When women demand fair share of matrimonial property

ABDALLAH MSUYA

MARIAM Hussein (not her really name) has filed a suit in the Kadhi Court claiming share of the matrimonial property. She wants a 7m/- compensation before she can part ways with her husband.

Their 25-year old marriage reached a breaking point and her husband is trying to evict her from the matrimonial house. He is in love with another woman.

“He wants to kick me out of the house, but I have told him I won’t step out until he pays me 7m/- as

my contribution when we were building our home together ,” says Mariam.

“When we got married, we had nothing worth calling a home. I always supported him in running the family, giving him financial support at times. I even gave him money not once not twice when he ran out of capital to run his fisheries business,” she divulges.

“I also backed him financially during the construction of the house we’re living in. After all these 25 years he no longer wants to see me,” added Ms Mariam.

Their case is pending in the court. Mariam has no other place to go and is contemplating to return to her parents’ house and with a new start beckoning, she says she needs alimony from the man divorcing her to care for herself and her children.

“He’s reluctant to give me the sum. I hope I will finally get my deserved share,” she says.

The number of divorce cases keeps increasing in Zanzibar. About 1,000 cases were reported in 2016 and the number rose to 1,218 last year, according to the Minister in the President’s Office (Constitution, Law, Public Service and Good Governance) Mr Khamis Maalim.

A survey commissioned by the Tanzania Women Writers Association (TAMWA) Zanzibar, 286 divorces were issued by the Kadhi Courts between March, 2017 and January this year.

Concerned with women’s fate and rights after breakup, human rights activists are urging review of the laws governing how matrimonial assets are divided.

They argue that present legal regime of Zanzibar does not adequately recognise women’s property right over matrimonial property. Ms Salma Maulid, who conducted the survey by TAMWA, says one of the biggest challenges facing divorcees is distribution of marital assets between the spouses, with evidence showing that women are often exploited.

She says in most cases, married women in Zanzibar can’t claim share over marital property, to which they have contributed during the marriage.

“Once marriages reach breaking point, women are often told to leave the house where they have lived in their marital life and receive no compensation from their husbands,”.

Ms Maulid argues that throughout their marital life, many women contributes to matrimonial property in many ways but present legal system and traditional practices fail to appreciate that fact.

She says most of the women are housewives and they often become dependent on their husbands. But that should not be used a stick, saying their contribution to the making of the family is invaluable.

The lack of clarity over definitions, standards and property regime are among the key challenges in identifying and ultimately apportioning property acquired or enhanced during the subsistence of a marriage, says Ms Maulid.

“The issue is that presently narrow frames are used to assess contributions and the tendency is to value monetary contributions to nonmonetary contributions.

For example by valuing monetary contributions over nurturing, child rearing and upkeep roles defining the parameters of power in the matrimonial relationship.’’

“Governments have often had to intervene to harmonise public policy, statutory laws, customs and religious traditions of the populace,” she says.

Laws, including the recently enacted Kadhi Court Act should efficiently tackle existing practices that deny women equal share in case of marriage breakup.

In assessing the value of contributions, she says, courts often consider the market value of the property or subject of division and forgone opportunities sustained and enhanced value.

She argues that any private property of the parties that is likely to be jointly used or improved, e.g, a house, business should be valued at the time of contracting a marriage and re-valued upon dissolution to determine the other party’s contribution and improvement.

“The court will, following the formula set, compute the value of contribution made by each party in terms of money or services, and apportion the asset accordingly,” she says and adds “The evaluation should bear in mind inflation and other economic considerations.”

The Tanzania Law Reform Commission also contemplated section 114 (b) on the extent of contributions made by each party in money, property or work in acquiring the assets and recommended including wifely duties and housework. “The challenge is how do we compute domestic work?

One approach that can be used is to make a finding of how much it costs to eat at a hotel, daily, to launder clothes, professionally, and to have live in help,” Ms Maulid suggests.

She argues that the costs for these services can be put together to determine their worth, and revised in case of devaluation. “In case of the emotional “wifely duties,” the principle of (emotional) damages in the law of Torts can govern, or the legislature can come up with a formula along those lines to govern the situation,” she says.

To this juncture, Ms Maulid draws an example from the United States legal system, where Courts have gone further and assess the contributions of the parties to the acquisition, preservation and appreciation in the value of the estate.

In the US, investments made by couples in the form of education, shares in stock, better opportunities professional or otherwise, whereby one spouse forgoes the companionship, aid of the other, or a standard of living with the hope of investing for a better future are active ways in which either spouse contributes to the acquiring of joint assets.

Central District Kadhi Sheikh Abubakar Mohamed, responding to activists’ concerns, says the division of marital property is clearly addressed by Islamic law.

“The Quran improves the status of women by identifying their share of inheritance in clear terms and all Muslims are supposed to follow and implement the rules of Islamic inheritance,” says Sheikh Mohamed.

He concedes, given the disparity in their financial contributions to the acquisition of matrimonial properties, some men are reluctant to share matrimonial properties with their divorcees, arguing they are the sole financial contributors to their acquired property.

“But we usually edify them how the assets should be shared between them, and some do understand,” he says.