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MALAWI JUDICIARY

TN THE HIGH COURT OF MALAWI

PRINCIPAL RBGISTRY

MATRIMONIAL CAUSE NO.9 OF 2OI2

(Being Civit Cause No. 265 of 2011, Chiradzulu Third Grade Magistrates
Court)

CORAM: TTIE HON. JUSTICE S.A. KALEMBERA

Mr Matumbi, Counsel for the Plaintiff
Defendant, Present and Unrepresented
Mr Manda, Court Clerk

JUDGMENT
Kulembera J
This matter came before me for determination on distribution of matrimonial
property after dissolution of the marriage in the Third-Grade Magistrates' Court
sitting at Chiradzulu on the 27th day of April, 2012. The Petitioner and the

1.
Respondent got married under customary law in 1995 and they remained married
until the 27th day of April, 2012. At the time of dissolution of the marriage, the
presiding magistrate ordered the Plaintiff (Respondent in this case) to compensate
the Defendant (Petitioner in this case) with the sum of K300 000.00 payable in ten
equal installments of K30 000.00. He also ordered the plaintiff to build a
matrimonial house for the defendant at her home village or in default, deposit the
sum of K150 000.00 into court- Order 11 rule 1 of Subordinate Court Rules. This
matter was commenced by summons seeking five reliefs under section 17 of the
Married Women's Property Act 1882.
From the court record, it is crystal clear that this matter came before me not as an
appeal but rather that the court below deferred the issue of distribution of
matrimonial property to the High Court for want of jurisdiction so that this court
can make a final determination on the same.

I must state from the outset that I have noted that the couple has no children hence,
the custody of children is not an issue here. If the couple had children, then factors
which have a direct bearing on the final disposition of property and maintenance of
children up until they are fully independent would have come into play in this case.

Furthermore, the court also has noted that the parties were not financially
independent and they were on unequal footing. Our Constitution and customary
law both recognize that property acquired during subsistence of marriage is subject
to fair and just distribution upon dissolution of the marriage. Individual
contributions of the spouses to the acquisition of matrimonial property is not the
only reigning principle- Kamphoni v KamphoniHigh Court (Principal Registry)
Matrimonial Cause 7 of 2012. The Appellant is therefore entitled to a share of
the matrimonial property. Section 24 of the Constitution of the Republic of Malawi
(the Republican Constitution) provides as follows:
"5.24 (l) -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 rtght -
(b) on the dissolution of marriage-
(i) to afair disposition of property that is held jointly with a husband; and
(ii) to foir maintenance, taking into consideration all the circumstances and,
in parttcular, the means of the former husband and the needs of any
children. "

2
The petitioner herein was therefore entitled to a fair distribution of the matrimonial
property. In the matter at hand, the Petitioner was a housewife and the Defendant
was the bread winner for the family. The Petitioner contributed to the well-being
of
the family as a whole by among other things, cooking for the husband, the four
children they were staying with, doing some businesses just to top up the family
budget and so forth. While the Respondent was a teacher in various primary
and
secondary schools but later, a lecturer at Domasi College of Education.

The husband upon completion of his tertiary education approached the court for
a

dissolution of his marriage to the Petitioner. Though this conduct of the

Respondent might be considered unfortunate and ungrateful, it is not unusual.
See,

..g., In re Maruiuge of Graham, \94 Colo. 429, 574 P.2d 75r 78 (1978) Carrigan,
J., (dissentit g),
,,The case presents the not unfamtliar pattern of the wife, willing to sacrifice for a

more secure family financial future, worlcs [sicJ to educate her husband only to
be
qwarded a divorce decree shortly after he is awarded the degree'"

In the matter at hand the Petitioner prays for the following orders:
of the
tt] A declaration that there is property in the educational qualifications
the Diploma in
Respondent, namely the Bachelor of Education Humanities and
Education.
qualifications is family
t2l A declaration that the property in the said educational
property.
in the property in the
t3l A declaration that the Applicant has beneficial interest
Respondent's Bachelor's Degree and Diploma owing to the significant
contribution the Applicant made towards the Respondent's acquisition of the
said

degree in the 20 years the Applicant was married to the Respondent'

Degree and Diploma
t4] An order distributing the said property in the Bachelors'
on a 50/50 basis.
namely the Toyota
[5] An order distributing the other properties of the family,
Carina BN 2260 and other household items'

The petitioner also raised the following issues as an appeal but the court
will also
seven in total:
add them to the list of the five prayers (above) thereby making them

3
[6] That the Learned Magistrate erred in ordering that the sum of MK300 000.00
would justly compensate the Appellant as the said sum is grossly inadequate.

[7] That the Learned Magistrate erred by ordering that the Respondent pays a sum
of MK150 000.00 in lieu of construction of a house for the Appellant as the said
alternative sum is grossly inadequate for construction of a house.

First and foremost, I will briefly highlight on multifarious principles goveming

distribution of matrimonial property.
The term property is defined as follows:

(i) The right to possess, use and enjoy a determinate thing either land or a
chattel or;
(ii) Any external thing over which the rights of possession, use or enjoyment
are exercised or;
(iii) In narrower sense, it means a person's proprietary (exclusive) and not his
personal (individual) rights (i.e. his status or personal condition.) or;
(iu) It is the right of ownership in a material object itself- John Salmond,
Jurisprudence 423-24 (Glanville L. Williams ed., 10th ed,. 1947.)
fBlack's Law Dictionary 9th ed. pp. 1335-36.]
In another definition of property, it is not a thing but a bundle of rights. This
basically means that property comprises "a bundle of rights." [Kevin Gray
"Property in Thin Air" (1991) 50 CambridgeLJ 252 -3071The House of Lords in
Bourdman v Phipps (1967) 2 AC 46 held that "knowledge" was property and
further ruled that such knowledge held on as property was trust property.

Marital property is defined as the one acquired during marriage and that is
subject to distribution or division at the time of marital dissolution. It is also called
marital estate or community property. It includes property acquired after the
date of marriage and before a spouse files for separation or divorce. [Black's Law
Dictionary 9th ed. p. 1338.1
There are two broad overriding principles which are considered mostly when it
comes to distribution of matrimonial property which are: intention and
contribution (which can be actual or perceived) of the parties- Rachel Sophie
Sila,vese v Gracian Zibelu Banda MSCA Civil Appeal No. 76 of 2015. Property
that is jointly held is the one that is prone to distribution on dissolution of
marriage. Whether or not in any particular case, property is jointly held is a matter
of fact and will solely be contingent upon the circumstances of each and every case

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which include the conduct and intention of the parties in relation to the acquisition
of the property. The mere existence of marriage is not sufficient. There must be
evidence that the property is held jointly. In conclusion, what is distributable on
dissolution of marriage is only property that is jointly held- Kayumbo v Kayambo
(1987-89) 12 MLR 408. However, these two principles of intention and
contribution become applicable only to marriages where both parties were
actively engaged in various financial activities.
Sections 24 and 28 of the Constitution are in their entirety also considered when it
comes to distribution of matrimonial property at dissolution of marriage. Section
24 (l) (a) of the Constitution inter alia, grants women the same rights as men to
enter into contracts, acquire and maintain rights in property. Section 24 (l) (b) (i)
of the Constitution grants women the right, on the dissolution of marriage, to a fair
disposition of property that is jointly held with the husband and applies to every
marriage. Section 28 (1) of the Constitution provides that every person is entitled
to acquire property alone or in association with others.
There is also a litany of case law which duly touches on distribution of
matrimonial property upon dissolution of marriage. For example, in a recent
decision by the Supreme Court of Appeal of Rachel Sophie Sikwese v Gracian
Zibelu Banda (supra), the court stated as quoted from Kuyambo v Kuyambo
(1987-89) (supra) which was decided before the adoption of the Constitution in
tee4)-
"where there ts evtdence that one spouse contributed to the acquisition of
the other party's property or to its development and the parties intended that
the other should acquire a beneficiql interest, qnd the extent of contribution
can be ascertained, the contributing party will acquire a coruesponding
beneficial interest. However, where the extent of the contribution cannot
precisely be ascertatned, the maxim 'equulity is equity' duly applies. The
court went on to state that the intention offinancially independent and equal
partners that the Respondent and the Appellant were during subsistence of
their marriage in respect of acquisition of property be dislodged. Thefact of
extstence of marriage by itself does not creqte community rights in
property."
In Kishindo v Kishindo (Principal Registry) Civil Case No. 397 of 201"3,
Mwaungulu J as he then was, held this in relation to section 24 (1) (b) (i) of the
Constitution-

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 "The property need not be jointly acquired in order for it to be jointly held.
The prospects are that, even though acquired before marriage, the other
spouse did something to it directly for its retention."

In Kamphoni v Kamphoni (supra), Mwaungulu J as he then was held-

"Section 24 (l) (b) (i) of the Constitution could be declaratory that all
property held by husband and a wife is joint property, and the wife is entitled
to have it shared fairly."
In the Kamphoni case supra, he further opined that "fairness" is the dominant
principle for disposition of property under section 24 (I) (b) (i) of the Constitution;
and that "the common law of the Commonwealth is fairness, and that contribution
is not the dominant consideration. This in principle, basically means that the
spouse's contribution should, together with everything else, go to fdetermine]
fairness." Fairness requires the Court to take into account all the circumstances of
the case.

In Matupu v Matupa, Mwaungulu J as he then was, also quoted the following

statement by Lord Nicholson in White v White [2001] I AC 596-

"Divorce creates many problems. One question always arises. It concerns

how the property of the husband and wife should be divided and whether
one of them should continue to support the other... Then fairness, like
beauty, lies in the eyes of the beholder."

In Sikwese's case (supra), the Supreme Court concluded that it is crystal clear,
based on the cited case authorities, that fairness is a cardinal principle in cases of
disposition of property upon dissolution of marriage. However, it is equally clear
from the case authorities that in order to ensure fairness in the disposition of
property on the dissolution of a marriage, the court ought to take into account all
the circumstances of a particular case, and the circumstances that need to be
considered in assessing fairness differ in from one case to another.

I have not come across any Malawian precedent dealing with educational
qualifications as forming part of family property which is to be shared between
spouses upon dissolution of marriage. I have also scoured the English case law as
well, unfortunately, I have not found any case law on the same though my failure
to find any precedent does not mean none exists. Thus, I have referred to American
case law which has a myriad of cases on the same.

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However, in the United States of America, distribution statutes fall into three
distinct classes namely: strict common law, equitable distribution, and
community property. Understanding the classification of an asset as divisible
property requires an examination of each category of distribution statutes. For
purposes of deciding what to classi$r as the "thing" to be divided, the courts have
not clarified the distinction between a professional license and increased eaming
capacity. The distinction largely is semantic and for the purposes of this Note does
not affect the outcome of the cases. 8.g., Todd v. Todd,272 Cal. App. 2d 78G,78
Cal. Rptr. 131 (1969) (law degree not communitlr propertlz); In re Marriage of
Grahum, 194 Colo. 4291 574 P.zd 75 (1975) (educational degree is not marital
property); In re Murriage of Horstmann,263 N.W.2d 885 (Iowa 1978) (future
earning capacity of husband's law degree is marital ; Inman v. Inman,
578 S.W.zd 266 (Ky. Ct. App. 1979) (license to practice dentistry is marital
prqperty.) Various American schools of thought on the subject tend to differ on the
subject. From the summary of case law here, it can be concluded that each state has
a unique scheme of post-dissolution marital property distribution.

I now dispose of the matter as follows:

[1] On the first prayer, that is, a declaration that there is property in the
educational qualifications of the Respondent, namely the Bachelor of
Education Humanities and the Diploma in Education;

[Vol. 6:101 4 Campbell Law Review, Vot. 6, Iss. 1 t19841, Art. 5

http://scholarship.law.campbell.edu/clrlvo16/iss1i5 PROFESSIONAL DEGREE; In
re Marriage of Graham, 555 P,zd 527 (Colo. Ct. App. 1976), affd, 194 Colo.
429r 574 P.zA 75 G978), upon attaining the degree, the husband filed for divorce"
The couple had accumulated no assets to be divided unless the court was willing to
classi$, the degree as divisible property. Arguing against the "property" status of
the degree, the court stated: An educational degree, such as an M.B.A., is simply
not encompassed even by the broad views of the concept of "property." It does not
have an exchange value or any objective transferable value on the open market. It
is personal to the holder. It terminates on the death of the holder and is not
inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An
advanced degree is a cumulative product of many years of previous education,
combined with diligence and hard work. It may not be acquired by the mere
expenditure of money. It is simply an intellectual achievement that may potentially
assist in the future acquisition of property. In our view, it has none of the attributes

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of property in the usual sense of that term. The Graham majority opinion (a US
case) reflects the position taken by earlier decisions denying property status for the
professional degree.

ln Dewitt v. Dewitt, 98 wis. 2d 44,296 N.W.zd 761 (Ct. App. 1980), the
Wisconsin Court of Appeals recently considered whether an advanced educational
degree constitutes marital property. The court held that neither a professional
degree, nor a license, nor education constitutes marital property. Here, there are
two decisions from different states in the United States of America agreeing on
whether there is property in educational qualifications.

From case law and academic writing above, this court is of the ultimate view that
there is property in the educational qualifications of the Respondent. However, it
ought to be understood that the component comprising the educational
qualifications is un inheritable. Its component duly vests in the owner whose name
appears in it.

121 A declaration that the property in the said educational qualifications is

family property;
It is trite that any person who pursues further education does it for the benefit of
both him and his family (that is, his wife, children and any persons staying with
him) as long as he is living and the marriage subsists. However, the said
educational qualifications cannot precisely be said to be family property. If it was
to be family property, then bearers would have been bequeathing them in their
wills so that they be inherited by beneficiaries and be used to look for jobs.
ln DeWitt v. DeWttt (supra), the Wisconsin Court of Appeals recently considered
whether an advanced educational degree constitutes marital property. The court
held that neither a professional degree, nor a license, nor education constitutes
marital property. The DeWitts married in 1968 and separated permanently in 1977.
Mr. DeWitt, a full-time student, was employed part-time from 1968 until he
completed a law degree in I975. Mrs. DeWitt worked full-time as a legal secretary
during most of the marriage. In addition, she performed most of the household and
child-care tasks, handled the family finances, and worked part-time assisting her
husband in several business ventures. Mr. DeWitt was employed by his father's law
firm upon completion of his law school education. Subsequently, Mrs. DeWitt quit
her job to attend school full-time and completed an associate degree in accounting
prior to the institution of divorce proceedings. The court of appeals held that the
trial court abused its discretion by making a property-division award that divided
8
the plaintiff husband's law degree between the parties upon divorce. The
Wisconsin court chose instead to follow the opinion of the Colorado Court of
Appeals in Graham and specifically rejected the reasoning of in Re Marriage of
Horstmann, 263 N.W.2d 885 (Iowa 1978), an Iowa Supreme Court case and
Inman v Inman,578 S.W.zd 266 (Ky. Ct. App. 1979) saying:
"Equity compels some frr* of remuneratton ft, o spouse. Plaintiffhusband also
spent substantial time, money, and effort on home improvements to three structures
owned by the parties during maruiage. Mrs. DeWitt alleged that qt the time of
marriage, the parties had "agreed thqt it would be financially preferable for the
plaintiff to attend school and complete his law degreefirst, and that she would then
complete her college education " Plaintiff denied those allegations.

Thus, it can therefore be safely concluded that specific law degrees (that is, the
actual papers) are not marital property because when the bearer dies, they cannot
be inherited by any person to enable him or her to look for a job. However, future
earning capacity and practicing licence which are attendant to these educational
qualifications are marital property. This is so because with future earning capacity,
the family and other beneficiaries will benefit from whatever is realized by the
degreed person so long as that person lives and works. As for a practicing licence,
it is also family property because when the owner dies, his practice can be
inherited and continued by his family and friends.

t3l A declaration that the Petitioner has beneficial interest in the property in
the Respondent's Bachelor's Degree and Diploma owing to the significant
contribution the Petitioner made towards the Respondent's acquisition of the
said degree in the 20 years the Petitioner was married to the Respondent.
The Petitioner in this case was already married to the Defendant when the latter
decided to go for fuither education, It can also be concluded that they mutually
agreed that the Defendant should go for further education knowing that upon
completion, there will be a great improvement in their financial status. Moreover,
as per the court record, the Petitioner stayed with three of the Defendant's siblings
without being bored with them as the latter proceeded with his education.
In Re Marriage of Horstmunn (supra), an Iowa Supreme Court case, the
Horstmanns married during their junior year in college. Mrs. Horstmann, who
never finished her college education, worked as a bank clerk while her husband
attended law school. Both Mr and Mrs Horstmann's parents also provided financial
assistance during their marriage. Affirming the district court's decision, the Iowa

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Supreme Court held that the potential for increased earning capacity made possible
by a law degree and certificate of admission to the bar constituted an asset for
distribution by the court. Thus, Horstmann appearc to be the first state supreme
court decision to recognize the working spouse's right to a portion of the
nonworking spouse's increased future eaming capacity as valuable properly upon
dissolution of marriage. The court found that the Horstmanns earned and spent the
majority of their assets to allow Mr. Horstmann to complete his legal education.
Moreover, the coutt noted the couple's significantly low standard of living because
of Mr. Horstmann's status as a fulltime student rather than a full-time employee
during the couple's marriage.

In Hubburd v. Hubbardr 603 P.2d 747 (Okla.1979), in a per curiam opinion, the
Oklahoma Supreme Court took the position of the majority in Graham that a
professional degree is a form of intangible, indivisible property in which no other
person can have a vested interest. The court held, rather, that Mrs. Hubbard had an
equitable claim to repayment in lieu of property division for the investment she had
made in Dr. Hubbard's education and training. Thus, instead of a right to a
proportional share. The court fixed the measure of damages as "the amount spent
for direct support and school expenses during the period of education, plus
reasonable interest and adjustments for inflation, apportioned to the spouse who
provided support when there is little or no increased earning capacity provided by
the supported spouse's degree or training.

In Hubbard v. Hubburd (supra), the Supreme Court of Oklahoma affirmed in part

and reversed in part the district court holding that Mrs. Hubbard, who had
supported her husband for twelve years through college, medical school, internship
and residency, had a property interest in her husband's medical degree. The
Hubbards, divorced shortly after Dr. Hubbard completed his hospital residency.
The lower court found that Mrs. Hubbard had a "'vested interest in the defendant's
medical profession, which is deemed to be a valuable property right,"' and awarded
her $100,000 gross alimony in lieu of property division.

In the trial court decision of Muhoney v. Mahoney, a New Jersey case, the court,
favouring reimbursement for the contributing spouse, stated: [A] working spouse
who contributes to the education of another spouse does so certainly with the
expectation that there will be in the future some benefit derived from such a
sacrifice. The court is convinced that the facts of this case and the interrelationship
of the parties mandate some credit to the working spouse by the spouse who

10
pursued and achieved an education during the marriage. To ignore the
contributions of the sacrificing spouse would be to work an injustice, an unfair
advantage to the spouse who has gained the education and degree without
obligation. There would be an unjust enrichment of the educated spouse.
This court is of the view that indeed the Petitioner has beneficial interest or
equitable claim in the Defendant's educational qualifications as long as the
marriage subsists. However, since the marriage has been dissolved,that beneficial
interest divests itself of the Petitioner but she has to be compensated for such a loss
through distribution of matrimonial property and any other monetary orders made
by the court while also considering the Defendant's future earnings. After
distribution of matrimonial property, the Petitioner's beneficial interest in
Defendant's educational qualifications duly comes to an end.

[a] An order distributing the said property in the Bachelor's Degree and
Diploma in a 50/50 basis;
Every person who pursues further education as alluded to above does that for the
benefit of himself or herself, his/her current/subsequent spouse and children. This
basically means that these people have beneficial interest in his qualifications.
However, this beneficial interest continues as long as the marriage subsists and
dies away the moment the marriage is dissolved. However, at dissolution of the
maruiage, this beneficial interest will manifest itself in that there will be an order
for distribution of property and maintenance of children. The property to be
distributed is acquired through work which is obtained by using the educational
qualifications of the Respondent.
In Colvert v Colvert, 568 P.2d 623 (1977), insofar as one could interpret Colvert to
"mean that a court can consider the future earnings of a spouse in setting the
amount of alimony and then designate the alimony payments based on future
income as property division alimony."

Several US courts have treated a professional degree as a marital asset; this Note
seeks to examine the solutions and non- solutions proposed by the courts in the
context of existing remedies and statutes. This Note contends that to allow a courl
to classiS an advanced educational degree or license as marital property subject to
division upon divorce is both reasonable and necessary Furthermore, the
classification of a professional degree as a property asset, distributable upon
dissolution of marriage, is the only feasible, widely available remedy when the
parties, for whatever reasons, end the marriage without other divisible marital
1,1.
assets. If through the working
spouse's effort, the degreed spouse becomes unjustly
enriched, the courts as a matter of equity must value and distribute the professional
degree as a marital asset.

ln Todd v. Todd, 272 Cal. App. 2d, 786,78 Cal. Rptr. 131 (1969); the Todds
married in 1947 and separated in 1964. Mrs Todd, the plaintiff, worked to support
the family while her husband obtained undergraduate and law degrees. She
contended that because her husband's education was financed in large part with
community funds, her husband's education constituted a community asset with
substantial value that the court ought to divide between the parties upon divorce.
The California Court of Appeals rejected Mrs. Todd's argument, holding: "If a
spouse's education preparing him for the practice of law can be said to be
'community properly,' a proposition which is extremely doubtful even though the
education is acquired with community monies, it manifestly is of such a charucter
that a monetary value cannot be placed upon it. The court in Todd, therefore,
considered the husband's degree as at best an intangible prope4v rieht incapable of
monetary valuation. In the same action, however, the court awarded Mrs. Todd
$111,500 in community assets, while awarding only $89,116.35 in community
assets to the husband. Subsequent opinions citing the Todd case for doctrinal
support in denying a property interest in the spouse's degree often neglect to
mention the larger award to the wife.

[Vol. 22:517 DMSIBILITY OF PROFESSIONAL DEGREESI; Upon

dissolution, the working spouse has realized none of her expectations. Courts
should strive to provide at least a parttal remedy to the nonstudent spouse for
sacrifices made. A court ought to divide as property the quantifiable benefits of the
graduate education of one spouse between the parties to reflect their respective
efforts toward its attainment].

This court is of the ultimate view that there is no inheritable property in any
educational qualifications a person has on the following grounds: [1] because the
degree has only intangible or intellectual value, its monetary worth upon division is
negligible; [2] because if they were indeed inheritable property then people would
have been bequeathing their certificates to beneficiaries in their wills [3] A degree
is regarded as property with only speculative value- Todd v. Toddr 272 Cal. App.
2d 786, -r 78 CaL Rptr. 13L, 135 (1969); In re Maruiage of Grohumr l94 Colo.
429, -, 574 P.2d 75,78 (1978); Stern v. Stern,66 N.J. 340, - 331 A.2d 257,260
(1975). Moreover, beneficiaries in a will would have been using qualifications of

12
deceased people to find work. However, when people die, it is trite that they are
buried together with their educational qualifications; a clear indication that they
cannot be inherited by anybody else because they bear their names and also that
the knowledge they acquired during the duration of study cannot upon death or at
moribund be passed on to its beneficiary.

Courts that are willing to recogntze rntheory the existence of a property interest in
an advanced educational degree nevertheless often hold that, because the degree
has only intangible or intellectual value, its monetary worth upon division is
negligible.' Under this view of a degree as property with only speculative value, the
working spouse reaps nothing by way of property division.
It is in the court's discretion to order compensation to the Petitioner on the basis of
her contribution to the Respondent's educational qualifications be it financially and
in kind. However, the demand to distribute the said property in the educational
qualifications in a 50/50 basis is too farfetched. It ought to be borne in mind that
the qualifications cannot physically be divided between the couple. This is so
because it will be diametrically impractical to demand the Respondent to also
impart the knowledge he acquired while at college but also that the names in the
qualifications cannot be changed for example, in the Diploma from Chimwemwe
S. Tewesa to Ellen Tewesa.

How would then the couple share these qualifications? It is indeed understandable
that the Respondent acquired these qualifications while he was married to the
petitioner. Moreover, the Petitioner might have contributed either financially or in
kind to the pursuance of his tertiary education. In law, there is the principle that
where an employer sends her employee to school for funher education, that cannot
be ground upon completion, that the employee should not quit employment for
greener pastures unless there was an agreement on restraint of trade before going
for further education for a specific period. However, restraint of trade agreements
are frowned upon as being contrary to public policy.

Therefore, this court orders that the Respondentnt do compensates the Petitioner
with a sum to be assessed by the Registrar within 30 days, for the latter's
contribution to the former's educational qualifications.

t5l An order distrihuting the other properties of the family, namely the
Toyota Carina BN 2260 and other household items;

13
As per court record, I have looked at the litany of property owned by the family
before dissolution of the marriage on the 27th day of April, 2012" The list is not
enornous enough and I will take the trouble to catalogue down each and every
property for convenience sake as follows:

1. Toyota Carina BN 2260

2. Three sofa sets
3. Two coffee sets
4. Three beds
5. One display cabinet
6. One fridge
7. Three mattresses
8. Six table chairs
9. Two television sets
10. One decoder
11. One home theatre
12. Secondary school books
13. Two carpets
14. CDs/DVDs
15. One fan
16. Picture frames
17. Beddings
18. One paraffin stove
19. One pressing iron
20. Two hot plates
21. Kitchen utensils
22. One piece of land
23. One small table
24. Three bags

The evidence in totality shows that all the items except 1 and 22 items are
household items which were acquired during subsistence of the marriage and
meant to be jointly owned by them as a family. Since, the Petitioner was non-
working class but a homemaker while the Respondent was the bread winner, the
dictates of justice and fairness would thus demand that as much as possible these
items be equally shared between the parties- section 24 (1) (b) (i) of the
Constitution; Kamphoni v Kamphoni (supra).

1.4
Accordingly, I order that these items be distributed as follows:
PETITIONER
1. Two [2] Sofa Sets
2. One [1] Coffee Set
3. Two [2] Beds
4. One [1] fridge
5. Two [2] mattresses
6. Three [3] table chairs
7. One [1] television
8. One [1] home theatre
9. Half of the secondary books
10. One [1] carpet
1 1. Half of the DVDs/CDs

12. One [1] fan

13. Half of the picture frames
14. Half of the beddings
15. One [1] paraffin stove
16. One [1] hot plate
lT.Half of the kitchen utensils
18. One [1] small table
19. Two [2] bags

DEFENDANT
20. One [1] sofa Set
21. One [1] coffee set
22. One [1] bed
23. One [1] display Cabinet
24. One [1] mattress
25. Three [3] table chairs
26. One [1] television
27. One [1] decoder
28. Half of the Secondary books
29. One [1] carpet
30. Half of the CDs/DVDs
31. Half of the picture frames
32.[{.alf of the beddings

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 33. One [1] pressing iron
34. One [1] hot plate
35. Half of the kitchen utensils
36. One [1] bag

In respect of the Toyota Carina BN 2260 and the piece of land, the evidence
shows that these properties were also jointly acquired by the parties during
subsistence of the marriage. There are strong indications that they were meant to
be matrimonial property hence, the court finds and holds that the parties own them
in equal shares as there is no evidence on how much exactly did each one of them
contribute either financially or in kind to their acquisition. The court therefore,
orders that within 30 days hereof, the property be valued by a valuer so as to arrive
at its current market value less incidental costs incurred due to valuation and sale
of the said property. Once the valuation is done within 60 days thereafter,

Starting with land:

Either party shall be at liberty to buy out the other's share in the said land by
paying an equivalent of half of the value of the land failing which, the land shall be
sold and the proceeds of the sale be shared equally between the parties.

The vehicle:

In respect of the vehicle, the court orders that upon ascertaining its value, the
vehicle must be sold and the proceeds of the sale firstly, be used to pay off the
remaining loan balance at the bank. Then the remaining amount be shared equally
between the parties.

This court also orders that costs incidental to the valuation and ultimate sale of the
property be jointly borne by the parties.

Turning to the two orders made by the court below which are appealed against:

[6] That the Learned Magistrate erred in ordering that the sum of MK300
000.00 would justly compensate the Appellant as the said sum is grossly
inadequate
This court indeed has looked at various factors like: the couple's humble
beginnings to prosperity, the current cost of living, the fact that the woman will no
longer enjoy the fruits of their joint efforts as a couple but rather another woman if
the Respondent remarries. This court is of the firm view that indeed the MK300

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000.00 award made was far grossly inadequate and therefore, the court duly
awards Kl,000,000.00 to the Petitioner.

[7] That the Learned Magistrate erred by ordering that the Respondent pays
a sum of MK150 000.00 in lieu of construction of a house for the Appellant as
the said alternative sum is grossly inadequate for construction of a house,
On this thread, the court has also considered divers factors like the fact that the
Petitioner will have to re- start her life (if at all that happens), the Petitioner has no
work to rely upon and others. This court therefore, orders the Respondent to build
a house for the Petitioner (which would be made of bricks and roofed with iron
sheets) at the Petitioner's matrimonial home within ninety days. In the alternative
the Respondent must within the said ninety days pay the Petitioner a lump sum of
K2,000,000.00 (a sum I consider sufficient to build a habitable house in the
village), for the Petitioner to build the said house.
A11 in all, it is so ordered. As to costs each party must bear its own costs.
PRONOUI\CED this 31" day at the ipal Registry, Blantyre.

JUDGE

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000.00 award made was far grossly inadequate and therefore, the court duly
awards K1,000,000.00 to the Petitioner.

[7] That the Learned Magistrate erred by ordering that the Respondent pays
a sum of MK150 000.00 in lieu of construction of a house for the Appellant as
the said alternative sum is grossly inadequate for construction of a house,
On this thread, the court has also considered divers factors like the fact that the
Petitioner will have to re- start her life (if at all that happens), the Petitioner has no
work to rely upon and others. This court therefore, orders the Respondent to build
a house for the Petitioner (which would be made of bricks and roofed with iron
sheets) at the Petitioner's matrimonial home within ninety days. In the alternative
the Respondent must within the said ninety days pay the Petitioner a lump sum of
K2,000,000.00 (a sum I consider sufficient to build a habitable house in the
village), for the Petitioner to build the said house.
A11 in all, it is so ordered. As to costs each party must bear its own costs.
PRONOUNCED thiS 31" dAY at the ipal Registry, Blantyre.

JUDGE

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