Your degrees could cost you when you decide to divorce

Just when you thought court hearings couldn’t get more interesting, in comes a recent Malawi court ruling that sought to include higher education qualifications in divorce settlements. In a recent landmark ruling made by Blantyre High Court Judge Sylvester Kalembera, it was decided that academic qualifications obtained during marriage should be considered as matrimonial property and divided equally in the event of a divorce.

University World News was able to draw on the expert analysis of scholars such as Professor Omphemetse Sibanda, the executive dean of the faculty of management and law at the University of Limpopo. The professor of law explained Justice Kalembera’s ruling.

The case, Tewesa vs Tewesa, involved Ellen Tewesa (plaintiff) who made an appeal to the high court for the academic degrees of her ex-husband, Chimwemwe Tewesa, to be included in their divorce settlement. The two had been married for almost 20 years when the husband sought a divorce, in 2012, after completing his tertiary education.

Her duties at home enabled her husband to study

While they were still married Tewesa was the family’s breadwinner, though his wife also contributed by running the family business and attending to household chores. During this period, Tewesa attained two degrees that saw him gradually transit from a primary school teacher to a high school tutor and finally to a college lecturer.

Soon after completing his tertiary education, Tewesa decided to divorce his wife, Ellen, who took the matter to court seeking a fair settlement.

In the initial hearing, the presiding magistrate ordered that in compensation, the ex-wife should be awarded MWK300,000 (US$400) which was to be paid in 10 equal instalments worth MWK30,000 (US$40) each. In addition to this, the judge also ordered Tewesa to build a matrimonial home for his ex-wife in her home village or equally pay her a sum of MWK150,000.

However, not satisfied with the award, Ellen went back to court seeking for her ex-husband’s academic degrees to be included in the settlement. According to her, her sacrifice and duties at home enabled her then-husband to work and study with ease during their 20-year marriage.

“However unfortunate and ungrateful it may be, cases of spouses leaving or divorcing their partners after attaining better academic achievements are not new,” noted Kalembera.

Women often enable their spouses to excel

While most judgments in divorce cases tend to ignore the role played by women in enabling their spouses to excel, Kalembera chose to take the bull by the horns, thus setting a new precedent in what experts such as Sibanda consider a fight for gender equality. According to him, the judge made a bold decision that other judges would have opted to avoid altogether.

Justice Kalembera explained that, while married, any person who chose to further his or her education did it for the benefit of both themselves and their family, which includes the husband and-or wife and their children if they have any. He added that an academic degree is a means to future earning capacity, which would have otherwise been shared equally if the two do not separate.

Kalembera stated that ignoring Ellen’s role at home, which included taking care of their children and running their family business, was unfair to her. Tewesa, through the help of his wife, had been able to easily manoeuvre through work and studies without any obligations, and he would thus be granted unfair enrichment if Ellen’s contribution was to be ignored.

In his ruling, Kalembera cited two similar major divorce cases that had been heard and ruled in the United States. The first is that of Carrigan J in In re Marriage of Graham, 94 Colo. 429,574 P.2d 75r 78 (1978) in Colorado. As Kalembera had noted, the case provided the common scenario of a wife willing to sacrifice her time so that her husband could secure a better financial future for the family through higher education.

A groundbreaking decision

In the end, rather than stay to enjoy the fruits of the degree she helped her husband obtain, she is instead served with a divorce decree. The court is now faced with the task of going through the marriage act and deciding whether or not the husband’s academic degree can be included in the monetary division in the event of a divorce.

The ultimate decision was that the degree in question was merely a means to a better future and could not be considered as actual property.

The second scenario cited was the case of Todd v Todd 272 Cal. App. 2d 786,78 Cal. Rptr. 131 (1969), in which Mrs Todd’s request to have her husband’s degree shared with her was denied by the California Court of Appeal. Mrs Todd argued that while her husband focused on getting his undergraduate and law degree, she assisted him by taking care of and supporting the family.

Having these two cases in mind, one can see how bold and groundbreaking Kalembera’s decision was, as it may have just transformed the manner in which Malawi courts will ensure equality and justice for all in future marriage and divorce cases.

Degree declared a marital asset

According to Sibanda, Section 24(1) of the Malawi Constitution which supports Kalembera’s decision, encourages equality and discourages gender discrimination: “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.”

Mrs. Tewesa thus requested the court for the following:

• A declaration that the property in the said educational qualifications is family property;

• An order dividing the said property in the bachelors degree and diploma in half; and

• A declaration that there is property in the educational qualifications of the husband, namely the degree (education humanities) and diploma (education).

Justice Kalembera’s final decision was therefore that any future earnings that would be realised from the use of the attained licenses or academic degree would be considered as marital property.

Sibanda finalised his analysis by citing the 1982 work of Dr Marvin M Moore that seemed to agree with the judge’s decision: “...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”.

And with that remarkable and somewhat unexpected ruling, the case was concluded.