Updated: Oct 31, 2021
Wilma Akuya Osei
Lawyer|| Administrator|| Founder and Managing Counsel, The Pocketlaw Project
In the first part of this article, I explained the principle of ‘equality is equity’ (or the 50/50) rule by which our courts generally distribute marital property. As was clarified, this is a judicial presumption that can be overturned in appropriate cases to ensure fairness and to do justice. This article looks over some (there are several) of the cases that have come before the Supreme Court (SC) of Ghana and the reasons the court has cited for its decisions on the sharing of marital property, especially when it opted for unequal sharing of marital property. Keep in mind, when there is a dispute, the court’s duty is first to decide if property is marital property and second, whether it will be unfair on the facts of the case before it, if the property is shared in equal parts.
Let’s begin with Boafo v Boafo [2005-2006] SCGLR, where the court of first instance found that the couple had by their conduct, jointly acquired the properties in dispute but went ahead to make orders that distributed the properties unequally. On subsequent appeal, the SC held the view that the jointly acquired properties had to be shared equally and stated that;
“the principle of the equitable sharing of joint property would ordinarily entail applying the “equality is equity” principle, unless the equities of the case demand otherwise, such as when one spouse can prove separate proprietorship or agreement or a different proportion of ownership.”
In the case of Mensah v Mensah  1 GLR, the SC court re-visited the Boafo case, and further clarified that, “the inability to adequately quantify one spouse’s assistance towards the marital property will not, in itself, bar him or her from an equitable sharing of the matrimonial property. The application and effect of this principle to a particular case will continue to depend on the facts of each case, with a view to achieving equality in the sharing of marital property”.
In Quartson v Quartson  2 SCGLR, the Respondent (husband) was a seafarer who was away at sea for the most part of the couple’s 25year marriage and was later also imprisoned. While a seafarer, he sent money home for the construction of the matrimonial home which the Petitioner (wife) solely supervised. The wife also took care of their 3 children and the home while the Respondent was in prison. The Respondent however claimed sole ownership of the matrimonial home because it was financed with his money. On appeal, the SC decided that “the equities of this particular case do not call for a half and half sharing of the marital home.” The court noted that the decision in the Mensah case was “not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled.”
Arthur v Arthur (1) [2013-2014] SCGLR is a case in which the Petitioner was a housewife who later operated 2 hair salons and a supermarket while the Respondent was a professional footballer who later retired. The couple acquired some properties including the matrimonial home and a storey building both at Weija. The Petitioner claimed co-ownership of the properties at Weija based on her partnership, contribution and support in the marriage while the Respondent claimed sole ownership on the basis that his money financed the properties. On appeal, the SC stated that “marital property is (…) 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.’ Drawing inspiration from laws in other countries the SC also stated its support for the position that property acquired by either party during a marriage is marital property but not gifts or property acquired before a marriage.
On the facts of the particular case, the SC concluded that the properties acquired by the couple were marital property and Petitioner was therefore joint owner of the properties at Weija. However, the Supreme Court agreed with the high court’s unequal distribution of the 2 properties rendered in the following words;
“In view of the fact that the respondent purchased a house for the petitioner and contributed to the purchase of a house for petitioner’s mother, he should be entitled to the matrimonial home where he currently resides and hairdressing saloon in the house. The court rules that the petitioner be given half share of the storey building and the equipments, the appliances in the second saloon (Abeka Lapaz).”
Grace Fynn vs Stephen Fynn [2013-14] 1 SCGLR was a case in which a wife sued to set aside the sale of property she claimed she jointly owned with her husband, but which sale had been made without her knowledge or consent. Though her husband admitted these facts, the wife could not prove her part ownership and therefore lost her claim. In this case the SC reminded us that “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 under article 18 of the 1992 Constitution, in which case they would also have the legal capacity to validly dispose of same …”
Finally, in the recent case of Peter Adjei v Margaret Adjei (2021) unreported, the SC by a majority of 3 to 2, decided that until the loan that was taken up by the Petitioner to finance the construction of the disputed property was fully paid, the property could not be considered as marital property.* The court however forcefully restated and re-affirmed the law on the distribution of marital property, saying the “combined effect of the cases is that any property that is acquired during the subsistence of a marriage, be it customary or under English or Mohammedan Ordinance is presumed to have been jointly acquired by the couple and upon divorce should be shared between them on the equality is equity basis”
What insights can we draw from all this?
Property acquired either by one party or both parties during a marriage is considered as marital property and therefore joint property of the parties to a marriage.
Property acquired before marriage and post marriage were not acquired during marriage and therefore not marital property. Gifts and inheritances received by one spouse are also not marital property because the other spouse cannot be said to have contributed to their acquisition in any way. This notwithstanding, if by conduct or agreement, the spouse(s) compromise the properties such that it is reasonable to conclude that they intend such properties to be joint property, then these may come under the umbrella of marital property.
The 50/ 50 principle will be applied in the distribution of marital property because it accords with the Constitution, common sense, and best practice. That said, it remains a presumption and can be avoided if a party can show that it is reasonable and just on the facts of a particular case, so to do.
A party that wants to avoid the ‘marital property’ tag or 50/50 distribution rule must convince the court that;
the parties had agreed (expressly or by conduct) that despite their marital status, the disputed property was to be considered or was intended as individual property,
the property was acquired in circumstances that show that the property is not joint (marital) property,
the property though marital property should not be shared in equal parts due to the existence of certain facts which will make equal sharing unfair.
To conclude, my advice is that spouses should take nothing for granted when acquiring property and should be as deliberate and as candid about their intentions as possible. The new Land Act, 2020 (Act 1036) makes some inroads in this regard but this will be the subject for another day.
Let's hear your thoughts on this very important and difficult subject.
*The decision on this point is problematic for many in the legal fraternity but that discussion cannot be contained here. Important thing is that it does not undermine the equality is equity principle.