Marriage is a beautiful thing but comes with uncertainties. Divorce is a reality when parties to a marriage are unable to work out their differences and /or conflicts, often after trying. During divorce proceedings one thing that is paramount among other things is who gets what and of what quantum when the divorce is finalized. Where the couple are able to agree on who gets what share of the properties acquired during the subsistence of the marriage, the court may adopt those terms of settlement between the parties. However, where the parties are unable to agree, the court would based on set principles and laws, determine the division of property among them.
The laws on spousal property have evolved over the years. From spouses having to prove substantial contribution towards the acquisition of marital property as in the case of Mensah v Mensah (1998-1999) to the presumption that properties acquired during the subsistence of the marriage should be shared on the principle of equality is equity.
Generally, properties acquired jointly during the subsistence of the marriage are shared equitably. It is trite law that no two cases are the same and therefore each case must be determined on its own merits and peculiarities.
In Boafo v Boafo [2005 -2006] SCGLR 705, the Supreme Court held that the principle of equitable sharing of property jointly acquired by a married couple would ordinarily entail the equality principle, unless one spouse could prove separate proprietorship or agreement or a different proportion of ownership. The court stated that the provision in Article 22(3) (b) of the 1992 Constitution and Section 20(1) of Matrimonial Causes Act 1971 (Act 367) only made provision for the equitable distribution of property jointly acquired without laying down the proportions in which such property might be distributed. The reason for that omission was the question of what was “equitable”, in essence, what was just, reasonable and accorded commonsense and fair play, was a pure question of fact, dependent purely on the particular circumstances of each case. The proportions would therefore, be fixed in accordance with the equities of any given case. How would this be arrived at when a spouse has no evidence to back his or her claim?
In Mensah v Mensah 1 SCGLR 391, it was held that once the property was acquired during the subsistence of the marriage, the respondent by operation of law had an interest in it. In this case it was established that both parties at the beginning of their marriage did not have money/properties. The parties worked together to acquire the properties even though the respondent could not quantify her contribution in monetary terms. It is worthy of note that the principle that properties acquired during the subsistence of the marriage is joint property is not applicable generally. Again, the sharing of spousal property is no longer dependent upon the substantial contribution principle but rather property acquired during marriage is presumed to be joint property. Here again, the properties acquired are presumed to be jointly acquired which can be rebutted with evidence.
In Quartson v Quartson 2 SCGLR 1077 and in Arthur v Arthur (No. 1) [2013 – 2014] SCGLR 543, the court affirmed the principle in the Mensah v Mensah’s case holding in the Quartson case that in partitioning properties acquired during marriage, the court must consider the equities of the particular case. While in Arthur’s case, it held that properties acquired during the subsistence of the marriage is presumed to be jointly acquired property. This presumption is however rebuttable in instances where a spouse acquires the property through a gift or succession or loan facility which has not been repaid as stated in the case of Peter Adjei v Margaret Adjei supreme court. J4/06/2021. 21 Apr, 2021. Even though it can be argued that the chores performed by the other spouse in the marriage provided a conducive atmosphere for the repayment of the loan, that is the principle laid down now.
In the case of Fynn v Fynn [2013 – 2014] 1 SCGLR 727, the court held that there are situations where within the marriage, parties may acquire property in their individual capacity and this position is buttressed by Article 18 of the 1992 Constitution of Ghana which says that “(1) Every person has the right to own property either alone or in association with others. (2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others”. This decision affirms the principle held in the Arthur v Arthur’s case in that once a spouse can rebut the presumption that properties acquired during the subsistence of the marriage is jointly acquired then a spouse can acquire individual properties during the subsistence of marriage.
Legal basis for the distribution of jointly acquired properties during the subsistence of the marriage upon divorce.
The distribution of jointly acquired property has been greatly influenced by the 1992 Constitution of Ghana particularly Articles 22(2) and (3) which deals with property rights of spouses, Article 35 (5) which deals with protection of rights by courts and Section 20 of the Matrimonial Causes Act, 1971 [Act367]. The general principle that can be gleaned from the various decisions of the courts and the text of the Constitution is that any property that is acquired during the subsistence of the marriage, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between the couple on the principle of equality is equity. This principle applies to all the forms of marriages, be it Customary, Ordinance or Mohammedan marriage. This presumption is however rebuttable as stated earlier.
Therefore, as seen in the Arthur case, if a spouse can show by way of evidence that he or she single handedly acquired the property even during the subsistence of the marriage, then the presumption of jointly acquired property fails as seen in the Fynn case. Meaning it is only the property that has been shown by way of evidence, that both parties contributed towards their acquisition, be it direct or indirect, pecuniary or substantial contribution, which will be recognized as jointly acquired property to be shared on an equality is equity basis.
In the case of Mensah v Mensah [1998-1999] SCGLR 350 it was held that “property jointly acquired during marriage would become joint property of the couple and such property should be shared equally on divorce because the ordinary incidents of commerce had no application in marital relationship between husband and wife who had jointly acquired property during marriage”. The court also found that the couple had no properties at the start of their marriage and therefore both parties contributed substantially towards the acquisition of the matrimonial properties. In this instance the property jointly acquired during the subsistence of the marriage includes properties that were acquired by gift or inheritance. However, the Arthur v Arthur case introduced the presumptive ownership principle that properties acquired during marriage are jointly acquired by the couple unless rebutted.
Therefore, in the cases of Quartson v Quartson, Arthur v Arthur and Fynn v Fynn, a spouse no longer has to prove a direct or indirect, pecuniary or substantial contribution towards the acquisition of properties during the subsistence of the marriage to be entitled to a share of those properties. But where there is evidence that proves a spouse’s contribution, that evidence needs to be adduced to quantify his or her share of the properties on equity bases. This position was arrived at because chores such as cooking, cleaning, washing, nurturing, etc. that wives typically perform in the home creates an enabling environment for the acquisition of the properties. It is worth noting that not all wives perform their chores dutifully and where it is proven that a wife did not perform her chores dutifully, then she does not stand to benefit from the properties acquired during the subsistence of the marriage as seen in the case of Rimmer v Rimmer  1 QB 63 at Pg 73 and the Fynn v Fynn case.
Again, in the Fynn v Fynn case the court opined that a spouse can acquire a personal property during the subsistence of the marriage. Hence applying article 18(1) of the 1992 constitution which says that “Every person has the right to own property either alone or in association with others”. In a similar manner, the Arthur v Arthur case made it clear that a property acquired by gift or inheritance does not form part of jointly acquired property during the subsistence of the marriage as the other spouse did nothing or contributed nothing towards the acquisition of that property.
From the foregoing it is important that a spouse is minded regarding retaining records or evidence of their contribution towards the acquisition of properties during the subsistence of the marriage. This is because if a spouse can prove that he personally acquired a property during the subsistence of a marriage then the other spouse is unlikely to have a legitimate claimed interest in the said property especially where that spouse cannot show by evidence any contribution to the union except where that spouse can show the performance of household chores.
Section 20 of the Matrimonial Causes Act, 1971, Act 367 provides that: (1) The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable. (2) Payments and conveyances under this section may be ordered to be made in gross or by instalments. Meaning that a spouse is entitled to either one of the provisions stated in this section.
The court defined marital property in Arthur v Arthur (No. 1) [2013 – 2014] 1 SCGLR 543 at pg. 560 as “we are bound to follow this holding of the Supreme Court in Mensah v Mensah. Marital property is thus to be understood as property acquired by the spouses during marriage, irrespective of whether the other spouse has made a contribution to its acquisition.” At pg. 565 the court further said “it should also be emphasized that, in the light of the decision of the Supreme Court 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”. If this is the case, then why should a spouse be entitled to only one house upon the death of his or her spouse intestate? This is a question that needs to be answered through legislation.
In conclusion, the principles that would be considered when the court is determining who gets what and of what quantum during a divorce are firstly, that the properties acquired during the subsistence of marriage are presumed to be jointly acquired which shall be shared equitably between the couple upon divorce. This presumption can be rebutted and if proven, a spouse’s claim to an interest in marital property may be defeated. Secondly, property that is acquired during the subsistence of the marriage through gifts or inheritance or an unliquidated loan facility is classified as personally acquired properties of the acquiring spouse. Thirdly, a spouse can acquire personal property during the subsistence of the marriage. To conclusively establish the applicability of the foregoing principles to a matter before the courts a party must adduce sufficient evidence as explained in this article.
Author: Vida Narkie Odonkor
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