Bishop & Sewell

In a recent High Court ruling, in Malawi, Judge Sylvester Kalembera, found that academic qualifications obtained during marriage could be considered as a matrimonial asset and the proceeds of it subsequently divided equally in the event of a divorce.

I’m indebted to University World News reporting on the case of Tewesa vs Tewesa, in which Ellen Tewesa appealed that her former husband Chimwemwe’s degrees be included in their divorce settlement after he sought to end their marriage of twenty years, writes Louise Barretto, Head of our Family law team.

This article contains the full details, leading up to the appeal in the High Court and, the issue of law is an interesting one, although obviously not applicable in an English court Our UK courts will not award a share in future earnings, except in a very limited sense for bonuses paid, for a limited period after the separation, as a result of work done during the marriage.

In a rather quaint way of pleading her case – which envisages splitting the degree certificates rather than referring to ‘earning capacity’ – the Malawian case refers to the concept of ‘compensation’ which is a feature in some small proportion of our cases

As Judge Kalembra stated: “However unfortunate and ungrateful it may be, cases of spouses leaving or divorcing their partners after attaining better academic achievements are not new.”

In Justice Kalembera’s opinion 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.

The judge stated that ignoring Ellen’s role at home, which included taking care of their children and running their family business, was unfair to her.

Whilst the degree in question was a means to a better future it could not be considered as actual property.

However, any future earnings that would be realised from the use of the attained licenses or academic degree could be considered as a marital asset and therefore require him to repay his wife for her direct and reasonably related contributions to his professional education.”

I suspect that case may yet go to another appeal.

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The above is accurate as at 30 October 2020. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.

Category: Blog | Date: 30th Oct 2020

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