Matrimonial property: Couples should share equally upon divorce

Recently, there was an intense debate in various media, after the Court of Appeal made a ruling that: marriage does not give a spouse an automatic half share in the matrimonial property: a spouse’s share in the matrimonial property is dependent on his/her contribution, monetary or not; and that when court is determining the value of unpaid care and domestic work, it should take into account monetary value principles of such work like the value or cost of substitute services available on the labour market.

The author herein argues that instead, the principle ought to be that upon divorce, there should be a rebuttable presumption that each party has an equal share in all property which was acquired after formalization of marriage, unless one of the spouses can establish that it would be unjust to apply the 50/50 ratio.
Equality should be departed from only if there is justifiable reason for doing so, in which case, the court would apportion the right ownership ratio to each party. The writer is alive to the constitutional right of each person to acquire property individually.

The basis of my argument is that subjecting marital property rights to the same formulas as the world of commerce is inherently flawed because the concept of marriage is construed on different principles.
Typically, spouses share the activities of running their home and whatever the division of labour chosen by the parties or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party, if, in their different spheres, each contributed to the family.
In principle, it should not matter which of them earned the money and built up the assets so there should be no bias in favour of the money-earner against the home-maker.

A person who is married to another, and performs various household chores for the other partner like caring for the children, keeping the home comfortable e.t.c such that the other partner has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage, when the marriage is dissolved.
It is also strange to want to quantify such non-monetary contributions on the basis of the labour market. First, marriage should not be portrayed as an economic exchange because exchange rules are hardly broad enough to embrace family behaviours, especially considering many self-sacrificing motivations such as love and affection behind the decisions made for the family union. Constructing a legal theory of marriage and divorce on economic foundations would erase important values concerning family life such as: love, obligation, pride, sacrifice, and faith.
Reducing marriages to business transactions undertaken at arm’s length severely demeans the grand concept of marriage, where spouses work together to advance the well-being of the family, and whose lives have become entangled in indistinguishable ways.

Secondly, no single person is able to conduct legitimate accounting of, and get an accurate view of what transpired inside a marriage and retrospectively monetarily account for all the immeasurable contributions each spouse made to their marriage. Further, each marriage is an idiosyncratic economy of exchange relying on intimate, subjective and private constructions of meaning by spouses inside that marriage.
Third, Judges are unlikely to find the truth from parties’ submissions, as each spouse’s account will typically be inaccurate due to the fallibility of human memory and their possibly skewed perspective embittered by the fallout.

The torturous process of divorce is not the best environment for a spouse to be charitable and acknowledge the credit of his/her counterpart’s contributions during the marriage.
A scrutiny of the intricacies of people’s lives would not only cause difficult evidential problems and prohibitive legal costs, but also oversimplify a marriage of variant efforts. Spouses ideally contribute to the marriage selflessly and in good faith, doing many things unrecorded. It would be adverse to societal norms to expect spouses to have married with the expectation of divorce and kept records in this regard.
The author, Mr Allan Atine is a lawyer. [email protected]