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Academic qualifications obtained during pendency of a marriage form part of matrimonial property

Matrimonial cause No 9 of 2012

High Court of Malawi

S A Kalembera, J

August 19, 2020

Reported by Faith Wanjiku & Ian Otenyo

Download the Judgment

Family Law – matrimonial property – division of matrimonial property upon dissolution of a marriage – contribution of spouses towards acquisition of matrimonial property – whether academic degrees can be considered to be part of matrimonial property – whether a spouse could claim beneficial interest in an academic degree of their spouse if it was acquired during the pendency/ subsistence of their marriage – Constitution of the Republic of Malawi, 1994, article 24

Brief facts

The instant case was deferred by the trial court for the determination of distribution of property since it lacked jurisdiction on that specific matter. The petitioner andthe respondent had been married under customary law for 20 years. At the time of dissolution of the marriage, the trial court ordered the respondent to compensate the petitioner with the sum of K300 000.00 payable in ten equal installments of K30 000.00. He also ordered the respondent to build a matrimonial house for the petitioner at her home village or in default, deposit the sum of K150 000.00 into court. The parties did not have any children nor were they financially independent during the subsistence of the marriage. The petitioner was a housewife and the respondent was the bread winner for the family. The petitioner contributed to the well-being of the family as a whole by among other things, cooking for the husband, the four children they were staying with, doing some businesses just to top up the family budget. While the respondent was a teacher in various primary and secondary schools but later, a lecturer at a college.The respondent upon completion of his tertiary education approached the court for dissolution of his marriage to the petitioner. The petitioner thus filed a petition for the division of matrimonial property at the High Court.

Relevant provisions of the law

Constitution of the Republic of Malawi, 1994

Section 24,

(1) Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status which includes the right,

(b) on the dissolution of marriage,

(i) to a fair disposition of property that is held jointly with a husband; and

(ii) to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.

Issues

  1. whether academic degrees can be considered to be part of matrimonial property
  2. Whether there was marital property in the educational qualifications of the respondent, namely the Bachelor of Education Humanities and the Diploma in Education obtained during the matrimonial period.
  3. Whether there existed property rights in academic qualifications and whether property rights in the Bachelors’ Degree and Diploma could be distributed on a 50/50 basis in a matrimonial cause.
  4. Whether the petitioner had beneficial interest in the respondent’s academic qualifications (Bachelor’s Degree and Diploma).

Held

  1. Though there were no existing Malawian precedents dealing with educational qualifications as forming part of family property which were to be shared between spouses upon dissolution of marriage, the court would be guided by American precedents that had extensively dealt with the instant issue. Worthy of note, was that there were various American schools of thought on the subject and tended to differ. As such, each state had a unique scheme of distribution of marital property upon dissolution of marriage.
  2. Any person who pursued further education did it for the benefit of both himself and his family which included his wife, children and any other persons that stayed with them during the subsistence of the marriage.
  3. The High Court noted that an educational degree, such as an M.B.A., was simply not encompassed even by the broad views of the concept of property. It lacked an exchange value or any objective transferable value on the open market. It was personal to the holder. It was extinguished on the death of the holder and could not be inherited. It could not be assigned, sold, transferred, conveyed, or pledged. An advanced degree was a cumulative product of many years of previous education, combined with diligence and hard work. It could not be acquired by the mere expenditure of money. It was simply an intellectual achievement that could potentially assist in the future acquisition of property. Nonetheless, there was property in the educational qualifications of the respondent.
  4. Though academic qualifications could not be inherited by any person to enable him or her to look for a job, future earning capacity and practicing licences which were attendant to educational qualifications were marital property. The rationale was that, with future earning capacity, the family and other beneficiaries would benefit from whatever could be realized by the degreed person so long as that person was alive and laboured for income. As for a practicing licence, it was also family property because when the owner died, his practice could be inherited and continued by his family and friends.
  5. Thedominant principle for disposition of property under section 24 (I) (b) (i) of the Constitution was fairness, as such contribution was not the only consideration.Equity also compels some form of remuneration for a spouse that could be unduly disadvantaged upon the dissolution of marriage.
  6. Upon dissolution, the housewife had realized none of her expectations. The court should provide a remedy to such spouse for sacrifices made. Property should be divided in the quantifiable benefits of the graduate education of the respondent between the parties to reflect their respective efforts toward its attainment.
  7. A spouse that contributed to the education of another spouse did so certainly with the expectation that there would be in future some benefit to derive from such a sacrifice. The court was convinced that the facts of the instant case and the interrelationship of the parties mandate some credit to the party that sacrificed for the educated spouse during marriage.
  8. The parties had a mutual agreement that the respondent should proceed with further education knowing that upon completion; there would be a great improvement in their financial status. Moreover, as per the court record, the petitioner stayed with three of the respondent’s siblings without getting bored with them as the latter advanced his education.
  9. To ignore the contributions of the sacrificing spouse would be to work an injustice, an unfair advantage to the spouse who had gained the education and degree without obligation. There would be an unjust enrichment of the educated spouse.
  10. The petitioner had beneficial interest or equitable claim in the respondent’s educational qualifications as long as the marriage subsisted. However, since the marriage had been dissolved by the trial court, that beneficial interest divested itself of the petitioner but the court would compensate her for such a loss through distribution of matrimonial property and any other monetary orders made by the court while also considering the respondent’s future earnings. After distribution of matrimonial property, the petitioner’s beneficial interest in the respondent’s educational qualifications duly comes to an end.
  11. At the dissolution of the marriage, that beneficial interest in the academic qualifications would manifest itself in that there would have been an order for the distribution of property and maintenance of children. The property to be distributed was acquired through work which was obtained by using the educational qualifications of the respondent. The court considered the future earnings of the respondent in setting the amount of alimony then designated the alimony payments based on future income as property.
  12. It was reasonable and necessary to categorize an advanced educational degree or license as marital property subject to division upon divorce. Furthermore, the classification of a professional degree as a property asset, distributable upon dissolution of marriage, was the only feasible and available remedy when the parties, for whatever reasons, end the marriage without other divisible marital assets.
  13. The demand to distribute the said property in the respondent’s educational qualifications on a 50/50 basis was too farfetched. It ought to be borne in mind that the qualifications could not be physically divided between the couple and that a degree was regarded as property with only speculative value. It would be diametrically impractical to demand the respondent to also impart the knowledge he acquired while at college to the petitioner, but also that the names in the certificates could not be interchanged from Chimwemwe S. Tewesa to Ellen Tewesa.
  14. The court looked at various factors such as the couple’s humble beginnings to prosperity, the current cost of living, the fact that the woman would no longer enjoy the fruits of their joint efforts as a couple but rather another woman if the respondent remarries. The K300 000.00 award made was far grossly inadequate.

  Petition allowed with each party to bear their own costs.

Orders

  1. The respondent was to compensate the petitioner with a sum to be assessed by the court’s registrar within 30 days, for the latter’s contribution to the former’s educational qualifications.
  2. Specific degrees could not suffice to be marital property such as the respondent’s Bachelor of Education Humanities and the Diploma in Education.
  3. Household items should be equally shared between the parties. The motor vehicle should be valued to arrive at its market value less incidental costs incurred due to valuation and should be sold within 60 days. The remaining loan balance at the bank should be paid with the sales proceeds. Then the remaining amount be shared equally between the parties.
  4. Petitioner awarded with Kl,000,000.00.
  5. The respondent should build a house for the petitioner at her matrimonial home within 90 days. It should be made of bricks and roofed with iron sheets. Alternatively, the respondent should pay the petitioner a lump sum of K2,000,000.00 which the court considered sufficient to build a habitable house in the village.
  6. Either party should be at liberty to buy out the other’s share in the land jointly held by paying an equivalent of half of the value of the land, failure to which, the land should be sold and the proceeds of the sale be shared equally between the parties.

Relevance to the Kenyan situation

In Kenya, the Matrimonial Property Act, 2013 governs division of matrimonial property upon dissolution of a marriage.

That Act does not recognize academic qualifications as property for the purposes of distribution upon dissolution of marriage.

Section 6 (1) of the Matrimonial Property Act, 2013 defines matrimonial property as:

(1) For the purposes of this Act, matrimonial property means—

(a)the matrimonial home or homes;

(b)household goods and effects in the matrimonial home or homes; or

(c)any other immovable and movable property jointly owned and acquired during the subsistence of the marriage

The Malawian case could guide Kenyan courts when expanding the jurisprudence on distribution of matrimonial property amongst spouses especially in situations where spouses lacked property that was jointly held.

The Malawian precedent could also come in handy in situations where one spouse was educated by the other but the marriage was dissolved soon thereafter. The spouse that benefited from the benevolence of the other spouse could be compelled to pay compensation based on the income earning capacity of the educated spouse.

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