In today’s Friday read, we continue our discussion on spousal property rights.
In our previous read, we discussed Kwasi and Naa’s ten-year marriage that had broken down beyond reconciliation. Naa is concerned about what she is entitled to after the divorce and has gone to see her lawyer. Naa’s lawyer explained to her the history of the distribution of spousal property upon divorce and the current position of the law.
He emphasized that according to Article 22(3), spouses are entitled to equitable access to property acquired jointly during their marriage. He also pointed out that there is currently no specific legislation governing the division of assets acquired during a marriage upon its dissolution.
In the absence of such legislation, the courts and judicial advocates have established guidelines for the allocation of marital property post-divorce. Then he explained that the first known principle with regards to spousal property is that the proceeds of a joint effort by a husband and wife and any property that the man acquires with such proceeds under customary law are the individual property of the man.
However, the court moved away from this earlier principle by stating that once there is a substantial contribution by a party, such as the contribution of money, supervision of laborers, and carrying of water to the site of construction, the said property would be deemed as joint property once a party could prove a substantial contribution.
In 2021, the Supreme Court in Adjei v Adjei emphasized the principle of “Equality is equity”. It held that property acquired during the marriage is presumed to be joint property.
The current position of the law is that, in the distribution of spousal property, the principle of substantial contribution holds. Substantial contribution could either be a direct monetary or material contribution, or a wife keeping the home by cooking for the family, preparing and performing other chores that enable the man to have peace of mind to acquire the properties during the subsistence of the marriage.
As Naa navigates the complexities of her divorce proceedings, she can draw upon these legal principles to ensure a just outcome in the division of marital assets.