HAKIMI’S DIVORCE CASE, THE PROPERTIES AND SPOUSAL RIGHTS, THE CONTEXT OF THE LAW: GHANA

Hakimi’s case, as others see it as an eye opener, have really revealed the intensions of both men and women as they have legally accepted to be together as husband and wife. However, the principle of “Till death do us apart”, is not fully considered as both parties may envisage divorce.

This therefore draws the attention of both parties to secretly plan the aftermath of divorce. At this point, the concept of spousal property comes to play, who gets what after filing for divorce.

Who gets what in divorce battles can be one of the most difficult decisions a judge will have to make. These proceedings tend to be acrimonious, as each spouse is bent on benefitting as much as possible from the property distribution to be made by the court. But the bases for such distributions have varied over the years.

In the 1959 case of Quartey v. Martey [1959] GLR 377-383  the court stated that under 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.  Therefore the proceeds of their joint effort, and any property, which the man acquires, with such proceeds, are by customary law the individual property of the man. The decision in Quartey v. Martey held sway in the courts for many years.

Then litigants started to argue that they had interests in marital property by virtue of their “substantial contribution” to the acquisition of the property. In Yeboah v. Yeboah [1974] 2 GLR 114 the court had to decide on what amounted to ”substantial contribution”. The couples, in this case were based in London. They had begun a building project in Ghana. The wife flew back to Ghana to supervise construction of the house at her own expense and made structural changes to the building. At some point in time, the marriage went on its knees. Hayfron-Benjamin J (as he then was) held that the woman’s contribution went beyond mere assistance and that it was a joint property for which reason she was entitled to a fair share.

Later, the principle of substantial contribution gave way to the ‘equality is equity’ principle. In Gladys Mensah v. Stephen Mensah [2012] 1 SCGLR 391 Dotse JSC held that the woman’s contribution, even as a housewife in maintaining the house and creating a congenial atmosphere for the husband to create the empire he built is enough for her to earn an equal share in marital property. The Court defined marital property as any property acquired during marriage. The equality is equity principle has been applied in subsequent cases (Quartson v. Quartson [2012] 2 SCGLR 1077 and Arthur v. Arthur [2013-2014] 1 SCGLR 543. The rationale behind the constitutional provisions on right of spouses to property is to right the imbalances that women have historically suffered in the distribution of assets jointly acquired during marriage. An equal distribution will often be a solution to this imbalance.

What is ‘equitable’ is however a pure question of fact. In Boafo v. Boafo [2005-2006] SCGLR 705 the court stated that proportions in the sharing of the property are fixed according to the equities of each case and in some cases; an equal share may not be equitable. The court, therefore, urged upon other courts to be flexible in applying the ‘equality is equity’ principle. Section 19 of Matrimonial Causes Act, empowers a court to apply the “just and equitable” principle in its orders –be it in an action for maintenance or for financial provision.

The case of Fynn v. Fynn recognized the right of spouses to acquire property in their individual capacities. Indeed, the Supreme Court stressed in Quartson v Quartson   2012] 2 SCGLR 1077 that none of its previous decisions is to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the face of the evidence that they are not entitled to it. The courts have for instance recognized that a gift received by a spouse during a marriage does not become a marital property.

Section 20 of the Matrimonial Causes Act mentions equitable settlement of property but it fails to state exact portions each spouse is entitled to. In the absence of legislation courts would have to decide the proportions based on the peculiarities of each case.

There is no doubt that the courts have come a long way in the development of the law on marital property. For much of the time, the courts have been ahead of the legislature. They have established principles that make it easier for parties to predict what the outcome of a case before a judge would be. Let’s hope the legislature follows suit.