Author: Blessing Ofosuapea (Legal Researcher)
Ghana as a country comprises different ethnic groups with diverse marital practices and family systems. Whilst the Akan people practice a matrilineal family system, the Ewe, Ga, and Dagomba people practice a patrilineal family system. In modern times, inter-marriages among the different ethnic groups have become common, promoting social cohesion.
As a multi-ethnic country, the marital laws of Ghana take into account the various norms of the different ethnic and religious groups. The law recognizes Mohammedan marriage which is contracted in accordance with the rules of Islam, customary marriage which is contracted in accordance with the traditional practices of various ethnic groups in the country, and ordinance marriage which is recognized by law as a monogamous marriage that is registered with the Registrar General’s Department.
For all these forms of marriages to be recognized by law, it must be registered with the appropriate state institutions. It is a legal jurisprudence that marriage is a moral decision. Thus, although there are laws regulating marriages in Ghana, there is no law in place that compels individuals to marry. On this note, since all Ghanaians are required to act in conformity with the laws of Ghana as a constitutional responsibility, when individuals agree to marry, their marriage is regulated by the laws in place, otherwise, such a union will not be recognized as marriage in the eyes of the law.
Prior to marriage and in the course of marriage, properties are acquired, some jointly, whereas others are acquired individually. When spouses decide not to continue with their marriage and thus desire to have the properties acquired distributed among them, what does the law take into account?
What does the law say about the distribution of assets?
Laws governing marriage in Ghana
The laws governing marriages in Ghana are the Constitution of the Republic of Ghana, 1992, customary laws, judge made laws or precedents and enactments made by or under the authority of Parliament namely, the Matrimonial Causes Act, 1971 (Act 367). These laws regulate marriages and all that are incidental thereto, especially distribution of marital assets.
Constitution of the Republic of Ghana, 1992
The Constitution makes provision for fundamental human rights. In its Article 22, it provides:
“22. Property Rights of Spouses
22(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.
(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
(3) With a view to achieving the full realization of the rights referred to in clause (2) of this article-
(a) spouses shall have equal access to property jointly acquired during marriage;
(b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.”
The Supreme Court has made an effort to interpret Article 22(3) for purposes of clarification. In the case of Tony Lithur v. Nana Oye Lithur (2021) SCG, the Court stated thus: ‘This Court should be deemed as having interpreted marital property in Article 22 (3) in Arthur v Arthur [[2013 – 2014] 1 SCGLR 543] …. As follows: – “Marital property is thus to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition. … What this means in substance is that, the Article 22 (3) provisions of the Constitution only become effective upon dissolution of the marriage when the distribution of properties are being considered.”’
From the Court’s interpretation, an issue that may arise when the determination of joint acquisition is raised will be the factors the court will take into account when determining joint property.
Matrimonial Causes Act of 1971 (Act 367)
Prior to the coming into force of the 1992 Constitution, there existed the Matrimonial Causes Act of 1971, which is applied mostly in monogamous marriages. Relevant provision of this Act to the present topic is Section 20:
“20. Property settlement
(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.”
The wording of Section 20 appeals to my senses in light of the recent trending news of alleged divorce between footballer Achraf Hakimi and his wife Hiba Abouk. It has been been speculated that Hiba made a request of half of her husband’s property and fortune of which to her disappointment, she found out that her beloved husband had no property in his name. The report also indicated that Hakimi was to get half of his wife’s property. This is an interesting one because usually in divorce proceedings, most often than not, it is the husband who is expected to make provision for the wife! This event brings to bare the above provision on settlement where either spouse can be asked to make provision for the other in line with equity.
Flowing from the above laws, and as Parliament is yet to enact a law to regulate the distribution of marital assets under Article 22(2), the courts have provided guidance on how this distribution is to be done. In the case of Adjei v. Adjei  GHASC 5 (12 April 2021) the following guidelines were provided:
(a) Distribution of jointly acquired matrimonial property upon dissolution of marriage is premised on the jurisprudence of “Equality is equity”. This was enunciated in the case of Arthur v. Arthur
(b) A property acquired during the subsistence of the marriage must first qualify as a Jointly Acquired Property to fall within the contemplation of Article 22(3)(b) and in order to be distributed under the doctrine of Equality is Equity.
(c) Property acquired during the marriage is presumed to be joint property however, with the following exceptions to this presumption:
(i) Gift inter vivos – property acquired by gift or through succession cannot be described as jointly acquired matrimonial property
(ii) Succession – acquisition of property through interstate or testate succession cannot be described as jointly acquired property
(iii) Personal loans taken by one spouse to construct a property on land she self-acquired prior to marriage is the sole property of that spouse if the loan remains outstanding at the time of divorce
(iv) Conversely, personal loans taken by one spouse to construct a property she self-acquired prior to the marriage becomes matrimonial property if the loan is fully liquidated during the subsistence of the marriage.
(d) Marriage does not deprive the acquisition of individual property by a spouse during the marriage in keeping with the provisions of Article 18 on the right to acquire property either alone or jointly. By implication, Article 18 shall apply where there is sufficient intention backed by evidence to acquire individual property during the pendency of a marriage.
(e) It is still the position of the law that the principle of substantial contribution, that is direct monetary, material contribution, etc. by a wife in the acquisition of property remains abandoned on the understanding that the “role of the wife in keeping the home by cooking for the family, preparing and performing other chores that enables the man to have a peace of mind to acquire the properties is a form of contribution”
(f) The burden to prove joint ownership of property acquired during marriage is on the party who alleges to joint ownership
Prior to the above legal principles, the position of the law was that by customary law, it is the duty of a man’s wife and children to assist him in the carrying out of the duties of his station in life – Quartey v. Martey & Anor.  377. The proceeds of that joint effort, and any property which the man acquires with such proceeds, are by customary law the individual property of the man, not joint property of all. This was a case that involved Evelyna Quartey, the wife of the deceased, H. A. Martey who died intestate and Martey and Anor., where Evelyna claimed one-third of the real and personal property of the deceased husband. She believed she was entitled to this portion of the assets because of the assistance she provided to the husband in acquiring these assets thus considering it as their joint assets.
Also, in the case of Abebrese v. Kaah & Others  2 GLR 46, it was the decision of the court that the property in dispute was the joint property of the husband and wife and as such did not become a family property for the customary successor to take control over it. In this case, the wife was able to prove substantial contribution provided by her in the acquisition of the property in dispute during the life time of her deceased husband. Her contribution involved money, supervision of labourers and manual work by her in the form of carrying water to the site of construction of the property in dispute.
The above case indicates a clear evolution of customary law in terms of property distribution upon the death of a spouse intestate.
To conclude, marriage as an institution, is seen by some individuals as a contractual relationship whereas others see it as a family relationship. Those who view marriage as a contractual relationship, that is a transactional relationship, usually expect equal distribution of assets obtained in the cause of the marriage upon divorce and in the event of death of a spouse. Obviously, this is a fair position.
However, it is recommended that the distribution should be based on equity more than equality. This is because some spouses may not necessarily make substantial contribution towards the acquisition of marital properties but will require “equal” distribution in the event of divorce. With equity, a spouse who will be able to prove substantial contribution may end up with equal share (50/50) or equitable share – as it is fair and just in the lens of the law and the circumstances of the case.
One cannot spend his or her time building something together with another just to walk away empty-handed after several years of struggles. The thought of starting afresh with nothing can be devastating.
Sadly, this was the customary practice of some ethnic groups in Ghana, especially among the Akans, until the establishment of principles underpinned by equality and equity through legal cases involving the distribution of marital properties upon divorce and in the event of death of a spouse.
However, there is an urgent need for Parliament to enact a specific legislation on the distribution of matrimonial assets in the event of divorce or death of a spouse. A legislation on divorce and the distribution of matrimonial assets, informed by the established principles of equality and equity, will provide clarity and protect the rights of both spouses, especially the rights of women and children.