Mortgaging a Matrimonial Home: Unveiling the Law and Practice of Banks and Other Financial Institutions in Uganda

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The provisions on mortgaging a matrimonial home under the mortgage Act 2009 reflect the rapid changes in social attitudes and the distribution of wealth which have recently occurred. The Act is lauded for recognising and honouring the sanctity of a ‘matrimonial home’ as a highly regarded, placed and respected entity in the different and diverse cultural arrangements in Uganda. Mortgage of a matrimonial home is not a discrete form of a mortgage, but rather a distinct mortgage created using a matrimonial home. Bank finance is in fact by far the most important source of external capital for small businesses in Uganda. Therefore in order to raise finance for the business enterprises of one or other of the spouses, the jointly owned home has become a main source of security. The provision of such security requires the consent of both spouses. The courts have for many years tried to balance the need, on the one hand, of lenders to be able to lend on the security of a matrimonial home and, on the other, the need to protect wives who may have inadvertently put their homes at risk. This paper explores the policy perspectives of a matrimonial home; consent to mortgaging a matrimonial home, spousal equitable interest in a home, effect of undue influence by a spouse on a mortgage, prenuptial agreements in mortgage transactions among others.