Women and Justice: Keywords

Domestic Case Law

Ponde v. Bwalya Supreme Court for Zambia (2016)

Divorce and dissolution of marriage, Property and inheritance rights

The petitioner and the respondent were divorced in the local court where the petitioner was granted custody of the couple’s three children, with the respondent retaining rights of access. The couple were also ordered to share their household goods equally. The petitioner appealed to the High Court in relation to the property adjustment in respect of the matrimonial property and the two houses built on it, acquired during the subsistence of the marriage and in particular, against the award of the smaller house to the respondent on the basis that this was not a just and proper order of property adjustment. In support of his argument, the respondent argued that: (i) the plot was too small to share; (ii) the petitioner should not be compelled to live with his former wife using a single gate and in limited space; and, (iii) the smaller house allocated to the respondent by the court was already occupied by the three children of the family. The High Court held that there is no family property too small to for a former husband and wife to share after divorce. Moreover, the husband’s inconvenience in this context was deemed immaterial; if the physical structures could not be shared, for whatever reason, then, the couple should share the market value of the properties once sold. The High Court noted, on the facts, that the lower court’s decision to grant the petitioner the option to buy the smaller from the respondent after valuation or in the alternative, sell the entire property, and share its market value was perfectly just and correct under the circumstances. Accordingly, it dismissed the appeal with costs.



Joan v. Hodgson High Court for Zambia (2011)

Divorce and dissolution of marriage, Property and inheritance rights

The defendant alleged that he was induced to make and execute an agreement to pay the plaintiff various amounts following the breakdown of their 10-year relationship, including: payment of US $50,000 (with US $30,000 to be paid initially followed by the remainder; this was subsequently amended to US $60,000), payment of the plaintiff’s rental and medical expenses for 12 months, the purchase of furniture and a computer, and the provision of financial support to the plaintiff’s daughter who was studying. The defendant freely paid the plaintiff US $30,000 but did not honor the rest of the proposed agreement. The defendant claimed that the agreement had been entered into by duress on the part of the plaintiff or alternatively, should be set aside for lack of consideration, and therefore counterclaimed the US$30,000 paid under that agreement. In reply, the plaintiff claimed that: (i) there was a common law marriage between the parties for the defendant held himself out as the plaintiff’s husband and father to her children and for all intents and purposes they lived as husband and wife; and, (ii) the defendant entered into the agreement willingly. The Supreme Court concluded that, in the present case, there was no celebration of marriage and, therefore, the parties could not be presumed to have been married under common law. Further, the Supreme Court noted that there was evidence in support of the position that the agreement was the result of blackmail on the part of the plaintiff who held various sensitive documents of the defendant and threatened to report the defendant to the Zambia Revenue Authority if he did not agree to enter into the agreement. The Supreme Court noted that the evidence established that the agreement had been entered into under duress and therefore was capable of being set aside on this basis. However, a party who enters into a contract under duress has the option of ratifying the contract or seeking to avoid it once the duress has come to an end. The Supreme Court noted that while the defendant paid the US $30,000 with full knowledge of all the circumstances (including suspecting that the plaintiff no longer had any sensitive documents in her possession), the defendant could not have legally ratified the contract, as it was invalid for lack of consideration (in particular, any consideration would be past consideration because the relationship had ended and the plaintiff was supposed to move out of the defendant’s house anyway as she had no legal right to continue staying there). Accordingly, the Supreme Court ordered the plaintiff to refund US$30,000 without interest to the defendant on the basis that the plaintiff should not be unjustly enriched by the threat (with costs to be borne by the plaintiff, to be agreed upon or taxed in default of agreement).



Lesia v. Lesia High Court of Lesotho (2013)

Domestic and intimate partner violence, Property and inheritance rights

Mrs. Lesia filed an application for relief against her husband, alleging that he abandoned his family, abused her, and was attempting to sell their home without her consent. She alleged that she built and paid for the home, and so sought to have her husband enjoined from selling it. The court issued an interim order granting the requested relief. The defendant disregarded the court order, continued his efforts to sell the home, and threatened to kill Mrs. Lesia if she kept interfering.  To justify his rejection of the court order, the defendant claimed that he was not married to Mrs. Lesia, and that she had no right to file any applications against him. The court upheld Mrs. Lesia’s right to seek judicial intervention and sentenced the defendant to 30 days in jail for willfully disobeying the court’s order.  



Esseku v. Inkoom Superior Court of Judicature (2012)

Divorce and dissolution of marriage, Property and inheritance rights

Ms. Esseku and Mr. Inkoom had been married for 30 years. The husband claimed to have divorced his wife in 1995 under Muslim tradition and custom. They had one property together, which Mr. Inkoom sold without consulting Ms. Esseku or their five children, all of whom he evicted off the property. The trial court held that the property was a joint property of both parties, and nullified the sale. Examining the evidence, the Superior Court affirmed the holding because Ms. Esseku had made a “substantial contribution” to the property by building an additional two bedrooms to the house. Furthermore, the Court held that even if she had not made a substantial contribution to the acquisition of the property, she still would have been entitled to an equal share of the property because of her valuable considerations made during the marriage, like “the performance of household chores” and the “maintenance of a congenial domestic environment for the respondent to operate and acquire properties.” As such, both parties were entitled to equal shares of the property, and Mr. Inkoom could not sell the house without consulting her first.



Mensah v. Mensah Supreme Court of Ghana (2011)

Divorce and dissolution of marriage, International law, Property and inheritance rights

The petitioner filed for divorce and sought an equal share of assets acquired during the marriage.  At the time of marriage, neither party owned any property.  During their marriage, the plaintiff assisted in building their business and managed their shop while her husband continued to work for the Controller and Accountant General's Department.  The plaintiff also advised the respondent on property investments.  The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him, and therefore should not be considered an equal holder of marital assets.  The trial court and the Court of Appeals ruled in favor of the petitioner, finding that she was a joint owner of the property and was therefore entitled to an equal share of the marital assets.  The Supreme Court affirmed.  Previous case law denied a wife a share in property acquired during the marriage unless the wife could show that she had made a "substantial contribution" to the acquirement of these assets.  Yet, because more recent cases supported the "equality is equity" principle in the division of marital assets, the Supreme Court concluded that "the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under Article 22 (3) of the Constitution 1992."  Thus, the court held that even if it determined that the petitioner did not make a substantial contribution to the acquisition of marital property, she would still be entitled to a share of the property.  To further support its decision, the Supreme Court referenced Article 1 and Article 5 of CEDAW, in addition to the Universal Declaration of Human Rights, which emphasize equality between the sexes.



Vaux v. Vaux High Court of Malawi (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.