After 15 years of marriage, Sister Abena, my neighbor for many years only whines about what a lazy man Odee, her husband is and contemplates divorcing Odee for good because she is fed up. Her only concern now is her house and car as Odee has never had anything to offer, not even stipend for a day as his hamartia was his drunkenness at the very beginning of their marriage.
She invited me over one Saturday afternoon and asked, ‘nti Amenda , mmra no se sen fa aware gyae nne agyapadeɛ ho?
I proposed to tell her a story from the early days of Ghana’s attainment of independence.
The Ghanaian case law with regards to the distribution of matrimonial property upon the dissolution of marriage has undergone an evolution of many stages. The starting point was Quartey v Martey & Anor  G.L.R 337 , where Ollennu J.,(as he then was) held that the proceeds of this joint effort of a man and his wife and/or children, and any property which the man acquires with such proceeds, are by customary law the individual property of the man. It is not the joint property of the man and his wife and/or children. The right of a wife and children is a right to maintenance and support from the husband and father. Thus, upon the death of the husband, the widow is left without an interest in the marital property.
From this position I’m still trying to find the best adjective to describe, the courts progressed to the substantial contribution principle which is elucidated by the cases of Abebrese v Kaah, Yeboah and Yeboah and Achiampong v Achiampong. This principle sought to consider the quantum of contribution made by one party, mostly the wife, to determine the interest she held in the property. This arose as a result of the exigencies of modern social developments, and the pressure put on the somewhat archaic customary law rules as they became deficient and insufficient.
Abeberese v Kaah & Others  2 GLR 46 was a case of an Ashanti customary marriage between a woman who, although an illiterate, was a successful and wealthy trader and a man who was a tally clerk, and later promoted to a book keeper, but was believed by his wife to be an accountant. The husband acquired a plot of land, with the woman paying half the purchase price. The man was financially unstable to begin building immediately, but his wife convinced him to do so with her help. They thus agreed that the man would pay the school fees of the ten children, while the woman paid for the upkeep of herself, her husband and the ten children. The husband bought the cement on credit form his employers, whereas the wife bought the timber, and contributed to the cost of materials like sand and iron sheets. She also supervised the labourers, and, together with her children, fetched water to the site. Upon the death of the husband, the grantee of the letters of administration sold the house to the family’s neighbor, and she commenced an action to defend her interest in the property.
The court, per Sarkodee J. held that, although the woman kept no account of her contribution, she was entitled to the declaration she sought, that the sale of the house by the administrator of the deceased’s estate was null and void because although the wife could not state in terms of cash how much her contribution was, it was clearly substantial. Sarkodee J. (as he then was), further stated that, assuming the property had been the husband’s self-acquired property built solely from his own resources with the assistance expected of a wife at customary law, on his death intestate, his wife and children would only have a possessory life interest which was prior to any right enjoyed at customary law by the successor or the wider family. It was also held that, assuming the property in dispute had originally been family property, on the death of the husband intestate, it would have vested in his immediate and ancestral family. However, since her contribution was substantial, and the fact that there was evidence corroborating the intention of herself and her husband to build for themselves and her husband, and also that her husband was gifted the house to her and her children, the transaction or sale of the house was void.
Furthermore, in Anang v Tagoe [1989-90] 2 G.L.R 8 ,Brobbey J., held that, where a wife made contributions towards the requirements of a matrimonial home in the belief that the contribution was to assist in the acquisition of joint property, the court of equity would take steps to ensure that belief materialized. That would prevent husbands from unjustly enriching themselves at the expense of innocent wives, particularly where there was evidence of some agreement for joint acquisition of property.
From the doctrine of substantial contribution which enabled the courts to provide justice for wives who either sought to be cheated by their husbands or their husbands’ families, the courts came up with a new principle.
In the case of Ribeiro v Ribeiro [1989-90] 2 G.L.R 109, the couple had been married for 34 years before the dissolution of the marriage in 1981. The wife, throughout the subsistence of the marriage had been a devoted housewife who rendered invaluable services to her husband, and took care of the issues produced out of the union, as well as those from his adultery. The wife, after petitioning for a divorce, in a subsequent petition claimed for ancillary reliefs including financial provision and accommodation. The trial court found that, while the trial was pending, the husband had transferred a house known as Haulage house, being one of the ten houses acquired during the subsistence of the marriage to his new wife by whom he had had four children, although he had already given her a house. The trial court therefore rescinded the disposition of the Haulage house to the new wife under section 26(1) of the Matrimonial Causes Act, 1971 (Act 367) on the grounds that it had been made in bad faith with the intent to defeat the financial provision that might be made for the divorced wife. On a further appeal to the Supreme Court from the decision of the Court of Appeal, Amua-Sekyi JSC was of the view that, considering the life of affluence the husband and wife had lived, including their having sojourns in London, two bedrooms and a hall at Adedainkpo could hardly have met the needs of a lady as refined as the wife must be.
Per the holding of the court, it was clear that the majority of the court had departed from the substantial contribution principle being the basis of the award of property to reasonable provision dictated by the needs of the parties, and that such needs could be satisfied from the movable or immovable property of the spouse.
From the reasonable provision principle, the Courts then again progressed to yet another principle. This is the equitable distribution of marital property jointly acquired during the subsistence of a marriage. Paragraph (b) of article 22(3) of the 1992 Constitution provides that, assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.
In Mensah v Mensah, the wife claimed sole ownership of the property with the contribution of her husband. The High Court gave judgment in favour of the wife, declaring her the sole owner of the house. On a further appeal to the Supreme Court, the court held, unanimously allowing the appeal, that both the husband and the wife would be declared joint and beneficial owners of the house and the extensions. The reason being that, from the evidence on record, the husband contributed to the cost of the extension works to the main house, while the couple were married and living together in the house. Also, in the absence of any prior agreement between the husband and wife that the extensions to the house were to belong solely to one party, the court will apply the principle that the property acquired jointly during marriage would become the joint property of the parties and such property should be shared equally on divorce, because the ordinary incidents of commerce had no application in the marital relations between husband and wife. Furthermore, section 20 of the Matrimonial Causes Act(Act 367) empowers a court in a divorce case to settle the proprietary rights of the parties on “just and equitable” basis. The Supreme Court also stated that, constitutional effect and force has been given to the principle of equitable sharing of joint property in article 22(3)(b) of the 1992 Constitution.
In Boafo v Boafo, the parties in this case entered into a customary marriage in Kumasi where they cohabited as husband and wife. They later left Kumasi for Dortmund, Germany where they continued to cohabit. In 1990, the couple converted the marriage into an ordinance marriage which was also celebrated in Kumasi. They returned to Germany and continued to live as husband and wife. The couple subsequently returned to Ghana. In 1999, the husband petitioned for divorce on the ground that the marriage had broken down beyond reconciliation. The wife cross-petitioned for divorce. On a further appeal to the Supreme Court from the decision of the Court of Appeal and the trial court, the Supreme Court held, unanimously dismissing the appeal 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. It was also held that, the provision in article 22(3)(b) of the 1992 Constitution of Ghana, and section 20(1) of the 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 Supreme Court further stated that, where there is a substantial contribution by both spouses, the respective shares of a spouse will not be delineated proportionally like a shareholding company, for the marriage relationship is not a commercial relationship where there is a substantial contribution by both spouses. Equality is equity will usually be an equitable solution to the distribution issue. This case therefore served as a final lap in coming to the conclusion that sharing jointly owned property in two equal shares represents what is just and equitable.
In the case of Gladys Mensah v Stephen Mensah, the parties were married under customary law in 1987, which was then converted into a marriage under the ordinance in 1989. The man was a junior accounts clerk at the Comptroller and Accountant-General’s department and the woman was a trader. During the subsistence of the marriage, the couple traded in a variety of goods. The business prospered and a number of properties were acquired. Upon a dissolution of the marriage, the woman petitioned for a half share of the property so acquired. The man resisted the claim, contending that the woman had been a housewife throughout the marriage and had contributed nothing to the business. The trial court found for the petitioner (the wife). The respondent unsuccessfully appealed to the Court of Appeal which affirmed the decision of the trial court. On a further appeal to the Supreme Court, the Supreme Court, in its holding stated that, it was time for the courts to institutionalize the principle of equality in the sharing of marital property by spouses, after divorce, of all property acquired during the subsistence of a marriage in appropriate cases, based on articles 22(3) and 33(5) of the 1992 Constitution of Ghana, and the principle of jurisprudence of equality.
With regards to the applicable guidelines on sharing marital property, Dotse JSC stated that, a person who is married to another, and performs various household chores for the other like keeping the home, washing, and keeping the laundry generally clean, cooking and taking care of the other partner’s catering needs as well as those of visitors, raising up the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage, and when the marriage is dissolved.
Therefore, by this decision, the Supreme Court had efficaciously done away with the principle of substantial contribution. Thus, the burden on judges to painstakingly find out whether the woman’s contribution was substantial before arriving at a decision as to whether or not the woman had an interest in the property therein had been greatly reduced.
The case of Fynn v Fyyn & Osei makes it clear that, spouses can acquire individual property during the existence of a marriage. In the case of Fynn v Fynn& Osei [2013-2014] 1 SCGLR 727, the Supreme Court departed from its own decisions in Mensah v Mensah, Quartson v Quartson and Arthur v Arthur by stating that spouses can acquire individual property during the existence of a marriage. The Court held that, although it would be most desirable for the couple to pool their resources together to jointly acquire property during the existence of a marriage, there could be situations where within the union, parties might still acquire property in their individual capacities as, indeed, was their guaranteed fundamental right as clearly enshrined under article 18 of the 1992 Constitution; in which case they would also have the legal capacity to validly dispose of individually-acquired property by way of sale, as happened in the case. Georgina Wood CJ on p. 741 stated
‘’ We do not think this court’s thinking on the status of property acquired during the existence of any marriage is shrouded in confusion. Indisputably, during the existence of the marriage union, it is most desirable that the couple pool their resources together to jointly acquire property for the full enjoyment of all members of the nuclear family in particular. But, the decided cases envisage situations where within the union, parties may still acquire property in their individual capacities as, indeed, is their guaranteed fundamental right as clearly enshrined in article 18 of the 1992 Constitution, in which case they would also have the legal capacity to validly dispose of individually-acquired property by way of sale, for example, as happened in this instant case. No court in such clear circumstances would invalidate a sale transaction on the sole legal ground that the consent and concurrence of the other spouse was not obtained…’’
With regard to the present position of the law on the distribution of marital property upon the dissolution of marriage in Ghana, since Odee has never brought anything to the table, it seems Sister Abena would be delighted in finding out that it is property jointly acquired during the subsistence of her marriage with Odee that shall be distributed equitably between the spouses upon dissolution of the marriage.
What’s more, since the principle of equitable sharing of property jointly acquired by a married couple during the subsistence of the marriage would ordinarily entail the equality principle, had she acquired the property jointly with Odee, in an action by sister Abena, she would have to prove separate ownership in order to get an equitable share of the property. Article 22(3)(b) of the 1992 Constitution provides that, assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.
However, since the properties in question were individually acquired by sister Abena, per the holding in Fynn v Fynn, there would be no need for equitable sharing and Sister Abena can deal with her property in whichever way she pleases.
But, with Sister Abena as the breadwinner of the family, should her petition for a divorce be granted, would Odee be left without a pittance for being a man?