EN v TN (Matrimonial Appeal Cause 4 of 2012) [2015] MWHC 512 (20 May 2015)

file copy: HC/PR Mat 4/12 | 1 EN v TN ; “OUp : ~ KIB “4 IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MATRIMONIAL APPEAL CAUSE No. 4 OF 2012 [Being Civil Cause No 10 of 2011 PRM, Blantyre Magistrates’ Court] In the matter between: EN APPELLANT -AND- TN RESPONDENT JUDGMENT On 26 July 2011 the Principal Resident Magistrate sitting at Blantyre Magistrates’ Court dissolved the marriage between the petitioner wife, now the appellant in this appeal, and the respondent husband on account of the adultery on the part of the petitioner. The parties to this appeal were married in 1991 in accordance with chinkhoswe customary rites and later their union was formalized through Christian rites. During the subsistence of their marriage the appellant and respondent were blessed with three children. The order for divorce followed after the wife had petitioned the said court seeking divorce from her husband on account that the husband had chased her from the matrimonial home without proper reason. The findings of the lower court show that the twenty years marriage of the couple was terminated on the ground of the wife’s adultery. One incident pointing to adultery is the medical evidence which was tendered in court and accepted as proof of adultery which showed that: “the petitioner fell pregnant whilst she was away from the matrimonial home. Her explanation that the respondent had magically made her appear as if she was pregnant and had aborted cannot be believed as there is no basis for the same. The court therefore finds that the petitioner file copy: HC/PR Mat 4/12 | 2 EN v TN committed adultery during the subsistence of her marriage to the respondent” The facts showed that the wife had committed adultery and the husband found it irreconcilable with a continual marriage relationship. The lower court correctly found that the marriage of the parties had irretrievably broken down as the marriage relationship between the parties had reached a stage of disintegration and there was no reasonable prospect of the restoration of a normal marriage relationship between them. On 8" September 2011 the Magistrate made the following ancillary orders. 1. Custody of all the children was granted to the mother and the father was granted visitation rights. 2. The maintenance of each child was put at K1,500 per month exclusive of school fees. 3. The respondent was ordered to pay the sum of K150,000 to the appellant in lieu of constructing a house for the petitioner at her home village. The payment was to be effected in instalments of K7, 000 per month. 4. All house hold items except one TV screen and one mattress were given to the petitioner. 5. The house in which the respondent was living-in was given to the respondent while the appellant was given one part of the semi-detached house. 6. The respondent was ordered to settle all electricity bills for both buildings because they were connected to one metre. While the parties were unrepresented by counsel in the lower court, the wife decided to appeal against the judgment of the subordinate court and proceeded to instruct the Department of Legal Aid. On 27 April 2012 the appellant was granted leave to file an appeal out of time. The appellant, through Messrs Veritas Chambers, filed a notice of appeal on 25 October 2012 complaining on the part of the judgment that distributes the matrimonial property and makes ancillary orders. The grounds of appeal are as follows: 1. The court below erred in awarding the matrimonial home to the respondent. 2. The court below erred in ordering that money to be used to build a house for the appellant at her village be paid in monthly installments. 3. The court below erred in ordering that each child be maintained by the respondent with K1,500.00. ' A page 3 of the judgment. file copy: HC/PR Mat 4/12 EN v TN The appellant prays to this court that it makes an order reversing the decision of the magistrates’ court below with regards to the orders for maintenance and distribution of property. In March 2015 the appellant, through the Malawi Human Rights Commission, filed an affidavit in support of the appeal case which was sworn by the appellant which sets out the facts in this matrimonial matter. It is deposed from paragraphs 6 to 10 as follows: 1. ‘THAT the basis of the distribution of matrimonial property by the learned Magistrate was attributed to the fact that I was not working and therefore entitled to a lesser share of the property upon dissolution of the marriage between the respondent and myself. THAT in spite of my non-financial contribution to the acquisition of property and construction of houses, I supported the respondent by doing household chores, looking after the children, caring for his health and welfare as well as caring for the household property for twenty years of my marriage with the respondent. _ THAT since the order was made, the respondent has been uncooperative in providing timely support and has refused to pay school fees for the children in Blantyre; arguing instead that they must attend school in the village though this was never the case during the duration of the marriage between myself and the respondent. THAT the amounts ordered towards maintaining the children and construction of a matrimonial home are insufficient and cannot ably sustain the children’s well-being and construct a house respectively. THAT I am now appealing the decision of the lower court with regard to the amount illustrated in the maintenance order, distribution of the matrimonial property and the payment towards construction of the customary house’. The appellant filed skeleton argument raising issues under the following heads of arguments: 3 file copy: HC/PR Mat 4/12 | 4 EN v TN Whether the lower court erred in awarding a greater share of the matrimonial property to the respondent on the sole basis that the appellant's contribution was non-financial The appellant submits that in terms of s 17 of the Married Women’s Property Act of 1882, courts in Malawi appear to have some discretion in determining fair distribution of property upon dissolution of marriage. The term of essence in this provision is ‘fair.’ For distribution of property to be fair upon dissolution, courts must to take into account s 24 of the Constitution of the Republic of Malawi which states that women have the right to equality before the law and non- discrimination, including the right to fair distribution of jointly held property upon dissolution of marriage: Mkulichi v Mkulichi? The appellant states that her arguments are cognizant of the fact that “Jointly held property” has sometimes been held by Malawian courts as to exclude non- monetary contributions to marital property. It is argued by the counsel for the appellant that some courts interpret s 17 of the Married Women’s Property Act ina way that property is only held “jointly” if a direct, financial contribution has been made to its acquisition: Nyangulu v Nyangulu’ and Malenga v Malenga.* The appellant submits that the interpretation of the law in such a way has resulted in women being frequently deprived of their right to property at the time of divorce. The appellant refers to the Concluding Observations to Malawi that were made by the Committee on the Elimination of all forms of Discrimination against Women which expressed concern that, ‘the interpretation of the divorce law by the High Court, where a woman’s non-financial contribution is not taken into account, results in inequality in property distribution during divorce.’ The appellant points out that the said Committee urged Malawi to ‘take measures to ensure that the distribution of property during divorce provides for equality and equity for both parties, as provided for in article 16 of the Convention.”° The counsel for the appellant refers to the jurisprudence that is developing in Malawi which is towards ensuring that women have fair distribution of property upon dissolution of their marriage. The appellant mentions one of the emerging principles as an attempt by the courts to establish the clear intention of the spouses during the acquisition of the property. In the case of Magombo v Magombo’ the > HC/PR Civil Cause no. 1062 of 2007 (2009). 310 Malawi Law Reports 435. thy * Matrimonial Cause no 14 of 2001. > Concluding observations of the Committee on the Elimination of Discrimination against Women, Malawi, Forty- fifth session, 18 January -5 February 2010,CEDA W/C/MW1/CO/6, Paragraph 42. ° Ibid Paragraph 43. 7 HC/PR Civil Appeal No. 23 of 2002 (24 September 2002). file copy: HC/PR Mat 4/12 | 5 EN v TN court concluded that the intention of the parties was to acquire all the property in question jointly. Similarly, the High Court in the case of Mwalwanda v Mwalwanda’ ruled that in matters of property rights in matrimonial matters, one must always examine the intention of the parties in acquiring the property in question. That is, ascertain whether the parties intended to own the property jointly or separately? In Mkulichi v Mkulichi’ the High Court stated that the ultimate guiding law in so far as distribution of marital property is concerned is the Constitution under s24(1)(b)(i) which: “ confers upon every woman the right to a fair disposition of property held jointly with a husband in the event of a divorce. It is important to bear in mind that from the reading of s 24(1)(b)(i) of the Constitution; the property to which a wife is entitled to fair distribution upon divorce is that which she jointly owned with a husband. The provision does envisage a situation in which a husband or wife would own property solely and such property would not be the subject of distribution between the parties in the sad event of a divorce. The court therefore would have to ascertain which property was jointly owned by the parties before subjecting it to distribution.” It is the view of the appellant that a strict interpretation of the law which results in only recognizing financial contribution to the acquisition of property is largely disadvantageous to women since most of their contribution in the household is not monetary but nevertheless significant e.g. non-financial contributions such as household chores, child rearing and looking after property acquired. In Kayira v Kayira'® the High Court stated that when it come to the distribution of matrimonial property on the dissolution of a marriage, the starting point is s 24(1)(b) of the Constitution. The court was against reading the words in paragraph (1) strictly such that the property to be distributed should only be that is jointly held as that would unjustly disadvantage either of the parties to the marriage. In accordance with the legal reasoning in regard to statutory interpretation in the case of Nseula v Attorney General & Malawi Congress Party'"' the court in Kayira v Kayira was of the considered opinion ‘that the Constitution should be interpreted in a generous and broad fashion as opposed to a strict, legalistic and pedantic one. A manner that 8 HC/Lilongwe District Registry Civil Appeal No.7 of 2005 (20 November 2006). ° HC/PR Civil Cause no 1062 of 2007 (21 July 2009). ‘0 HC/Mzuzu District Registry Civil Cause Number 44 of 2008 (1 August 2008). '1 11999] MLR 313 (SCA). file copy: HC/PR Mat 4/12 | 6 EN v TN gives force and life to the words used by the legislature and avoids at all times interpretations that produce absurd consequences.’ The appellant notes that the High Court maintained a similar position in the cases of Zolo v Kumwenda" and Shaba v Chizunga."* In Shaba v Chizunga\* the court observed that: ‘Many times, men tend to have a novel view of the amount of contribution a housewife makes to overall properties a family holds. Many wrongly believe that the mere fact that the woman was not working puts her in a weak position when it comes to sharing property. Her contributions can easily be quantified as cooking, washing, cleaning the house, looking after the husband and children all of which she does not get paid for. The same applies to a jobless man vis-a-vis a working wife mutatis mutandis. ’ The appellant contends that the magistrate erred in the present case by holding that . HES ‘evidence is to the effect that the respondent has been working and that he has been contributing financially towards the construction of the houses whilst the petitioner was a house wife. Her contribution was non-monetary. It therefore follows that we cannot share the houses equally; the man has to take a greater share than the woman.’ It is the view of the appellant that this finding does not promote the spirit of the Constitution which is founded upon equality, non-discrimination and fair disposition of property. According to the appellant, she was awarded a lesser share of property despite her non financial support, when she was given only one part of a semi-detached house where she and her children have to reside whilst the respondent was awarded the main house in which he previously resided with the appellant and the other part of the semi-detached house. Whether the order of child maintenance was appropriately arrived at The appellant has drawn guidance from s 10 of the Child Care, Protection and Justice Act, which requires a court to consider, amongst other factors, the wealth of the person legally liable to maintain the child, the cost of living in the area where the child resides and the rights of the child under the Act. The appellant rely on s23(4) of the Constitution which provides that all children shall be entitled to '2 4C/Mzuzu District Registry, Civil appeal Number 21 of 2008 (20 November 2008). '3 HC/Mzuzu District Registry, Civil cause no. 96 of 2008 (13 November 2008). 14 HC/Mzuzu District Registry, Civil cause no. 96 of 2008. file copy: HC/PR Mat 4/12 | 7 EN v TN reasonable maintenance from their parents-whether married, unmarried or divorced. The appellant submits that the best interests and welfare of children must always be a primary consideration in all decisions affecting them: s 23(1) of the Constitution. Further, s 24(1)(b)(ii) of the Constitution provides that women are entitled to a fair maintenance taking into consideration all the circumstances and in particular, the means of the former husband and the needs of any children. The appellant argue that the order of child maintenance was not appropriately arrived at by the magistrate as he did not provide any basis for arriving at the amount K1,500.00 per month as maintenance for each child. The appellant use the cost of living in Blantyre and the alleged fact that the respondent is a business man whose earnings allegedly can reasonably meet the maintenance of the concerned children as a benchmark for asserting for uplifting of the sum for maintenance. Whether the order of payment towards construction of a customary house was appropriate The magistrate ordered that the respondent pay a sum of K150,000 in lieu of constructing a house for the petitioner at her home village and that this amount had to be paid in monthly installments of K7,000. The appellant is concerned that the lower court disregarded the invoices presented by the appellant that allegedly reflected the cost of building a house in the village. The appellant contends that the subordinate court did not provide any basis for arriving at the figure of K150,000 which amount is not a true reflection of the cost of constructing a house in the village as the actual cost would allegedly inevitably be much higher. The appellant is also unhappy with the manner in which the money was ordered to be provided through monthly installments of K7,000 which makes it difficult for the appellant to construct a house. It is contended that the learned Magistrate erred in his order of payment towards the construction of a customary house. The appellant prefers the case of Rashid v Rashid'® where court ordered that the respondent fulfill his obligation in building a house for the plaintiff within nine months from the day of the order. The appellant contends that Rashid v Rashid'® provides a better approach in ensuring that the respondent fulfils his obligation within a specific timeframe. '5 Civil Cause No. 96 of 2013. 16 Civil Cause No. 96 of 2013. file copy: HC/PR Mat 4/12 | 8 EN v TN Disposal of the matter Malawi has an obligation under the Constitution and international law, which among other instruments includes article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women, to ensure the upholding of women’s rights to equality and non discrimination at the dissolution of marriage. As argued by counsel for the appellant the law has to be developed progressively so that it results in improved understanding and protection of the rights of spouses on dissolution of marriage in order to achieve gender justice. What is reflected in the old statutes, such as the Married Women’s Property Act, which the appellant has referred to, and the strict interpretation of ‘property held jointly’ in the cases of Malinki v Malinki'’ and Nyagulu v Nyagulu’® are definitely outdated as the case law has developed to address contemporary situations. In addition, — the introduction of the democratic Constitution in the 1990s has given rise to a Bill of Rights which provides better protection of rights. The Malawian Constitution and customary law both recognize that property acquired in marriage is subject to fair and just distribution on dissolution of marriage: Kamphoni v Kamphoni.'”” The above-mentioned principle has been incorporated in the recently enacted Marriage, Divorce and Family Relations Act”’ which has repealed several family related laws in order to ensure that this country has one law that applies to different types of marriage that exist in the country and are recognised under s 22 of the Constitution. The case of Kayambo v Kayambo”' lays down a practical guide on how courts should approach the question of apportionment of matrimonial property. The rule of the thumb is to discern from the facts what the intention of the parties were by drawing inferences from the party’s conduct at the time of the matrimonial assets due for distribution were being acquired. In some instances, there may be an agreement express or implied that a spouse should have a share of the property should the marriage come to an end. The case of Kayambo v Kayambo” suggests that where the extent of the contributions by each spouse is certain then each spouse should get a share according to their ascertainable contribution. While in situations where the contributions by the spouses cannot be ascertained then the court will have to apply the maxim ‘equality is equity’ and each spouse will have to get 50 per cent of the matrimonial property. '711978-80] 9 ALR (Mal) 441 HC. '8 1981-83] 10 MLR 433. '° LHC/PR Matrimonial cause no. 7 of 2012 (26 August 2014) . 20 Bill 5 of 2015 (passed 25 February 2015, assented 10 April 2015). 21 (1987) 8 MLR 416 & [1987-89] 12 MLR 408 SCA. 22 (1987) 8 MLR 416 & [1987-89] 12 MLR 408 SCA. file copy: HC/PR Mat 4/12 EN v TN The financial contribution of the spouse to the acquisition of the matrimonial property is not ‘the reigning principle’” as has been correctly argued by the counsel for the appellant. The approach of centring distribution of marital property on income derived from formal economic activities privileges men, who usually can easily access formal employment and undervalues unpaid work, which is usually performed by women. The subordinate court erred in applying the one principle of ‘financial contribution’ to determine the respective share of the parties in distributing marital property: Ulaya (nee Nkhana) v Ulaya.”* Under sections 24(1)(b)(i) and 24(1)(b)(ii) of the Constitution a woman has a right to fair maintenance and just distribution of property on dissolution of a marriage which depends on the available evidence and the circumstances obtaining in each case: Mkulichi v Mkulichi’ and Kayira v Kayira.”° The case authorities delivered following the democratic Constitution reveal that courts are now shifting towards gender justice by recognizing all forms of contributions in determining joint ownership of marital property: Sinalo v Sinapyanga and others,’ Ulaya (nee Nkhana) v Ulaya,* Namatika v Namatika,? Munthali v Mitawa®’ and Magombo v Magombo.*' What is worth noting is that ‘the phrase ‘fair disposition of property’ has introduced considerations of equity into issues of property distribution upon divorce.’*” Although the Marriage, Divorce and Family Relations Act cannot apply retrospectively to the present matrimonial case, it should be mentioned that the new statute has legislated some of the factors that have guided courts in property distribution upon divorce. These include among others: the income of each spouse; the assets of each spouse; the financial needs of each spouse; the obligations of each spouse; the standard of living of the family during the marriage; the age and health of each spouse and the direct and indirect contributions made by either spouse. 23 Kamphoni v Kamphoni HC/PR Matrimonial ‘cause no. 7 of 2012 (26 August 2014) at 11. 4 19000-2001] MLR 409 (HC). 25 Civil Cause no 1062 of 2007 decided in 2009. © Civil Cause Number 44 of 2008. 2711997] 1 MLR 261 (HC). 8 12000-2001] MLR 409 (HC). ?° 11999] MLR 287 (HC). 30 Civil Cause no. 1854 of 2001. 31 HC/PR Civil Appeal No. 23 of 2002 (24 September 2002). 32 DM Chirwa Human Rights under the Malawian Constitution (2011) 243. 9 file copy: HC/PR Mat 4/12 | 10 EN v TN The findings of this court on the specific three grounds of appeal are discussed below and are as follows: 1. Whether the court below erred in awarding the matrimonial home to the respondent. The parties did not adduce evidence before the lower court in regard to the value of the real property that they held and what each party had contributed towards its acquisition. The record of hearing shows that the court visited their household in Chiswe area where the couple were living during their marriage and after assessing their premises made a general observation that the respondent should be allocated a greater share by taking the main house in which he was living and one of the semi detached houses. Generally, unfair distribution of property is considered a form of gender based discrimination because the practice disproportionately affects women and negatively impacts on their realisation to the right to property. Although this court appreciates some of the points raised by the appellant in regard to the principle to be applied in distributing matrimonial property, the appellant has failed to advance an eloquent argument in terms why the magistrate court erred in awarding the matrimonial home, which the lower court refers to as the main house, to the respondent. Is it a principle of general application? Is it because the main house was of higher value, then it should have gone to the housewife? Or is because she was awarded custody of the children? Could it be because the appellant was awarded insufficient money to build a customary house? May be, is it because the appellant was a housewife who made non-monetary contribution to the household and who has been divorced by her husband? Besides the above issues, counsel for the appellant should also not lose sight of the fact that the parties were divorced on the ground of the appellant’s adultery. The lower court had an opportunity to hear the parties and examine the whole of the history of the relationship of the parties and of their behavior at relevant times. The behaviour of the spouses is a critical factor to consider when determining ancillary orders upon divorce, which counsel for the appellant does not consider at all in their submissions. . The case of Sichone v Sichone® confirms the chikamwini customary marriage requirement that a husband must build a house for his wife even after they separate or divorce. In the present matrimonial matter it is noted that the magistrates’ court made a provision for the respondent to build a house for the appellant at her village. The appellant informed the lower court that she wanted money in lieu of constructing the house at her village. Although this issue will be discussed further below, in this matrimonial matter the appellant has not come out clearly in her *> 12009] MLR 200. file copy: HC/PR Mat 4/12 | 11 EN v TN arguments as to why she would want the main house when the husband was ordered to facilitate the construction of a house at her village as well as being given one of the semi-detached houses. Which in principle apportioned the parties with two houses each. A discussion by the appellant of the objective of the customary law obligation of constructing a house for the wife in the context of the distribution of the matrimonial property in this matter might have been helpful. It is vitally important that the distribution of matrimonial property should be viewed as a whole and not in isolation as it would give rise to absurd and unreasonable distribution of matrimonial property. Having re-assessed the whole of the evidence that was before the lower court, as well as, considered the totality of the circumstances obtaining in this matrimonial matter this court is of the considered opinion that it will be fair and just that the order of the lower court on matrimonial property be varied to the extent that the entire semi-detached housing block be awarded to the appellant. This ground of appeal partly succeeds as theoretically, the respondent husband retains the main house, that is one building, while the appellant wife gets the semi-detached housing block and a house at the village (thus three buildings). A discussion of this matter will be continued below where it will be shown that practically the house at the village is yet to be constructed. 2. Whether the court below erred in ordering that money to be used to build a customary house for the appellant at her village be paid in monthly installments. The evidence on the record of hearing shows that the appellant presented to the magistrate court a quotation for the sum of K771,663 being the cost of building a three bedroom house at her village. The appellant argues that the magistrate court was wrong to order that the sum of K150,000 which was awarded in lieu of constructing a house be paid in instalments of K7,000 per month. In addition, she also argues that the sum is insufficient to build a house. The principles applicable in matters of this nature are similar to those that are applied in claims for maintenance which are discussed below. The courts cannot develop a uniform sum to be awarded for construction of a house for a wife or particularise the specifications of a house to be constructed in instances such as these, as the cost of the house will largely depend on the financial capacity of the husband who has to facilitate the construction of the house. The unchallenged evidence in this matter is to the effect that a means test of the respondent revealed that he was a man of insufficient means with an income of K17,000 per month. In this matrimonial matter, the facts are not disputed that the respondent husband was of very low financial means which fact must also have influenced the subordinate court to file copy: HC/PR Mat 4/12 | 12 EN v TN order the payment of the financial sums by instalments. There is no evidence to the support the appellant’s allegation, which appear in the submissions filed in support of the appeal, that the respondent husband was a businessman and had sufficient means which would have enabled him to construct a house valued at K771,663 for his ex wife as well as support his children with a higher monthly payment of maintenance. It should be noted that it is procedurally irregular for the appellant to attempt to introduce new facts in this matrimonial through the submissions that were filed in support of the appeal case the proper procedure for doing so is clearly explained in the case of Mwalwanda v Mwalwanda.** Further, even if a lump sum had been ordered to paid by the respondent to the appellant, the counsel for the appellant ought to know and should have advised his client that the law allows debtors to settle judgment debts by instalments. Since the magistrate was aware of the insufficient means of the respondent he was proactive and went a step further to order the payment of the sum of K150,000 by instalments, possibly to prevent impoverishing the respondent. An analysis of the orders made by the lower court reveal that the minimum monthly payments that the respondent was ordered to make to the appellant amounted to K11,500, leaving the respondent with K5,500. Under such dire financial circumstances for the court to have ordered immediate payment of the sum would not only have been economically sound but the order would also have been extremely difficult to enforce. Which might have led to pecuniary embarrassment on the part of the respondent. Despite these sentiments the appellant has always been at liberty to challenge the order to make payments by instalments by adducing relevant evidence following the procedurally correct manner to show that the respondent has sufficient means to settle the debt either immediately or in one or fewer instalments. This court notes that if the respondent had complied with the time frame for payment under this ancillary order he would have liquidated the debt by the year 2013. The payment being long overdue this court exercises its discretion and orders that the respondent clears the outstanding debt within 30 days from the date of service of this order on him. 3. Whether the court below erred in ordering that each child be maintained by the respondent with the sum of K1,500.00. Where minor children are involved sufficient facts must be alleged and proved to enable the court to satisfy itself as to the adequate sufficient provision for maintenance. The appellant informed the lower court that she was wanted the sum of K20,000 as maintenance of the children. The respondent objected to the figure *4 12009] MLR 111. file copy: HC/PR Mat 4/12 | 13 EN v TN mentioned by the appellant arguing that his salary was K17,000 and he produced a pay slip to prove that assertion. Although the respondent offered to pay a maintenance sum of K2,500 the court exercised its judicial discretion and ordered a maintenance sum of K4,500 for the three children, which figure excluded school fees, implying that from his proven income of K17,000 he would be left with K12,500. The appellant is not satisfied with the order for maintenance and contends that the magistrate does not provide any basis for arriving at the amount for child maintenance. The appellant in her submissions has referred to the applicable law and principles on this issue, such as, sections 23 and 24 (1)(b)(i1) of the Constitution and section 10 of the Child Care, Protection and Justice Act, which stipulate some of the factors that a court must consider, such as the wealth of the person legally liable to maintain the child, the cost of living in the area where the child resides and the rights of the child under the Act. Indeed the best interests of the a child remains the major guiding principle in disputes involving maintenance of children. The case law also provides some guidelines on how to approach and assess claims for maintenance. The case of Polenakis v Polenakis and another’’ discusses some of the factors to be considered when a court is making provision for maintenance so that the court ‘ensure[s] that the result of the order is not to depress the husband below subsistence level.’*° This implies that a court shall take into account the financial resources of the spouse from whom the maintenance is being claimed by examining the means of the respondent: Phiri v Phiri ES The appellant in her submissions considers the cost of living in Blantyre and states that ‘in consideration of the fact that the respondent is a business man whose earnings can ably exceed this level of contribution, it is contended that the amount cannot reasonably meet the maintenance of the concerned children’. The challenge with this submission is that it is an allegation that is not supported by the available evidence in this matter. The appellant has not even brought fresh evidence to justify that the means of the respondent, which were admitted in the lower court, were erroneous and what are the correct means of the respondent. Generally, in monetary terms and with regard to the cost of living in a peri- urban area the sum ordered for child maintenance may seem inadequate, but the law is very clear that orders for maintenance depend on the financial means of the party from whom maintenance is being sought. Courts are under an obligation to balance the rights of spouses while appreciating the disadvantageous position that some women hold in marriages and after its dissolution. The appellant did not 3 11990] 13 MLR 356 (HC). > T1990] 13 MLR 356 (HC) at 359. 3712009] MLR 39 at 43. file copy: HC/PR Mat 4/12 | 14 EN v TN challenge the respondent on his evidence with regard to his income in the lower court and she has not adduced any evidence on the means of the respondent on appeal. Since appeals in this court are by way of rehearing, evidence on appeal would have allowed the court to safeguard the duty to support in order to protect women’s and children’s rights: Mwalwanda v Mwalwanda.** Considering the absence of fresh evidence on means of the husband, noting the respondent’s proven low level of income and the other financial orders that the respondent is required to satisfy, this court is reluctant to interfere with the order of the lower court on this issue. The provisions for support which the lower court made with regard to the minor children are satisfactory or are the best that can be effected in the circumstances. However, either party is at liberty to apply to the magistrates’ court for the variation of the orders for maintenance and custody, especially if they are able to show a change in the financial means of the respondent. Concluding remarks The Malawian Constitution and international law both recognize that property acquired during marriage is subject to fair and just distribution on dissolution of marriage. Under sections 24(1)(b)(i) and 24(1)(b)(ii) of the Constitution a woman has a right to fair maintenance on dissolution of a marriage which depends on the available evidence and the circumstances obtaining in each case. Although this matter is dealing with a customary marriage and the case of Phiri v Phiri”? observes that the rules of procedure may be slightly relaxed the appellant still has the onus to present before the court all the available evidence in support of her claims. This court generally agrees with the arguments of the appellant that recognizing the financial contribution to the acquisition of property during marriage is largely disadvantageous to some women since most of their contribution in the household is not in monetary terms. To maintain what the legislature intended before the democratic Constitution with regard to distribution of marital property would lead to a complete deviation from the attaining the progressive objects of the Bill of Rights. The findings in this appeal case indicate that there were some weakness in prosecuting the appellant’s case both in the subordinate court and on appeal, as relevant evidence that might have supported the well prepared submissions of the appellant was not made available to the court. 38 [2009] MLR 111. ° 12009] MLR 39 at 43. file copy: HC/PR Mat 4/12 | 15 EN v TN By way of advice and in order for human rights defenders to make their litigation work meaningful and achieve the desired results, it may be strategically helpful to handle a case through the entire court process. That is, the legal representation should begin in the lower court, where human rights defenders can effectively assist clients by ensuring that relevant evidence is admitted then pursuing the matter up to appeal level, rather than merely focusing on prepare submissions in support of an appeal case. Delivered and dated this 20" day of May 2015 at Chichiri, Blantyre. WL Ly). Dorothy nyaKaunda Kamanga JUDGE Case information Date of hearing 10 March 2015 Date of judgment 20 May 2015 Mr. Mzati Mbeko _ ) holding brief for counsel for the Appellant, Mr. Sibande Ms. M. Msukwa __) of the Malawi Human Rights Commission. Respondent Absent / unrepresented. Mrs. F. Munthali Personal Secretary. Mr. A. Ng’ambi Court Clerk.