DIVISION OF MARITAL PROPERTY IN GHANA
Almost every couple gets married hoping for a long and happy marriage. However, in many cases, this doesn’t happen. After having spent months and years together, couples are now faced with the difficult task of untangling their lives and properties after a divorce. This being a difficult task, the courts are called upon for help.
In this article, we will examine how the distribution of marital property is done by the courts in Ghana.
First of all, let’s define marital property. In the case ARTHUR V ARTHUR, the court defined matrimonial property as “property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition.”
The current position of Ghanaian law is that as long as the property was acquired after the marriage occurred, the courts will presume that it is marital property and belongs to both husband and wife — unless the couple presents evidence that they did not intend to acquire it jointly.
This hasn’t always been the attitude of the Ghanaian courts. In the early days of Ghana’s independence, the attitude of the court was that property acquired in a marriage belonged only to the husband under customary law.
In the case of QUARTEY V. MARTEY which was decided in 1959, the High Court stated that by customary law, it was the responsibility of a man’s wife and children to assist him in the carrying out of the duties of his station in life e.g. farming, business, etc. However, the proceeds of such a joint effort, and any property which the man acquires with such proceeds are, by customary law, the individual property of the man. It was thus not the joint property of the man and wife.
The attitude of the Ghanaian courts in those days was that a wife only had the right to food and shelter as long as she was married. But she did not own anything and could not take anything away after the marriage ended.
This began to change after some years. The courts moved to the position that if a woman could provide evidence that she contributed substantially to marital assets, the courts would hold that she was a joint owner of those assets. This was much better — but in a relationship like marriage, where many decisions and actions are based on love and emotions, how many people keep receipts with the intention of showing them to a judge when the marriage ends? What about marriages where women don’t contribute money but give up their jobs and money-making opportunities to care for the children and home so that the men can pursue financial opportunities and acquire assets? What about where one person provides the money while the other provides advice, useful contacts, and even just moral support?
More needed to be done. And thankfully, the attitude of the courts toward matrimonial property has become much more progressive. In the 1992 Constitution, article 22(3) provides as follows:
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.
With the Constitution backing equal access to marital property, the courts have followed with gusto. In the case of GLADYS MENSAH V. STEPHEN MENSAH the court held that distribution of spousal property should no longer be dependent on the substantial contribution principle and that property acquired during marriage is joint property. It was also stated that property ought to be shared equally between the parties where it is equitable and just to do so.
This case is a very important landmark in the legal field of Ghana. It recognised the non-monetary contributions of women in marriages. This is what the court said:
“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 partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.”
Thus, a person does not have to prove that they made a substantial contribution before they would be declared to be a joint owner of a marital asset. This doesn’t mean that the assets would be distributed equally though. The courts will look at the income of both parties, their future earning capacity, their contributions to the acquisition of the assets, the duration of the marriage and other factors in order to make a decision. Depending on what they find, the courts will make a decision.
The courts might divide the assets equally, or they might not. Whatever they decide, they will divide the properties equitably in a way that is fair to both parties.
Note- This article was first published on www.talkativemom.com
