Courts as vanguards of access to justice can sometimes make rulings that are absurd or that will make you cringe a little bit. Some of the absurd decisions involve issues around equality and the protection of women.

Interesting, however, is the recent judgment of the Blantyre High Court in Malawi in the case of Tewesa v Tewesa. Judge Sylvester Kalembera set the bar very high in favour of equality and protection of women during divorce and division of common property, and had tongues wagging in the media.

In this case, the court had to determine the distribution of matrimonial property after dissolution of the marriage. The petitioner and the respondent got married under customary law in 1995 and they remained married until 27 April 2012. At the time of the 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 ($403/R6,763) payable in 10 equal instalments of K30,000 ($40.30/R676.30).

The judge also ordered the plaintiff to build a matrimonial house for the defendant in her home village or in default, deposit the sum of K150,000. But money and a house order in favour of the wife are not the reason I took interest in this case. My interest is that a male judge for a change came up with a creative and transformative way of extending the reach of the concept of in-community-of-property during marriage and divorce.

How on earth, one might ask, do you distribute educational qualifications on a 50/50 basis? How would the couple share these qualifications?

On 31 August 2020, Judge Kalembera ruled that those earnings arising from the acquisition of qualifications are marital property, thus subject to joint property division at divorce. To give readers a proper context with regard to the educational qualification, the wife requested the court for a declaratory order on the following:

• A declaration that there is a property in the educational qualifications of the husband, namely the Bachelor of Education Humanities and the Diploma in Education;
• A declaration that the property in the said educational qualifications is family property; and
• An order distributing the said property in the Bachelor’s Degree and Diploma on a 50/50 basis.

How on earth, one might ask, do you distribute educational qualifications on a 50/50 basis? How would the couple share these qualifications? Can we then extend the argument and say that educational qualifications are heritable in marriages in community of property?

Let us dispense with the last question right away by pointing out that the judge said that the answer is in the negative [p8]. “The demand to distribute the said property in the educational qualifications in a 50/50 basis is too far fetched,” said the court.

I am not going to restate and reanalyse the cases Kalembera referred to in support of his ruling; this is an exercise for an article in an academic journal. Kalembera laid down very important principles and conclusions including that “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” [p19-10].

The court stated that the wife had “some beneficial interest or equitable claim in the husband’s educational qualifications as long as the marriage subsists”. And that after the dissolution of their marriage such beneficial interest divests but that “she has to be compensated for such a loss through the distribution of matrimonial property and any other monetary orders made by the court”.

The judge acknowledged that “knowledge” was property for the purposes of the division of the matrimonial property. The prevailing and important principle of fairness is paramount when it comes to the distribution of matrimonial property.

Though having said that it is impossible to divide the qualifications on a 50/50 basis, Kalembera acknowledged and appreciated the craven injustice that would be visited by the court on the wife if nothing was done with regard to the issue of educational qualifications [p12-13]. The judge acknowledged that “knowledge” was property for the purposes of the division of the matrimonial property. The prevailing and important principle of fairness is paramount when it comes to the distribution of matrimonial property.

In most divorce cases, particularly where the woman had been a homemaker for the most part of the marriage, some courts tend to ignore the role the woman played in enabling the man to be a breadwinner. In this case, for example, Tewesa was a breadwinner for the family and rose through the ranks of a primary school teacher, then a secondary school teacher and later a lecturer at Domasi College. On the other hand, his wife contributed through household chores and businesses. But fate would have it that after completing his tertiary education, Tewesa took a decision to divorce her.

I would like to link this discussion opinion to debates on gender equality and gender-based violence. How many of the people out there do you think would not blink an eye to divorce their wives or partners once they have a financial windfall or their wealth improved?

“Though this conduct of the Respondent might be considered unfortunate and ungrateful, it is not unusual,” noted Kalembera [p3].  And he cited with approval the dissenting of Carrigan J in the case of In re Marriage of Graham, 94 Colo. 429, 574 P.2d 75r 78 (1978) in Colorado, USA,  the summary of which is found in Lexis Nexis, the following statement: “The case presents the not unfamiliar pattern of the wife, willing to sacrifice for a more secure family financial future, works to educate her husband only to be awarded a divorce decree shortly after he is awarded the degree.”

The Tewesa v Tewesa judgment not only set precedent in Malawi, it will have a ripple effect across jurisdictions, many of which have not settled the question of educational qualifications as part of matrimonial property distribution.

The Colorado court in In re Marriage of Graham also had to decide the question whether an educational degree was subject to monetary division among the parties in terms of the Uniform Dissolution of Marriage Act. The majority decision was that the MBA in question was not property subject to division. Instead, that it was just a tool “which could potentially assist in the future acquisition of property rather than an actual item of property”.

The Tewesa v Tewesa judgment not only set precedent in Malawi, it will have a ripple effect across jurisdictions, many of which have not settled the question of educational qualifications as part of matrimonial property distribution. Kalembera boldly took a decision that some judges have tried their best to avoid. An example is the case of Todd v Todd, 272 Cal. App. 2d, 786,78 Cal. Rptr. 131 (1969), cited by Kalembera, in which the California Court of Appeals rejected Mrs Todd’s argument she “worked to support the family while her husband obtained undergraduate and law degrees” and therefore “contended that because her husband’s education was financed in large part with community funds, her husband’s education constituted a community asset with a substantial value that the court ought to divide between the parties upon divorce” [p12].

Kalembera’s groundbreaking decision put Malawi in pole position with regard to how in a transformative manner Malawian courts interpret the marriage, divorce, family and law of persons to ensure equality and equal access to justice for all.

It should perhaps be noted that this decision finds support in section 24 of the Constitution of Malawi which, as Kalembera noted, “recognises that property acquired during the 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” [p2].

Section 24(1) of the Constitution of Malawi contains an explicit provision on equality and prohibiting discrimination again women. The relevant provisions states as follows:

“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 right… (b) on the dissolution of marriage (i) to a fair disposition of property that is held jointly with a husband; and (ii) to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.”

The question for South Africa is: should a professional degree be considered a marital asset upon divorce in terms of the Matrimonial Property Act 88 of 1984 read with the Divorce Act 70 of 1979? In an article by Dr Marvin M Moore that first appeared in the Akron Law Review in 1982, the author concludes that “the fairest solution is to acknowledge that the husband’s degree is a marital asset and to require him to repay his wife for her direct and reasonably related contributions to his professional education.” [p555]

All rise: Judge Kalembera has spoken on what many would consider impossible. DM

Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.