• Mon. Dec 4th, 2023

Marriage Doesn’t Guarantee 50 Percent Share of Property When You Separate

UGANDA, Kampala | Real Muloodi News | A recent decision by the Court of Appeal in Kampala has revised spouses’ rights to marital property in Uganda, ruling that it is not automatic for a spouse to take 50 percent of property unless there is evidence to show he or she worked for it.

Three Justices of the Court of Appeal, comprising Elizabeth Musoke, Muzamiru Kibeedi, and Christopher Gashirabake, rendered their decision on November 15, which has significant ramifications for the rights of married people to marital property in the event of divorce.

The declaration was the result of a 2014 lawsuit in which the High Court ordered Joseph Ambayo Waigo to grant his ex-wife Jackline Aserua 50 percent of the property they jointly owned.

Mr Ambayo and Ms Aserua had first cohabited for 16 years before they solemnised their marriage in 2005 at Our Lady of Africa Church, Mbuya, Kampala.

After the couple’s marriage ended in divorce in 2012, Justice Catherine Bamugemereire, who presided over the case, ruled that even though the house was in Mr Ambayo’s name, the property belonged to the couple jointly in equal shares.

Mr Ambayo, however, filed an appeal against the ruling, insisting his former wife had only a 20 percent stake in the house.

After reviewing the arithmetic of how the couple pooled money to buy the land before building the house, the Court of Appeal agreed with Mr Ambayo.

According to the judges, a spouse does not automatically receive a 50 percent portion of the marital estate; rather, the share is based on the spouse’s contribution to it.

“The spousal contribution to the matrimonial property can be direct or indirect; monetary or non-monetary provided it enables the other spouse to either acquire or develop the property in question. There is no doubt that the non-monetary contribution of spouses is valuable and of great economic significance at the family and national or macro level. 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,” the justices ruled.

The court further held that any education-related upgrades made by one spouse to the other throughout the marriage could be taken into account when calculating the beneficiary spouse’s overall claim for “unpaid care and domestic work.”

The judges added, “whereas it is common in marriages for spouses to render “unpaid care and domestic work”, it is also not uncommon for the spouse who has been the beneficiary or recipient of the “unpaid care and domestic work” to reciprocate or otherwise reward the other in monetary and/or non-monetary terms as they go along their marriage journey.”

They ruled that “in the matter before this court, the appellant enabled the respondent to acquire formal education up to the Diploma level from an unknown level which was below primary seven level. The cost of this venture can be evaluated in terms of the school fees and other money spent by the appellant towards tuition and other scholastic requirements of the respondent. This cost is usually easy to quantify. But the cost or value of the education venture can also be evaluated in terms of what the respondent was disabled from contributing towards the family good as she spent (or invested) her time, presence, and resources at school. This is what economists term as being the “opportunity cost” of the education venture.”

In this instance, the Court of Appeal’s three justices therefore decided that Ms Aserua deserved 20 percent and not 50 percent as Justice Bamugemereire had ruled.

Mr Ambayo will pay 20% of the total amount valued six months from now, according to a court order that also instructed the Chief Government Valuer to determine the worth of all the property possessed by the couple before the separation within three months of the order.


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