Features — 19 August 2017
RIGHT TO THE POINT: It is property you get while married!

The topic of matrimonial property has sparked many questions and has clearly shown that many do not appreciate how the changing circumstances in a relationship can actually affect the property rights of each spouse in the marriage. For example, all property obtained during the subsistence of the marriage can be affected by death in a different way than it would be affected by divorce.

Property affected without divorce
Now it has always been an unsettling issue for me that a man and woman may work together and even build an empire, yet the legal rights of all those property may lie solely in the name of one of the spouses. Yes, this happens more often than not. Too often when the marriage is sweet… or merely holding together, the property remains in the name of only one spouse, yet at the critical point of separation, abandonment, or even divorce, the other spouse may find him/herself displaced and in an desperate situation. This can have a devastating effect as it takes time to approach the courts and have your rights declared, and worse, it takes money, which a displaced spouse may not have. For example, the wife may have contributed substantially to the matrimonial assets, yet her name is not in any bank account, any land title and surely not on any business name nor shares. However, this does not mean she did not make the business possible and that she did not put in her sweat equity, or made other contributions, such as her inheritance money, or her pension, of savings, or proceeds from sale of some asset, or even her salary. She may even be working and supporting her husband under the belief that she is an equal partner and has equal entitlement, but always trusting and not preparing for the day when she will be displaced.

The above scenario is good for her if all goes well… that is, if they remain married and still working well together and he looks after her financial needs and she looks after his other needs as well and they remain a committed and hardworking team. That situation would not pose any problem, unless several things happen:

1. He dies without leaving a Will;
2. He separates from his wife but not divorced;
3. He disposes of the assets unknown to her
4. He divorces her and does not want to reach settlement over matrimonial property.

I say each scenario will net her a different outcome over the exact same properties because the law addresses each, or provides different reliefs for each.

He dies without a Will
If a husband dies without leaving a Will, it means that the rule of intestacy will apply. That rule says that if he dies leaving a wife and children, then, after payments of just debts and funeral expenses, his estate will be divided as stated in the Administration of Estates Act, CAP 197 at Section 54 (1)(a) and (c):

“(a) if the intestate leaves a wife or husband, with or without issue [meaning children], the surviving wife or husband shall take the personal chattels absolutely, and the residuary estate of the intestate, other than the personal chattels, shall stand charged with the payment of a net sum of six hundred dollars free of costs to the surviving wife or husband;…

(c) if the intestate leaves issue, the surviving wife or husband shall, in addition to the interests taken under paragraph (a) of this subsection, take one-third only of the residuary estate absolutely, and the issue shall take the remaining two-thirds of the residuary estate absolutely;”

Now it must be made clear here that children includes any child he had before he got married, any child he had outside the marriage and any child he adopted, regardless of their age. For some strange reason the children of the marriage, ignorant of the law, feel entitled and think that only they should inherit, but this is not so, since our law abolished “bastardy” decades ago. Children born out of wedlock are no longer considered bastards and are no longer disinherited by the choice of their parents made to have them outside of wedlock!

Another misconception is that only minor children should get because they still need to be taken care of, or that the eldest child is the one entitled to everything. This is absolutely not so, since the law gives equal standing to all children. However, where does this put the wife? Interestingly, if she was getting a divorce and wanted her share of the matrimonial property, the only two persons who would be sharing are her and her ex-husband., but the mere fact of death changes that. So even if she put in more efforts than he did in the accumulation of his assets during the marriage, the mere fact that he never took time to add her name as part owner or equal owner relegates her to a position where she gets less. She however, may seek to sue his estate to have her personal interest declared separate and apart as a lawful joint owner or investor, if she has the proof to substantiate her claim, which she seldom has!

On the other hand, if we look at the situation where she is half owner of the business or joint owner of the property, or tenants in common, that too changes the distribution. If she is part owner, then she maintain her percentage of shares in the business, assuming it is a duly formed company, but his portion which he failed to distribute in a Will, is still divided in the one-third to wife and the remainder in equal shares to the children. When it comes to properties or banks accounts, if these are held as “joint-owners,” this means that upon his death she becomes sole owner, and none of these can be disturbed under the rules of intestacy, because the joint account, joint owned land, joint owner of shares and all else owned jointly means that the rule of survivorship applies. That rule is that the person who survives the other owner(s) then becomes the sole owner. This would seem the ideal situation for any spouse. If the situation is that they own as tenants-in-common, it means that they each hold their own portion of ownership in the assets, so the husband’s share, which he failed to distribute in a Will, will be divided up with wife and children in the proportions mentioned above.

(To be concluded in the Tuesday issue of Amandala next week.)

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Eden Cruz

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