Expunge estranged spouse provision in Intestate Succession Bill

A women's right organisation, Women in Law and Development in Africa (WiLDAF) and other Civil Society Organisations (CSOs) are advocating the removal of a clause in the Intestate Succession Bill, 2022, currently before Parliament that makes it possible for an estranged spouse to benefit from the estate of a deceased spouse.

The intestate succession Bill 2022 is a bill to remove the anomalies in the present PNDC law 111 relating to intestate succession and to provide a uniform intestate succession law that will be applied throughout the country, irrespective of the inheritance system of the intestate and type of marriage contracted.

The controversial issue took centre stage during discussions at a two-day regional consultation on the amendment of the Intestate Succession Bill in Accra with participants initially divided over the topic.

The 30 participants were mainly legal practitioners, gender advocates, persons living with disabilities (PWDs), traditional and religious leaders, legal literacy volunteers, young people, market women, representatives of women's right organisations among others. 

PNDC 111

The PNDC Law 111, passed in1985 stipulates that the distribution of the estate of a man who died without a will is determined by the customary law of inheritance of the area from which he hailed or the type of marriage under which the deceased married.

That made it possible for the customary successor or successors on behalf of the extended family to inherit the deceased’s properties with nothing or very little for the spouse and children.

The new bill has been designed to give prominence to article 22 of the 1992 Constitution which requires spouses to have equal access to property jointly acquired in the course of the relationship when the union ends.

Estranged spouse 

During a clause by clause discussion of the provisions of the intestate succession Bill, 2022, the participants shared their views and approved most of the provisions until the discussion on clause seven of the law which was subtitled “Interest of estranged spouse.’

The Act defined an estranged spouse as a spouse who has not lived in the same house with the other spouse for a period of not less than five years and who no longer has a normal relationship with the other spouse.

Where spouses are estranged, the law said a judge shall exercise a discretion as to what percentage of the estate to give to the estranged spouse which in any case shall not be less than 30 per cent of the death intestate of the other spouse.

Most of the participants told real life stories to support their stand of whether the provision on the estranged spouse should be removed or not.

Arguments

The Executive Secretary of the Informal Economy Workers Forum Ghana (INFORUM Ghana), Deborah Freeman, was of the view that the term estranged spouse should be replaced with the term a spouse who had not been legally or properly divorced but the participants thought that would open the flood gate for a messy situation after the death of a spouse.

"A spouse is a spouse.

There is no need to differentiate," said one of the participants.

Following a back and forth discussion, it was agreed that the clause should be scrapped to prevent confusion after the death of a spouse.

Challenges with old law

A lecturer at the Ghana Institute of Management and Public Administration (GIMPA) Kwesi Baffoe Intsiful, speaking on key topics in the bill focusing on spousal, children and family provisions, said in the existing law, the fractional distribution of the estate of a deceased has been difficult to implement but in the new bill, distribution was in percentages which makes it clear for easy appreciation.

He said clause seven was a novelty and had to be discussed widely to ensure no one was disadvantaged.

He said there was always tension between the nuclear and extended families as to the appropriate line of devolution of property upon the death of an intestate spouse and it was important for the existing law to be amended to protect the property rights of the surviving spouse and children in accordance with the 1992 Constitution of the Republic of Ghana.  

Get a will while alive 

Giving an overview of Intestate Succession Law (PNDC law 111), the Acting Commission Secretary of the NCCE, Lucille Hewlett Annan, urged individuals to write a will while they were alive no matter their age to avoid incidence of tension in case of any unfortunate incident.

Objective of meeting 

The National Programmes Coordinator, WiLDAF Ghana, Melody Darkey, said the meeting was to discuss and share knowledge on the new provisions in the bill and to sensitise participants to advocacy actions for the passage of the bill.  

She said it was under the women's voice and leadership programme, a Plan International Ghana, Plan International Canada and Global Affairs Canada initiative and formed part of Canada’s Feminist International Assistance Policy which is founded on the premise that gender equality is one of the most effective ways to eradicate poverty.