Prove equal contribution to have 50/50 property share after divorce
By Dickson Jere
A driver and nurse were married but divorced after six years. They had one child. They lived together in one of the properties in Salama Park which belonged to the man. The plot had two houses – one on which was built during the subsistence of the marriage. The man also had three vehicles.
The two failed to resolve the sharing of the properties after divorce and the matter went to the High Court and later reached the Supreme Court. It was a highly contested case!
The man argued that he had built the house on the plot belonging to his late father and therefore the property was not his. He claimed the vehicles were not in his name.
A panel of three Supreme Court Judges heard the appeal and stated that sharing of family property after divorce is not based on the fifty-fifty formula but rather what one contributed to that property.
“Although indeed parties to a marriage are recognized as equal, equality and fairness implies that when their love life is over, the parties to a marriage should each walk out with a share of what they contributed,” the Judges said.
“A marriage is not, and, should never be regarded as the reason for equal sharing of matrimonial property,” the Supreme Court ruled.
The Judges said the contribution can be materially, financially or in kind whereby the spouse helps in supervising the work of the construction or indeed buys food at home to relieve the pressure on one who is building.
“Our view is that property settlement should be undertaken on the basis of fairness and conscience; not on an unjustified reference to the 50:50 dogma,” the Court said.
It also observed that nowadays days most women were breadwinners unlike in the past and therefore what they acquire during marriage should be protected too. In fact, in this case, the wife – nurse – earned more than the husband driver.
“Resort to the 50:50 philosophy in sharing such property would clearly be a naked affront to the justice of the situation in those circumstances,” the Court said.
“Our understanding is that it is possible for parties to a marriage to acquire property during the subsistence of a marriage that is not intended to be for the family as a whole,” they said.
Examples of acquiring shares in companies or bonds by spouse may not be for the family benefit but that particular person and therefore such property was not available for sharing.
The Court ordered for the equal sharing of the house and the vehicles in dispute because the wife contributed and the man never challenged her claims. The court also ordered the man to make monthly contributions to the child.
The court said property settlement is always an emotive issue as it invoke bitterness between the parties who once loved each other.
“It is thus always an ominous exercise for the Court to undertake,” the Judges bemoaned.
Court citation – Nkhata v Nkhata- Appeal No. 60 of 2015.
This is an important case that has changed Zambia’s jurisprudence on property settlement after divorce. The old notion that wife and husband share property 50/50 after divorce has been discarded by the Supreme Court. You have to show what you contributed to those properties.