Properties acquired by spouses during their marriage are known as spousal properties. They include properties acquired, before and during the marriage. Where it is acquired before marriage, there must be an agreement that the said property should form part of the properties of their marriage. The agreement may either be Express (written or oral) or Implied (where by the couple’s conduct, the courts presume that a property acquired before the marriage, be deemed as spousal property. The courts normally presume the matrimonial home [the building in which the couple lives], as spousal property although individually acquired by a party before the marriage). Where a property is said to be spousal property, the effect is that such a property is jointly owned by the couple and upon divorce shall be distributed among them according to the contributions of each spouse.
There is no clear and fast rule on how properties are to be shared upon divorce. What judicial pronouncements have made known is that there are rules and principles applicable to property distribution upon divorce and their application are based on the peculiar facts of each case. What this means is that how a property will be shared, will depend on who, when and how the property was acquired and judges are not bound to apply any specific rule or principle to all cases that come before them, be it Customary, Mohammedan or Christian marriages. Those principles merely serve as guides for the judges to arrive at a fair, just and equitable conclusion.
The development of the said rules and principles can be summarized under the years they were formulated as follows:
1. Any property acquired by a man during the subsistence of the marriage with or without any assistance from the woman becomes an individual property of the man and not a spousal property.
Before
1957 – A
husband and a wife were regarded as one in the eyes of the common law and the
man was that one. Whatever property the wife acquires belongs to the man
because the woman was regarded as incapable of owning a property.Any property acquired by a spouse during the subsistence of the marriage with mere assistance from the other spouse remains an individual property but not a spousal property.
2. Any property acquired by a spouse during the subsistence of the marriage with substantial assistance or substantial contribution (not mere assistance) from the other spouse becomes a jointly acquired property and thus, a spousal property.
1957 – The traditional view (customary law) never recognizes the man and the wife as one. So the court in the case of Quartey v Martey & Another (1957) GLR 377 decided that any property acquired by a man with assistance (mere assistance) from his wife and/or his children is his individual property and not jointly owned with his wife and/or children. Ollenu J. (as he then was) went ahead to say that where there is strong evidence to the contrary (substantial assistance or contribution), the property shall be declared as jointly acquired.
1974 – In the case of Yeboah v Yeboah (1974) 2 GLR 114, the court looking at the facts of the case concluded that contrary evidence (substantial contribution) was shown, and that the contributions made by the wife (acquiring the plot of land upon which the man built) was substantial assistance and not mere assistance. So the wife was entitled to equal share in the building built by the husband on the said plot of land.
Property acquired before marriage is the sole property of the owner in the absence of any contrary agreement. Same applies to properties gifted to a party to a marriage before or during the marriage. Such gift remains an individual property but not a spousal property. Assistance may be said to be mere contribution to the acquisition of the property, without which the property would still have been acquired by the other spouse, whereas Substantial Contribution is substantial contribution that goes to the root of the acquisition, without which the acquisition could not have been made. Reindolf v Reindolf (wife solely worked and purchased three houses during marriage) court held that the wife was entitled to a share in the building.
3. When spousal property is being shared, prima facie (at first consideration) it will be shared equally between the spouses (equity is equality principle) unless it will be unfair for one spouse to receive same share as the other. In such a case therefore, the property will be shared equitably in accordance with their contributions, e.g. 90% : 10% (equitable share principle)
The court in the Yeboah case, being unable to quantify the respective contributions of the spouses, held that the property be equally shared. It was the inability to quantify the contributions that led the court to hold that the property must be shared equally unlike sharing in accordance with contributions. A property acquired by a party during the subsistence of a marriage is prima facie presumed to be spousal property unless the contrary is proven.
4. Any property acquired by a spouse during the subsistence of the marriage without knowing whether or not the other spouse contributed to its acquisition shall be deemed to be jointly acquired unless the owning spouse is able to prove the contrary.
5. Any spouse who seeks to prove his or her contribution towards the acquisition of a property can do so without necessarily providing receipts of the said contributions to the courts.
1976 – The court in the case of Abebreseh v Kaah (1976) 2 GLR (wife contributed half of purchase price of plot, bought timber for the building and contributed to cost of materials) held that in sharing of spousal properties, the normal incident of commerce (having to prove each and every detail by documentary evidence) is not applicable. So where a spouse is able to prove by any mode a substantial contribution on his or her part in the acquisition of a property, the court will grant in his or her favour an entitlement even in the absence of documentary proof of the said contributions. The judge held that taking the evidence in a whole, the contribution by the wife was more than mere assistance.
The court in the case of Bentsi-Enchill v Bentsi-Enchill (1976) 2 GLR 303, clarifying the position in Yeboah v Yeboah, held that performing wifely duties (mere assistance) does not amount to substantial contribution. And that property acquired by a spouse before the marriage belongs solely to the said spouse in the absence of any contrary agreement (which agreements the courts may impute from the conduct of the parties in the absence of any express agreement) and any improvements made to it by the other spouse doesn’t create joint ownership upon divorce but merely entitles such spouse to the amounts used in the said improvements.
As we noticed earlier from Part 1 of this Article and after taking a critical look at the judicial pronouncements in the cases cited, the conclusion that can be drawn is that our judges merely applied the law to the facts of each case and came to fair, reasonable and just conclusions, applying the principles as fairly as they could by restating the same principles in different ways without any ambiguities when looked at closely. From the year 1976 as earlier discussed, we then come to the year 1982 and with the 7th principle, having these at the back of our minds:
Mere
Assistance:
Wifely or Husbandly duties, what any good wife or husband would do. Substantial contribution: contributing
to purchase price, acquisition of plot, any financial contributions.
1982 – Substantial Contribution may also be in the form where there is an agreement or lure of one spouse by the other to forfeit a personal purchase of individual property and money subsequently used for other matrimonial purposes, as per the case of Achiampong v Achiampong (1982-83) GLR 104. In the case of Domfe v Adu (1984-86) 1 GLR 653 the court held that the wife’s provision of the initial capital for their joint business from taking several loans entitled her to joint ownership in the said business.
6. The principle of Equality is Equity sharing of spousal property is not the same as Equity is Equality.
7. The principle of Equality is Equity sharing of spousal property is not the same as equitable sharing of spousal property (hereinafter personally referred to as ‘Equitable is Equity Principle’)
1987 – The case of Berchie-Badu v Berchie-Badu (1987-88) GLR 78 applied the Equality is Equity principle (Not Equity is Equality). This principle basically says that where the respective contributions of the spouses to the acquisition of a property cannot be quantified, the property will be equally shared equally (50/50) among the parties, but where they can be quantified, the property will be shared as equal to their respective contributions (Equitable is Equity). In both instances, the distribution is equitable or fair or just. Most people think that by the Equality is Equity principle, the law means that the property must always be shared equally (as in 50:50), thinking of the principle of Equality is Equity as being same as Equity is Equality, but that is not so. Where a property is shared in the ratio 90:10 between parties per their contributions, same can be said to be equitable if it matches their respective contributions.
In the case of Anang v Tagoe (1989-90)1GLR 653, the court held that financial assistance which qualifies as substantial contribution need not necessarily be proved as that associated with commercial transactions between two unmarried persons.
8. A spouse is entitled to a share, however minimal, in the estate or property of the other spouse upon divorce; this is so even where the property is individually acquired by the said spouse. (Hereinafter personally referred to as ‘No Deprivation Principle’).
1992 – Article 22 clause (3) of our 1992 Constitution also upholds the Equality is Equity principle as it provides that a spouse shall have equal access (not equal shares) to jointly acquired properties and that jointly acquired properties shall be distributed equitably (not equally). Equitable means what is fair, candid or reasonable per the circumstances/contributions but not necessarily what is equal. Property may be shared equally but that wouldn’t make same equitable where the respective contributions are known as 99%:1%.
Fortunately, our constitution
at Article 22 clause (2) made
an innovation in our laws relating to distribution of properties among spouses,
stating that spouses shall not be
deprived of reasonable provision out of the estate of the other. Now, it
matters not how, who or when the property was acquired. A spouse always has a
share, no matter how minimal, in the properties of the other- No Deprivation Principle). The No Deprivation Principle as personally
formulated by myself is based on the rule that performance of marital duties by
one spouse creates the congenial atmosphere for the other spouse to acquire
properties. So there is always a contribution by the other party to any
property acquired, no matter how minimal. This said provisions influenced the
subsequent cases relating to spousal property.
1998 – In the case of Mensah v Mensah (1998-99) SCGLR 350 the supreme court applied the Equality is Equity principle by sharing the jointly acquired property equally because the properties were jointly acquired and the contributions per couple was unknown. Where their contributions could be proven to the contrary, the court I believe would have taken a different position by distributing in accordance with their said contributions. The Supreme Court again in the case of Boafo v Boafo (2005-06) SCGLR 705 held that the Equality is Equity principle if applied, is good, but will not always be equitable or fair. The court went further to state that a distribution that will be fair will depend on the facts and particular circumstance of each case (Equitable is Equity). The two cases are virtually saying the same thing but in a different ways. What the court is in fact saying in Boafo case is that, applying the principle of Equality is Equity, to mean property is to be equally shared 50:50, without regarding the principle of Equitable is Equity, will not always be fair, just and reasonable.
2012 – The most controversial case, as most people say, of all the cases as some may think, is the case of Gladys Mensah v Stephen Mensah (2012) 1 SCGLR 391 which held that sharing of spousal property should no longer be dependent on substantial contribution, and that, it is enough if the property was acquired during the marriage. It is clear here that the court had in mind the No Deprivation Principle. What the Supreme Court was in fact saying was that, any property acquired during marriage will be presumed (prima facie or at first sight) as jointly acquired in the absence of proof of substantial contribution. It went further to state that jointly acquired property should be shared 50:50 unless such ratio will be unfair to one party.
The case of Quartson v Quartson (2012) SCGLR 1077 applied the equitable is equity principle and not the equality is equity principle and came to the conclusion that the wife was not entitled to equal share as husband because the contributions were known (wife’s contribution was not half the value of the property since she merely supervised the building of the said property). The case of Arthur v Arthur (2013) applied the decision and reasoning in Mensah v Mensah (above) having in mind the No Deprivation Principle.
The case of Fynn v Fynn and Osei (2013) held that couples can acquire their individual properties during the existence of their marriages as a constitutional right under Article 18 of the Constitution. The facts of this case are that the husband sold his store, individually acquired, to a third party during his marriage. The issue before the court was whether or not the sale was void without the wife’s consent. The court held that the sale was valid and not void. This decision is consistent with the principles, the reasoning from the principles, is that the No Deprivation Principle gives the wife a share in the property whatever minimal and the her consent should have been sought, but failure to do so by the husband does not make the sale void if the purchaser was a 3rd party/bona fide purchaser for value without notice (someone who purchases a property without prior knowledge of any incapacity on the part of the seller upon conducting reasonable searches). The 3rd party must be protected by law, but that doesn’t mean that the wife does not have a share in the proceeds of the sale (though husband individually owns it, applying the No Deprivation Principle) and could have therefore sued the husband for her share of the money. Hypothetically, however minimal, even if the house was sold for GHS100,000.00, the wife may still be entitled to GHS1.00 as reasonable provision from the sale by her husband’s of the said property.
9. The principles of spousal property distribution do not apply in cases where there is no valid marriage between the parties, i.e. where parties are courting, dating, or are in the state of concubinage or adultery.
In the case of Theresa Owuo v Francis Owuo (2017) SCGLR the court held that where there was no legally recognizable marriage between parties who have acquired properties during the subsistence of their concubinage/adultery, the normal incidence of commerce will apply. As between two private individuals, strict proof of each and every contribution (documentary) one makes towards the acquisition of the property in question shall be required.
I sincerely do not see or think there are inconsistencies in any of the decisions of the courts I have referred to above.