Prior to the 1992 Constitution, distribution of property between spouses upon divorce had been determined largely by customary law or the Matrimonial Causes Act. The courts, therefore, gave judgments that varied in scope and content, depending upon the nature of marriage a person contracted.
Similarly, issues concerning the inheritance of property by spouses upon the death of either spouse were resolved according to the customary law of the parties or the nature of the marriage they contracted.
This state of affairs created an air of uncertainty as there was no specific legislation dealing with the property rights of spouses either upon divorce or upon death. Therefore, there was a need for legislation to be made to address the plethora of issues divorcees and those in widowhood, especially the women, faced when it came to the sharing or distribution of property.
All hail the 1992 Constitution.
Many were those who sighed with relief when the 1992 Constitution came into effect as the supreme law of Ghana on 7th January, 1993. Article 22 of the Constitution provides that when a person dies, his spouse (wife or husband) will be given a reasonable part of the dead spouse’s estate whether the dead spouse left a will or not. Additionally, spouses are to have equal right to enjoy any property that they jointly acquire during their marriage. In the event of divorce, the couple are to share any property they acquired together equitably.
The role of Parliament in realizing the benefits of Article 22.
The Constitution specifically mandated Parliament to pass a law to regulate the property rights of spouses as soon as practicable after the Constitution became operational. Now, whether by design or by destiny, ‘as soon as practicable’ only became a reality almost 16 years after the Constitution came into effect when a Property Rights of Spouses Bill was laid before Parliament for the first time in 2009. The Bill was not passed and it lapsed. Then came another Property Rights of Spouses Bill in 2013.
The Bill contained many useful provisions such as who qualifies as a ‘spouse’, the concept of cohabitation, the introduction of marital property agreements (also known as prenuptial agreements in some jurisdictions), the need for a spouse to obtain the other’s consent before entering into any transaction that relates to a joint property of the spouses, and so on. Furthermore, under the Bill, spouses were to have equal access to jointly acquired property and there was provision for the equitable distribution of property upon divorce. Sadly, the bill languished in Parliament while the problems it sought to redress continued to plague us. Needless to say, that bill also lapsed at the end of the tenure of that Parliament.
The Supreme Court to the rescue.
While Parliament appears to have had better use to put its time rather than pass a bill to regulate the property rights of spouses, our citizens have had resort to the law courts to seek relief for the very challenges such a bill will address.
Some of the cases had to travel the full hierarchy of the superior courts, ending at the Supreme Court. Some notable Supreme Court cases dealing with distribution of jointly acquired property upon divorce include Arthur (No. 1) v. Arthur (No. 1)1, Mensah v. Mensah2, Quartson v Quartson3, Boafo v Boafo4 and Mensah v Mensah5. In these cases, the Supreme Court applied the ‘jurisprudence of equity’ principle as espoused in Article 22 in deciding the formula for distributing jointly acquired property between spouses upon divorce. Even so, the apex court emphasized that the distribution made in each case ought to be made on the peculiar facts of each case. As the Supreme Court itself stated in the Arthur case, “it is in the absence of Parliament’s implementation of the principles
1 [2013-2014] 1 SCGLR 543 2  1 SCGLR 391
3  2 SCGLR 1077
4 [2005-2006] SCGLR 705 5 [1998-99] SCGLR 350
embodied in article 22(3) that this Court has sought to implement them through constitutional interpretation in Mensah v Mensah”. (Emphasis mine)
Why it is necessary for a Property Rights of Spouses Bill to be passed.
In most of the cases that have been argued before the Supreme Court, the kernel of the issues to be determined by the Court has mostly been whether, upon divorce, a wife was entitled to a share of property jointly acquired during her marriage to her husband. The facts of the Arthur case reflect the general trend of the dilemma women face when they seek their share of jointly- acquired property after divorce. In the Arthur case, the wife and the husband were married at the Emmanuel Presbyterian Church in Dansoman, Accra. They had three children.
Both of them were citizens of Ghana and France, and lived in Ghana. The husband was a professional footballer who plied his profession in Nigeria, Germany, France, and Dubai. While the wife lived with the husband in France, she served as his driver, since he could not drive. Apart from the normal household work, she drove the husband on all his rounds throughout the day and also drove the children to school and back for the entire duration of their stay in France.
The husband refused to allow her to look for work because of this driving responsibility. It was the understanding between the couple that because the wife was prevented from working and by virtue of her role as a driver, any and all money that the husband earned from his football career was to be for the couple jointly and any property that the couple acquired or purchased was to be owned by both of them.
During the marriage, the couple constructed a matrimonial home and a storey building at Weija in Accra. At the High Court, the wife claimed part-ownership of these properties on the basis of her housekeeping, her role as a driver as explained above, and her supervision of the construction of the buildings.
The husband resisted these claims made by the wife and insisted that the properties at Weija are for him alone and that he bought them through his income from his football career. The High Court gave judgment for the wife for the reliefs she claimed. The husband was not happy with the decision and appealed to the Court of Appeal which overturned the High Court’s decision and gave judgment for the husband. The wife then appealed to the Supreme Court.
The Supreme Court, speaking through the erudite Date-Bah, JSC, said that in the light of the decision 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. The Supreme Court further cited and relied on Article 22 (3 ) (b) which declares that assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. In the course of delivering the judgment, the Supreme Court had cause to re-echo the need for Parliament to pass a law to regulate the property rights of spouses and lay down a statutory definition of “marital property” with appropriate exceptions.
It bears adding that, the Supreme Court’s handling of cases pertaining to the rights of persons in marriage upon divorce or death has been forward-looking and worthy of praise. However, the same cannot be said when it comes to cases involving persons in cohabitation. Such cases have not always been peaches and cream. There have been some decisions from the Supreme Court that have raised eyebrows and left many scratching their heads.
One such case is Mintah v Ampenyin.6 In that case, the parties met and fell in love in October 2000. Along the line, the man promised to marry the woman. The man moved the woman into his uncompleted house to live there in anticipation of the marriage. At the time, the uncompleted house was roofed but had no ceiling, window, and door frames. The floor had also not been screeded. There was no electrical wiring hence, there was no electricity. By the woman’s account, she spent her money to develop the house and made it habitable.
Two years later, the relationship hit the rocks. The man said he was no longer interested in getting married. The woman felt shortchanged and sued the man at the High Court for damages for breach of promise to marry, damages for inconveniences and loss of time wasted on the man, and for the man to pay some sums of money to Civil Appeal No. J4/18/2013 Unreported decision of the Supreme Court dated 25th March 2015. The man also made a counterclaim to take back the house from the woman and for the woman to return his pumping machine, louvre frames, standing fan, gas cylinders and photo camera.
The High Court dismissed the woman’s case and gave her nothing but granted the man all the reliefs he claimed. The woman appealed to the Court of Appeal. Luckily for her, the Court of Appeal gave her GH₵6,000 as general damages to assuage her injured feelings. She was not satisfied with it so she appealed to the Supreme Court. The Supreme Court dismissed the woman’s case. It held that the relationship that existed between the man and the woman was one of “concubinage” and not a marriage.
The Supreme Court, speaking through Akamba, JSC, reasoned that though a concubine was expected to serve all the functions of a legitimate wife, she has no authority in the family or household, and was denied certain legal protections. His Lordship relied on the definition of concubinage in Black’s Law Dictionary. He concluded that, had the relationship materialized into a marriage, different considerations would have applied.
Many were those who found the Supreme Court’s decision in the Mintah case unfortunate and retrogressive. The reason was not far-fetched. As early as 2013, the
concept of cohabitation or concubinage, where a man and woman will live together as husband and wife without going through a formal ceremony of marriage had been accepted and recognized in the Property Rights of Spouses Bill. Under the Bill, individuals who participated in such arrangements for a period of, at least two years, were to be entitled to the same rights as spouses in marriages properly so-called.
It was, therefore, disheartening that the Supreme Court relied on Black’s Law Dictionary’s definition of concubinage to conclude that since there was no marriage, the woman in the Mintah case was not entitled to the reliefs she claimed.
From the above, it is clear that the real solution for actualizing the constitutional provision on property rights of spouses lies with Parliament and not the courts. Parliament ought to bite the bullet and pass a spousal rights bill instead of abdicating its responsibility and leaving the task to the courts. To be fair, since the courts have no law to guide them in the adjudication of spousal property rights cases, their task has been made unnecessarily tedious.
How Parliament failed to pass a Property Rights of Spouses Bill in 2009 and 2013 but imported aspects of it into the Land Bill, 2019 and passed it.
As already stated in the preceding paragraphs, the Property Rights of Spouses Bill, 2009, was the first bill introduced in Parliament by the Ministry of Justice. The bill was never passed into law despite the numerous advocacy campaigns waged by many stakeholders, notably, women and human rights activists and organizations.
The term of that Parliament ended in December 2012 and the bill died with it. In 2013, the bill was repackaged and laid before Parliament as the Property Rights of Spouses Bill, 2013. That bill suffered the same ill fate as its predecessor; Parliament did not pass it. In the current Seventh Parliament of the Fourth Republic which is ending in just about two months, not a word was heard about the laying, much less passage, of any property rights of spouses bill.
As a country, we had all been waiting fervently upon our beloved representatives in Parliament to pass a property rights of spouses bill to enable us enjoy the full benefits conferred by the Constitution. Then we woke up to news of the passage of the Land Bill by Parliament in July, 2020; it is currently awaiting the President’s assent. The road to land reforms, just like the efforts at streamlining the property rights of spouses, had been a long and arduous one. So, naturally, the passage of the Land Bill was received with much joy and fanfare.
Now, the Land Bill is replete with novel provisions such as electronic conveyancing, customary land management relating to clan, family and group lands and so forth. One such novel provision that has found pride of place in the Land Bill is spousal property acquisition and ownership.
Yes, you read right: property rights of spouses. For instance, under the Land Act, when a spouse buys property in his/her name during marriage, the property will be deemed to have been bought by both spouses unless it is stated in the conveyance that the property is only for the spouse who bought it. In the absence of any
such statement in the conveyance, the spouse who bought the property will be presumed to hold it in trust for both spouses. Again, under the Land Act, a spouse cannot sell, transfer, give away or enter into any other transaction in relation to a property bought during the marriage without the written consent of the other spouse, though the other spouse should not unreasonably refuse to give the consent.
Furthermore, when a spouse applies to register title in land or other property acquired during marriage, it will be presumed that the registration of title is for both spouses. Where only one spouse’s name is stated on the land title certificate, he or she will be presumed to be holding the property on his or her behalf and in trust for the other spouse.
These provisions as found in the Land Act appear to jump right out of a property rights
of spouses’ law. In the ordinary course of things, this development should engender excitement in the proponents of the property rights of spouses’ law. However, that has not been the case, and rightly so. For one thing, the Property Rights of Spouses Bills various Parliaments failed to pass contained more beneficial and relevant provisions regarding spousal property rights.
As stated earlier, these included the definition of ‘spouse’, the concept of cohabitation, the introduction of marital property agreements (also known as prenuptial agreements in some jurisdictions) and the exceptional circumstances under which one could dispense with spousal consent. For another, the lacuna that exists in our laws regarding the property rights of spouses as emphasized by many, including the Supreme Court, still remains.
Reasons why Ghana needs a law on property rights of spouses.
It is submitted that, Parliament ought to bite the bullet and pass a stand-alone Property Rights of Spouses Bill instead of nibbling at it the way it has done through the Land Bill. The reasons for this submission are as follows:
1. To fulfil the constitutional obligation imposed by Article 22: As already demonstrated, a property rights of spouses bill will contain specific provisions detailing how marital property ought to be distributed upon death or divorce. As such, when passed into law, such a bill will actualize the provisions in Article 22.
2. To absolve the Supreme Court from the task of ‘legislating’ through constitutional interpretation: A property rights of spouses law will help set the perimeters on spousal property rights clearly and save the Supreme Court the task of having to formulate its own rules whenever their Lordships are called upon to decide cases bothering on such rights. The Supreme Court itself acknowledged this fact in the Arthur case.
3. The inadequacy of the spousal property rights provision in the Land Act: The spousal property rights provisions in the Land Act relate to land and other immovable property. But we know that marital property means a lot more than just land and buildings. Spouses may acquire other assets such as shares, cash, businesses, intellectual property, etc in the course of their marriage. It is for this reason that there ought to be a comprehensive law regulating the property rights of spouses.
4. Women disproportionately sacrificing their careers to stay home: Available statistics show that many more women are receiving education and setting their sights on pursuing various careers of their choice. However, due to the demands of childbirth and care, most women bear the brunt of sacrificing their careers to stay home while their husbands remain in the workforce.
Unfortunately, their contribution to the home and acquisition of marital property is largely unappreciated. Upon divorce or death of the husband, they are given the short end of the stick, if at all.
5. The changing gender roles and marital obligations in society: In Ghana today, our demography is changing rapidly as far as income generation is concerned. We now have more homes with two career-oriented or income-generating couples, each contributing economically to the sustenance of the marital home. As a result, wives contribute greatly to the acquisition of marital property in most households. Therefore, it is imperative and fair that in the event of death or divorce, marital property is inherited or shared equitably.
6. The growing incidence of “househusbands” in Ghana: An off-shoot of the changing gender roles is the growing concept of “househusband”. This is the phenomenon whereby men married to career or business women stay home to take care of the house and the kids while the wife goes to work.
The duties of such househusbands include driving the children to and from school and supervising homework, supervising household staff, doing shopping for the house and generally running errands for the smooth running of the home, attending school and family meetings, and many other things. In the end, most househusbands are unable to develop or pursue any career of their own. In the event of death or divorce of the wife, the househusband may have to walk away empty-handed. Hence, the need for a property rights of spouses law to address these changing scenes of our social and economic lives.
Is there a reason for Parliament’s failure to pass property rights of spouses’ bill?
There exists a certain school of thought that holds the view that Parliament represents the ultimate patriarchy. 86.5% of the House’s current membership is male.
According to the adherents to this school of thought, our honourables believed that the provisions in the Property Rights of Spouses Bill, 2009 and 2013 were intended to favour wives and girlfriends to the detriment of husbands and boyfriends. For whatever this school of thought is worth, one thing is certain; the passage of property rights of spouses’ bill will be beneficial to both husbands/boyfriends and wives/girlfriends, without exception.
In almost all the Supreme Court cases concerning property rights of spouses, the person who is in court seeking a share of their marital property is the wife or female cohabitee. Considering how our society is evolving economically and socially, we may soon see a shift whereby the shoe will be on the other foot. Therefore, the earlier Parliament passes a property rights of spouses’ bill, the better it will be for all; husbands, wives and cohabitees alike.
Over to you Ministry of Justice. Over to you, the Eighth Parliament of the 4th Republic.