DOES INDIRECT NON-MONETARY CONTRIBUTION TO THE FAMILY COUNT IN ASSESSING A WIFE’S INTEREST IN MATRIMONIAL PROPERTY? THE UGANDAN PERSPECTIVE
Abstract
Marriage is a union between a man and a woman, entered into and exited through a divorce at will. Time and time again, marriages that begin happily, in most cases end through heated divorce proceedings where courts are faced with several questions on custody, maintenance of the children, and matrimonial property. The question of which spouse is entitled to what percentage of the matrimonial property amassed before, during, and after the marriage has taken centre stage and the courts have come up with various formulas to divide the property. Courts have moved from the 50-50 even split between spouses, to assessing a spouse’s contribution towards amassing the property in question to arrive at what percentage they are entitled to. This article focuses on the jurisprudence on the contribution to the family and whether it counts in assessing a wife’s interest in matrimonial property.
1.0 BACKGROUND
The Court of Appeal’s decision in Ambayo Joseph v Aserua Jackline[1] arose from an appeal concerning the handling of matrimonial property upon divorce. The appellant and the respondent cohabited from the year 1989 both aged 24 years and 19 years respectively. With no formal education at the time, the appellant supported and financed the respondent’s education until the respondent obtained a Diploma in designing and dress-making, and acquired driving skills. At the time of the divorce, the respondent was self-employed, and the parties had four children. The contested matrimonial house was constructed and developed on a vacant plot in the sole name of the appellant.
The parties solemnised their marriage in 2005, but shortly afterwards, they began experiencing issues that eventually led to the breakdown of the marriage. The appellant commenced divorce proceedings against the respondent in the High Court seeking the dissolution of the marriage. The matter was settled by consent and the trial judge issued a decree nisi dissolving their marriage and an order for joint custody of the children. However, the issue of the respondent’s contribution to the matrimonial home remained contentious, and the trial Judge held that even though the matrimonial home stood on land purchased under a contract with the appellant’s name alone, the house belonged to the couple jointly in equal shares. The Judge ordered that the house be sold or valued, and fifty per cent of the value granted to the respondent “who worked so hard to acquire it.” The appellant was dissatisfied with the trial judge’s decision and appealed to the Court of Appeal.
1.1 Court’s Findings
On the apportionment of matrimonial property, considering Article 31(1)(b) of the Constitution of Uganda,[1] the court concurred that the decision in PNN v ZWN[2] represents a sound legal precedent, where Justice Kiage stated that:
I think that it would be surreal to suppose that the Constitution somehow converts the state of coverture into some sort of laissez-passer, a passport to fifty per cent wealth regardless of what one does in that marriage. I cannot think of a more pernicious doctrine designed to convert otherwise honest people into gold-digging, sponsor-seeking, pleasure-loving, and divorce-hoping brides and alas, grooms. Industry, economy, effort, frugality, investment and all those principles that lead spouses to work together to improve the family fortunes stand in peril of abandonment where we say the Constitution gives automatic half-share to a spouse whether he or she earns it. I do not think that getting married gives a spouse a free cash cheque bearing the words “50 per cent.”
The Court of Appeal added that the spousal contribution to the matrimonial property can be direct or indirect; monetary or non-monetary, provided it enables the other spouse to either acquire or develop the property in question. On the point of the respondent’s contribution, the Court of Appeal stated that the contribution towards the matrimonial home was both monetary and non-monetary. The court also took special notice of the respondent’s claim that she contributed to the construction of the property in question by cooking food for the workers, sourcing building materials, delivering them to the construction site, and supervising the construction of the property. The alleged contribution was denied by the appellant.
In a bid to establish whose version was more in conformity with reality, the court found it wise to start an examination of the capabilities needed to do what they claimed to have done in a real-life situation. After the examination, the court found that the respondent lacked the basic knowledge, skills, or experience to carry out any of the alleged contributions to the construction of the house and the appellant’s evidence that the only time the respondent went to purchase materials for the site, she went with one of the site employees, appeared more probable and credible. Similarly, the court found that each stage of the construction process is typically exciting, with each development sparking interest and encouraging regular visits to the site. It was therefore highly probable and credible that the respondent frequently visited the site to observe the ongoing progress. The visits were held not to contribute to the value of the project unless accompanied by some other action that progressed the project.
Lastly, regarding the evidence that the respondent cooked for the construction workers at the site, the court found this claim inconsistent with real-life possibilities. At the material time, she was in school and had two maids to assist with household chores, making it illogical for the appellant to have deployed her to cook at the site. However, the court accepted the finding that the respondent occasionally acted as the paymaster at the site, using funds provided by the appellant and that she had contributed to the purchase of the suit plot and its fencing.
Based on these findings, the court proceeded to assess the respondent’s non-monetary contributions using the concept of “unpaid care and domestic work.” This term was defined to encompass all forms of work not compensated by wages that women and men carry out daily, including caring for children, elderly, and sick family members, performing household chores like laundry, grocery shopping, cooking, cleaning, construction and repairs, cultivating food for the family’s subsistence, fetching water and firewood, and more.
The court held that monetary principles cannot be entirely disregarded when determining the value of non-monetary contributions. To this end, the court considered the principle of knowledge, skills, and attitude (KSA) possessed by the labourer. The court further noted that the value of any service rendered should be determined based on the cost of similar or substitute services available in the labour or service market.
Based on these principles, the Court of Appeal found that the trial court, after assessing the credibility of the evidence presented, should have kept in mind the monetary value of the activities that constituted the respondent’s contribution to the matrimonial property.
1.2 Court’s Decision
The Court of Appeal held that after re-evaluating the evidence before the trial court and trying its best to weigh the peculiar circumstances of the case, while not losing sight of the principles discussed, the court declared that the respondent was entitled to a 20% share in the suit property.
2.0 ANALYSIS OF THE COURT OF APPEAL’S DECISION IN AMBAYO JOSEPH V ASERUA JACKLINE
According to the Court of Appeal in the Ambayo Joseph case,[1] citing Julius Rwabinumi v Hope Bahimbisomwe,[2] a spouse’s entitlement to any share in the matrimonial property is directly tied to their contribution to that property. This contribution can be direct or indirect, monetary or non-monetary, as long as it facilitates the acquisition or development of the property in question by the other spouse.
The Court of Appeal in Ambayo significantly departed from the Supreme Court’s position in Rwabinumi regarding what constitutes direct and indirect contributions, whether monetary or non-monetary. The Supreme Court had previously defined direct contributions as those involving payments toward the purchase price, mortgage instalments, or the development of the property. Indirect contributions were described as those involving the payment of other household bills and family expenses, including child care, maintenance, and growing food for the family’s sustenance.
In Ambayo, the court focused solely on contributions to the purchase and development of the matrimonial property, ignoring the broader contributions that parties make to the general well-being and development of the family unit. By considering these contributions, the court would have recognised that each spouse plays a vital role at different stages of a marriage. For instance, the respondent conceived and carried four children for nine months each, contributing significantly to the family’s growth from just two individuals to a unit of six. This should have been acknowledged and factored into the respondent’s contributions toward the family’s development.
The characterisation of the respondent’s presence at the construction site as mere excitement significantly downplays the importance of moral support that spouses provide to their partners’ careers and various ventures, even when they lack basic knowledge of those fields. Such support plays a crucial role in enhancing the overall well-being of the family unit, both socially and economically.
A powerful example of the impact of moral support by a spouse on career development and, consequently, the family’s growth, can be seen in the testimony of Justice Ketanji Brown Jackson during her Senate Judiciary Committee hearing. As the first Black woman to become a U.S. Supreme Court Justice, she openly acknowledged that “without him [her husband] by my side from the very beginning of this incredible professional journey, none of this would have been possible.” This statement followed a revelation about her husband, Dr. Patrick Graves Jackson, a surgeon with no legal background, who had frequently attended her court sessions as a mere spectator to offer moral support. He had even taken leave from work to care for their children, enabling his wife’s advancement in her legal career.
This example illustrates the significant role moral support plays in the development of a partner’s career and, by extension, the growth and well-being of the family as a unit. Such contributions should be recognised and valued in assessing the overall contributions of a spouse in a marriage.
3.0 PRIOR COURT DECISIONS ON SPOUSAL CONTRIBUTIONS TO MATRIMONIAL PROPERTY
In Mayambala v. Mayambala,[3] the High Court ruled that the wife’s interest in the matrimonial home amounted to a 70% share. This determination was based on her ability to provide documentary evidence of her direct contributions to the home’s development. Her direct monetary contributions included payments for the building plan, surveyor fees, purchasing bricks, paying the workers who dug the foundation, and taking a housing allowance advance to apply toward the construction. Her non-monetary contributions involved convincing her employer to advance her husband a loan and seeking assistance from her parents for the house. The evidence presented included receipts for various purchases and payments, as well as loan application forms used to acquire the loan that funded the construction of the contested matrimonial home.
The Supreme Court in the case of Julius Rwabinumi v. Hope Bahimbisomwe[4] held that the Court of Appeal’s decision to divide all matrimonial and joint property equally upon divorce, based on marriage vows and Article 31(1) of the Constitution of Uganda, was flawed. The ruling emphasised that this equal division should not be applied indiscriminately. Instead, it must be contingent on whether the claimant can prove their contribution to the acquisition of the property—either through direct monetary or non-monetary contributions, such as payments toward the purchase price, mortgage instalments, or the property’s development; or indirectly through covering household bills, fulfilling other family requirements, including child care and maintenance, or growing food for the family’s sustenance.
This ruling by the Supreme Court recognised contributions such as childcare, maintenance, and growing food for the family when assessing a spouse’s contribution to the development of matrimonial property and the family as a whole. However, in the Joseph Ambayo case,[5] the Court of Appeal completely disregarded these forms of contribution. Despite the respondent having given birth to four children, cared for them, and maintained them, these contributions were downplayed. The court in Ambayo reformulated the test, focusing exclusively on contributions to the matrimonial property, thereby neglecting the broader contributions to the family unit’s well-being.
4.0 POSITION IN THE UNITED KINGDOM
Courts in the United Kingdom have addressed the issue of a spouse’s entitlement to matrimonial property upon divorce by introducing the “special contribution doctrine.” This doctrine requires a person seeking a larger share of the matrimonial property, beyond an equal division, to demonstrate that they made a special contribution to the accumulation of the marital assets.
The Court of Appeal in England reviewed the “special contribution doctrine” in the case of Work v. Gray.[6] In this case, the parties, who had met, lived together, and had two children with limited financial resources, experienced a significant change when the husband accumulated substantial wealth during his employment with Lone Star, totalling over $300 million during the marriage. By the time of the final hearing before Holman J. in March 2015, the parties’ assets amounted to approximately $225 million.
At the hearing, the husband argued that there should be a departure from an equal division of assets based on his ‘special contribution’ to the accumulation of wealth. The Court of Appeal agreed that Holman J. had not erred in law or applied incorrect principles. The court found that the judge had carefully assessed the contributions of both parties and the wealth generated by the husband. Holman J. had determined that the disparity was not so great as to make it inequitable to disregard the husband’s contribution. Consequently, the Court of Appeal dismissed the husband’s appeal and ordered him to pay his ex-wife £453 million, equating to 41.5% of the total marital assets, after he failed to prove a special contribution to the generation of the assets, which were approximately £1 billion.
5.0 CONCLUSION
In Rwabinumi, the Supreme Court provided a broader definition of indirect spousal contributions, encompassing the payment of household bills, childcare, maintenance, and growing food for the family’s sustenance. The court recognised contributions made toward the overall welfare and development of the family as a unit. However, the Court of Appeal in Ambayo fundamentally diverged from this approach, narrowing the definition of spousal contributions to those that directly enable the other spouse to acquire or develop the specific property in question.
This shift in focus is a key reason why courts face challenges in dividing matrimonial property. By concentrating solely on quantifying a spouse’s contribution to the matrimonial property, the courts often overlook the broader range of contributions and sacrifices made by a spouse towards the development of the entire family unit, including the acquisition of property during the marriage.
Phillip Karugaba is a Partner at ENSafrica Advocates Uganda. He leads the Corporate Commercial Team. He is recognised by respected ranking agencies IFLR1000 and Chambers and Partners as one of the top corporate lawyers in Uganda.
Ssentongo Yakubu is a Lawyer, a candidate, and a graduate with a diploma in legal practice from the Law Development Center Uganda. His core practice specialises in state-ups, corporate due diligence, and real estate law.
[1] Supra, note 1.
[2] Civil Appeal No.10 of 2009.
[3] Divorce Cause No.3 of 1998.
[4] Civil Appeal No.10 of 2009.
[5] Supra, note 1.
[6] [2017] EWCA Civ 270.
[1] The Constitution of the Republic of Uganda, 1995 as amended.
[2] Civil Appeal No. 128 of 2014.
[1] Civil Appeal No. 0100 of 2015.