises reconciliation and forgiveness.72 If spouses are not forced into an acrimonious duel performed before a humourless court and a scavenging public, often to the profit of no one other than the lawyers involved, it might very well be the case that they could find a way back to that most solid of human engagements – friendship – or even, in certain cases, back to the love that they once experienced. In any case, two adults who might now wish to amicably dissolve their union cannot be said to be intuitively against the institution of marriage, otherwise they would not have opted to join it in the first place. It is unreasonable, unfair and unjust to in effect punish such persons to a life sentence – and in some cases even a death sentence – in such circumstances.

In sum, fault-based divorce, in my view, does not pass the article 43 test for the restriction of human rights based on public interest. In so far as it is not the least restrictive means for achieving any of the public policy ends that might inform it, it cannot be said to be acceptable or demonstrably justifiable in a free and democratic society, which is the high threshold set under the Constitution.

5 Conclusion

The right to ‘unlove’ is as critical as the right to love. It is a composite of, and a necessary corollary to, several rights stipulated under the Constitution. It is imperative to decisively reform the current legal system which traps adult human beings into a situation of forced proximity, thereby exacerbating and amplifying tensions that otherwise might have been alternatively resolved. Indeed, there can be no greater demonstration of the urgency for legislative reform in this regard than the fact that all efforts at amending the divorce regime since 1904 have included proposals for a no-fault divorce.73

It also bears noting that the right to ‘unlove’ is not a licence to hate. If anything, it is an invitation – and a permission – towards the transformation of love from one form (eros) to another (philia). As Lomas has observed:74

Few experiences are as cherished as love, with surveys consistently reporting it to be among the most sought-after and valorised of human emotions … At the same time though, few concepts are as contested, with the label encompassing a vast range of phenomena – spanning diverse spectra of intensity, valence, and temporal duration, and being used in relation to a panoply of relationships, objects and experiences.

Love, marriage, family, intimacy are things far too important to be subjected to pretence or compulsion. The law should allow human beings to live, and let live – to love, and to unlove. Simply said, the law should let human beings be human.