Malawi court rules academic degrees got during marriage are matrimonial property to be shared during divorce

A Malawi court has issued a landmark judgment likely to be used as a precedent across the world after ruling that academic qualifications obtained during a marriage are a part of matrimonial property.

The judgment was issued by the Malawi High Court on August 19, 2020, after a housewife named Ellen Tewesa took her lecturer ex-husband, Chimwemwe Tewesa to court when he sought a divorce after accomplishing his tertiary education.

Before going to the High Court, the mother of four children had been awarded a compensation of Malawi Krone 300,000 (KSh43,366) payable in 10 equal installments.

Further, the trial court had ordered her Chimwemwe to build a matrimonial house for Ellen at her home village or in default pay her Malawi Krone 150,000 (Ksh21,683).

Dissatisfied with the meagre award, Ellen, who had been married to Chimwemwe for 20 years, moved to the court for the division of the matrimonial property which she said included the ex-husband’s academic qualifications obtained during the pendency of their marriage.

Chimwemwe had acquired higher education qualifications while married to Ellen and had progressed from a primary school teacher to a high school tutor and later became a college lecturer.

The couple had a humble beginning but later grew prosperous in their 20 years of marriage during which Chimwemwe acquired two degrees.

The court was faced with several issues including, whether academic degrees can be considered to be part of matrimonial property and whether there was marital property in the educational qualifications, namely a Bachelor of Education Humanities and Diploma in Education.

Ellen wanted to know if the Bachelor’s degree and diploma could be distributed on a 50/50 basis.

Though there were no existing Malawian precedents dealing with educational qualifications as forming part of family property which were to be shared between spouses upon dissolution of marriage, Ellen’s lawyer urged the court to be guided by American precedents that had extensively dealt with the issue.

The court held that any person who pursued further education did it for the benefit of both himself and his family which includes his wife, children, and any other persons that stay with them during the subsistence of marriage.

Even though an educational degree, such as an MBA, lacks an exchange value or any objective transferable value on the open market, the Malawi High Court held that there is property in the qualification.

Further, while degrees cannot be inherited, the court held that the future earning capacity and practicing licenses are marital property.

The rationale was that, with future earning capacity, the family and other beneficiaries would benefit from whatever could be realised by the degreed person so long as that person was alive and working for an income.

As for a practicing license, commonly given to doctors and lawyers, the court held that it forms part of the family property because when the owner dies, his practice could be inherited and continued by his family and friends.

In the Malawi case, the court held that ignoring the contributions of the sacrificing spouse, who cooked for the husband, the four children, and doing some businesses just to top up the family budget, was an unfair advantage to the husband who had gained the education and degree without obligation. It held that the ex-husband would be granted unjust enrichment of the educated spouse.

Justice SA Kalembera held that Ellen had a beneficial interest or equitable claim in her ex-husband’s educational qualifications as long as the marriage subsisted.

Since their marriage had ended, the judge ruled that she would be compensated for her loss through the distribution of matrimonial property but her beneficial interest in his degrees duly comes to an end after the assets are shared fairly.

At the dissolution of the marriage, the beneficial interest in the academic qualifications would manifest in that there would have been an order for the distribution of matrimonial property and maintenance of children. The property to be distributed was acquired through work which was obtained by using the educational qualifications of the respondent. The court considered the future earnings of the respondent in setting the amount of alimony then designated the alimony payments based on future income as property, ruled the judge.

But on the issue of dividing said property in the academic degrees on a 50/50 basis was too farfetched, the judge ruled.

It ought to be borne in mind that the qualifications could not be physically divided between the couple and that a degree was regarded as property with only speculative value. It would be diametrically impractical to demand the respondent to also impart the knowledge he acquired while at college to the petitioner, but also that the names in the certificates could be interchanged from Chimwemwe S. Tewesa to Ellen Tewesa, the court held.

Finally, the court looked at various factors including that Ellen would no longer enjoy the fruits of their joint efforts as a couple but rather another woman would if Chimwemwe remarried.