Separate economic life in marriage (2)
It is important to note that the Apex Court took pains to show that the concept or thinking that property acquired during marriage, as set out in the Arthur No 1 VRs Arthur No 1 [2013 -14] 1 SCGLR 543, bore the presumptive badge of joint acquisition is completely wrong.
In that regard, the Court took steps to set out its thinking at pages 13 to 15 of the Judgment in the Abena Pokua case (supra) as follows:
“[4.6].
The Court stated in Arthur (No.1) vs. Arthur (No.1) [2013-2014]1 SCGLR 543 that:
"The Supreme Court in Mensah v Mensah had interpreted the provision in article 22(3) (b) of the 1992 Constitution liberally and purposively to mean that joint acquisition of assets was not limited to property that had been acquired as joint or as common tenants; but rather any property acquired by the spouses during the course of their marriage was to be presumed to be jointly acquired. In other words, property acquired by the spouses during marriage was presumed to be marital property.
Thus, marital property was to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse had made a contribution to its acquisition.
The Supreme Court would affirm that concept of marital property.
However, consideration of cases and statutes in the United States would suggest that property acquired by gift during the marriage should be excluded from the concept of marital property.
That exception seemed sound in principle. Indeed, other exceptions might need to be carved out of the broad definition of marital property. Mensah v Mensah [2012] 1 SCGLR 391 at 401 affirmed.
In this very case, the Supreme Court expanded the meaning of the term 'jointly acquired property' or 'joint acquisition of assets'.
Thus, in the words of the Court, 'any property acquired by the spouses during the course of their marriage was to be presumed to be jointly acquired.
In other words, property acquired by the spouses during marriage was presumed to be 'marital property'.
Again, in coming to this conclusion, the Court did not consider the effect of article 18(1) of the Constitution, 1992, which states that:
"18. Protection of privacy of home and other property (1) Every person has the right to own property either alone or in association with others".
Property
In my humble opinion, to state that every property acquired during marriage is presumed to be marital property is to deprive couples of their constitutional right to acquire property either alone or in association with others as guaranteed by Article 18(1) of the Constitution, 1992.
As a court, we must not be seen to deprive Ghanaians or anybody resident within our borders of their right to independently acquire and enjoy properties just because they decided to marry.
Marriage must not be an instrument of deprivation or a burden but must be an institution that human beings must enjoy.
The court must not trample upon constitutional rights in its quest to ensure equity and justice in the distribution of property acquired during marriage.
The definition given by the court to 'marital property' in Arthur (no.1) vs. Arthur (no.1) has the potential to provoke injustice.
The decision does not conform to the doctrine of harmonious interpretation of statutes as espoused in National Media Commission vs. Attorney-General [2000] SCGLR 1, where this court stated that:
"In interpreting the constitution, care must be taken to ensure that all the provisions work together as parts of a functioning whole.
The parts must fit together logically to form a rational, internally consistent framework. And because the framework has a purpose, the parts are also to work dynamically, each working to accomplish the intended goal."
At any rate, Article 22(3)(b), which the court interpreted in that case, does not say what has been attributed to it.
Marriage does not take away from any couple the right bestowed under article 18(1) of the constitution.” (Emphasis mine)
Compelling
Needless to say, there is a compelling sensitivity to the importance of the difference between the two cases — the destruction of the bell that bellowed the aged — old tune that property acquired during marriage is presumed to be marital property.
It is “difficult” to understand why this learning was not pressed by Lovelace Avril Johnson JSC and Asiedu JSC in the Ayishetu case (supra). Nothing, however, turns on that point for present purposes, for we know where the law is presently berthed on the matter.
In the end, there are two notable takeaways from the case law.
‘The first takeaway’ is the position of the Supreme Court that a party in a marriage can lead a separate economic life with respect to the acquisition of property et al during the subsistence of the said marriage.
Indeed, the Court’s position as to a separate economic practice means that parties can now enter into agreements setting out the mode of acquisition of properties they intend to exercise in the marriage.
Parties
Parties are now, therefore, capable of setting out in explicit form that they will acquire properties to the exclusion of each other.
Parties are entitled to go a step further and to name the said properties.
The legal advantage of same is that during litigation, a party cannot turn around save for vitiating factors such as fraud et al to claim a part of those properties based on some alleged form of contribution.
These agreements can be executed prior to marriage and forms for us a unique concept of pre nuptials in our jurisprudence.
‘The second point’ is the important “walk back” on the definition of marital property.
The Apex Court no longer holds the position that property acquired during the subsistence of marriage bears the presumption of marital property.
Under the circumstances, practitioners are to take note in their pleadings of this notable development in the law.
By establishing clear guidelines on what constitutes individual and joint property within a marriage, the above decisions have settled the uncertainty that previously surrounded distribution of properties acquired during the subsistence of marriage.
Consequently, individuals entering into marriage can now better understand their rights and obligations regarding ownership of property.
The rulings of the Supreme Court have established the framework for distinguishing between individual and joint property, ensuring a more equitable distribution of properties upon divorce.
These developments without argument offer a sense of security and predictability for couples, allowing them to make informed decisions about their financial future.
Kwame Akuffo & Co. Unlimited,
Legal Practitioners & Notary Public.
