Lawyer K. Gyau Baffuor started the discussion by quoting one of the finest late judges in England, UK called Lord Denning

 

" divorce is not a stigma. It has become respectable"

 

Lawyer Gyau Baffuor asserted that we celebrate the union called marriage but unfortunately when cracks start appearing in marriages, it leads to dissolution. Very common these days for couples to jointly do everything together.

 

As a result when dissolution happens, long battle over properties almost always ensue. 

 

BEFORE THE SUPREME COURT RULING (GHANA)

 

Customarily, property acquired with the assistance of wife was regarded as the sole property of the husband. This is because, in most customary practices the right of the wife and the children is a right to maintenence and support from the husband and father.

Consequently, any property acquired during the subsistence of the marriage is regarded as the property of the husband.

 

This customary practice became the basis upon which marital properties were distributed. When the traditional roles of men and women and the economic empowerment of women became prevalent, the position changed to distribution of marital properties based on contribution by a spouse. 

In other words, where a spouse has contributed to the acquisition of a property, it will no longer be the sole property of the husband but joint.

Ghana law position was that one has to prove substantial contribution towards such acquisition to be joint owners.

 

So mere contribution wouldn't suffice, unless u can show that your contribution was substantial. This principle governed the distribution of marital properties in Ghana until the year 2012.

 

THE GHANA CONSTITUTION

 

What does Ghana Constitution say on this issue?

 

It is provided in Article 22 clause (2) paragraphs (a) and (b) that spouses shall have equal access to property jointly acquired during marriage. Clause (b) says that assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. 

The provisions in the 1992 constitution of Ghana on the spousal rights to property appears to be simple but almighty parliament seem to have failed the nation. This is because Article 22 clause 2 says that parliament shall as soon as practicable after the coming into force of the constitution enact legislation to regulate property rights of spouses. Unfortunately,  till date parliament has passed no such law.

 

THE SUPREME COURT RULING (GHANA)

 

In the absence of such law, the court has always used the substantial contribution principle in distribution of marital properties after divorce.

In 2012, The Supreme Court set the precedent for distribution of marital properties in a famous case of Gladys Mensah v Stephen Mensah.

The Supreme Court in the above case moved from the substantial contribution principle and gave a constitutional dimension to the sharing of marital properties.

 

Based on the provisions of the 1992 constitution stated earlier on, The Supreme Court stated that "we believe that, common sense, principles of general fundamental human rights requires 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 partner's catering needs as well as those of visitors, raising up 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 "

 

CURRENT POSITION OF THE LAW (GHANA)

 

From the quotation above, the position of the law now is that the fact of marriage entitles a spouse to equal distribution of properties. This simply means that any assets acquired during the subsistence of marriage will be shared equally when the marriage is dissolved, regardless of who acquired such property.

The assets are not only restricted to landed properties but cars, shares in company, cash and any other thing u can think of. This means that right from the word go, spouses have equal shares in marital properties. And upon dissolution of the marriage, the assets will be distributed equally.

 

The Supreme Court in recent decisions have expanded the principle of sharing properties equally. 

 

EXCEPTION TO THE  SUPREME COURT RULING

 

Exceptions to the rule is that properties acquired before marriage cannot form part of properties acquired during the subsistence of marriage to be shared equally.

Again where the property was acquired by inheritance, it cannot be shared equally upon dissolution of the marriage.

 

PROBLEMS OF THE CURRENT SUPREME COURT RULING

 

The problem with the Supreme Court decision is that we can no longer secure a loan with our property without the consent  of your wife.

Another problem is that, in customary marriages, which is potentially polygamous, how will the distribution be done if one wife decides to pull out of the marriage.

 

QUESTIONS AND ANSWER

 

Few selected questions that came up.

Question

 

1. In case the spouse get divorced and get the property i.e.  the house and remarries what happens in this two scenarios; 

a). When they divorce what right does the new husband/wife has on the property? 

b). If the man/woman dies, what right does new husband/wife has on the property?

 

Answer by lawyer K. Gyau Baffuor

 

a). The property will not part of the properties acquired during the subsistence of the marriage 

b). But if the spouse dies, the Intestate Succession law will apply to the distribution of the property. In the case of the Intestate Succession law the new husband/wife have shares in the properties.

 

2. If there is a divorce and the couple did not share the property but based on mutual understanding the husband/wife gives the property to the other party without context, this woman/man remarry what rights has the e×-husband/wife has on the property in the case of the dead of the woman/man?

 

Answer by lawyer K. Gyau Baffuor

It will be an interesting legal tussle cos the new husband/wife will be entitled to the wife/husband's share in the property. Remember the property belongs to the 2 so 50% of the property will only go to the husband/wife and the remaining to the estate of the late wife/husband

 

 

The weekend discussion concluded with this statement:

 

We can no longer beat our chest and say I own this property when it was actually acquired during marriage with your spouse.

 

It is more beneficial now to marry a hardworking man or woman because you can be guaranteed properties which that man or woman may acquire during the marriage.

 

This is food for thought.