ANALYSIS JOAN SMARTS MUKISA 30 October 2020
Matrimonial property is defined as property jointly acquired during the subsistence of a marriage[1]. The nature of contribution can be direct (monetary) or indirect through offering domestic services.[2]
Usually the scope of matrimonial property is already existing property and not future property. This is probably why the legal fraternity were in shock when the decision of Ellen Tewesa v Chimwemwe S. Tewesa[3] came out. In this case, the respondent acquired a Bachelor of Education Humanities and a Diploma in Education during the subsistence of the marriage. Upon dissolution of the marriage, the Petitioner prayed for, among others, orders for declarations that there is property in the educational qualifications; that the property in the qualifications is family property; and that the petitioner has a beneficial interest in the qualifications. In the judgment delivered 31 August 2020 the Judge stated that future earnings from educational qualifications attained during marriage form part of marital property. A sacrificing spouse has a beneficial interest in the education qualifications only during the subsistence of the marriage.
One of the other reasons for the shock was people that thought it is the education qualifications themselves that form part of marital property. Note that it is the future earnings from the qualifications and not the qualifications themselves that form part of marital property. The court noted that the education qualifications themselves cannot be marital property as they have only intellectual value; they cannot be bequeathed and have no ascertainable monetary value.
Limiting the scope of marital property to the future earnings creates a balance. Indeed education qualifications have the attributes above however there is more to them. A judgment that ignores the benefits that come with extra qualifications and only looks at the contribution during the study would short change a sacrificing partner.
In this decision we see a widening of the extent of compensation given to the partner. In decisions such as Kivuitu v Kivuitu[4] and Julius Rwabinumi v Hope Bahimbisomwe[5] matrimonial property is divided based on direct or indirect contribution. In essence compensation as regards education qualifications attained during marriage would be limited to the direct or indirect contribution to the qualifications and not the future earnings from such qualifications. Additionally, education qualifications would not be included as jointly owned property to whose benefits one is entitled.
This decision expands the scope of matrimonial property and the extent of compensation to a partner. Africa on a whole still has patriarchal tendencies with men in the different countries “getting away” with education during the course of marriage while wives are left to domestic duties or just work. Of course the trends are changing however they are not significant or fast enough and thus decisions such as Ellen Tewesa v Chimwemwe S. Tewesa enable fair treatment to women and somewhat balance financial scale at the time of dissolution of marriage.
The question that is left is: What happens when both parties have gone back to school? Do they split the future earnings of each partner or is this decision limited to where only one partner goes back to school?
JOAN SMARTS MUKISA is a lawyer and currently an LLM student at the University of Dar es Salaam. She’s pursuing an LLM in Regional integration and EAC law under TGCL scholarship.
[1] Julius Rwabinumi v Hope Bahimbisomwe Supreme Court of Uganda Civil Appeal No. 10 of 2009 available at < https://ulii.org/ug/judgment/supreme-court/2013/5.> accessed on 6 October 2020.
[2] Kagga v Kagga High Court of Uganda Divorce Cause No. 11 of 2005 (unreported), excerpt in Rwabinumi v Bahimbisomwe ibid.
[3] Matrimonial Cause no. 9 of 2012 available at < http://kenyalaw.org/kenyalawblog/wp-content/uploads/2020/09/TEWESA-V-TEWESA-RULING.pdf.> accessed 6 October 2020.
[4] [1990-1994] E.A 270.
[5] See note 1.
