What you need to know:
Embedded in the decision, the court made two significant errors of law which makes the case ripe for a further appeal to the Supreme court to set aside and rescind parts of the decision which don’t reflect the true position of the law in this country
This week the Court of Appeal, as the nation’s second highest appellate court after the Supreme court, by a lead decision delivered by Hon. Justice Muzamiru Mutangula Kibeedi, JA., issued a judicial opinion and judgment which was widely circulated on social media and reported across all major newspapers as articulating the foundational principles and guidelines which are key in a property share division contest upon the termination of the marriage. Embedded in the decision, the court made two significant errors of law which makes the case ripe for a further appeal to the Supreme court to set aside and rescind parts of the decision which don’t reflect the true position of the law in this country.
For the benefit of the readers, the case is cited as Ambayo v. Aserua, and here’s why our family and divorce law practitioners and the general public that may not yet have taken an interest in the court’s decision should be concerned. The irony in the dispute is that in re-considering the reasoning and decision of the lower court appealed from, the appellate court makes new and grave errors of its own as a court of the first instance.
Two other Justices concurred in part, in holding (i) that a spouse’s share in the matrimonial property is dependent on his/her contribution to it, which should immediately be appealed, and, (ii) misapplied the object/rationale for awarding property share division as a form of spousal support designed to avoid rendering a financially disadvantaged spouse into a public charge or a burden on the state’s resources for one’s welfare and maintenance. While our state for obvious reasons does not provide social welfare benefits to its less fortunate citizens following any poverty guidelines, as we may not have such thing as poverty guidelines, however, in more developed societies where we borrow these foreign concepts as products of foreign law, such is the logic, tied to limiting public expenditure and fiscal discipline as a legitimate state interest.
By requiring that entitlement to property share division in marital property is subject to one’s contribution either in the property acquisition or in its improvement, and therefore awarding the non-paying spouse as the respondent in the dispute 20% value in the property at issue, absent proof of contribution, sadly, the court missed the point but by no means do I blame the justices. These types of contests are rare in our jurisprudence not many divorce attorneys may find fault with the decision, to which I respectfully dissent, and here is why.
While the monetary or non-monetary contribution to acquiring a marital property and the value of unpaid domestic care as a homemaker by a non-contributing spouse may certainly be important, they are by no means determinative in a property share division contest. Similarly, ownership of title by registration is not dispositive in a share property division. What the court lost sight of is that property acquired by purchase by one spouse pre-marriage as here, in or before 2005, 17 years later would have significantly appreciated in value with/without the contribution of either spouse. Such intangible enhancement in value by market forces is a gain that courts in foreign jurisdictions take into consideration when making a property share division in similar cases, unlike what we see in our court’s reasoning by limiting itself to evidence of human effort or lack thereof.
Having resolved that the respondent as a non-contributing spouse had an equity in the property at issue, as marital property, even absent evidence of monetary or non-monetary contribution, the law gives a spouse a share split in the gain in the property value from market forces, which the court may not have been alive to. Certainly, neither contributing to the property nor being a homemaker is no bar and does not preclude a non-contributing spouse to receipt a property share division in a property acquired during the continuation of marriage as a marital than a separate estate/property, which was the case here.
Otherwise, and impliedly, in the case of an intestate death (dying without a will) of one spouse, the surviving non-contributing spouse who may not have been a homemaker during the duration of the marriage would be prevented from sharing the assets and marital properties of the deceased spouse. That is not what our law says. Surely, had the court had in mind the objective to be served by providing property share division, it would have reached a different and correct conclusion. In other words, the concept of property share division as a branch of spousal support is not intended to enrich a non-contributing spouse or punish a contributing spouse but to make provision for reasonable welfare and maintenance of the non-paying spouse based on the means and ability to pay by the payor.
Relying on a political speech of Nelson Mandela in reaching a wrong decision, the court’s analysis and approach in giving much weight to the monetary value of reimbursement spousal support as a deductible expense incurred for the benefit of the non-paying spouse towards her education and training to acquire practical skills as a factor in making a property share division was wrong, in plain view. When you think of it, the decision upsets the intention to be served by making an award of reimbursement spousal support as though being a way to punish the financially weak spouse for breaking up with a man/woman who educated him/her at so much of an expense out of natural love and affection, than as a debt later to be recouped upon dissolution of marriage. What the court’s decision does in effect is that it shall keep oppressed couples in toxic marriages and relationships, having first to weigh a decision whether to forego one’s share in the marital estate/property, where each penny that the other spouse spent on one’s education and skilling to be taken into consideration in computing one’s property share division. That would be an absurdity, at the minimum!
Reimbursement spousal support, which is what the justices of the appellate court must have had in mind, by considering the paying spouse’s efforts in educating and skilling the non-paying spouse, is intended to compensate or reimburse a financially disadvantaged non-paying spouse who may have enabled the paying spouse to attain his/her professional goals and qualifications while the other spouse was a homemaker, by sacrificing his/her own career goals. All this is common in a foreign setting given the high cost of living in foreign jurisdictions that may necessitate one spouse to study while the other supports the non-employed partner pursuing a career to benefit both spouses in the future.
Bottomline, while going through a divorce proceeding can be emotionally challenging for both spouses, the issue of property share distribution can be very difficult to navigate considering that courts in resolving such disputes (unlike our court here) also look to the station in life of the non-paying spouse pre-divorce when computing an equitable property share distribution which makes pre-nuptial agreements a safe option for some couples in avoiding huge financial burdens and consequences associated with divorce, again, more pronounced in developed societies from where our courts borrow precedent as is clear from the look of the cases and authorities that court considered in its opinion.
For the sake of correcting a misstatement of the law and contributing to precedent-setting decisions, it is important in my view that the law be properly applied by rescinding and repudiating in part the position reached by the appellate court, which may seriously impair and be a hindrance to couples wishing to divorce yet overburdened by the sheer possibility of minimally sharing in the marital estate, going by the court’s analysis in improperly treating expenses towards educating a non-contributing spouse technically as an advance. Likewise, even our succession law does not treat properties or gifts received inter vivos (during the lifetime of the donor) as an advance to a beneficiary in a property share distribution in an intestate succession unless there’s a clear and written intention by the donor. As lawyers, we have a continuing obligation to set the record straight for the benefit of the law and the public.
James Tamale is an Advocate of the High Court of Uganda. The author makes an express disclaimer that nothing herein contained should be construed as rendering legal advice.