Family law practitioners in Ghana have received from the Supreme Court two (2) premature Christmas gifts in the form of Ayishetu Abdul Kadiri v. Abdul Dwamenah (J4/36/2024) [2025] GHASC 16 (delivered in March 2025) and Mrs Abena Pokua v. Yaw Kwakye (J4/17/2025) [2025] GHASC 45 (delivered in July 2025).
These premature gifts in the form of case law are useful for the guidance of the profession, the Bench and to a large extent the general public. The ambit of the cases provides remarkable clarity insofar as the distribution of properties pursuant to the dissolution of a marriage is concerned. Most importantly, the Court on both occasions spoke clearly with one voice.
It is therefore important to begin this opinion with two (2) categorical assertions:
1. Parties to a marriage have the Constitutional right to own properties to the exclusion of each other. A party is therefore entitled to a separate economic life during the subsistence of a marriage.
2. Properties acquired during the subsistence of a marriage are no longer deemed to wear the presumption that the same is matrimonial property.
I did not originate this thinking. It is the work of the Supreme Court.
The Court emphasised the rights of a party in a marriage to own property to the exclusion of the other party in the case of Ayishetu Abdul Kadiri v. Abdul Dwamenah (J4/36/2024) [2025] GHASC 16.
Indeed, the Apex Court deepened the dye in Mrs Abena Pokua v. Yaw Kwakye (J4/17/2025) [2025] GHASC 45. Significantly, the Court in the Abena Pokua case (supra) proceeded to dispel the presumption that properties acquired during the subsistence of a marriage are presumed to be marital property. In doing so, the Court was departing from its previous position in the Ayishetu case (supra).
It pays to state that in the Ayishetu Case (Supra), the Supreme Court (Coram Lovelace-Johnson (Ms) JSC (Presiding); Amadu JSC; Asiedu, JSC, Kwofie, JSC; Darko Asare JSC speaking through Amadu Tanko JSC, at paragraph 19 of page 11 of the Judgement, in addressing the formula for the distribution of property after the dissolution of a marriage upon a review of the authorities put same in the manner following; “a. Any property acquired by a spouse or the spouses in the course or life of marriage, whether customary, Mohammedan or Ordinance, is a matrimonial/or marital property.
b. A property acquired by any of the spouses before the marriage does not qualify as marital property.
c. Acquisition can be sole (that is, by one of the spouses alone) or joint.
d. The constitutional formula for the distribution of properties acquired in the life of a marriage applies only in relation to jointly acquired properties.
e. Where the property is jointly acquired by the parties to the marriage, the same must be equitably distributed upon the dissolution of the marriage. In certain situations, equality will be
equitable, and in other situations, equality will not be equitable. Each case must be treated differently.
f. Where the acquisition is supposed to be a joint acquisition, the fact of the property being jointly owned is not contingent solely on financial contribution, but on other means of contributions, whether in kind, material or otherwise, but for which the other spouse could not have solely acquired the property.
g. Whether or not an acquisition is joint is dependent on the special and peculiar facts of the marriage, and the circumstances leading to the acquisition.
h. The settlement of an interest in a jointly acquired marital property can be converted in monetary terms where the special circumstances of the case warrant, and as sanctioned under Section 20(1) of the Matrimonial Causes Act, 1971 (Act 367).
i. Despite being marital property, the property may, upon the dissolution of the marriage, be settled on only one of the spouses as being the sole owner of the same”.
Much more importantly, Amadu Tanko JSC, at page 12 of the Judgment in the Ayishetu Case (Supra), set out the indicative guidelines which should be taken into account in deciding on whether or not property acquired during the subsistence of marriage is solely owned by one party to the exclusion of the other. It is useful to note that the factors set out by the Court are not exhaustive.
Be that as it may, the indicative guidelines were set out as follows;
“(i)Where the spouse solely financed or acquired the property with no contribution, whether in kind or cash, from the other spouse and at all times, the same has been recognised as belonging to only that spouse.
(ii) Where the property was gifted to only one spouse, albeit during the subsistence of the marriage and not to both spouses, of which the same was also acknowledged and recognised as such.
(iii) Where a spouse decides to acquire and advance the same to the other spouse absolutely.
(iv) Where, despite being under the contract of marriage, both spouses, by their deeds or conduct, have carefully designed and defined independent courses in the acquisition of marital properties such that the spouses understand each other, that they hold not any property jointly.”
It is useful to reiterate the point that the indicative guidelines set out by the Apex Court in so far as same concerns the distribution of properties after dissolution of marriages are not intended to be exhaustive or even prescriptive.
It makes sense to submit that the same must be treated as tools of identifiable evidence which would serve as the basis for the distribution of assets pursuant to the dissolution of the marriage.
Position
The position taken by the Supreme Court in the Ayishetu Case (supra), that a party can own property to the exclusion of the other during the subsistence of a marriage, was affirmed by the Supreme Court in its subsequent decision in the Abena Pokua Case (supra), where Asiedu (JSC) who was a member of the Panel in the Ayishetu Case (supra) delivered the unanimous position of the Court on the matter at pages 15-16 of the Judgment as follows:
[4.7]. It is, therefore, not surprising that in delivering the Judgement in Fynn vs. Fynn & Osei [2013-2014]1 SCGLR 727, the Court did not even consider the case of Arthur (No.1) vs. Arthur (No.1) (supra). Nonetheless, the Court held, among others, that:
"During the existence of the marriage union, it would be most desirable for the couple to pool their resources together to jointly acquire property for the full enjoyment of all members of the nuclear family in particular.
However, there could be situations where within the union, parties might still acquire properties in their individual capacities as, indeed, was their guaranteed fundamental right as clearly enshrined under Article 18 of the 1992 Constitution; in which case they would also have the legal capacity to validly dispose of individually-acquired property by way of sale, for example, as happened in this instant case... in the instant case it was not proven that the plaintiff/appellant, the wife of the first defendant/respondent, had made some direct financial contribution to the acquisition of the disputed property; nor was it proven that the second defendant, the purchaser of the distributed property, had known that the property had been jointly acquired by the couple as family property".
“Apart from the fact that this case upholds the right given under article 18(1) for a person to individually acquire and hold property for his or her sole benefit or for the benefit or for benefit of others and either alone or in association with other persons, this case also re-iterates that legal position of the need for a spouse to show that he or she contributed to the acquisition of property in order to cause the property to be marital property.
This is in consonance with the provisions in Article 22, which states that:
"22. Property rights of spouses
(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse, whether or not the spouse died having made a will.
2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
(3) With a view to achieving the full realisation of the rights referred to in clause
(2) of this article,
(a) spouses shall have equal access to property jointly acquired during marriage;
(b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage".
It is also instructive to note that the Supreme Court in the Ayishetu Case (Supra), held that property acquired during the subsistence of a marriage is presumed to fall within the category of “Marital Properties”.
Interestingly, in the Abena Pokua Case (Supra), the Court now constituted by two (2) members of the Ayishetu Court- Lovelace-Johnson JSC and Asiedu JSC departed from the definition of marital property as espoused in the Ayishetu Case (Supra).
This position is interesting: for the two had on previous occasion joined the unanimous intellectual choir in Ayishetu Case (Supra) which held otherwise.
The writer is with Akropong Akuapem,Kwame Akuffo & Co. Unlimited, Legal Practitioners & Notary Public.
