Kulinji v Mlabowa (Matrimonial Cause 29 of 2023) [2025] MWHCFam 2 (11 March 2025)

ne] ‘her se €29/2) Mwate, FA. IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY FAMILY AND PROBATE DIVISION MATRIMONIAL CAUSE NUMBER 29 OF 2023 BETWEEN: ROBERT RULINGD ccvccscscctcvssescsscccscvscscatecccscevaversctcvsavecenstovecases PETITIONER EVY MLABOWA. isserccecesvivetssccccsesesceveavasssssdecasssaaedeardasevavaaetress. RESPONDENT Mwale J., JUDGMENT ON DISTRIBUTION OF MATRIMONIAL PROPERTY CORAM : THE HONOURABLE JUSTICE F. A. MWALE Gondwe/Dundwayo, counsels for the Petitioner Mbizi, counselfor the Respondent Kanyama, Official Reporter Sikelo, Court Clerk. Introduction |. The petitioner and respondent’s marriage were dissolved by this Court by order of Decree Absolute dated 1 July 2024. The respondent never sought custody and custody of the three issue to the dissolved marriage was therefore granted to the petitioner. ‘They now further entreat the Court for distribution of matrimonial property, 2. ‘The petitioner has been a career soldier for 17 years and was married to the respondent for 16 years. During the marriage, he was variously deployed on peacekeeping missions to Ivory Coast and the Democratic Republic of Congo (DRC), during which time the Kulinji + Miabowa Mat. Cause #29723 Mwale, F. A. J respondent was responsible for the children. The respondent was a homemaker, she has never been painfully employed during the subsistence of the marriage. She has only undertaken small scale businesses financed solely by the petitioner which no longer exist. She primarily took care of the three issue of the dissolved marriage and managed the household during the petitioner's absence. 3. The parties dispute the holding of specified property acquired during the marriage, which the petitioner contends was not intended to be matrimonial property. The contested properties include a house and shop in Zomba and a farming business which were acquired during the marriage. While the parties also had household properties, there is no substantial contest as to its distribution. 4. In view of the differences between the parties as to the holding of the property in dispute, the petitioner has proposed that a fair distribution of the property per the principles of distribution of matrimonial property which shall be discussed below, would follow what has been proposed in the below table; ITEMS QUANTITY AND/OR PARTY Sofa Set (4 Piece) Petitioner Glass Coffee Table Respondent Wooden Coffee Table Petitioner Metal And Wooden TV Stand Petitioner Sony Radio (4 Piece) Respondent Wall Clock Respondent Samsung Smart Tv Petitioner Old Tv Respondent DSTV Decoders 1 for each party Kiliyckiliye Decoder Respondent Wooden Stools 2 for each party Free To Air Decoder (Strong) Petitioner Wooden Double Bed | for each party Double Mattresses | for each party Carpet Respondent bd Kulinji vy Miabowa Mat, Cause #29/23 Mwale, PLA. J. Crates fullofboutles SSS 8 for each party . | Cooker With 4 Plates Petitioner ' Display Cabinet Respondent \ Wooden Shoe Stands 1 for each party | Blue Plastic Chairs 4 for the Petitioner, 3 for the Respondent Hot Plate Respondent | Upright Fridge Petitioner | Kitchen Utensils Half for each party 4 Axe Petitioner | Hoe Respondent Madza Demio 70 % Petitioner, 30% Respondent The respondent opposes this distribution and argues instead that a fair distribution would demand that she be allocated the following properties: ° 2 sofa chairs ® Ali kitchen utensils e Fridge ° 1 shoe stand ® TV stand ® Hot plate ° Iron ° Plasma ° 4 plastic chairs ® 1 wooden table with 6 stools ° 1 double bed ° 1 double mattress * 9 crates of empty bottles ® | bicycle . | Kiliye kiliye decoder ° Display > Carpet ® House in Zomba Mwale, F. A. J Kidiny v Misbows Mon. C wiase #2973 * | teouse dor ° Crenorator Alternatively, fairness demands that both parties receive $096 of the house, shop, motor vehicle, and itemized houschold properties 2 ~e includi imself 6, Both parties led evidence in Court, the petitioner called three witnesses, including himself and the respondent was her own sole witness. Petitioner's Evidence 7. Testimony of Robert Kulinji (PW1)- the petitioner as his first witness testified that was a soldier with the Malawi Defence Force and that the respondent was for the most part of their marriage a homemaker who had only run a tomato selling business around 2018 and second-hand clothes selling business in 2019. Both these businesses are now no longer viable. The petitioner was therefore the only breadwinner who provided for all financial needs while the respondent performed domestic duties. As far as he was concerned, the only properties he listed as matrimonial property were household items that he acquired for use by the family. With regard to the disputed properties, these were his views: The 3 Bedroomed House in Zomba During the course of the marriage, the petitioner was involved in several peacekeeping missions in the Democratic Republic of Congo and he received an allowance around MK9 million through his National Bank Account, evidence of which was exhibited. [t was his testimony that he informed the respondent that he wanted to find another source of income so that he could pay for the children to go to private schools. He therefore identified and purchased a house for MK7,000,000 and exhibited a sale agreement to that effect. The house was used to run a hostel for university students for the benefit of the children. He conceded in cross-examination that there was no trust deed executed over the property nor was there a title deed for it. The petitioner exhibited evidence of school fees payments as proof of the use of funds he acquired from the house for the children’s school fees. He supplements the fees required with proceeds from his salary. He therefore believes that the house cannot be Keddinn » Mishowg Mat. Cause €7672 Mwale, F. AWJ Demio around 2021. The proceeds came ftom the farming business that was financed by the sale of the Toyota Corolla. It was his testimony in cross-examination that. The respondent did not help with the farming business until after harvest and her help was limited to processing. She supervised the casual labourers who did the actual processing, but not on a daily basis Respondent's Evidence 14. 15, 16. 17. 18. The respondent (RW1) as her sole witness. It was her evidence in chief that although the petitioner was granted physical custody over the children, he is yet to take possession of them and they are therefore still in her custody. She did not give any evidence as to why she did not apply for custody considering that the youngest child is eight years old. It was further her evidence that she got pregnant with the first issue whilst at secondary schoo! and proceeded to become a full time mother and homemaker, she thus never had an opportunity to complete her education. She therefore became financially dependent on the petitioner who subsequently joined the Malawi Defence Force. Although he benefitted from the marriage through a marriage allowance, he never accounted for it. She further denied that the petitioner financed her second-hand clothes business. She had at the time acquired a MK30,000 loan from a savings group to finance it. Her contributions were in kind. She worked alongside farm workers, managing the farm operations for a full day each day and yet never received any of the proceeds. She also ran the home and took care of the children and also jointly assisted with acquisition and development of the properties, including supervising of building projects, ensuring accountability of workers and moral support. She however notably failed to provide any evidence for her claims of identifying the house and supervising the construction. ‘The respondent was inconsistent during cross examination. While she initially testified that she was supervising the consiruction of the shop in 2020 while her baby was 6 months old, she faltered when questioned when the baby was born and since the baby was born in 2016, this was not true. When examined about her having access to the petitioner’s bank account when he was Kula ¥ Wishvwa Mat Cause #29 3 Mwale, F A } The Shop in Zomba li; 12: part of the matrimonial property. In cross-examination the petitioner confirmed the children attended private school post-2018 after acquiring the house He further clarified that he earns a net income of MK917,000.00 per month, which includes a marriage allowance of MK 65,000.00 (he conceded that he is still receiving a marriage allowance from his employer despite the fact that he is no longer married). He bought the house in Zomba following his return from the DRC and intended it for the benefit of his children. uwa (PW3) who acted as an agent The petitioner's third witness was Josephy Mal He confirmed that he had no connecting Robert to the house seller, Mrs. Beula. interaction with the respondent in the transaction process. The petitioner testified that he solely purchased the shop in Zomba in 2020. He originally onsible for the part-time supervision of the hanged his d that all testified that the respondent was only resp shop because he was away in Salima for training. In cross-examination he c testimony and said that the respondent had never supervised construction an construction stopped when he was away for training. He never sent her money to pay for anything while he was away, and it was not true that he had requested the respondent to purchase cement. d witness was Daniel Makaya (PW2) who was the construction The petitioner’s secon t was his testimony that he never met the respondent during the foreman for the shop. I construction of the shop. He further denied receiving any payments from the respondent for the construction. He confirmed in cross-examination that construction stopped when the petitioner was away. He further denied going with the respondent to the shop to buy cement for construction after a wall collapsed because no wall ever collapsed. He only knew the respondent because she was processing maize. The Farming Business 13. The petitioner further testified that around 2019, he bought a motor vehicle, Toyota Corolla, with the remainder of the proceeds of his peacekeeping allowances. The motor vehicle was used by the household and later sold and the proceeds were used to finish the shop and for a farming business. He subsequently bought another vehicle, a Mazda Kutiny) « Mishowa * 7/7 Mat Cause #29/23 Mwale, FAS away on peacekeepi ro os ping tours she admitted that she did have access to the account only until his return, . . ard not there after. She maintained that the petitioner never gave her any money to ca ' Il her own. He provided for what was needed and the only money she called her own and used to enter into the savings scheme was from doing piecework, 19 W ny , hen asked why she didn’t provide any evidence of the savings scheme from which she got the loan, her response was that the members were in Zomba and she had no money to pay for them to come to Lilongwe for court. Besides the money was not much and did not go very far. The Issues 20. It is clear from the evidence that the respondent lacked the means 10 make financial contributions to the purchase of the landed properties that she seeks to be declared matrimonial property. The respondent has also failed to prove any involvement in the acquisition beyond being the spouse at the time they were acquired. In view of the fact that for all intents and properties she was a homemaker, not gainful employed and hardly involved in any substantive business making venture, did her non-financial contributions in running the home and taking care of the children entitle her to a beneficial interest in the house in Zomba, the shop and the farming business? The petitioner does not deny her an interest in the motor vehicle the Mazda Demio. 21. If the respondent's in-kind contribution is to establish beneficial ownership for joint ownership, what constitutes fair distribution? The Law 1. Section 24 of the Constitution provides for the rights of women and property rights as follows: (1) Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status, which includes the right- (a) to be accorded the same rights as men in civil law, including equal capacity- (i) to enter into contracts; (ii) to acquire and maintain rights in property, independently or in association with others, regardless of their marital status; Kulinji v Mlabowa Mai. C #29/2 Mw f A. J ause #29/23 A ale. : (b) on the diss dissolution of marr iage, howsoever entered into- (i) to a fair disposition of 0 a fair disposition of property that is held jointly with the husband, and (ii) 10 fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children. 22. Secti i ection 23(1) recognizes the right of every person to acquire property alone wai association with others. Case Law 23. As I noted in the case of Kepa v Kopa Civil Appeal Case No. 12 of 2023 between ether any property e developed two broad principles require the properly parties 17. In the quest to arrive at a determination as f0 wh was jointly owned or not, courts hav the fact-finding process. These on af the parties to either own disputing ex-spouses overriding principles to assist in the courts to inquire into (1) the intenti singularly or jointly and (2) any contribution uisition of the property (see Rachel Sop dence of either of the vil Appeal No. 76 of 2015). It is only upon evi that the courts find that property was jointly owned or thus not sufficient to enable any party toc factual or perceived) of the towards the acq hie Sikwese v Gracian Zivelu ~ Banda MSCA Ci said intention or contribution laim not, The mere existence of marriage is s the necessity to lead evidence of property was jointly owned and thu Gracian Zibelu Banda cited that the ribution (see Rachel Sopitie Sikwese v intention or cont above). «.. Kalangl ¥ Miahera4 Mat, Came #2072) atwale, PA ik Whe ; I constinutes cvideree of intention ar contribution will solely be depernlent mn the ei upon the circumstances of each and very cave. The court tasked with marking such @ wr finding must consider the conduct of the parties as evidence 1 either that the property was intended to he held jointly or that there was contribution in the acquisition af the property, However, these two principles of intention and contribution become applicable only to marriages where both parties were actively engaged in various financial activities (see Rachet Sophie Sikwese v Gracian Zibelu Banda MSCA Civil Appeal No. 76 of 2015). It is therefore presumed that each of the parties if financially able, are capable of acquiring property for their own personal use and not to be owned Jointly by the as a couple. International Instruments 24, 25. 26. 21. ghts instruments, Malawi has ratified a number of international and regional human ri of joint property cited by counsel for the respondent, which mandate equitable sharing upon dissolution of marriage. These instruments include the Convention on the Elimination of All Forms of gainst Women (CEDAW), which Malawi ratified in 1987, and the Discrimination A on the Rights of Women Protocol to the African Charter on Human and Peoples’ Rights in Africa (Maputo Protocol) was ratified in 2005. rms of g that Under article 16 of the CEDAW, States Parties are obligated to eliminate all fo discrimination between men and women in marriage and family matters by ensurin both men and women enjoy the same rights and responsibilities during marriage and its dissolution. Further, article 7 of the Maputo Protocol, entitles women to an equitable share upon dissolution of a marriage. Thus, States Parties are called upon to enact appropriate legislation to ensure that women and men enjoy the same rights in cases of separation, divorce or annulment of marriage. Subsection (d) in particular states that they shall ensure that; .. in case of separation, divorce or annulment of marriage, women and men shall have the right to an equitable sharing of the joint property deriving from the marriage. 28. The African Commission on Human and Peoples’ Rights in General Comment No 6 on «aly vy Miabows Mat Come #7977) ‘ t ial viwale, FA. Article 7(d) of t he Protocol to the African Charter on Human and Peoples Rights on the Rights of We . 7 omen in Africa defined “Equitable distribution” under Article 7(d) of the Maputo Protocol as the apportionment of marital property in excess of half af the property ont the basis of awarding material recognition 0 hoth the unequal enjoyment of property rights that the woman endured during marriage and the non-monetary contribution of the woman to the household and the family. ourt to consider the substantive f the property during the rather than merely 39 ; . : " . . < . . 29. Thus, the notion of “equitable distribution” requires the € contributions made to the acquisition and development © marriage which are often non-monetary and difficult to quantify, looking at the formal (often monetary) contributions. e African Commission on Article 7(d) of the d Peoples’ Rights on the Ri can only be achieved whe 30. Further, according to Comment No. 6 of th Protocol to the African Charter on Human an a substantive approach recognises that equality ligious and political, in which the ghts of Women, n the context, and given parties exist is considered social, economic re tates lo stributing matrimonial property. This approach requires S implement special measures al r annulment of marriage. equal weight when di m at recognize that women are in an unequal position and ensuring their property rights during separation, divorce 0 ples based on such normative equality principles that in White 31. Itisin application of princi the House of Lords held that there should be more weight y White {2000} UKHL 54, given to non-financial contributions and their contribution to the welfare of the family. They further stated that greater regard should be had to the fact that a wife may sacrifice and lose her opportunity to acquire and develop her own money-earning qualifications er young children. These factors and skills by being home and having and looking aft when determining the contribution made to the property by each should be considered party. ve approach to equitable distribution of property upon dissolution of ders the fact that women are often in an economically weaker 32. The substanti marriage fully consi position and are unable to contribute the same or any amount to the acquisition and | development of property. It further considers, and gives equal weight to, the non- Kulinji v Mlabowa Mat. Cause #29/23 Mwale, F. A. J monetary contributions such household duties and reproductive duties made by the woman during the marriage. Court’s Reasoned Determination 33. The principle behind the Supreme Court of Appeal decision in Rachel Soph 34. 35: ie Sikwese Vv Gracian Zibelu Banda (cited above) is very clear. Constitutional property rights of b parties to marriage are to be protected to the full and such property should only be hip or upon proof F ‘ loyed of contribution. This, however, only applies where both parties were gainfully employ declared matrimonial property upon proof of intention of joint owners and each capable of acquiring their own property. involved It is therefore irrelevant on the current set of facts that the respondent was not in ’ ‘ : ; nstitute in the identification of any of the properties she lays claim (which may have co evidence of intention that the property be jointly owned). Itis equally irrelevant that she ndent who did not make any in cash contribution. | am grateful to counsel for the respo ork which has cited relevant legal principles from the regional and international framew' enable a party in the position of the respondent to the property acquired during the marriage. It was in evidence that the petitioner has always been the breadwinner. He was solely responsible for all purchases from his salary and from his allowances through missions outside the country in the line of duty. He was also entitled to a marriage allowance by virtue of being a married man which despite now being divorced, he is still getting. The respondent has never worked. She has embarked on very modest business ventures that can in no way be called a trade. The proceeds were consumed almost immediately. She has never worked because she did not go very far with her education because she got pregnant whilst at school. She then devoted herself to home management and childcare. The petitioner benefitted from her home management and childcare services while he went on to work full time in his career. He was away several times while she held fort at home. These contributions, though non-financial ought to be recognised as cited in the international and regional frameworks cited above. The respondent put herself to a detriment after she got pregnant, for the benefit of her family. The petitioner even benefitted through a marriage allowance at work because he was married to her. He was freed up to generate income while she kept things moving at home. She cannot at this guint y Mlabowa 36. 37. 38. Mat. Cause #29/23 Mwale, P. A. J wale, FA. point be excluded fi Setetta tt tom a distribution of the property acquired simply because she did not contrib i ituati ute financially, a situation which was not of her own making Salasdaderh de . i was then in the case of Tewesa v Tewesa eal, siieadiiatecnes [2020] ee 28 (31 August 2020) found that the pains uted to the marriage by cooking and contributing to the family’s budget had earned a beneficial interest in a bachelor’s degree earned by the respondent, “breadwinner’, while the two were married aso that he later became 8 teacher and lecturer, so too should the respondent homemaker in this case gain an interest in the property acquired during the marriage. Kalembera J., found that the petitioner was entitled to a share of the spouse’s academic degrees and professional licenses which can be considered marital property when determining asset distribution during a divorce, as the potential future earnings derived from those qualifications contribute to the couple’s shared economic well-being; essentially, the value of future income generated by @ degree should be factored into the divorce settlement, even if the degree itself isn’t tangible property. | similarly find that the respondent has a beneficial interest in all the property acquired during the marriage because she sacrificed her own career prospects for his future earnings. She further contributed to the petitioner’s financial prospects through her in kind contributions of home management and child care. Her reliability as a witness or her lack of financial contribution are of no relevance in this case for the reasons I have already given, Having reasoned thus, I hereby find that the respondent is entitled to a beneficial interest in the Zomba house, the shop in Zomba, the farming business and the Mazda Demio using the principle of “equality is equity”. Both parties shall be entitled to a 50% share of these properties. As for the household property distribution of which is not in dispute, the equal share proposed by the petioner is confirmed and the property shall thus be distributed as follows: ac _* QUANTITY AND/OR PARTY a | Sofa Set (4 Piece) Petitioner . jv Mlabowa Mat. C 0 ause #29/23 Mwale, F. A. J Glass Coffee Table Respondent Wooden Coffee Table Petitioner Metal And Wooden TV Stand Petitioner Sony Radio (4 Piece) Respondent Wall Clock Respondent Samsung Smart Tv Petitioner Old Tv Respondent DSTV Decoders 1 for each party Kiliyekiliye Decoder Respondent Wooden Stools 2 for each party Free To Air Decoder (Strong) Petitioner Wooden Double Bed 1 for each party Double Mattresses 1 for each party Carpet Respondent Crates full of bottles 8 for each party Cooker With 4 Plates Petitioner ss Display Cabinet Respondent Wooden Shoe Stands 1 for each party Blue Plastic Chairs 4 for the Petitioner, 3 for the Respondent Hot Plate Respondent Upright Fridge Petitioner Kitchen Utensils Half for each party Axe Petitioner Hoe Respondent 39. Since both parties now have equal distribution of the matrimonial property, there is no reason why only one party should be responsible for the children’s school fees and 13 Fr iv M Mat ( ause if 9 F A J i ul 4 Wale, Fs bey /23 M al ’ maintenance and the petitione petitioner can apply to Court for an order for the maintenance of the children. The parties are at li at liberty to have the property valued and buy each other out of their shares so that an wl atone equal distribution is achieved by whatever means practicable. ambers at the Lilongwe Made in Chambers this 11" day of March, 2025 in Ch n, in the Republic of District Registry, in the Family and Probate Divisio Malawi. pe Honorable (Mrs.) Fiona Atupele Mwale JUDGE