…comparing divorce to death of a spouse
A spousal property is a property jointly acquired during the subsistence of a marriage. There are three (3) ways by which a spouse can assert his or her right to spousal property. They are:
- During the subsistence of a marriage.
- Upon divorce of a spouse.
- By death of a spouse.
In this article, it is our submission that there is a gap for distribution in the rights to spousal property comparing the case of a divorce to the case of a spouse’s death and a will taking effect for disposition of the property. Further, it is submitted that under the current spousal property regime, it seems to favour spouses in monogamous marriages more than polygamous marriages. In this regard, the article will make recommendations to the Property Rights of Spouses bill yet to be passed into law
Property rights of a spouse during marriage
The Constitution provides that all spouses must have access to property jointly acquired during marriage, and are entitled to an equitable distribution of assets jointly acquired. This principle of law was giving judicial blessing by the Supreme Court in the case of Mensah v Mensah, when it held 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 spouse did not make any contribution, the spouse is entitled to an equal share in the said property.
The effect of this decision was that in so far as the property was acquired during marriage, the spouse holding legal title holds the property in a resulting trust in favour of both spouses. This position of the law was upheld by the Supreme Court in subsequent cases such as Quartson v Quartson and Arthur v Arthur; but this has been distinguished and clarified in Fynn v Fynn and the recent case of Agyei v Agyei – when the Supreme Court observed that there is a possibility of individual ownership during the subsistence of a marriage.
All the same, there are some 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 for disposition of the property which according to law equally belongs 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 a Will when he or she is entitled to an equal share of the said property?
Property rights of a spouse upon divorce
The Constitution provides that assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.
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, 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 Supreme Court’s decision in the interpretation of article 22(3) of the 1992 Constitution, unless as otherwise determined by a Court, there is a presumption that a spouse upon divorce is entitled to an equal share of property jointly acquired during the marriage. This means that the property will be shared equally between the divorcees.
Now the question is: why should a spouse wait for the other spouse to die so that whether or not a Will takes effect I may have very little or nothing, while I know that before the spouse dies s/he can terminate the marriage and have 50/50 or a substantial share of the property?
There is a reason to say that the two means of acquiring spousal property upon divorce and death of a spouse are in contradistinction and somewhat problematic. One is most likely to acquire an adequate share of property under divorce than a disposition made under a will. And this can be the cause of divorces springing up these days – for the interest of acquiring property rather than the justifiable fact that the marriage has broken down beyond reconciliation.
Property rights of a spouse on death of other spouse
Whereas the Constitution expressly states that a spouse shall have equal and equitable access to spousal property during the marriage and upon divorce respectively, article 22(1) provides that a spouse shall not be deprived from reasonable provision after the death of a spouse whether or not a Will is made. What this impliedly means is that a spouse may not have an adequate share of spousal property after the other spouse’s death.
A Will or testament disposition 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 provides the legal framework for making Wills in Ghana, which are generally categorised into customary and statutory. Along with the statutory Will, there are several types of Will – which include joint or mutual Wills.
Joint Will
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.
Mutual Will
Similarly, a Will can be mutual – also known as mutual will contract – whereby the Will forms a legally binding contract between two people (usually between spouses) that has an effect of the spouses (or partners) agreeing not to change their respective wills without each other’s consent. However, unlike a joint Will which is a single document, mutual Wills are separated by the parties in a contractual agreement as to how each property should be shared, without any specific reference to equal share of joint property.
Besides this and other types of Wills, the Intestate Succession Law, 1985, (PNDC Law 111) was enacted to curb the injustices that were generated by application of the customary laws of intestate succession – whereby 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 property was distributed in accordance with the family lineage system they belonged to – either matrilineal or patrilineal.
Nevertheless, in view of both Act 360 and PNDC Law 111, or whether or not there is no will, there is no express or implied provision in both statutes that maintains the death a spouse makes the distribution of spousal property equal.
It is our considerable opinion that there is an apparent gap in the rights to spousal property, comparing the case of a divorce to the case of a death of a spouse and a Will taking effect for disposition of the property.
Reasonable provisions
According to the Wills Act, where no reasonable provision was made for a spouse under a Will, e.g. a wife, she may apply to the court for a reasonable provision. Then again, the question is: why should she apply to the court for a reasonable provision when the property acquired under a marriage equally belongs 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 an equal share of the property?
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 current spousal property regime and case laws seems to favour monogamous marriages.
It is crucial for parliament to enact into law an Act that directs the distribution of property among spouses through a divorce or disposition under a Will. Having such a statutory law in place would clearly stipulate how property should be distributed, taking into consideration the marriage type either polygamous or monogamous; customs, traditions, values and how the means through which a party contributed to attaining the said property – either by financial contribution from one or both parties or by means of contributions that suggest joint acquisition.
In the Property Rights of Spouses bill, it will allow people who are under a common-law marriage – i.e., who have cohabited for more than five years – to get equal share of whatever property is acquired during the period.
So, in concluding, it is our considerable opinion that the legislation for the Property Rights of Spouses – which aims at protecting the interest of spouses in the sharing of spousal property upon a divorce or separation – should as well have in mind the effect of distributing spousal property under a Will.
>>>the writers are both professional law students. They can be reached via [email protected] and [email protected] respectively
