The Court of Appeal has set the record straight on the question of what amounts to matrimonial property and how it should be divided when a marriage relationship goes south, in a unanimous landmark judgement delivered on Tuesday, 15th November.
Many Ugandans falsely believed matrimonial property included every piece of property a married person owns and this property would be divided equally between an estranged couple during divorce.
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Some thought matrimonial property means property acquired after or during marriage.
The resulting effect of these misconceptions is that many people have shunned marriage for fear of losing hard earned property and others have committed to marriage in expectation to earn property once it fails.
- So what is matrimonial property?
This question is difficult to answer as it is one based on facts and as you know every case has its own circumstances. And the Court of Appeal admitted this noting it can’t be answered with “scientific precision.”
However, the court defined matrimonial property generally to mean that piece of property a couple has chosen to call “home.”
- 2. Is marriage necessary for property to be treated as matrimonial?
No. Maybe according to english language mavens but not the Justices of the Court of Appeal.
It does not matter that the property being fought about was bought or even developed before marriage.
What really matters is the intention of the fighting couple to turn the piece of property in contention into their family home.
- 3. But the property was ‘bought’ by me!!!
The characterization of property as “home” overrides any other consideration when it comes to determining whether it is matrimonial property or not.
In the case before the Court of Appeal, the property was not registered but its purchase agreement was in the names of the man.
“ … the acquisition of the suit property before the parties were formally married, and the property purchase agreement being written in the sole names of the appellant (man) did not by themselves disqualify the contested property from being treated in the same manner as a matrimonial property which parties acquire after marriage.” the court ruled.
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- 3. So how should matrimonial property be divided?
Once the property has been found to be matrimonial property it means each of the fighting ex-marrieds is entitled to a share in the property.
The question is by what percentage?
In determining this thorny issue of how much each person should take, the Court will look at the contributions of the warring ex-lovers.
What the Court of Appeal has roundly rejected however is the imaginary doctrine that matrimonial property MUST be split 50:50 between the fighting ex-husband and ex-wife regardless of their respective contributions.
The court relied on an interesting passage from a Judgment of the High Court of Kenya that analyzed a similar situation and it goes:
“… it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-passer, a passport to fifty percent wealth regardless of what one does in that marriage.
“ I cannot think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor seeking, pleasure-loving and divorce-hoping brides and, alas, grooms.
“ lndustry, economy, effort, frugality, investment and all those principles that lead spouses to work together to improve the family fortunes stand in peril of abandonment were we to say the Constitution gives automatic half-share to a spouse whether or not he or she earns it.
“ I do not think that getting married gives a spouse a free to cash cheque bearing the words ‘50 per cent.’”
- 4. So how will your contribution be determined?
Some selfish people would rather their ex-lovers walk out of the relationship with nothing for they did not contribute a penny to the purchase or the development of the property in question.
The Court of Appeal, like several courts before it, says this is wrong and unconstitutional.
The Courts have expanded the frontier of contribution to encompass both monetary and non-monetary activities toward the acquisition or development of matrimonial property and the Court of Appeal confirmed this.
So, a financial contribution toward a property is not the only (if at all) requirement for a spouse to share in matrimonial property.
Non-monetary contributions a spouse could make include caring for the kids, elderly, sick members of the family, household chores, construction and repairs, among other activities, collectively known as “unpaid care and domestic work.”
To put these activities in proper perspective as regards their value, the Court of Appeal revealed that according to the International Labour Organization (ILO), such activities contribute 9% of Global GDP with the contribution of women at 6% and that of men at 2.4%.
So housework is not valueless as you may think.
- 5. How then should my exact share in the property be computed?
It feels like the Court of Appeal was screaming “document, document, and document” in its judgment.
This is hard for many couples and understandably so because love as it has been said elsewhere is like a drug – it sort of numbs your mind to seeing things in proper perspective.
The overriding theme in property disputes of this nature is that a spouse who documented documentable contributions to matrimonial property has an upper hand against one who did not.
Otherwise, the court is likely to embark on what appears to be guess work in determining the truthfulness of your “oral testimony.” Mere words may not cut it for you.
“ In the face of conflicting oral testimonies, one of the tools used to extract the truth from falsehood is ascertaining whether the evidence of a particular witness in respect of any particular fact or set of facts is in conformity with real life experience and collateral circumstances. lf the testimony tallies with what happens in real life in the given situation, then the PROBABILITY is that it is TRUTHFUL.” the Court of Appeal said.
Nonetheless, non-monetary contributions in form of “unpaid care and domestic work” will be valued using the ‘principles of money.’
The Court of Appeal introduced a formula that analyses a person’s non-monetary contributions called KSA (Knowledge, Skills, and Attitude). This formula, the Court said, is used by employers.
In effect, when this formula was applied to the respondent woman’s claim that she supervised the construction of the matrimonial home and would sometimes buy construction materials, the court concluded that since she was a primary seven graduate, her skills when compared to the man’s who was a maintenance technician were low as to have given the requisite supervisory value that enhances the overall value of the construction project.
“Supervision which qualifies as a contribution to the construction of the suit property would involve checking that what is being constructed at the site is in accordance with what was planned, or that the employees at the site and their supervisors are doing their job as agreed. All these require some basic knowledge, or skills or experience none of which the respondent (woman) possessed…
“ … in the usual state of affairs in the construction sector the unskilled labourers (also commonly known as “porters”) will be paid for their labour at a rate different from that of a foreman or supervising architect even if they are all contributing to the construction of the same building for the same amount of time.” court said.
Besides KSA, the Court of Appeal introduced another formula; determining the value of the contributions made by juxtaposing them with similar services on the labor or service market.
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Is it possible you have already been paid for otherwise unpaid care and domestic work?
The Court of Appeal in its judgment read by Justice Muzamiru Mutangula Kibeedi introduced yet another formula to be used in calculating the amount of money a spouse should get out of matrimonial property during divorce.
This, the court termed “non-monetary compensation for non-monetary contribution.”
Whereas unpaid care and domestic work help a couple in acquisition and development of matrimonial property, it is possible a spouse paid the other in appreciation of this work long before divorce was contemplated and this ‘mode of payment’ should be considered when determining what that partner should get out of the property.
In other words, the value of this form of contribution should be deducted from that spouse’s overall stake in the property.
In the case before the Court, the man paid for the woman’s education from primary school level to diploma level and by the time divorce was contemplated the woman was self-employed as a seamstress, tailor, and baker.
“ ln my view, by the appellant (man) investing in the respondent’s education, he was in a sense paying her and thereby reduced on the quantum of her claim for the unpaid care work” Justice Kibeedi ruled.
The case is Ambayo Joseph Waigo Vs. Aserua Jackline Civil Appeal No. 0100 of 2015
Representation: For the Appellant, Ms Candiru Noelynne and For the Respondent, Okello-Oryem Alfred and Mr. Ojang Rogers
Benjamin Ahikiiriza is a Legal Writer And Digital Communications & Marketing Specialist majoring in Lawyers, Law Firms And the larger Legal Sector.
Benjamin currently Works as the Director of Content and Business Development At LegalReports.