Introduction

The conversation about divorce is not one that married couples will be willing to join. It is not as bad as the conversation about death. When married couples take the vow to love each other till death do them apart, it does not mean they are assuring themselves of a strength to welcome death whenever it comes. It is better to believe the couple to hope and pray that death never walk past their homes. Death does and will come anyways. Even though the marital vow mentions death as the only ground to do the parties apart, divorce seems to be the silent tone not heard aloud but known to the many present.

Whichever way the beautiful couple will end their journey, divorce or death, there is an indispensable element of the marriage that may drag the couple, and sometimes their families, through thorns, nails and iron. By this element, I refer to marital properties. Marital property has made couples remind each other of things done decades in the past. It has made families strike through the emotions of the surviving spouses of their deceased sons and daughters in styles capable of shaking even the walls of Jericho. Not every property belonging to married persons is a marital property.

This article will try to provide legal and factual heads up on:

1. what amounts to marital property?
2. Who can be entitled to a portion of marital property?
3. What portion of the marital property should a spouse be entitled to?
4. Any other question incidental to the above raised questions?

Marital property?

By marital property, we refer to all properties acquired either jointly by the parties to the marriage or individually but during the pendency of the marriage. Previously, marital property had a very restricted definition by law. The law was that whatever a husband acquired during the pendency of the marriage became his exclusive and personal property and the wife does not become a co-owner merely by virtue of her status as a wife. In those days, a wife’s role was only seen as assisting the husband in whatever endeavour the husband undertakes.

The law has changed. It is now transparent that a property does not require the active and financial contribution of the spouses to attain the status of marital property. It is enough that the said property was acquired during the pendency of the marriage. Once it is proven that whatever form and nature the property takes, it was acquired during the pendency of the marriage, the property will be deemed as a marital property jointly owned by the parties.

The Supreme Court of Ghana, after discussing the earlier principles on marital properties and whilst making reference to the earlier case of Mensah v Mensah [2012] 1 SCGLR 391, in the case of ARTHUR (No. 1) v ARTHUR (No. 1) [2013-2014] 1 SCGLR 543 and in the words of Justice Date Bah, put the various issues to rest and stated that,

“Marital property is thus to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition…It should be emphasized that in the light of the ratio decidendi in Mensah v Mensah, it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage.”[Emphasis added]

Who can be entitled to a portion of the marital property?

Crucial to the above definition is the fact that there is no need for a party to prove that he or she made a substantial financial contribution towards the acquisition of the property acquired in marriage. As a matter of fact and law, it is no longer a requirement for a person to prove that he or she, in the same manner and form as the other person to the marriage, contributed towards the acquisition of the marital property. All marital properties are now deemed as joint properties of the couple.

There are however exceptions to the definition of what constitutes marital properties. One such exception is that where the property is proven to have been acquired by the spouse before the marriage was contracted, that property generally becomes the sole property of that spouse. This proposition was opined by the Supreme Court of Ghana in the unreported case of Marfoa v Agyeiwaa with Suit No. (J4/42/2012), as stated by Justice YAW APPAU, in the following words,

“What the law calls ‘marital property’ or ‘spousal property’ is property acquired by a couple during the subsistence of their marriage. When a spouse acquires property solely before marriage, such property cannot be called ‘marital property’ or ‘spousal property’ stricto sensu...” [emphasis added]

Another exception is where the marriage is later nullified by a court of competent jurisdiction. In such a case, the marriage is deemed to have never taken place. An example of a situation where the marriage can be nullified is where one of the parties was legally married before contracting the new marriage. Until the previous marriage is separated, the party cannot be legitimately married to another person. That in itself constitute the offence of bigamy.

This is different when a man marries under the customary law. In that case, and by virtue of the fact that customary law marriage is potentially polygamous, the man can marry again but only under the customary law.

Where a marriage is declared as a nullity, there will be no marital property since the marriage is treated as if it was never in existence. In such a situation, the parties will have to prove substantial contribution before being entitled to a share of the property. This was the pronouncement of the Supreme Court of Ghana in the unreported case of MRS. THERESA OWUO V. FRANCIS OWUO [2017] CIVIL APPEAL NO. J4/20/2017 decided on 6th DECEMBER, 2017. In the words of Justice AKOTO BAMFO, the court stated;

“Where therefore the marriage is declared nullity, the respondent is required to prove with sufficient particularity that she made substantial contribution towards the acquisition of the property...”

A Concubine, Perhaps?

It must be noted that a concubine cannot acquire the status of a wife or a husband (at least for now) to be entitled a share in properties of his or her concubine. The customary laws of Ghana do not recognise the status of a concubine. The Court of Appeal of Ghana in the unreported case of Sackey Vrs Mensah (HI/218/07) [2008] Unreported, CA (13 March 2008); speaking through Justice Yaw Appau used the following words;

“...customary law does not recognize concubinage. A concubine cannot therefore claim for a share in her boyfriend’s property or girlfriend’s property just because of services rendered to the boyfriend or girlfriend during concubinage”.

This position of the law was affirmed by the Supreme Court in the unreported case of Mariam Obeng Mintah v. Francis Ampanyin with appeal No.J4/18/2013 (25TH MARCH 2015) where the court, peaking through Justice AKAMBA stated;

“That a concubinage relationship does not constitute or equate a valid customary marriage was rightly distinguished by Osei-Hwere J (as he then was) in the case of Badu v Boakye (1975) 1 GLR 283 H.C wherein he said:

“Where a man lives with a woman not as a real wife but only as a concubine with the consent of the woman’s parents, that association cannot be translated into a valid customary marriage because the man and the woman are reputed to live as man and wife. Even though the defendant freely described the plaintiff as his wife and also described their association as ‘marriage’, this was no more than another euphemism for ‘concubine’ and ’concubinage’ respectively.”

In effect, a concubine, without more, is entitled to no share of the properties of the spouse merely because of his or her position as concubine.

What portion of marital properties should a spouse be entitled to?

The major issues surrounding marital properties normally occur during divorces and, sometimes, when one of the spouses dies. Core to these issues, after determining the status of the property, is how the properties are to be shared. Normally, one spouse forms the opinion that the property ought not be shared equally because of the disparity in the size, form and nature of the contributions by the parties toward the acquisition of the property. Unlike previously where the property was deemed to be the exclusive property of the husband, which required that the wife lead evidence of substantial contribution towards the acquisition of the said property before being granted a share, the law now requires that the principle of equitable distribution should prevail when it comes to the sharing of marital properties. The courts are of the opinion that what amounts to equitable distribution can best be captured when it is interpreted to mean equality.

This has given birth to the principle known as the “equality is equity” principle. This principle takes its roots from Article 22 of the 1992 Constitution of Ghana. The Supreme Court of Ghana in the case of Quartson v. Quartson (J4/8/ 2012) [2012] Unreported SC (31 October 2012), whilst making references to earlier cases decided by the court as well as the 1992 Constitution, speaking through Justice Ansah adopted the “equality is equity” principle in the following words;

“...this court held in Mensah v. Mensah [1998-99] SCGLR 350 and subsequently in Boafo v. Boafo [2005- 2006] SCGLR 705 that the principle of “equality is equity” is the preferred principle to be applied in the sharing of joint property, unless in the circumstances of a particular case, the equities of the case would demand otherwise. The decisions in Mensah v. Mensah and Boafo v. Boafo supra enjoy constitutional backing for Article 22(3)...

Evidently, the framers of the Constitution intended that there should be no discrimination (particularly against women) in the sharing of joint property.”[Emphasis added]

The effect is that, as a starting point, all marital properties are to be shared equally among the spouses. However, there are instances where the circumstances will not permit the equal distribution of the properties. In such situations the properties are not to be shared equally. The courts have appreciated the fact that, even though mathematical distribution of the properties may not always be applicable, there are situations where mathematical distribution is possible. In such a situation, the court will employ them. Justice Akamba in the recent unreported Supreme Court case of Obeng v Obeng with suit number J4/37/2015 which was decided on 9th December 2015, acknowledged the above principle when he stated,

“Our able and respected brother Dotse, JSC in Mensah v Mensah [2012] 1 SCGLR 391, at 405 in due consideration of section 20 (1) of the Matrimonial Causes Act, 1971 (Act 367) observed, that “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 essence of the observation by Dotse, JSC supra, is that even though courts are generally not guided by any mathematical formulae in determining spousal property distributions, whenever mathematics offers the appropriate solution the courts would employ them.”[Emphasis added]

Even though the decision in the Mensah v Mensah [2012] 1 SCGLR 391, appears to be the litmus by which the distribution of marital properties are done, the Court are not unmindful of the fact that the principle cannot always be applicable in its strict sense. The Supreme Court has stated that the principle does provide a blanket ruling to provide unwarranted and undeserved access of a spouse to a property when the evidence clearly indicates otherwise. The Court in the unreported case of Quartson Vrs Quartson with suit number J4/8/ 2012 and decided on 31st October 2012 when it was stated that,

“The decision in Gladys Mensah v. Stephen Mensah [ [2012] 1 SCGLR 391], supra 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. Its application and effect will continue to be shaped and defined to cater for the specifics of each case. The ruling, as we see it, should be applied on a case by case basis, with the view to achieving equality in the sharing of marital property. Consequently, the facts of each case would determine the extent to which the judgment applies.”[Emphasis added]

Accordingly, the legal principles on the distribution of marital properties continue to be shaped over time. It will be difficult for an all-embracing sharing formula to be established to encompass all cases without the assistance of parliament. In the absence of such parliamentary assistance, the courts are always committed to ensuring that justice is done on a case by case basis particularly where equal distribution will not ensure justice. The Supreme Court of Ghana voiced the position in the case of Quartson Vrs Quartson (supra), in the following words,

“In view of the changing times, it would defy common sense for this court to attempt to wait for Parliament to awaken from its slumber and pass a law regulating the sharing of joint property. As society evolves, a country’s democratic development and the realization of the rights of the citizenry cannot be stunted by the inaction of Parliament. We do not think that this court is usurping the role of Parliament, especially in cases where the inaction of Parliament results in the denial of justice and delay in the realization of constitutional rights”.

It must be re-emphasized that concubines are not entitled to any interest in the properties acquired by either of the parties during the subsistence of the concubinage except in situations where evidence of direct contributions can be led before the courts. In the unreported case of Mariam Obeng Mintah v. Francis Ampanyin [2015] with appeal No.J4/18/2013, the Supreme Court rejected the invitation by the Appellant when the Court stated, in the words of Justice Justice AKAMBA as clearly as,

“The invitation by appellant counsel to bring this case under the spectrum of Mensah v Mensah (1998-1990) SCGLR 350 and Boafo v Boafo (2005-2006) SCGLR 705 is to say the least most ambitious. I will add to counsel’s list of the above cases the most recent case of Mensah v Mensah (2012) 1 SCGLR 391 on the same subject matter and to state that the principle of equality is equity that runs through those lines of cases applies in an environment of spousal relationship which creates a status that goes with certain rights and duties which are fixed by law and custom, but the same cannot be said of concubinage relationship”[Emphasis added]

Conclusion

It is good to marry. It is equally good to build properties together as husband and wife during the pendency of the marriage. It must however be noted that when the time comes for the parties to part ways, the issue of the distribution of the property will come up. In such a situation, the parties must note that the era where there was inquisitions into how much physical or financial contribution made by each spouse before he or she was entitled to a portion of the properties has long died. The battle against the confusions and injustices in the distribution of marital properties has been irreversibly won.

It is better for the couples, including intending couples, to take note. It is also better for the parties to settle their differences and where it becomes irreconcilable, share their properties in a manner in which their agreements will allow. Failing such settlements, the court will intervene in the manner manner laid down by the rules.

Godfred Adjabeng-Mensah Of Kwahu Nkwatia: Kulendi@Law, Accra

DISCLAIMER: This article is by no means an exhaustive discussion of the legal and factual principles on the distribution of marital properties. It only provides a general view of the principles governing marital property sharing. It is proper for a person seeking a better understanding, use and application of the principles to obtain legal advice as the facts of every case vary.
Again, this article is the opinion of the writer and does not in any way constitute legal advice or opinion of Kulendi@law.