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Ellen Tewesa v Chimwemwe S. Tewesa Matrimonial Cause No. 9 of 2012

Malawi case

Court: High Court of Malawi
Registry: Family & Probate DIvision
Bench: Honourable Justice S.A. Kalembera
Cause Number: Matrimonial Cause No. 9 of 2012
Date of Judgment: August 31, 2020
Bar:
Mr Matumbi for the Petitioner
Respondent, unrepresented

Headnotes

  1. FAMILY LAW – Matrimonial Property – Distribution – Customary and constitutional law mandate fair distribution upon marriage dissolution. 
  2. FAMILY LAW  – Matrimonial Property – Distribution – Individual contribution is not the sole principle for property distribution.
  3. FAMILY LAW Matrimonial Property – Definition – "Property" encompasses various rights, not just physical things.
  4. FAMILY LAW Family Law – Matrimonial Property – Jointly Held Property – Mere existence of marriage does not create community rights. 
  5. PROPERTY LAW  – Educational Qualifications – Property Status – Educational qualifications are considered property for distribution purposes. 
  6. PROPERTY LAW - Educational Qualifications – Family Property – Educational qualifications are not precisely family property; they are uninheritable. 
  7. CONSTITUTIONAL LAW – Women's Rights – Property – Section 24(1)(b)(i) of the Constitution grants women right to fair disposition of jointly held property.
  8. FAMILY LAW – Matrimonial Property – Distribution Principles – Intention and contribution are key, but only where parties were financially active.

Summary

The Petitioner initiated proceedings in the High Court, Principal Registry, for the determination of matrimonial property distribution following the dissolution of her customary marriage to the Respondent in the Third Grade Magistrates' Court on 27 April 2012. The lower court had previously ordered the Respondent to compensate the Petitioner with K300,000.00 and to build a matrimonial house or pay K150,000.00 in lieu, but deferred the property distribution to the High Court due to a want of jurisdiction. The Petitioner sought declarations that the Respondent's educational qualifications (Bachelor of Education Humanities and Diploma in Education) constituted family property, in which she had a beneficial interest due to her significant contribution during their 20-year marriage, and sought a 50/50 distribution of these and other household properties. She also appealed against the inadequacy of the compensation and the sum ordered for house construction by the Magistrate. The Court noted that there were no children from the marriage, thus custody was not an issue. The Petitioner, a housewife, contributed to the family's well-being while the Respondent, a teacher turned lecturer, pursued his education.The High Court considered principles of matrimonial property distribution, emphasizing that both the Constitution and customary law mandate fair and just distribution upon divorce, and that individual contributions are not the sole factor. The Court found that there is "property" in educational qualifications, but clarified that they are not "family property" as they are uninheritable and personal to the holder. While acknowledging that Malawian precedent on educational qualifications as marital property was absent, the Court referred to American case law which offers differing views but generally denies professional degrees the status of marital property with an exchange value. The key reasoning of the Court was that fairness is the cardinal principle in property disposition upon dissolution of marriage, requiring consideration of all circumstances. The Court implicitly allowed the application regarding the inadequacy of compensation and the house, ordering the Respondent to build a house for the Petitioner or pay K2,000,000.00 as an alternative sum. Each party was ordered to bear its own costs.

Considered Cases:

  1. Kamphoni v Kamphoni High Court (Principal Registry) Matrimonial Cause 7 of 2012
  2. Rachel Sophie Sikwese v Gracian Zibelu Banda MSCA Civil Appeal No. 76 of 2015
  3. Kayambo v Kayambo (1987-89) 12 MLR 408
  4. Kishindo v Kishindo (Principal Registry) Civil Case No. 397 of 2013
  5. Matupa v Matupa
  6. In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978)
  7. Boardman v Phipps (1967) 2 AC 46
  8. Todd v. Todd, 272 Cal. App. 2d 786, 78 Cal. Rptr. 131 (1969)
  9. In re Marriage of Horstmann, 263 N.W.2d 885 (Iowa 1978)
  10. Inman v. Inman, 578 S.W.2d 266 (Ky. Ct. App. 1979)
  11. In re Marriage of Graham, 555 P.2d 527 (Colo. Ct. App. 1976), aff'd, 194 Colo. 429, 574 P.2d 75 (1978)
  12. DeWitt v. DeWitt, 98 Wis. 2d 44, 296 N.W.2d 761 (Ct. App. 1980)
  13. White v White [2001] 1 AC 596

Statute and Subsidiary Legislation Construed

Constitution of the Republic of Malawi (s 24, s 28)

 Married Women's Property Act 1882 (s 17) 


Ruling/Judgment

This matter came before me for determination on distribution of matrimonial property after dissolution of the marriage in the Third-Grade Magistrates' Court sitting at Chiradzulu on the 27th day of April, 2012. The Petitioner and the Respondent got married under customary law in 1995 and they remained married until the 27th day of April, 2012. At the time of dissolution of the marriage, the presiding magistrate ordered the Plaintiff (Respondent in this case) to compensate the Defendant (Petitioner in this case) with the sum of K300 000.00 payable in ten equal installments of K30 000.00. He also ordered the plaintiff to build a matrimonial house for the defendant at her home village or in default, deposit the sum of K150 000.00 into court- Order 11 rule 1 of Subordinate Court Rules. This matter was commenced by summons seeking five reliefs under section 17 of the Married Women's Property Act 1882.

From the court record, it is crystal clear that this matter came before me not as an appeal but rather that the court below deferred the issue of distribution of matrimonial property to the High Court for want of jurisdiction so that this court can make a final determination on the same.