The plight of ‘housewives’: A case of Malawian woman Ellen Tewesa
After 17 years serving her family as a responsible housewife 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, Ellen Tewesa has been compensated with tears. She contributed to acquisition of husband’s Diploma and Bachelors degree but the husband, upon completion of his tertiary education, approached the court for a dissolution of his marriage.
According to court documents, the two (Chimwemwe and Ellen Tewesa) 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 husband to compensate the wife with the sum of K300 000.00 payable in ten equal installments of K30 000.00.
The court also ordered the husband to build a matrimonial house for the wife at her home village or in default, deposit the sum of K150 000.00 into court- Order 11 rule 1 of Subordinate Court Rules.
That was the decision of the learned Magistrate. Compensating a woman who did not only endure the hardships emanating from husband’s shrinking pulse when he was furthering his education, but also spent sleepless nights baking ‘mandas’ to top up the budget at home. So many women are in the same situation; they are languishing in their remote villages with their children while their husbands are taking selfies at Mount Soche Hotel.
While in developed countries women being divorced after helping their husbands acquire college or graduate degrees are seeking to assert a property right in the degree, these ungrateful husbands in Malawi are going escort free as evidenced by Justice S.A Kalembera assertions that “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.”
Ellen Tewesa, having realized that she was not treated fairy at the lower court, she presented the matter before the High Court 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 (wife) prayed for the following orders: “1. A declaration that there is property in the educational qualifications of the Respondent, namely the Bachelor of Education Humanities and the Diploma in Education. 2. A declaration that the property in the said educational qualifications is family property. 3. A declaration that the Applicant has beneficial interest in the property in the 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. 4.An order distributing the said property in the Bachelors’ Degree and Diploma on a 50/50 basis. 5. An order distributing the other properties of the family, namely the Toyota Carina BN 2260 and other household items.
Delivering judgment this week, Justice Kalembera, while tackling prayer number 1 of the petitioner ruled 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.”
On prayer number 2, in which the petitioner was seeking a declaration that the property in the said educational qualifications is family property, Justice Kalembera ruled that education qualifications 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.”
The court was also of the view that “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.”
On prayer number 4, the court ruled that it is practically impossible to share educational qualification in a 50/50 basis as qualifications cannot be physically divided between the couple. However, the court ordered that the Respondent do compensate 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.
Though Justice Kalembera has reversed the decision made at the lower court, by among other things, increasing the amount money for construction of the house of the wife, allowing the petitioner to get a share from the education qualification by assessing future earnings, the fact remains that Ellen Tewesa has been divorced after sacrificing a lot for several years.
The Court has just offered a scant comfort while proferring alternative compensations. It is a unpleasant situation that must be an issue of concern to every woman.
Her sweat will be enjoyed by another woman, who was in the comfort zone, while Ellen was running up and down trying to top up the budget when much family financial resources were being channeled towards her husband’s education. It’s so distressing. Not so?
As already alluded to, Ellen’s story is a tip of an iceberg. So many women have gone through similar situation. It is high time Seodi White, Emma Kalia and many other Malawian activists joined Phyllis N. Segal who calls a spade by its name when dealing with issues of abuse of women.
The revised marriage act on its own cannot solve the plight of women like Ellen Tewesa. We need action, action now! When the partners in a marriage agree to take different roles while one of them is training for a profession that will benefit them both, then that agreement, even if it was not formally articulated, must be honored.
Since the courts obviously have difficulty to share the profession certificate because of the speculative nature of its value, as there is no assurance that the holder of this degree would continue his employment, gender activists must advocate for punitive punishments for such ungrateful men.
The assertion by different legal scholars that cases, like the one presented by Ellen Tewesa, are feminist issue and that there has never been a in which the plaintiff is a man, is a clear indication that women are often times the victims in such scenarios. Of course there are some ungrateful and evil women, but that is a topic for another day.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official position of the MaraviPost
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