Although article 22(3) of the 1992 Constitution prescribes that all spouses must have access to property jointly acquired during marriage and are entitled to an equitable distribution of assets jointly acquired, the famous Supreme Court case of Mensah v Mensah (1998) stated that the sharing of spousal property should no longer be dependent on the substantial contribution principle and that property acquired during marriage is a joint property, and even if the spouses did not make any contribution the spouse is entitled to an equal share in the said property.

The effect of the decision was that in so far as the property was acquired during marriage, the spouse holding the legal title holds the property in a resulting trust in favour of both spouses. This position was affirmed by the Supreme Court by subsequent cases such Quartson v Quartson (2012) and in Arthur v Arthur (2013) but has been distinguished and clarified in Fynn v Fynn (2014) where the court suggested that there is the possibility of individual ownership during the subsistence of a marriage.

Be that as it may, there are three fundamental questions that come to mind if there is a presumption of equality and spouses are entitled to equal share of a property jointly acquired during the subsistence of their marriage: first, who has the right to make a will to share the property? Secondly, why should a spouse make a will to the disposition of the property which according to law equally belong to both parties? And thirdly, why should a spouse apply to the court for a reasonable provision after having very little or nothing in the disposition of the property when he or she is entitled to equal share of the said property?

This article discusses the apparent gap between the constitutional provisions on spousal right to joint property comparing where there is a divorce to where there is death of a spouse to the effect of a disposition of property either by will or no will. Further, the article will make recommendations to the Property Rights of Spouses Bill yet to be legislated into law.

Spousal Rights to Property upon Divorce

A divorce is the legal dissolution of a marriage by a court or by other competent body. Under section 1 of the Matrimonial Causes Act, 1971, (Act 367), a petition for divorce may be presented to the court by either party to a marriage; and the sole grounds for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.

Following the decision by the Supreme Court on the interpretation of article 22(3) of the 1992 Constitution, unless as otherwise determined by a Court, a spouse whose divorce has been granted by a court is entitled to equal share of the property jointly acquired during the marriage. This means that the property will be shared equally among the divorcees excluding the children or the extended family members - who may have been intended as beneficiaries in a will.

Now the downside is this: why should I wait for my spouse to die so that when a will takes effect I may have very little or nothing, while I know that before he or she dies I can terminate the marriage and have 50/50 share of the property? In this view, is there not a gap situation in spousal rights to properties comparing the case of a divorce (to have equal share of the property) to the case of a death of a spouse (to probably have nothing in the property). And can’t this be a malevolent cause for spouses to seek divorce for self-aggrandizement rather than a justifiable cause of action?

Spousal Rights to Property by Will

A will or testament is a legal document by which a person, the testator, expresses intentions as to how his property is to be distributed at death, with names of beneficiaries and executors. The Wills Act, 1971, (Act 360) provides the legal framework for making wills in Ghana, which are generally categorized into customary and statutory. Along with this, a will can be made joint. Here, although the will is a single document executed by more than one person (usually between spouses), there is a testament of separate distribution of property by each executor (signatory) which must be treated as such - implying that the property that is jointly acquired may not be strictly shared equally among the spouses contrary to the Supreme Court decision in respect of article 22(3) of the 1992 Constitution.

Similarly, a will can be mutual, also known as mutual will contract, where the wills forms a legally binding contract between two people (usually between spouses) that has an effect of the spouses (or partners) to agree not to change their respective wills without each other’s consent. However, unlike a joint will which is a single document, a mutual wills are separated by the parties in a contractual agreement as to how each properties should be shared, without any specific reference to equal share of joint property.

Besides that, the Intestate Succession Law, 1985, (PNDC Law 111) was enacted to curb the injustices that were generated by the application of the customary laws of intestate succession where women and children were mostly left with either very little or nothing when the properties of a deceased spouse were shared without a will. Before this law came into being, the customary succession rules prevailed. A person’s properties were distributed in accordance with the family lineage system he belongs to – whether matrilineal or patrilineal.

In spite of that, looking at both Act 360 and PNDC Law 111, where lies the principle of equal share of joint property acquired during the survival of a marriage? This is because, in both Acts, i.e., either will or no will, there is no law that says that when there is a marriage and there is a disposition of joint property acquired in the subsistence of a marriage it should be divided into two. And there is no law also saying that the property should be divided into two such that each party can decide who to give the property to.

In my opinion, there is a gap situation between the law on spousal rights to property comparing the provision of article 22(3) of the 1992 Constitution to both Act 360 and PNDC Law 111. And according to section 13 of Act 360, there are instances where there can be a will and the law provides that if no provision was made for a spouse, e.g. a wife, then she has to apply to the court for a reasonable provision. Again, the question then is: why should she apply to the court for a reasonable provision when the property acquired under a marriage equally belong to both spouses? Did the person who made the disposition by way of a will have the right to do so without any testament of her right to equal share of the property? This is a further entrenchment on my view of a gap effect in the law regarding spousal rights to property, comparing the Supreme Court interpretation of article 22(3) of the 1992 Constitution to what the law says in both Act 360 and PNDC Law 111.

Recommendations to the Property Rights of Spouses Bill

The Property Rights of Spouses Bill requires spouses to have equal access to property jointly acquired during marriage and for matrimonial property to be equitably distributed between the spouses upon termination of the marriage. The bill would also allow who are under the common law marriage, i.e., who have cohabited more than five years to get equal share of whatever property acquired during the period.

Under section 11 of the bill, it provides that a spouse can acquire and keep separate property during the subsistence of the marriage. And these are: property acquired before marriage, self-acquired property and the proceeds and profits from the self-acquired property, property that was acquired by gift or inheritance from a third party after the date of the marriage, property that the spouses have agreed is not to be included in the joint property, etc.

That notwithstanding, for the purpose of this article focusing on joint property acquired during the survival of a marriage, how does legislating the Property Rights of Spouses Bill protects the interest of a spouse in the equal distribution of property in a will made by the other spouse – in order to bridge the seeming gap situation between when there is a divorce and when there is death of a spouse? Thus, the idea is to conclude by saying that the legislation of the Property Rights of Spouses which aims at protecting the interest of spouses in the equal share of joint property should as well have effect in the will making.