INTRODUCTION

“Property is the pivot of civilization. “ Leon Samson

The right to own property is one of the fundamental rights that any civil society safeguards and Ghana is no exception.Article 18of the 1992 Constitutionof the Republic of Ghana clearly states that every person has the right to own property either alone or in association with others and this right is not to be interfered with.

However, the meaning and content of ownership in the context of commercial life is different from the meaning and content of ownership in the context of marriage. This can be attributed largely to the nature of the relationship that exist between a husband and wife as well as the fact that they are deemed as one person in law. The issue of custody as well as who gets what out of the marital properties are consequential issues and usually the most challenging decisions that the law courts are confronted with during dissolution of marriages and one is tempted to ask whether or not there are no statutory provisions regulating such matters within the jurisdiction.

Several names have been given to such properties in different jurisdictions, among which are matrimonial properties, spousal properties, marital properties, community properties etc.

Indeed in Ghana,Section 20(1)of Matrimonial Causes Act, 1971 (Act 367)provides as follows:

The Court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or a part of financial provisions as the court thinks just and equitable.”

Also, Article 22of the 1992 Constitutionprovides that:

(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 realization 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.

 

This provision also failed to lessen the burden which was on the courts prior to the 1992 Constitution as it still left the rudiments of the marital property rights to be later enacted by Parliament and same has not been done till date.

The law courts have therefore over the years had to decide what constitutes marital property as well as the proportions to be as they deem fit at different points in Ghanaian history.

THE JOURNEY

PRE 1992 CONSTITUTION ERA

Due to the absence of a legislation that clearly provided for matrimonial property rights upon dissolution of marriage, the Ghanaian courts in that era relied heavily on customary law in deciding the interest of spouses in joint property upon dissolution of marriage.

In Quatey v Martey (1959) GLR 377-383which was the locus classicusin Ghana at the time, the court held that proceeds of joint effort as well as those solely acquired by the man were his individual propertyby virtue of customary law. Any assistance rendered by the wife and children towards their acquisition was deemed as merely a fulfillment of their duty.

This was the law for several years until the courts swayed to the principle of substantial contribution. All a woman had to show was significant contribution towards the acquisition of joint properties and she would be vested with beneficial interest in same even where the legal title was solely in the man. Achiampong v Achiampong [1982-83] GLR 1017-1039is one such case where the court applied this principle. In the said case, the wife was persuaded by her husband to use her savings she had intended to buy an estate house for the upkeep of the house whilst he used his lower monthly salary in paying for an estate house he had bought on hire-purchase. She subsequently added two (2) bedrooms to the said house and acquired household goods. The Court of Appeal in dismissing the appeal relied on equity and good conscience to state that the wife had beneficial interest in the matrimonial home considering the circumstances surrounding the case. His lordship Justice Abban J.A. (as he then was) was however emphatic that divorce did not confer on a spouse any beneficial interest or otherwise in the property of the other spouse; an agreement or substantial financial contribution had to be established. See also Reindorf v Reindorf [1974] 2 GLR 36 and Bentchi Enchill v Bentchi Enchill [176] 2 GLR 303.

 

POST 1992 CONSTITUTION ERA

The court took a more progressive approach in Gladys Mensah v. Stephen Mensah[2012] 1 SCGLR 391. The equality is equityprinciple was birthed in this case as the Supreme Court defined marital property as any property acquired during marriage. It also held per Dotse JSC that the housewife’s contribution in maintaining the house and creating a congenial atmosphere for the husband to create wealthis enough for her to earn an equal share in marital property. Again he stated having due consideration to Section 20 (1) of the Matrimonial Causes Act, 1971 (Act 367) as follows:

 “Even though it was held in Abebrese v Kaah (supra), that the ordinary incidents of commerce would not apply in marital relations and that the courts would not employ mathematical division to determine each spouse’s share in the property, the courts currently apply the equality is equity principle. This principle is backed by constitutional force in article 22 (3) (b) of the Constitution earlier referred to.”

The court however called on parliament to do the needful under Article 22 of the 1992 Constitution to enact a law on the subject.

According to the Supreme Court, it relied on the jurisprudence of equity principle which they defined as an application of international human rights treaties and laws to national and local domestic cases alleging discrimination and violence against women.

Subsequent cases such as Quartson v. Quartson [2012] 2 SCGLR 1077and Arthur v Arthur[2013-2014] 1 SCGLR 543applied this principle although the court was clear in Quartson v. Quartson, supra, that theratio in Mensah v Mensah, supra, should not be taken as a blanket statement which gives spouses unwarranted access to a spouse’s property when evidence shows they are clearly not entitled to same. This was reaffirmed by His lordship Justice Date Bah JSC in Arthur v Arthur, supra, where he took account of United States of America’s cases and statutes as well as Canadian Matrimonial Property Act Chapter 275 of the Revised Statutes, 1989) as comparative legal materials due to the absence of express legislation on this subject in Ghana. He further considered the fact that although the Canadian law had provided for equal shares in matrimonial assets, it gave room for the courts to depart from such in order to achieve equity.

Also, Date Bah JSC was of the opinion that the court in Mensah v Mensah had adopted a liberal and purposive approach in in interpreting Article 22(3)(b) of the 1992 Constitution to mean that joint acquisition of assets is not limited to property acquired as joint or common tenants but as including properties acquired by the spouses during the pendency of the marriage. He therefore concluded that marital property is that which is acquired by spouses during the marriage irrespective of whether either made a contribution to its acquisition or not.He was however quick to create exceptions by again taking inspiration from the Canadian Matrimonial Property Act where in the definition of matrimonial assets, the following exceptions had been created:

  • Gifts
  • Inheritances
  • Trusts
  • settlements received from a person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children
  • An award or settlement of damages in court in favour of one spouse
  • Money paid or payable to one spouse under an insurance policy
  • Reasonable personal effects of one spouse
  • business assets
  • property exempted under a marriage contract or separation agreement
  • real and personal property acquired after separation unless the spouses resume cohabitation

Case law then seemed to be settled that spouses had beneficial interest in properties acquired during the pendency of a marriage; irrespective of the fact that they made no financial contribution towards its acquisition, until the court was confronted with the case of Fynn v Fynn,[2012-13]1 SCGLR 727. In that case, the husband sold property he purchased during the marriage. The wife sued her husband and the person who purchased the property, arguing that it was jointly acquired but was unable to establish her contribution towards same. The Supreme Court held that there was no confusion regarding the status of property acquired during the pendency of any marriage. It further stated that although parties could pool their resources together to jointly acquire property, each could also acquire some independently as it was within their legal right to do so and even alienate same.

The current posture of the Ghanaian courts can therefore be summarized as follows:

  • All properties acquired during the pendency of marriage are treated as matrimonial properties except gifts, inheritance, trusts, agreements and bequests, etc;
  • A spouse need not establish financial contribution towards the acquisition of such property;
  • Household chores are taken into consideration in determining a spouse’s contribution towards the acquisition of matrimonial properties;
  • A spouse can however acquire property during the pendency of marriage and demonstrate a clear intention to keep it as such;

 

MODERN AFRICA

  • Nigeria

Nigeria is a federation of thirty six (36) states and its Federal Capital is Abuja. Under its constitution as amended in 2010, it is the National Assembly (federal law) which makes the laws governing matrimonial causes. The Matrimonial Causes Act, 1970 (now Cap. M7 Laws of the Federation 2004) is the main statute that governs marriages, marital breakdown and the welfare of children in Nigeria.

 

Initially, the Nigerian courts; in the absence of a clear definition of matrimonial properties under the law, defined same as property in which both spouse contributed financially towards its acquisition or by the existence of a trust. This will include the tendering of receipt(s) of purchase, the need for witnesses to testify, especially where legal title is in the name of a sole spouse, and the proof of an express declaration of trust in favour of the claimant spouse, etc. See Egunjobi v Egunjobi [1976] 2 FNLR 78 at 82 – 84. , Amadi v Nwosu 1992 Legalpedia SC UJBT 1 at 4 as well as Oghoyone v Oghoyone [2010] 3 NWLR (Pt 1182) 564 at 584

 

However in the recent case of Ibeabuchi v Ibeabuchi (2016) LPELR-41268), the court held that the contribution by a party does not necessarily have to be in the nature of cash expenditure for the purchase or development of the property. For example, contribution can be by way of moral and/or financial contribution to the business of the other party where the property is acquired with the profits of the business.

 

Another difference between Nigerian and Ghanaian laws on the subject is who can enjoy from this provision under the law. In Ghana, Section 4(2) of the Matrimonial Causes Act, 1971 (ACT 367)permits persons who are in marriages other than a monogamous marriage to apply to court for the provisions of the Act to be applied to that marriage. However, Section 69 which is the interpretation sectionof the Marriage Act, 1970 of Nigeriadefines marriage under the Act to exclude those contracted under Muslim rites or customary law, hence such persons cannot benefit under the Act.

 

Again, Section 72(2)of the Matrimonial Causes Actof Nigeria recognises the right of parties to execute pre and post-nuptial agreements.However, the validity or the extent to which the agreement will bind the parties is at the court’s discretion. There is no reported Nigerian case law on pre or post-nuptial agreements because they are not common in Nigeria. However, the Court of Appeal (Lagos Division) in Daniel EhohanOghoyone v Patience Adesua Oghoyone (2010) 3 NWLR (Pt. 1182) 564 made certain implied pronouncements on its readiness to give effect to such agreements.

 

In that case, the appellant who had already married a Dutch national married the respondent after both signed a document regarding the sharing of their joint business interests and properties. The respondent later commenced divorce proceedings against her husband before the High Court of Lagos State seeking that the marriage be declared void and orders granting her such financial provision and property adjustment orders as may be just.

 

The trial Judge declared the marriage between the parties void and ordered the sale of the matrimonial home with proceeds to be divided equally between them. The court ordered further that the furniture and fixtures in the property be sold and the proceeds divided with exception to the contents of the appellant’s room which he shall be allowed to take with him. Dissatisfied with this order of the court, the appellant appealed to the Court of Appeal whilst the respondent also cross-appealed. The court was to resolve among others whether or not the trial Judge was right in law in treating the property in dispute as the matrimonial home of the parties and that the respondent has a joint interest therein thereby ordering its sale and division of the proceeds thereof between the parties in equal shares since they had excluded that property in the agreement they executed. The court held that the trial court was right in holding that the respondent had a joint interest in a property belonging to the parties as she had contributed towards same and it was not catered for in their pre-nuptial agreement.

 

  • Kenya

The default property regime in Kenya is separate property for married couples, although parties have the right to enter into an agreement regarding their property rights prior to the marriage. Each spouse retains exclusive rights to property he or she held prior to entering the marriage, and is entitled to matrimonial property according to his or her contribution.

The Matrimonial Property Act, 2013 is very comprehensive and has provided for most aspects of matrimonial property rights.

Section 2 which is the definition section defines the following:

  • contributionmeans monetary and non-monetary contribution including-
  • domestic work and management of the matrimonial home;
  • child care
  • companionship
  • management of family business or property;
  • farm work;

 

  • matrimonial propertymeans either the:
  • matrimonial home
  • household goods and effects in the matrimonial home
  • any movable or immovable property jointly owned and acquired during the marriage
  • trust property, includingproperty held in trust under customary law, does not form part of matrimonial property

 

Section 4 states emphatically that amarried woman has the same rights as a married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable, etc. Furthermore,Section 5provides that property acquired or inherited before marriage is not part of matrimonial property. Section 6also acknowledges the right of parties to enter prenuptial agreements although the court may set same aside on grounds of fraud, coercion, or manifest injustice. Again, Section 7states that in the absence of prenuptial agreement, matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses

There is alsoSection 8 which hasprovided for the polygamous marriages in Kenya. It states that upon dissolution of such marriages:

  • matrimonial property acquired by the man and the first wife, before the man married another wife, shall be retained equally by the man and the first wife only;
  • matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the parties;
  • it is possible for a wife to hold her matrimonial property with the husband separate from that of the other wives;
  • any wife can own matrimonial property equally with the husband without the participation of the other wife or wives.

Section 9further provides that a spouse who makes a contribution towards the improvement of a non-matrimonial property, acquires a beneficial interest in the property equal to the contribution made. Section 12(1)states that matrimonial property cannot be sold, leased or mortgaged during a monogamous marriage without the consent of both spouses. Section 13 states that marriage does not affect the right of either spouse to own, or dispose of any property other than matrimonial property.

 

Section 14 provides that where matrimonial property is acquired during marriage in the name of one spouse, there is a presumption that the property is held in trust for the other spouse and where it is the joint names of the spouses, there’s a presumption that their beneficial interests in the matrimonial property are equal. Section 15 also provides that where a spouse gives any property to the other as a gift during the marriage, there’s a presumption the gift belongs absolutely to the receiving spouse.

 

It is also important to note that in Kenya, property rights do not have to be determined only after the dissolution of the marriage. A person can move to court by way of a petition for declaration of rights over any property that is contested between that person and a spouse or former spouse of that person. An instance where such an action may be taken is where a property has been wrongly attached in execution of a judgment debt that is presumed to be matrimonial property.

 

The Matrimonial Property Act applies to all kinds of marriages except those contracted under Islamic law. The Kenyan courts may also apply customary law to the extent that they are consistent with the Constitution of Kenya.

 

The comprehensive nature of the laws on marital property rights in Kenya creates more clarity and certainty especially as it has provided for both monogamous and polygamous marriages.

 

  • South Africa

South African has a distinct matrimonial property arrangement with restrained judicial discretion. The intending spouses are given the opportunity to indicate their preference for a particular property regime that would regulate their marriage whilst it subsists and upon its dissolution or their death universal community of property and accrual system. The community of property system provides for joint and equal ownership of property that each spouse acquires before and during marriage. The out of community or accrual system retains separate ownership of the spouse’s property.

The Divorce Act, 1979 (Act 70) and the Matrimonial Property Act, 1984 (Act 88) are the principal laws governing matrimonial property rights in South Africa. There is also statutory recognition of nuptial contracts. However, there is no strict definition of what amounts to matrimonial property in South Africa.

 

  • Uganda

It is presumed that household property in Uganda is co-owned. Indirect non-financial contribution such as caring for children is used to justify such interest of a spouse.

 

CRITIQUE IN THE LIGHT OF THE CURRENT TREND IN AFRICA/ RECOMMENDATIONS

Several years after the 1992 Constitution came into force, Ghana still lacks legislation as Article 22 clearly dictates that parliament should enact legislation spelling out spousal property rights. This has given wide discretionary powers to the court to define and determine among others what constitutes matrimonial property as well as how the properties should be distributed. Hence, the just, conscionable and equitable nature in the division of matrimonial property intended by the 1992 Constitution would not be achieved. This will clear all ambiguity. As to whether the definition the courts have given to “joint property” as used by the drafters in Article 22 of the 1992 Constitution is what was originally intended is even not clear.

The actual phrase used in both Article 22 (3) (a) and (b) is property or assets that are “jointly acquired”. I humbly submit that this phrase is not a term of art and was meant to be given its plain meaning as same is void of ambiguity. ‘Joint’ has been defined by West’s Encyclopedia of American Law, 2ndedition, 2008, The Gale Group, Inc. as “a combined, undivided effort or undertaking involving two or more individuals”. The English Oxford Living Dictionaries defines the word ‘acquire’ as to “buy or obtain (an asset or object) for oneself”. The Longman Dictionary of Contemporary English also defines it as “to obtain something by buying it or being given it”. The ordinary meaning of “jointly acquired” assets is therefore assets which are bought or obtainedfrom combined effort or industry of both spouses. It is not per chance that the drafters chose to use the two words together. This is different from marital property and should not be construed as meaning same, as in the latter, joint financial contribution is not necessary once it is acquired during the pendency of marriage.

Indeed, the 1992 Constitution was drafted in an era where the courts relied heavily on customary law which failed to acknowledge the contribution of wives in the acquisition of properties during marriage but considered same as fulfillment of her role as a wife. Thus, it is prudent to say it is this mischief that the drafters aimed at curing by inserting such a provision in the Constitution and same should not be stretched and given the meaning the Honourable courts have currently given to same.  I am of the opinion that “jointly acquired” in its ordinary sense simply means each spouse should have contributed in the form of cash or cash equivalent as consideration towards the acquisition of the property, and nothing else.

I do not doubt the fact that a Constitution is deemed as a living organism. However, it is my humble opinion that in cases like this when the words used are plain, they should be given their plain meaning.If there is the need for a change to meet the changing times, it should be changed through the amendment process but not allow judges to determine an ever-changing meaning of the constitution which could undermine democracy.

The Property Rights of Spouses Bill which was to be passed in fulfillment of parliament’s obligation under Article 22 has been pending in Parliament for several years. The said Bill has among other things attempted to define spouse and joint property and exceptions thereof. It also recognizes cohabitees as they may have made contributions towards acquisition of joint properties and provides for oral or written nuptial agreements as well as circumstances when the court will interfere with such agreements. There are several innovative provisions in it, hence the earlier this Bill is fine-tuned to meet the present needs of this country, the better for the nation.

Another deficiency in the Ghanaian law is its failure to recognize the polygamous nature of some marriages contracted in Ghana such as customary and Islamic law. Should the courts continue to apply the dictum in Arthur v Arthur?How would other wives’ interests be protected where one wife is seeking divorce? How would the court determine the contribution of each spouse in respect of the properties a man acquired whilst married to multiple wives?

Again, nuptial agreements should be given recognition in the Ghanaian courts to enable the parties determine how properties would be distributed between them upon dissolution of their marriage. This will help reduce the antagonistic nature of divorce cases, if not eliminate it totally. The time and resources wasted by the courts in taking evidence to enable the court determine who should be given what would be avoided.

Furthermore, the decision in Fynn v Fynn raises a lot of questions. If a spouse is deemed to have an interest in property upon dissolution of marriage, does that interest only arise upon dissolution of the marriage? Why can a person who would eventually have interest in matrimonial property without having to establish financial contribution not be able to take steps to protect his interest should it be in danger of being lost during the pendency of the marriage?

Ghana should take a more progressive approach by drawing inspiration from the various jurisdictions around in order to take an informed decision and draw a more comprehensive legislation.

 

REFERENCES

  1. 1992 Constitution of the Republic of Ghana
  2. Matrimonial Causes Act of Ghana, 1971(Act 367)
  3. Kenyan Matrimonial Property Act, 2013
  4. Nigerian Matrimonial Causes Act, 1970
  5. South African Matrimonial Property Act, 1984
  6. South African Divorce Act, 1979
  7. English Oxford Living Dictionaries
  8. West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc
  9. Longman Dictionary of Contemporary English
  • An Assessment of Matrimonial Property Distribution Upon Divorce the Perspective of the Ghanaian Courts; Prapjel Mensah-Panford
  • Matrimonial Property Rights of Women Upon Divorce in Ghana, Under the Prism of Legal Empowerment. By CEDAW
  • Matrimonial Property Act in Kenya – What Property is Each Spouse Entitled to in a Marriage?; AIP Advocates
  • How courts distribute matrimonial property. By JOHN CHIGITI
  • Highlights of the Matrimonial Property Act, 2013 by Ochiel J. Dudley
  • Confusion over Kenya’s matrimonial property law. By Harold Ayodo
  1. Rethinking the Property Rights of Spouses on Civil Marriage Breakdown in Nigeria: Inspiration from Other Countries. By Chinedu Justin Efe
  • The Law of Marriage. By Sinclair and Heaton South African Family La. By Heaton and Kruger

 

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