Looking After Children Is Contribution In Kind – Court
By Dickson Jere
A couple was married for over ten years and have three children. They later divorced and the former wife took all the children who were minors. The ex-husband remained in the matrimonial home in Lusaka and eventually remarried and his new spouse moved in.
The ex-wife applied to Court for property settlement as well as child maintenance. She contended that the house was built jointly with her ex-husband and that she also contributed financially and in kind. However, she could not pinpoint exactly how much she contributed to the building but insisted it was build by the two of them who were both businesspeople.
Having heard the application, the Court noted that marriage does not automatically qualify one to get the 50/50 sharing after divorce. However, the Court will look at each case on its own merits and determine how the property will be distributed in the absence of financial evidence.
“One key principle that has evolved in our jurisprudence is that matrimonial property is not automatically divided 50/50. Instead, the division depends on the parties’ respective contributions and needs,” the Court noted.
However, the Court noted that in determining cases of this nature, the Court should also look at “fairness and consistence” in light of the facts of each case while noting that both were in business and therefore no financial income (payslips) were tendered in Court.
“Thus, a spouse who has substantially contributed directly by earning income or indirectly by home making and caring for the family, is entitled to a commensurate share of the matrimonial assets,” the Court explained.
“Conversely, a spouse who made little to no contribution may not be entitled to an equal share,” the Court said.
The Court stated that the wife contributed more than just financial assistance in the building of the house and the evidence was not challenged in Court.
“Additionally, the Applicant’s role in the marriage was not limited to direct financial input; as a wife and mother for the duration of the marriage (over a decade), raising three children and managing the household, her non-financial contributions (in form of domestic work and child bearing) are substantial and carry weight in equity,” the Court ruled.
Consequently, the Court ruled that the house be shared on the 50/50 basis but provided an option to the husband to keep the house on condition that he pays her the 50% within sixty days. If he fails, the house should be sold and the proceeds shared.
“Value to be determined by independent valuator jointly appointed,” the Court ruled, adding that the ex-husband should also provide monthly support to the three Children.
Case citation – Chama v Masinge – 2022/HPT/D279.
Lecture Notes;
1. This case underscores the legal principle that the Court may use different methods in determining contribution to matrimonial property when there is no clear evidence from both parties. In this case, the Court reverted to the 50/50 principle in the absence of clear evidence from both sides.
2. In this case, the Court took into account that a wife who bears and looks after the children, house and generally home keeping can use that also as contribution to the building of the house. It is contribution in kind.