Two issues arise. First rights of spouses (and children) following a divorce. Second, rights of spouses (and children) following death intestacy of one spouse.
a) Upon Divorce
Marital property upon divorce could be handled by pre-nuptial settlement or by the court as an ancillary relief after a formal decree of dissolution.
Article 22(2) of the Constitution of 1992 enjoins Parliament to enact legislation regulating the property rights of spouses.
Clause 3 of Article 22 provides for joint access to property acquired during marriage and further mandates the equitable sharing of matrimonial property between the spouses upon divorce. Prior to constitutional and legislative interventions, Ollennu J, as he then was stated the law in: Quartey v. Martey
Later customary law was prepared to accept a different treatment in situations where the wife’s contribution exceeds mere assistance given by a wife under the customary law. In such situations where the courts found that the wife’s contribution was substantial, the court would hold that she had become a joint owner of the property. Abebreseh v. Kaah
However, see the recent case of: Mensah v. Mensah, Where it was held that upon dissolution the parties become joint owners of the matrimonial property and that the ordinary rules of contract have no place in the context of a marriage.
TITLE: MENSAH v MENSAH (1998)
FACTS: The parties were married couples and they obtained a divorce from the court upon a petition of divorce filed by both of them. Both of them claimed ownership to the disputed house. The wife claimed that the house was put up by her personal money and as such, was entitled to the house in her personal capacity. The husband on the other hand also claimed that he made contribution to the acquisition of the house as well as to the household and as such, he is also entitled to it. The High Court and Court of Appeal held for the woman and the man appealed to the Supreme Court.
HELD: The court held that the husband made substantial contribution to the acquisition of the land and the subsequent erection of the house. Due to these contribution, the court held that there was an intention that the couple will hold it jointly and as such, the woman cannot have the house as her personal own. The court applied the principle that property acquired during marriage is deemed to be jointly acquired by the couple unless there was a contrary intention and such property was to be shared equally among them upon divorce.
TITLE: MENSAH v MENSAH
FACTS: The parties had been married for over 30 years when the petitioner, the wife accused the respondent of infidelity. The respondent moved into one of the houses of the parties’ with his concubine. The petitioner brought a divorce petition for which was granted by the courts. The parties had acquired several properties in their marriage and the petitioner sought the court to divide the estate equally. The respondent objected to this as he claimed that he acquired the properties by his personal efforts and as such he was the sole beneficial owner of the properties. The petitioner however argued that she made substantial contribution to the acquisition of the properties through monetary and other support. The High Court and the Court of Appeal held for the petitioner. The respondent has applied to the Supreme Court.
HELD: the court held that, previously, property acquired with the assistance of a wife was regarded as the sole property of the husband. The customary law position was that the wife and children had a domestic responsibility of assisting the husband/father with his business and as such the wife could not claim any interest in any property she assisted her husband to acquire. However, this law is outmoded and the current position of the law regarding joint property is that substantial contribution by a spouse to the acquisition of property during the subsistence of the marriage would entitle that spouse to an interest in the property. The court further held that the performance of wifely duties will still entitle the woman to a share of the properties.
TITLE: QUARTSON v QUARTSON
FACTS: The parties had been married for twenty five years until the petitioner, the wife filed for divorce. The respondent was a sea farer and he was always out of the house. He always remitted money to the petitioner which was used to construct their matrimonial home by the petitioner through her constant supervision. The petitioner claimed for a divorce and the matrimonial home as well as custody of the child of the marriage. The respondent however counterclaimed for the house as he contended that he built the house with his own resources. The petitioner also alleged that she made substantial contribution to the building of the house through her supervision.
HELD: The Supreme Court acknowledged the principle of substantial contribution as enunciated in Mensah v Mensah and the equality principle as in Boafo v Boafo. However, it held that the equality could be waived if the equities did not permit for the properties to be split exactly into equal shares. From the facts, the court concluded that the contribution the petitioner made did not warrant an equal share in the properties.
⦁ Upon Death Intestacy
Refer to Matrilineal and Patrilineal societies in Ghana. Biggest problem was among the matrilineal communities. Specifically among the Akans the customary law before September 1985 was that the self acquired property of an Akan man, upon his death intestate becomes family property and the maternal family become the successors.
This position was severely criticised by the court in In re Antubam
The courts have held that the rights of Akan children to reside in their father’s house subject to good behaviour, was limited to their father’s self-acquired property. Yeboah v. Kwakye Boateng v. Boateng
PNDCL 111 changes the customary position and provides for a proportional distribution of the estate of a deceased spouse in accordance with the formula prescribed in the law.
Article 22(1) of the Constitution of 1992, guarantees every spouse a reasonable provision from the estate of the other spouse, upon death testate or intestate.