This new decision, by three judges of Uganda’s Court of Appeal, seems to mark a third phase in efforts to ensure that women are treated equally in society and before the law in that country, particularly at divorce.
During the long first phase, women would routinely come off worst when a couple divorced. Because women so seldom had a good education and opportunities to take up or further a career, they would tend to have a far smaller personal bank balance and to have contributed less cash into the joint estate, than the husband. Thus, on divorce, and on paper it at least, it seemed they had contributed far less overall and should thus be awarded little when the matrimonial property was divided.
In the next phase, some judges have been making divisions that are much more favourable to women. These judges would say that as the mother of a family, or as the home-maker, a woman often did not have the opportunity to earn by working outside the family as the husband usually did. However, their view was that the contribution made by women should be re-valued, particularly the way it allowed the man to work outside the home, secure in the knowledge that his children, along with the home and the meals, were all taken care of. In a number of cases, this has resulted in the marital property being divided equally between the spouses at divorce.
Now, however, there has been a new development – perhaps the start of a third phase.
It can be seen in a judgment delivered mid-November, when three appeal judges reconsidered an award in which the husband and wife had been granted half shares in the marital property at divorce. Not so fast, the appeal judges said. Perhaps that award was too generous. Perhaps we should take other factors into consideration. Perhaps the high court didn’t think this through carefully enough.
After trawling through the evidence once again, and resolving some disputed issues differently from how the high court had done, they concluded that the wife should not have been awarded a half share. In fact, it was fair and equitable that she should be given a 20% share.
How did the court reach this conclusion?
A series of important facts emerged about the early history of the couple. They began living together in 1989 when the husband was about 24 and the wife was 19. She hadn’t yet completed even her formal primary schooling. During the early years of their relationship, they had four children, and later formally married.
The husband, who was working all this time, supported his wife so that she could continue her education, and she thus obtained a number of useful skills including tailoring and design and learning how to drive.
In due course, their family home was acquired, built and furnished and around 2002, the family moved in. Some years later, the couple formally married, but soon afterwards cracks began to appear in their relationship and they headed for the divorce courts.
The big issue that remained unresolved was how to deal with the matrimonial home. Whose was it? In what proportion should it be divided? The high court judge who heard the matter ruled that the couple were entitled to half the value each.
The husband, however, decided to appeal that outcome.
He claimed that he had bought and developed the property single-handedly and that the wife made ‘no contribution to its purchase and development’. She was not doing anything that generated income at the time and was in fact ‘busy schooling’.
The appeal judges said that such a division could not be resolved ‘with scientific precision’, and that it all depended on the circumstances of an individual case.
Here, at the time the house was built, the wife was ‘totally dependent on him’. He paid the school fees of all four children, as well as the utilities, food and medical care for them all. In addition, he paid for the ‘late education’ of the wife, as well as the wages of the two house helpers who cooked, did the laundry and looked after the children while the wife went back to school.
He said that she had done virtually nothing in relation to the construction of the house and that when she came to the site it was ‘as a spectator or for tourist purposes’.
The judges listed the constitutional and other principles that had to be considered in relation to the property rights of spouses at divorce – among others, the right to equality and non-discrimination, affirmative action in favour of groups marginalised on the basis of gender, the rights of women and the values of the people of Uganda.
An appeal court decision from Kenya had made clear that equality between spouses did not ‘give automatic half-share in matrimonial property to a spouse’, regardless of whether it was ‘earned’. Rather, the proportion of the property to which a spouse is entitled is ‘dependent on his or her contribution towards the matrimonial property.’
The Ugandan judges wrote that while they agreed with this approach, spousal contribution to matrimonial property ‘can be direct or indirect, monetary or non-monetary’.
This was a question of ‘fact’ and it was ‘no mean task’ to arrive at a decision.
The difficulty of the task, however, ‘does not justify the wholesale application of the maxim “equality is equity”.’
The appeal judges explained why they disagreed with the high court judge’s interpretation of key evidence. Having dismissed claims by the woman about her involvement in the establishment of the family home, they moved to quantify her ‘non-monetary contribution’ to the project.
True, the non-monetary contribution of spouses was ‘valuable and of great economic significance’ both to the family and the broader economy. This contribution was part of ‘unpaid care and domestic work’ and covered ‘all forms of work not compensated by way of wages which women and men carry out’ daily. It included care for children, the sick and elderly, and doing household chores.
The judges quoted figures from the International Labour Organisation (ILO) on the value of such work and stressed that they took these issues into account when considering the contribution of the wife in this case
The trial court had not considered that the husband had paid all the wife’s fees for her later education. During the time she was continuing her education, she wasn’t contributing to the family good as she was investing her time ‘at school.’
Further, these educational chances increased the wife’s ‘life opportunities’. By investing in her education, the husband was, ‘in a sense, paying her’, and this reduced the size of her claim for unpaid care work, something that the trial judge didn’t sufficiently take into account.
What share of the disputed property should thus be awarded to the wife? Given all the circumstances, the court declared that she was entitled to 20%.
The outcome has already caused considerable comment in Uganda and the wider region: Was it a fairer approach? Would it again unduly penalise women?
But one of the less obvious problems about the division of marital property in Uganda is also well illustrated in this case: The original divorce action was dated 2012, while the decree of divorce was granted in 2014 and this final judgment was delivered at the end of 2022. It is a shocking indictment on the legal systems of many countries that such a fundamental problem as the division of an estate at divorce can take so long to be decided. In all these many years, the couple have had no certainty about how the property would be divided, and the financial insecurity caused by the protracted divorce settlement litigation can only be imagined.
* 'A matter of justice', 22 November 2022, Legalbrief