The Court of Appeal in a ruling by Justices Elizabeth Musoke, Muzamiiru Kibeedi and Christopher Gashirabake in the case of Ambayo Waigo Vs Aserua Civil Appeal No 100 of 2015 made pronouncements on rights of married persons as regards to matrimonial properties upon divorce.
While it was automatic that marriage gives a spouse 50% share in all matrimonial properties, this ruling over throws that law. The court ruled that spouse` share in matrimonial property is dependent on his or her contribution to it.
Contribution can be monetary and non monetary and the non monetary contributions often consists of unpaid care, domestic work rendered by a spouse during the subsistence of a marriage.
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This can be in form of caring for sick members of the family, cultivating food for family subsistence amongst others.
When court is determining the value of unpaid care and domestic work, during the marriage, they will look at the monetary value and cost of similar or substitute available in the labor or service market.
Where in the course of the marriage, one spouse contributed to the upgrading of the other spouse in terms of educating him or her, such contributions ought to be deducted from the beneficiary spouse’s total claim for unpaid care and domestic work.
This ruling was largely embraced by the men and sneered upon by the women. I guess it is because in most families the men are the bread winners and contribute more to the physical assets in a marriage.
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However this ruling leaves us hanging in anticipation and anxiety since there is an elephant in the room that needs to be addressed. There is a feeling as if it is not a complete ruling, as if we wish the learned Justices had elaborated more.
This is because the monetary measurements and quantifications of contributions in marriage vary from couple to couple and the financial standing of a particular couple.
The court merely pronounced what ought to be paid but never stated the exact amounts to be paid. The court also did not list down and mention what amounts to contribution in marriage. The courts left very many presumed contributions. How much is housework per day?
How much is child care per day, does it include breast feeding? How much is taking care of a sick person in hospital per day? Is night time counted too?
Is carrying a pregnancy and giving birth a contribution to marriage? Will the contribution of pregnancy be counted in the way surrogate mothers charge? It was stated that child nurturing is a contribution.
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Is breast feeding nurturing a child? Is being faithful a contribution to marriage? The comfort, the hugs ,the care and the words of re-assurance one gives a partner with a wavering heart and shaken confidence just before he or she goes to work or do something important, is it also a contribution to marriage and can it be paid for? The emotional support? What of helping children with homework? Will a spouse that stays in the house as the other goes to work be paid for being a security guard?
As seen above the courts left very many questions than answers or rather opened a can of worms with unending questions, presumed answers and repercussions with the monetization of contributions in marriage because some contributions are very hard to quantify and price.
The earlier stand of each spouse getting 50% of the matrimonial property at the point of divorce was more clear.
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But let`s cross our arms and wait for further developments regarding this law since the law mutates , grows, changes and develops with time.
Writing to make it right, Lydia Etii Ajwang is a Lawyer in Private Practice.
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