The above scenario and many more are questions that disturb the peace of many people about divorce. The question of “marital property” and how it should be shared. The Law in Ghana on distribution of marital property is very simple and complex at the same time. The law says EQUALITY IS EQUITY. The properties of the couple must be shared in such a way that every person would be equally and adequately catered for. There is however not one simple mathematical formula to determine this Equality is Equity and thus the courts look at each case as district and different from another case.
In this article, as usual, I will do my best to avoid a lot of legal jargons and quotations of laws so as to make it easy to read for the ordinary person to understand. Forgive my imperfections in advance if I fall short of this.
HISTORICAL LEGAL PRINCIPLES
The law in Ghana used to be that, if a spouse acquired a property with his own personal money during marriage, that property was for that particular person who bought it and the spouse and children of that person could not claim any part of that property. Customarily, a woman only goes into the marriage to help the husband and is duty bound to do so. Hence, if through the domestic support and help of the woman, the man acquired some properties, the woman would not be heard to say that she had acquired any interest in the property. The man was only required to provide for the woman and the children but not to share his property with them.
This position of the law however began to give way in the 1970’s when the Ghanaian courts began to look at the Substantial Contribution principles.
SUBSTANTIAL CONTRIBUTION PRINCIPLE
The courts realised that the old principles were giving a lot of injustice to people especially women who became victims. Thus in the 1970’s the courts began to hold that if there was evidence that a spouse had made substantial contribution towards the acquisition or improvement of a property acquired by the other spouse, then the one who contributed should be deemed to have acquired some beneficial interest in the property.
This contribution had to be towards the acquisition of the property and it could be in cash or in kind. For example, supervising workers to build. Because this was a domestic setting, one could prove the contribution through other means apart from formal receipts and documentation.
CURRENT POSITION OF LAW
The Current position of the law takes inspiration from Article 22 of the 1992 constitution which states as follows. (1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will. (2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses. (3) With a view to achieving the full realisation of the rights referred to in clause (2) of this article - (a) spouses shall have equal access to property jointly acquired during marriage; (b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. It is important to have in mind that this positive declaration in our constitution only came into force on 7th January, 1992 after we had our first constitutional president elected under this 1992 constitution.
In 2011, the supreme court in the case of Mensah vrs Mensah [2012] 1 SCGLR at page 391 stated that the sharing of spousal property should no longer be dependent on the substantial contribution principles and that property acquired during marriage is joint property even if the other spouse did not make any contribution. The court further held that marital property should be shared 50/50 unless the facts of a particular case would make the 50/50 unfair. (equality is equity)
That decision also considered household chores such as taking care of children, doing laundry, cooking etc usually done by women as contribution towards property acquisition. The court had this to say
“We believe that, common sense and principles of general fundamental human rights require that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partners catering needs as well as those of visitors, raising up the children in a congenial atmosphere and generally supervising the home such that the other partner has free hands to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved”
In 2012, the case of Quartson vrs Quartson [2012] SCGLR 1077 came up with a controversy for resolution. In this case, even though the court affirmed the joint property principle, it refused to apply the equality is equity principle. The court was of the view that the facts demanded a different approach from the approach in Mensah vrs Mensah as discussed above.
In this case, the man was a seafarer and often stayed away from home. He sent money for his wife to build a house in Ghana. The wife solely supervised the building of the house. The man was imprisoned abroad and the woman took care of the three children. The woman's argument was that she supervised the work very well and so that house should be shared equally but the man disagreed and said it was for him alone. The woman had been awarded 2 plots of land and cash of GHC 15,000 at the time. When it got to the supreme court, this is what the Apex court said.
“The decision in Mensah Vrs Mensah is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled and that it should be applied on a case by case basis, with a view to achieving equality in sharing of matrimonial property. Consequently, the facts of each case will determine the extent to which the ruling applies.”
The Supreme court agreed that she did a good job in supervising the building and taking care of it whilst the husband was in prison. However, the facts of her situation are different and that equitable sharing instead of equal sharing will be applied. The Supreme Court increased her award of GHC 15,000 to GHC 65,000 and maintained the two plots of land already awarded to her by the court of appeal. It said that even though she had a value in the matrimonial property, it was not a 50/50 value.
MARITAL PROPERTY
What is marital property? The answer is any property which is acquired by any spouse during the pendency of the marriage. This means that a property which was acquired before the marriage was contracted cannot be deemed to be marital property. However, if there is evidence to show that the other spouse has made substantial contributions to improve the property in question, then he/she acquires some equity on that property. Where it can also be shown that one spouse bought it before the marriage but the other spouse was convinced to abandon buying his/her own property and help to acquire this one so the two of them can live in it, then it can also be considered as a marital property especially when the couple have collectively made improvements to it.
CONCLUSION
Every marital property shall be shared between the couples upon dissolution of the marriage. The Formula to share marital property is equality is equity. In other words, every party must be given equal share but consideration must be given to their positions of advantage and their contribution towards the property. It should be shared in a way that each party would be put in a place of convenience and not disadvantaged.
It does not matter that the property was registered in the name of one person. Be it the man or the woman. Once it was purchased or made during the period of the marriage, then it is presumed to be a marital property and as such can be shared by this principle.
Where the marriage is a polygamous one, the equality principle shall be applied in a way so as not to disadvantage the other wives who are still in the marriage. (customary and Islamic marriages are both potentially polygamous in Ghana).
If one party is able to prove that he or she bought or made a particular property before the marriage and the other party did not contribute to improve it especially, where they did not live in that property, then it will not be counted as a joint property.
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Written by
Richard Nii Amarh ESQ.
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