ADOPTING the husband’s name, or tying the knot, does not offer enough grounds for a wife to claim a share of her husband’s property in the case of death or divorce, The Sunday Times has established.
Women and Law in Southern Africa Research and Educational Trust- Malawi (Wilsa) coordinator, Seodi White, has since blamed the development on outdated statutes.
“Inequalities in marital property law are not new issues, but the HIV epidemic has dramatically aggravated the effects of such laws, including by increasing the number and vulnerability of widows and orphans. More women are becoming heads of households or widows, often in the context of family resources having been depleted because of illness. These women often lack independent property rights or livelihoods,” White said.
Wilsa’s constitutional challenge submitted in the Constitutional Court of Malawi in 2009 has not borne any tangible results, save for the part-hearing conducted on November 25, 2011.
White said most local courts use ‘Married Women Property Act 1882 and interpret Section 17, which stipulates that property is only held “jointly” if a direct financial contribution has been made to its acquisition.
Section 17 of Malawi’s ‘Married Women Property Act, 1882, reads: “In any question between husband and wife to the title or possession of property, either party may apply by summons or otherwise in a summary way to any judge of the High Court of Justice and the judge may make such order with respect to the property in dispute as he shall think fit.”
Malawi’s June 28, 2004 report submitted to the Committee on the Elimination of Discrimination against Women (Cedaw) also indicates that “The High Court, on its part, insists that the party who can prove that the title vests in her/him should be given the property. If a party’s claim is based on contributions, Malawi courts still insist that the contribution must be direct and financial. Housework and indirect contributions are not given any value.”
According to Wilsa, some of the cases in which such law was applied include the divorce case of Abeles versus Abeles. The High Court upheld that beneficial interest in matrimonial property belongs absolutely to a given party and that any spouse wishing to claim a share in an object of property that is not in her or his name must prove their contribution.
This position was upheld in the case of Cromar versus Cromar in 1991, and that of Catherine Malenga and E.F. Malenga (Matrimonial Cause Number 13 of 2001).
In a 2002 case of Magombo versus Magombo, filed at the Lilongwe Registry, the court said contributions must be financial, or a clear intention of the spouses must be expressed.
In 2005, the High Court (Lilongwe District Registry Civil Appeal No. 7 of 2005) reiterated this position in the case of Lighano Owen Mwalwanda versus Doreen Dawila Mwalwanda. It said property rights in matrimonial matters must always look at the intention of the parties in acquiring the property.
But in the case of Jane Mkulichi versus Henry Mkulichi ,Civil Cause No. 1062 of 2007 decided in 2009, a wife was able to prove her contribution and won her case.
In the case of Kayira versus Kayira (Civil Cause No. 44 of 2008), the Mzuzu High Court stated, in part, that the Constitution should be interpreted in a generous and broad fashion as opposed to strict, legalistic and pedantic one.
However, while Malawi continues to apply the law of 1882, England, Ethiopia and South Africa distinct approaches have been applied.
In England, the Matrimonial and Family Proceedings Act 1984 expressly directs a court to assess the “contributions of the parties to the welfare of the family, including any contribution by looking after the home or caring for the family.”
In Ethiopia, marital property, according to the Revised Family Code of 2000, says all property acquired during marriage “common property” while, in South Africa, the ‘Matrimonial Property Act 88 of 1984 prescribed default marital property regime of “community of property” for all civil marriages, meaning that all of a couple’s assets and liabilities are pooled and shared equally by the spouses.