Rwabinumi v Hope Bahimbisomwe was wrong about indirect contributions by the spouse. Ambayo v. Aserua doesn’t address its biggest flaw

Per Justice Kisaakye a wife’s indirect contributions towards payments for household expenses, preparation of food, purchase of children’s clothing, and organising children for school generally enhance the welfare of the family. That taken together, these contributions amount to a substantial indirect contribution to the family income and assets, which entitles her to an equal share in the couple’s joint property. Justice Kisaakye is correct that the contributions of the respective spouse should be considered in dividing matrimonial property but is wrong in applying the rule discriminatively. If we have spouse A and spouse B, we should assess the contributions of both spouses whether direct or indirect. Let us assume that spouse A has higher financial resources and is primarily responsible for the acquisition of the marital assets and Spouse B is responsible for keeping the home and looking after the children. If court is to ensure justice it should assess the financial contributions of Spouse A to acquiring the assets and the none financial contributions of Spouse B and substract the financial and none financial contributions of Spouse A to Spouse B. If the contributions of Spouse B to Spouse A are worth of recognition also the contributions of Spouse A to Spouse B must be considered. The logic in considering the none financial contributions is that they relieve the financially stronger spouse of certain responsibilities and aid him in acquiring assets. The same logic should apply to the financial and none financial contributions of the financially stronger spouse to the financially weaker spouse.

The Court of Appeal in Ambayo v. Aserua tried to address the fundemental flaw in Dr. Kisaakye’s analysis in Rwabinumi by holding that the spouses contributions to each other must also be considered in dividing matrimonial property. This goes a long way in addressing the discriminatively consideration of the indirect or direct contribution of only one spouse. The financially stronger spouse in most instances makes a higher financial and none financial contribution to the welfare of the financially weaker spouse than the value of the none paid work or support the financially weaker spouse gives the family. In many cases the financial needs and responsibilities of the financially weaker spouse are borne by the financially stronger spouse. Justice Kisaakye says without saying it loudly that the contribution of the financially stronger spouse to the financially weak spouse doesn’t matter and should be ignored. The Court of Appeal says that the contribution of the financially stronger spouse should be considered and be accounted for.

Equity demands that the contributions of both spouses be financial or none financial should be considered. So facially the reasoning of the Court of Appeal should be the correct position of the law of Uganda given constitutional guarantee of equality and protection against discrimination but many misguided commentators and judicial officers refuse to accept that position. One such person is James Tamale who argues that the Court of Appeal was wrong in holding that a spouse’s share in the matrimonial property is dependent on his/her contribution to it, and, that it misapplied the object/rationale for awarding a spouse a share in the marital property. He argues that a share in marital property is awarded to the other spouse 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.

I disagree with Tamale, firstly because spousal support is distinct from a share of the matrimonial property. It’s true that spousal support is meant to prevent the other spouse from becoming a public charge upon divorce. This state interest in ensuring that the stronger spouse continues to support the weaker spouse so that he or she does not become a burden on public welfare may justify forcing the stronger spouse to support a person he or she nolonger wants in his or her Life. However, as noted by Tamale, Uganda does not have welfare programs except for free Healthcare. It is doubtful that this justification is strong enough to override the property rights of the financially stronger spouse but weaknesses in the judiciary have made revolutionary and common sense rulings few and far between. So we reluctantly agree that the state interest can allow payment of spousal support to the weaker spouse to ensure that he or she does not become a burden of public resources. Secondly because spousal support doesn’t distinguish between property acquired during the subsistence of the marriage and that acquired before marriage. Spousal support once payable can be paid using any property belonging to the financially stronger spouse whether acquired during or before the marriage. Thirdly, Tamale is wrong because, during the twentyth century and part of the twenty first century the quantum of spousal support depended on level of fault by each of the spouses but a share in the matrimonial property did not.

Fourthly, a share in matrimonial property is awarded to the spouse on the basis that each spouse has in some way contributed to the acquisition of jointly acquired property. This share is not granted as spousal support or maintenance. The two rights are distinct and matually exclusive to the point that a spouse can be denied spousal support or maintenance but granted a share in matrimonial property. There are situations for example where both couples are both able to maintain themselves but have matrimonial property that has to be divided between them or the circumstances are such that the couple purposefully kept their finances separate. If Tamale’s position were correct in each of these situations whomever has more resources would be obliged to share them with the other in some sort of balancing act.

The solution provided by the Court of Appeal in Ambayo Versus Aserua Civil Appeal No. 100 of 2015 is not satisfactory as well. The court summarized the principles applicable to matrimonial property as follows:

  • 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 to it.
  • Contribution can take either monetary or non-monetary forms or both.
  • The non-monetary contribution usually consists of “unpaid care and domestic work” rendered by a spouse during the marriage like caring for the children, elderly and the sick members of the family, household chores, cultivating food for the family subsistence et cetra.
  • When court is determining the value of the “unpaid care and domestic work” rendered during the marriage it should take into account monetary value principles like the value or cost of similar or substitute services available on the labour or service market.
  • Where one party has, in the course of the marriage, contributed towards upgrading the other spouse in terms of educating her/him, such contributions should be deducted from the beneficiary spouse’s total claim for “unpaid care and domestic work”.

If the court can consider the contribution of the financially stronger spouse to the education of the financially weaker spouse why can’t it consider his or her contribution to his or her welfare, to paying for his or her financial responsibilities and to her or his assets and liabilities. Assume that spouse B helped her spouse to acquire property, educate his siblings, meet the financial needs of his parents and acquire his assets, should her contribution to him be considered in the division of matrimonial property. Should Court limit itself to his contributions in maintaining the home, performing house work and looking after the children. The flaw with the decision of the Court Appeal is that it limited its reasoning to support rendered for education purposes yet there are more consequential contributions one spouse can make to the other than education.

Neither the Marriage Act nor the Common law demand that matrimonial property should be divided equally though equity presumes equal share as a starting point. It has always been the law that an equal share is the starting point for the division of the matrimonial property before considering the respective equities of the parties. The inquiry extends to the respective contributions of each spouse to both the property and each other whether financial or none financial. The Court of Appeal by stating that a spouse is not entitled to an automatic half share is just a change of terminology. The rule has always been that spouse’s share depends on the respective equities between the parties.

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