IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRTY MATRIMONIAL CAUSE NO. 18 OF 2015 BETWEEN CHIMWEMWE YASIN.. APPLICANT -AND- AMAS!I YASIN.. RESPONDENT CORAM: THE HON. MR. JUSTICE D. MADISE , Ms. Mbendera for the Applicant , Respondent absent, unrepresented , Mr. Mbekeani Official Interpreter Madise, J RULING1.0 Introduction 1 12 2.0 The Applicant in this matter took out summons exparte for distribution of matrimonial property after divorce and custody of children on 12hMarch 2018. The application has been supported by an affidavit of Chimwemwe Yasin. Attached to the summons are skeleton arguments. When the matter was called for hearing of the summons on 23March 2018, the Respondent did not appear and no reasons were given for the non-attendance. The Applicant has filed with the Court a notice of hearing which was obtained by the Respondent for the 23 of February 2018 which was duly acknowledged by the Women Legal Resources Centre, the lawyers for the Applicant. Since no reasons were given as to why the Respondent had failed to attend court, | allowed the Applicant to present her case. e Fac In her affidavit in support of the summons, the Applicant deponed that the marriage with the Respondent ended in a court of law and she was advised to file a fresh application for the distribution of properties. Attached to her swom statement a list of the properties to be distributed (CY1) 1 Two bedroom house - Kameza plot Two minibuses Four pieces of sofa one double bed one single bed aan ‘one coffee table 3.0 The Law 3.1 Section 24 (i) (a) (ii) Constitution, Republic of Malawi,3.2 3.3 “Woman have the right to full and equal protection by the law and have the right not fo be discriminated against on the basis of their gender or marital status which includes the right to be accorded the same rights as a man in civil Jaw, including equal capacity to acquire and maintain rights in property independently. Itis trite law that at divorce parties are entitled fo a share of the matrimonial properties. However when entering the contract of marriage, ordinary People do not consider the consequences of a future separation or divorce. Ordinary people do not draw express agreements regarding their property at divorce. In Nyangulu vs. Nyanguly (1983) 10 MLR 433 Villiera,_J was of the view that: “it could not be infeed from the mere fact of mariage that the property had been intended fo be jointly owned: instead, it will be the duty of this court to give legal effect to what, in the changed circumstance, the parties would have taken as having intended had they given consideration to the matter at the point of eniry into marriage. It makes no much difference whether the petitioner had made financial contribution or merely worked to help construct the house. It is the duty of the court to look af the conduct of the parties." Many a times, people tend to have a novel view of the amount of contribution a house wife/husband makes to the overall properties a family owns. Many wrongly believe that the mere fact that a woman or man was not working puts him/herat a disadvantage or a weak position when it comes to sharing of property. The general principle is that a house wife/husband is entitled to a good share of the property. His/her contribution 334 35 3.6 can easily be quantified as cooking, washing, cleaning the house, working at the farm or plot and generally looking after the husband/wife and Children all of which he/she does without being paid an allowance or salary. In Appleton vs. Appleton (1965) 1 WLR 25 a husband appealed against an order made by the Registrar in response to an application by the wife for the sale of the matrimonial house which belonged to the wife. The husband sought a share of the proceeds of the sale on the ground that he had contributed to its improvement. The Registrar had declined to give him a share on the basis that although he had contributed to the improvement of the property, there was no evidence of any bargain or express intention as to the proceeds of sale. On appeal Lord Denning MR, ([1965] 1 All. ER. 44) said; “| think that was an erroneous direction on point of law. As the husband pointed out fo us, when he was doing the work in the house, the matrimonial home, it was done for the sake of the family as a whole. None of them had any thought of separation at that time. There was no occasion for any bargain to be made as to what was to happen in case there was a separation, for it was a thing which no one contemplated at all." It is the finding of this Court that ordinary people do not go into marriage while at the same time contemplating as to what will happen when they divorce. Ordinary people do not keep receipts or figures as to how much they have invested in family property. Therefore it is the duty of this Court to put meaning to the intention of the parties and make an order as to how the property should be distributed. In the case of Re: Rogers’ Question (1948) 1 All E.R. at 328-9 Evershed LJ said;37 3.8 “In this as in most similar cases, the difficulties of a judge are aggravated by the circumstances that the two parties are now extremely hostile to each other and that the conditions of a broken mariage which now subsist were not fully appreciated by either party, even if as the learned judge thought, they were not absent from the mind of one of the parties, when the transaction in question was entered into. When two people are about to be married and are negotiating for a matrimonial home it does not naturally enter the head of either fo enquire carefully, still less to agree, what should happen to the house if the mariage comes to a grief. What the judge must try to do in all such cases is, after seeing and hearing the witnesses, to ity to conclude what at the time was in the parties’ minds and then fo make an order which the parties in the judge's finding must be taken to have intended at the fime of the transaction itself." As earlier stated in the above cited authorities, it is trite law that at divorce parties are entitled to a share of the matrimonial properties. The ratios depend on the circumstances of each case and the contributions each party made. It is settled law that a party who simply assisted in organizing or arranging but never contributed money is equally entitled to a share of the matrimonial property. A party's non-monetary contribution should therefore translate into shares which must be easy to calculate in my view. This Court is therefore convinced that the both the Applicant and the Respondent had intended to benefit from the matrimonial house and properties. Unfortunately there is no evidence as to the extent of each party’s contribution to the overall property the family owned. In the case of Kayambo vs. Kayambo (1987-89) 12 MLR at 408 Mkandawire, J stated that; 539 3.10 3.11 “In such circumstances where there in no way of discovering the parties' intentions and no fair way of distinguishing between their respective contributions, the maxim “equality is equity" would be applied. ‘Accordingly the real property in the present case would be ordered to be sold and the proceeds divided equally between the parties." The Applicant has made out her care for distribution of matrimonial property. The Respondent has not opposed the summons and he did not attend the hearing In chambers. His lawyers did not show up either. It is clear he had no intention to defend or oppose the summons. The law is clear as to what should happen when a man and a woman divorce. There must be distribution of properties. The court will normally fake into account the contributions the parties made in acauling the properties in issue. Depending on such contribution a court will apportion a percentage fo each one of them. But where the court is unable to apportion a percentage due to lack of evidence as it is in the present case due to the non attendance of the respondent, then a 50% share to each will be made. At times equality achieves justice and in the present case | make an order that the parties should benefit equally. | therefore make the following order 1) Two bedroom house in Kameza to be sold and proceeds shared equally. 2) Two minibuses, each party to get one 3) Four pieces of sofa, each party to get two 4) One double bed to the Respondent5) One single bed to the Applicant 6) One coffee table to the applicant 3.12 The Sheriff of Malawi must ensure that the above order is complied with within 14 days. | make no order on custody of children and maintenance as these although they were specifically pleaded no evidence has been led in the affidavit in support of the exparte summons. Iso order Dingiswayo Madise Judge