Judges Discussion 2: Matrimonial property rights as regards issues of HIV and AIDS (Part 1) and also children (Part 2)

WOMEN AND LAW IN SOUTHERN AFRICA RESEARCH AND EDUCATIONAL TRUST-MALAWI (WLSA MALAWI) AND WOMEN INHERITANCE NOW – AFRICA

Discussion on matrimonial property rights as regards issues of HIV and AIDS (Part 1) and also children (Part 2).


 

 

 

 

 


 


 


 




 


PART 1

I. Judges Discussion on matrimonial property rights and  HIV/AIDS considerations

1.    DO YOU THINK THERE SHOULD BE ANY CONSIDERATIONS IN DISTRIBUTION OF THE PROPERTY AT TERMINATION OF THE MARRIAGE, WHERE EVIDENCE CLEARLY SHOWS THAT A WOMAN WAS INFECTED WITH HIV/ AIDS BY HER HUSBAND?

 

 

·        Justice Chipeta A.C.  (High Court of Malawi) says that:

Such a woman, I believe, has the right to sue her husband for damages as regards the infection. The distribution of matrimonial property should not seek to overtake an unproved case. It should proceed without being influenced by such consideration. The woman should sue, prove her allegation, and obtain her due damages.

 

 

·        Justice Chombo (High Court of Malawi) says that:

Yes – challenges may be proof that she was infected by her husband

 

·        Justice Wambura (Tanzania) says that:

Yes of course because we have a provision which deals with maintaince of a spouse upon separation or divorce whereby in calculating the amount the health status of the woman should be considered as well. However it may be a bit difficult when properties have been equally divided and all of them are sick. How does one expect a HIV/AIDS positive husband to maintain his divorcee. May be an equal distribution would under the circumstances suffice.

 

·        Justice Msosa A.S.E. (High Court of Malawi) says that:

Yes

·        Justice Kachale C.J. (High Court of Malawi) says that:

No. That is a wrong answer or response to the social and moral problem of marital fidelity.

 

·        Justice Mzikamanda R.R. (High Court of Malawi) says that:

The bottom line should be what it is that can be done on the distribution to minimize hardship on the woman after the breakdown of the marriage.

 

·        Justice Chinangwa R.R. (High Court of Malawi) says that:

In this case a larger share be given to the wife.


2.    SHOULD HIV INFECTION ALSO BE A CONSIDERATION DURING DISTRIBUTION OF DECEASED PROPERTY WHERE EVIDENCE SHOW THAT BEHAVIOR OF ONE OF THE SPOUSES IS LIKELY TO HAVE BROUGHT THE DISEASE TO THE OTHER SPOUSE?

 

·        Justice Chipeta A.C.  (High Court of Malawi) says that:

At the time of distribution of such property the deceased has no opportunity to answer back to these type of allegations. If the surviving spouse feels so strongly about these allegations, he or she should sue the estate for damages instead of trying to get a lion’s share of the estate through unapproved allegations.

 

·        Justice Chombo (High Court of Malawi) says that:

Yes

 

·        Justice Wambura (Tanzania) says that:

Definitely yes especially where the remaining spouse is the wife. As it is they are not being given anything. Relatives grab all the properties and the widows are left to die without any assistance.

 

·        Justice Msosa A.S.E. (High Court of Malawi) says that:

Yes, as this would likely affect the output of the infected partner.

 

·        Justice Kachale C.J. (High Court of Malawi) says that:

I am not so sure what sort of evidence could establish such “likelihood”. In my mind the moral question of marital fidelity should better be addressed more directly than at the point of dissolution of marriage.

 

·        Justice Mzikamanda R.R. (High Court of Malawi) says that:

Perhaps, suspicion alone would not be sufficient. There must be some evidence on the transmission of the HIV. Again if there is such evidence the distribution must take into account the need to minimize hardship on the part of the woman.

 

·        Justice Chinangwa R.R. (High Court of Malawi) says that:

Yes, guilty partner should have less property.

 

PART 2

II. Judges Discussion on matrimonial property rights and children’s share considerations

3.  HOW HAVE YOU DETERMINED CHILDREN’S SHARE IN MATRIMONIAL PROPERTY?

 

 

·        Justice Chipeta A.C.  (High Court of Malawi) says that:

I have tended to think that children deserve even a bit more than their surviving parent if he or she has an independent income. As between themselves however, I have tended to favour the youngest over the oldest on the basis that the youngest has the longest to struggle before attaining the age on maturity to gain his or her on income.

 

·        Justice Chombo (High Court of Malawi) says that:

Yes.

 

·        Justice Wambura (Tanzania) says that:

It is my belief that children have no share in matrimonial properties. The notion that children have shares in matrimonial properties has made women lose their properties by saying the property belongs to children. Children have a right to be maintained and educated but not own shares in matrimonial properties. In fact that is what the law provides for under sections 125-137 of the LMA. When a wife dies properties are not distributed but when a husband dies the wife immediately loses her properties because the property belongs to the husband and children this is very wrong

 

·        Justice Msosa A.S.E. (High Court of Malawi) says that:

Following the procedure provided in the old law, that is, in the Wills and Inheritance Act

 

·        Justice Kachale C.J. (High Court of Malawi) says that:

In one case I had to reverse a lower court order giving the ‘matrimonial home’ to the lady as the evidence showed that it had been built jointly  by the appellant (man) and his deceased wife for the benefit of their joint children (who were effectively disinherited by the lower court order). However, my experience is that in such issues are not usually raised or discussed at all.

 

·        Justice Mzikamanda R.R. (High Court of Malawi) says that:

Sometimes at acquisition, the property is allocated to or put in the name of the child. That would be the clearest evidence of share of the child. In other instances, one considers what is required for the maintenance of the child to get to age of majority and this might depend on the age at which the sharing is considered.

 

4. WHERE PARENTS MUTUALLY SPECIFICALLY ALLOCATE PARTICULAR PROPERTY TO A CHILD WITHOUT PUTTING IT IN WRITING, IS IT SUBJECT TO DISTRIBUTION BETWEEN THE SPOUSES, FOR INSTANCE UPON BREAK DOWN OF THE MARRIAGE.

 

·        Justice Chipeta A.C.  (High Court of Malawi) says that:

If there is credible evidence of inter vivos disposal of property to a given child or children, I would tend to think that it would be unfair to take away such ‘gift’ from the child or children just because the parents have parted company and just because they did not commit their disposal into writing..

 

·        Justice Chombo (High Court of Malawi) says that:

No

·        Justice Wambura (Tanzania) says that:

It would only be a problem if one spouse disputes the fact unless there are witnesses to prove the same. Some husbands say so to deny the wife distribution of matrimonial properties. One can say a house for instance was given to their child to avoid it to be sold and proceeds’ distributed amongst them. Now if a child is a minor he actually remains with it. He can put it on rent and can even sale it later and the wife gets to get nothing.

 

·        Justice Msosa A.S.E. (High Court of Malawi) says that:

In those circumstances the unwritten wishes are not taken into consideration

 

·        Justice Kachale C.J. (High Court of Malawi) says that:

Yes. The court has to aim at protecting the interests of the spouses before dragging in “undocumented” interests of children (as my own view is that some of those ‘intentions’ are to keep the property away from the other spouse – in the name of giving it to the children.

 

·        Justice Mzikamanda R.R. (High Court of Malawi) says that:

If there is other evidence a part from writing to show the allocations, than the child ought to get it at the sharing.

 

 

Comments

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  3. jane kariuki says:

    it is nt a coment bt a case i wud like 2 know hw it can go,my husband hv ben abusin me ever since i was pregnant with our son who is now 14months,he used 2 come home drunk @ 2 in the morning en he used 2 heat me real hard in the stomac en one day wen i was 7 months he did beat me en i started spoting my kid was nt movin 4 like 6hrs iwas taken 2 the hospital wea i was admited,he said he’ll stop but he has always ben beatin me en chasin me out of the hse evn as late as 11pm now am stayin in my aunts place with my child,am 22yrs i hv no job no money atleast 2 feed my child,wat can ido pliz help me

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