Hi Eric I suspect my husband has not been filing his tax returns and this can jeopardise the security of our family. How do I confront him about this? I think he is into fishy deals that bring him large sums of money as well. How do I get to him before the police do?
The institution of marriage is defined legally by Section 3 of the Marriage Act of 2014, which provides Marriage as the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Act. Therefore, the link of your tax obligation to your husband must first fulfil the threshold of what is qualified as marriage.
Although many forms of unions resemble marriages and may find credibility within social parameters, they necessarily do not satisfy the bare minimum of what a registered union of man and woman is. However, I find the law on taxation, as many others may have, to be holding and promoting snippets of patriarchy in a world and country that has moved the discourse of gender beyond the stereotypic reasoning of men’s power over the inability of women.
While section 45 (1) of the Income Tax Act binds husband and wife regarding part of their tax obligation, it is conceived, perceived and executed in what could be seen as the most retrogressive mechanism of gender imparity.
The section states “The income of a married woman living with her husband shall be deemed to be the income of the husband for the purpose of ascertaining his total income, and shall be assessed on, and the tax thereon charged on, the husband; but that part of the total amount of tax charged on the husband as bears the same proportion to the total amount as the amount of the income of the wife bears to the amount of the total income of the husband may, if due and not paid, be collected from the wife or, if she is dead, from her executors or administrators, notwithstanding that no assessment has been made upon her; and the provisions of this Act relating to the collection and recovery of tax shall apply to that part of the tax as if it were tax the due date for the payment of which is a date thirty days after the date of a notice served on the wife, or her executors or administrators, as the case may be, requiring payment.
This section also provides exemptions, where the married woman files a separate return, then her income shall not be deemed to be part of the husband’s. Further at section 45 (2), such income of the said married woman shall be construed to be hers alone, if the couple do not live together, since the law considers them unmarried.
Living apart has been contextualised at subsection 3 of Section 45 of the Act, and it states, a married woman shall be treated as living with her husband unless they are separated under an order of a court of competent jurisdiction or under any written agreement of separation: and or the couple is separated in such circumstances that the separation is likely to be permanent, or in situations where she is resident person and the husband is not. This part of the Income Tax Act resonates with the earlier position, provided in this text, where the threshold that determines marriage comes into play.
The take on your question may not be fully responded to till the position of your union is ascertained to be a marriage.
It is difficult to advice you on how reach out to your husband before the police do, if at all he is into fishy businesses and dirty money. Every marriage, and this view is emotional not legal, has its code of engagement and communication, which only a couple may define, understand and use. Other views including this column are foreign experiences loaded to serve your unique situation. However, this is an opportunity to contextualise the issues you raise.
There are several fronts that occasion big sums of money outside legally clean pathways. First, money from drug dealing could actually land you and your husband into trouble. Him as a chief promoter, while you as an accomplice. Second, and closely related with the first, is money laundering. Third, is the business of human trafficking amongst others.
In this context three laws apply. The Proceeds of Crime and Anti-Laundering Act of 2009, revised in 2012, specifically obligates you at Section 9 to report such suspicion to relevant authorities. There is the Narcotic Drugs and Psychotropic Substances (Control) Act and the Counter Trafficking in Persons Act, both of which condemn and illegalise proceeds accrued from illicit sources.
Even though your comfort may lie in several other laws that have attempted to centralise whistle blowing, such as the Witness Protection Act, the response to this part of question requires us to consider it in another space, where we must invite obligations placed on spouses regarding crime within the Evidence Act. Your inspirations are fragile and frightening, which calls for wisdom to keep the family intact by taking a dichotomous course. First is to discourage your husband from staying off dangerous illegal businesses. Secondly is to employ all relevant legal measures to stop him. Irrespective of which method you choose, your innocence remains a matter to be canvassed in a competent court of law.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
