“Being married doesn’t guarantee automatic 50% share of property when you separate”-Court rules

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The Court of Appeal in Kampala has redefined matrimonial property rights for spouses in Uganda in its recent judgement.

In a judgement delivered today, November, 15, three Justices of the Court of Appeal including Elizabeth Musoke, Muzamiru Kibeedi and Christopher Gashirabake made pronouncements with far reaching consequences on the rights of married persons in matrimonial properties when they divorce.

The declaration stemmed from a  2014 case in which  the High  Court directed that  Joseph Ambayo Waigo give 50% of the property owned while in marriage with Jackline Aserua after the couple separated.

Justice Catherine Bamugemereire who handled the matter then ruled that Aserua was entitled to 50% of the property or its monetary value after separation of the couple.

However, Ambayo appealed against the judgment prompting the Court of Appeal to pronounce itself on the matter on Tuesday.

The three justices of the court ruled that it is not automatic for a spouse to take 50% of property unless there is evidence to show he or she worked for it.

“The spousal contribution to the matrimonial property can be direct or indirect; monetary or non-monetary provided it enables the other spouse to either acquire or develop the property in question. There is no doubt that the non-monetary contribution of spouses is valuable and of great economic significance at the family and national or macro level. The non-monetary contribution usually consists of “unpaid care and domestic work” rendered by a spouse during the marriage like caring for the children, elderly and the sick members of the family, household chores, cultivating food for the family subsistence et cetra,” the justices ruled.

The justices said there is need to evaluate the kind of contribution rendered by each spouse in the marriage in order to ascertain its worth and ought to be paid for on separation.

They also ruled that in the course of the marriage, where one party has contributed towards upgrading the other spouse in terms of educating her or him, such contributions should be deducted from the beneficiary spouse’s total claim for “unpaid care and domestic work”.

“Whereas it is common in marriages for spouses to render "unpaid care and domestic work", it is also not uncommon for the spouse who has been the beneficiary or recipient of the "unpaid care and domestic work" to reciprocate or otherwise reward the other in monetary and/or non-monetary terms as they go along their marriage journey.”

“In the matter before this court, the appellant enabled the respondent to acquire formal education up to the Diploma level from an unknown level which was below primary seven level. The cost of this venture can be evaluated in terms of the school fees and other money spent by the appellant towards tuition and other scholastic requirements of the respondent. This cost is usually easy to quantify. But the cost or value of the education venture can also be evaluated in terms of what the respondent was disabled from contributing towards the family good as she spent (or invested) her time, presence, and resources at school. This is what economists term as being the "opportunity cost" of the education venture.”

In the instant case, the three justices of the Court of Appeal ruled that the woman is entitled to only 20% of the property the couple had before separation .

The court also directed the Chief Government Valuer to ascertain the value of the entire property owned by the couple prior to the separation within three months from now and that the man will pay  20% of the total sum valued in six months from now.

 Implication

The judgment in simple terms implied  that marriage doesn’t give a spouse an automatic 50% share of the matrimonial property and the share is dependent on his or her contribution to it.

The court also ruled that one’s contribution during marriage can be both in monetary and non-monetary terms

The  non-monetary contribution usually consists of “unpaid care and domestic work” rendered by a spouse during the marriage like caring for the children, elderly and the sick members of the family, household chores, cultivating food for the family subsistence among others.

The court also ruled that  where one party has, in the course of the marriage, contributed towards upgrading the other spouse in terms of educating him or her,  such contributions should be deducted from the beneficiary spouse’s total claim for “unpaid care and domestic work”.

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