Fairness at divorce
Read Kenyan judgment
Read Zimbabwean judgment
Women facing divorce settlements are often particularly vulnerable to claims that they are not entitled to equal shares of matrimonial property because their financial contributions to the property had been less than the contributions of their former husbands.
Two new decisions, from Kenya and from Zimbabwe, underline a more modern, equitable approach to this question, with the Kenya high court going even further. In this case, the judge carefully considered the work done by the woman, in the home as well as ‘outside’, compared with that of the husband, who, working away from home, had only contributed ‘seen’ income to the household.
The Kenyan case, MW v AN, concerns a couple, at divorce, disputing the division of their assets. During their marriage they had acquired land and built a house on it. Clearly, this was matrimonial property, but how should the proceeds be divided between the two?
The law says that ownership of matrimonial property vests in the spouses ‘according to the contribution of either spouse’. In this case, the disputed property was registered in the man’s name, but did that mean the property ‘belonged’ to him? The judge hearing the matter, Mumbua Matheka, said that if the woman could establish contributions to the property ‘then she can claim’.
The woman here had worked outside the home, as well as being responsible for the children and the running of the home. The woman said she had made the larger contribution towards constructing the house, struggling single-handedly to raise and educate the children, while at the same time paying rent. Therefore, she claimed that her share of the property should be put at 80%.
Matheka said there was one matrimonial home where the former spouses had lived with their children. It was not true, as the man claimed, that he alone had bought the plot and that he had single-handedly put up the house; the woman had taken loans to support the project.
The judge noted that the woman was ‘not a housewife, she was employed’. The couple had had young children but for eight years the husband, a businessman, was unemployed. Between 2001 and 2002 he ‘sent money’ back while he was working away from home, so ‘how was he supporting his family’, the court asked. Matheka answered her own question by saying that this contribution – sending money home during that period – was how he supported his family.
The woman, on the other hand, ‘was home taking care of the children’.
‘This other part of mothering, housekeeping and taking care of the family is more often than not, not given any value when it comes to sharing matrimonial property.
‘It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family.
‘That spouse will be heard to say that the other one was not employed so they contributed nothing.’
That could ‘no longer’ be a valid argument, said the judge. ‘It is a fact that stay-at-home parents and in particular women because of our cultural connotations do much more work (housewives) due to the nature of the job.’
This could be seen via surrogacy agreements, in the monetary value now placed on ‘carrying a baby in the womb’. ‘Raising of children is a full-time job that families pay a person to do. Cooking and cleaning as well.’
‘Hence for a woman in employment who has to balance child-bearing and rearing, this contribution must be considered.
‘How do we put monetary value to that process where a woman bears the pregnancy, gives birth and takes care of the babies and where after divorce or separation she takes care of the children single-handedly without any help from the father of the children?’
She asked whether a court, distributing matrimonial property, should take all this into account in deciding whether the husband should be left in the matrimonial home while the wife rented a house to provide shelter for herself and the children.
‘I think it should count, especially where the husband has not supported the raising of the children, has not borne his share of parental responsibility.’
Matheka said that the reverse was equally true: ‘It should also count if the man also does the same thing.’
‘Unfair and unjust’
Obviously addressing women who hesitated to claim value on the work they did at home, she said that at divorce, parties should make the effort to give enough evidence to support the value to be placed on contributions that were less obvious.
It was ‘unfair and unjust’ for one party to be busy ‘just making their money (the “seen” income)’ while the other is doing two or three other jobs in the family whose income was ‘unseen’, and then for the first party to claim that the other one ‘did nothing’.
The judge said this attitude had become so entrenched that even women, especially those who were housewives, would say that they do not do any work, merely because they did not leave the home to go and earn money elsewhere.
In this case, however, the judge held that the value put into the property had overall, been equal, and she awarded them each half of the proceeds of its sale.
In the Zimbabwe case, heard by Harare high court judge Amy Tsanga, the question was also division of matrimonial property. The former husband disputed the claim for a half share made by his former wife. He said acquisition of the property had been his ‘life’s sweat’ and that even though the children were now adults they still needed ‘a home to come to’.
He said ‘others’ were misleading his wife in asking for a 50% share when the property was in fact ‘inheritance for their children’. In his view 10% was a fair offer, a percentage that would ‘cover everything’, including the role she played as a mother.
During cross-examination he admitted that the house was in both their names. But this didn’t mean she should have half shares, he said. Putting it in both names had been their decision at the time to protect her if he should die before she did – this was at a stage when the practice of relatives grabbing the property of a widow was still rife.
The judge quoted international law as well as the law in Zimbabwe on discrimination against women and concluded that courts had to ensure that men and women were treated in accordance with the principles of equality and justice when it came to marriage and its dissolution.
She spelled out the considerations for a court at the dissolution of marriage and noted that while judgments by the courts of Zimbabwe had created a certain understanding of equality, the understanding of male litigants mainly continue to be shaped ‘by more rigid ideas of family and gender roles that tend to devalue the gendered roles of women’.
As far as courts were concerned, however, they have tried to shift such mind-sets by fostering an understanding of equality in terms of which women could be seen as working at ‘different jobs within the family.’
‘Women’s activities in family life may be different from those of men but they are just as critical for the survival of society.’
Through all of this, however, the courts clearly retain a discretion in terms of ‘what is equal’ in any case. And in the matter before her, said the judge, the man resisted giving the woman a half share of the matrimonial home because of the ‘wage gap’ between the former couple’s respective contributions. Her work in the home should, however, not be given less value.
She said there was no justification for not dividing the proceeds in half. ‘Theirs was a long marriage. It will not be easy to start afresh but that is the reality - … they will have to make do with their share of the matrimonial home.’
- ‘A matter of justice’, Legalbrief, 12 October 2021