it ought — respectfully — to articulate the basis for that determination by considering, inter alia, the following matters: 1. Duration of the marriage - The length of the marriage must be assessed in relation to the time at which the disputed property was acquired. 2. Ownership of the land - How was the land on which the property stands acquired? Was it owned solely by one of the parties? 3. Chronology of construction - At what point relative to the marriage did construction of the property begin? 4. Source of acquisition - Was the property acquired from the pre-existing financial resources of one of the spouses or by a loan which is not paid off?
Pre-marital assets - Did either spouse bring property or resources into the marriage that significantly contributed to the acquisition of the disputed property? 6. Financial standing and indebtedness - Did one spouse commence the marriage encumbered by debt and subsequently became solvent owing to the contributions or management of the other? 7. Financial contributions - What were the respective financial contributions of the parties during the marriage toward the acquisition or enhancement of the property in dispute? 8. Mutual financial understanding - Did the parties have an explicit or implicit agreement to maintain financial equality during the marriage? 9. Non-monetary contributions - The intangible yet invaluable contributions of a spouse, such as domestic work, child-rearing, and emotional or moral support, must equally be accorded due recognition and weight.
The above guidelines are not intended to fetter judicial discretion but to aid trial judges in making determinations that reflect the totality of the parties' relationship and the justice of each case. When that is done, an objective assessment can then be made as to whether a 50% interest or a lesser (or greater) share ought properly to be granted.
Discretion under section 20 of the Matrimonial Causes Act
The Court’s exercise of its discretionary power under this section is independent of the intentions behind the acquisition of any property by any spouse. Thus, guided by the principles of equity and justice, the Court may order any property, movable or immovable, irrespective of the intentions behind its acquisition, to be settled on either spouse, as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.
Equal sharing where contributions cannot be quantified
(a). Where the couple make contribution and together acquire property during the pendency of the marriage, the property shall be recognised as jointly acquired property with the incidence that each spouse shall have equal access to the property so acquired during the marriage. (b). After the dissolution of the marriage, any property jointly acquired shall be shared equally between the couple if they are unable to state with any specificity the proportion of their respective contribution to the acquisition of the property. (c). However, where any of the couple is able to prove with cogent evidence his or her proportionate contribution to the acquisition of the said property it will be equitable for the property to be shared in accordance with the proportionate contribution.
Meaning of property jointly acquired during marriage
The issue of whether or not a property is jointly acquired during marriage is determined by the contribution made either in kind or in cash towards the acquisition of the property, including taking care of the home to give peace of mind for the other spouse to work to raise money, shared responsibilities between the parties, and supervision of the construction of the house.
Presumption that jointly acquired property is jointly owned
In my respectful view, it is a necessary corollary of the realities addressed by this Court in the trilogy and the recent cases that properties jointly acquired in the course of marriage are presumed to be jointly owned and, upon dissolution of the marriage, are to be equitably distributed between the spouses.
Proof of contribution to the acquisition of property
While the Appellant contended that she thereafter returned the refunded amount to the Respondent, there is no corroborative evidence on record to substantiate that assertion. It was only the Appellant's assertion and nothing more. It is my view, therefore, that the Appellant failed to discharge the burden of proof pursuant to sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323).
Property acquired by one spouse for exclusive benefit
(d). Parties to marriage in Ghana reserve the right to individually or in association with others acquire and hold property to the exclusion of their spouses. In any such case, a spouse should be able to adduce evidence to prove that he agreed with the other spouse that a particular property was acquired for his or her exclusive benefit. In the absence of direct agreement, a spouse who claims the exclusive acquisition and use of any particular property should be able to adduce evidence of other surrounding circumstances which show that that property was acquired for his exclusive use or benefit.
The choice of words in the constitution makes it clear that spouses shall have equal access to property acquired jointly during marriage. Therefore, a spouse who independently acquires land in the exercise of her fundamental right to own property during the subsistence of the marriage shall remain the sole property of that spouse by virtue of the fact that it was not jointly acquired.
The position may be different with respect to a factually polygamous marriage recognised by the customary laws and practices of the different tribes in this country which are part of our laws as stated in article 11 of the Constitution, 1992. The parties to such polygamous marriage may be a man with several wives. Where this is the case, it will surely be inequitable for one wife to insist on taking a particular percentage of property acquired during the subsistence of the marriage unless she could show by cogent evidence the proportion of her contribution to the acquisition of a particular property. In any such instance, the courts are expected to use their discretion to ensure that the wife who is divorcing is given a reasonable, just and equitable share of the property in such a way as not to jeopardise the overall interest of both the husband and the other wives of the marriage.
Even so, it must be pointed out that in a factually polygamous marriage, such as the instant matter, where the Respondent has as many as three wives, it will be most unreasonable and inequitable for the Petitioner/Appellant wife to expect that whatever property that was acquired during her marriage with the Respondent herein should be shared equally between her and the Respondent. What happens to the interest of the remaining wives of the marriage? In such instances, this Court will rather apply the provisions under section 20 of the Matrimonial Causes Act and settle, in a reasonable manner, property on the divorcing wife, the Petitioner herein, taking into consideration all the surrounding circumstances of the case.
Reasons required for the percentage awarded to a spouse
It is, therefore, necessary to formulate guiding considerations that will enable trial judges to provide cogent reasons demonstrating a logical connection between what— the decision to award a particular percentage of interest to a spouse — and why— the rationale or evidential foundation for such an award. Once this is achieved, the reasoning process of the court becomes transparent and the decision discernible when examined in the context of the evidence adduced by the parties.
Share of a spouse who contributed to property not jointly acquired
In my considered view, therefore, the evidence adduced by the Appellant regarding her contribution to the acquisition and completion of the property does not warrant an equal division of fifty per cent (50%) as ordered by the trial court. Her supervisory role during construction, her domestic contributions as a spouse, and any ancillary financial inputs reasonably justify the Court of Appeal's assessment that a twenty per cent (20%) interest is fair and equitable in the circumstances of this case.
There is no principle of automatic equal sharing of property acquired during marriage after the marriage has come to an end. Each case must be resolved on its peculiar facts. Where it is shown that property was jointly acquired during the subsistence of marriage, the Constitution only guarantees equal access of such property to the spouses. However, when the marriage is dissolved, there is no such principle of equal sharing of any property acquired during marriage. The Constitution never said so in article 22(3)(b). Rather, the Constitution speaks of equitable distribution of assets acquired jointly during marriage after the marriage has been dissolved. It is at this stage that the parties need to adduce evidence to show their respective contribution to the acquisition of the property to enable the Court do what is equitable in accordance with the contribution of each spouse towards the acquisition of the property.
It must be emphasised that the law does not prescribe an automatic right to a fifty-percent share of property acquired during marriage. The Constitution is not prescriptive on this notion and does also not sanction any idea of fifty-fifty sharing of any property acquired during marriage when the marriage comes to an end. It is only when the parties to the marriage, after divorce, are unable to marshal evidence to prove their specific contribution to the acquisition of property acquired during the subsistence of the marriage, that the Court invokes the principle or the maxim of equity to the effect that equality is equity to share the property equally between the divorced spouses. If ever there was any such notion or impression created by the cases, of a fifty-fifty sharing of property acquired during the subsistence of marriage after the dissolution of the marriage, then, let it be noted that the Court has moved away from that impression in accordance with the provisions of the 1992 Constitution.
Where there was evidence that after the marriage, the Petitioner contributed substantially either in kind as a housewife or in cash, which could have been quantified, the identity of the property would have changed from a property independently acquired by the Respondent to a property jointly acquired. Furthermore, a property jointly acquired during marriage shall not automatically become fifty-fifty shares. Still, it shall be based on the extent of the contribution, whether in cash, in kind, or in a combination of both, unless at the beginning or during its acquisition, the parties agreed to equal shares.
