Marriage is considered the oldest sacred and revered institution for companionship, procreation, support, love, and life-long union between a man and a woman. Its validity is dependent on strict compliance with widely recognized contracting customs, and legislations which support acceptable religious forms of marriage.
While separation is not a desired expectation of validly contracted marriage, the commitment for instance “to have and to hold till death do us part” (per the Christian matrimonial vows) has not always been kept resulting in divorce proceedings. Prior to such proceedings, parties may have acquired properties during the period of the marriage which properties may become the subject matter of distribution on the dissolution of the marriage.
In such dissolution, ensuring equitable distribution of spousal properties has become the desired outcome based on legislative considerations, decided cases, and agreement by the parties.
Emerging strongly as an alternative to the above processes which seek to promote the attainment of equitable distribution of spousal properties is the concept of prenuptial agreements – which agreement has gained popularity in the Western world as a means of protecting individual assets and mitigating financial disputes during dissolution of marriages.
The intent, therefore, of this article is to assess the justification, if any, for the adoption of prenuptial agreements in Ghana as a means of promoting equitable distribution of spousal properties on the dissolution of marriages.
WHAT CONSTITUTES SPOUSAL PROPERTY IN GHANA?
Generally, properties can be classified into two main categories: movable and immovable. Movable properties include items such as vehicles and electronic appliances, while immovable properties consist of assets like houses and land. In Ghana, ownership of property is typically attained through various means such as; purchase, inheritance which can be through testate or intestate succession, receiving property as a gift, customary ownership such as usufructruary interest, allodial interest among others. The owner of a property has the right to transfer his/her interest in the property to another and also has the right to possess the property to the exclusion of all others.
The Constitution of Ghana grants every person the right to own property. Therefore, before, during and after the dissolution of marriage, parties can individually acquire property. What becomes spousal property during the subsistence of marriage are properties that are acquired jointly by spouses. If it is shown by a clear intention that a property that was acquired by a spouse during the subsistence of the marriage, was acquired under his/her constitutional right to acquire and hold property, it will not be shared by the court as spousal property. It has been held in decided cases that, property purchased by a spouse with his/her own money belonged to that spouse to the exclusion of the other. This is important to note because spousal property generally refers to property that was acquired by spouses during the subsistence of marriage. However, a property that was acquired by a party before marriage can become spousal property during the subsistence of the marriage where there is evidence that the other spouse added substantial value to the property.
Household goods, according to the law also constitutes spousal property. There is a general presumption that household items used by a married couple in the matrimonial home belong to the couple in common. Household goods or chattels, according to the law include jewelry, clothes, furniture, electronic appliances, vehicles among others.
The law on property acquired during marriage is that, such properties are presumed to be joint properties of the spouses. Therefore, one spouse cannot dispose of the property without the consent of the other spouse. This presumption however is rebuttable and can be displaced by evidence to the contrary. For a long time, the law was that, if there was evidence of substantial contribution by the other spouse towards the acquisition of a particular property, the courts would hold that such a spouse had acquired a beneficial interest in the property. The courts have however shifted from this position. In a recent legal development, it's no longer necessary for a spouse to demonstrate financial contribution by directly paying for part of a property's purchase price or buying building materials, particularly in the context of a house. A significant precedent was set in a court ruling, recognizing that contributions made by women through household chores, emotional support, and childcare are equally valuable.
HOW IS SPOUSAL PROPERTY CURRENTLY DISTRIBUTED IN GHANA
The Constitution of Ghana provides that spouses shall have equal access to property jointly acquired during marriage and that, such properties shall be distributed equitably between the spouses upon dissolution of the marriage. The courts have interpreted equitable distribution in the Constitution to mean the properties being shared equally. The maxim, equality is equity is the Courts’ preferred principle to be applied in the sharing of joint property, unless the circumstances of a particular case demand otherwise. The equality is equity principle is to the effect that, until proven otherwise, the properties shall be shared equally. The paramount goal of the court is to achieve equality, which in essence means what is just, reasonable and accords with common sense and fair play.
The courts take a lot of factors in consideration when sharing spousal property equitably. They consider the respective contribution by the parties, the length of the marriage, the standard of living enjoyed by the parties before the breakdown of the marriage, the ability of each spouse to earn an income, the age of each party to the marriage, other financial resources which each party is likely to have in the foreseeable future, among others. Contribution is one major factor that the courts look at and although the principle of substantial contribution is no longer good law there has to be a certain degree of contribution by the other spouse for the courts to be convinced that a property is a joint property. Therefore, it has been held in a decided case that it is necessary for contribution to be demonstrated by the wife for the presumption of joint property to apply.
After considering all the factors peculiar to a particular case, the court will then make an order, distributing the properties as it deems equitable. In a particular decided case, the court held that where one party in the marriage agrees to perform various household chores for the partner and supervises the home so that the other partner has a free hand to engage in economic activities, that party must not be discriminated against in distribution of property. In another case, the court held that to share all the properties equally would be unfair because the husband had already bought a house for the wife and contributed towards the purchase of the wife’s mother’s house. Therefore, the now established principle of spousal distribution is the constitutional presumption, which is the presumption that properties acquired during marriage are presumed to be joint properties of the spouses until rebutted. This serves the ends of fairness because the courts seek to divide the properties equitably which may mean equal sharing in some cases or unequal sharing in other cases.
Apart from the courts’ method of spousal distribution, the spouses may on their own, agree on how the properties should be shared. Here, the parties make a written agreement called the terms of settlement on how the distribution should be. The parties will then sign it and file it as a consent judgment at the court where the matter is being heard. Once the court approves of the consent judgment, it becomes a binding court order. Therefore, whichever way the parties decide to take, whether it’s an agreement or a court order, the ends of justice is served.
PRENUPTIAL AGREEMENT AND ITS OUTCOMES
A prenuptial agreement generally is an agreement made before marriage usually to resolve property distribution if the marriage ends in divorce. A prenuptial agreement can also be identified as a legal contract that allows individuals entering into marriage to predetermine how their assets and debts will be divided in the event of divorce or death. It can also address other issues such as spousal support, property rights, and financial responsibilities during the marriage. It specifically spells out how the couple will divide their assets, how they would like to handle their property and also addresses alimony if the couple wishes to place it into their agreement as well.
The main aim of a prenuptial agreement is to protect properties that are acquired before marriage and to prevent spousal property distribution disputes at the end of the marriage should the marriage end in a divorce.
Prenuptial agreements emerged from the western world. They were initially used to protect property and wealth in aristocratic families, ensuring that assets remained within the family lineage. Over time, they have evolved to encompass broader aspects of marriage. In Ghana, prenuptial agreements have not been given any legal backing, be it statutory or case law. It is unregulated under our laws. Going under common law, marriages were considered as sacred, therefore, any contract that interfered with the sanctity of marriage or contemplated the separation of the parties was deemed contrary to public policy and unenforceable. In one case, the Court held that, public policy should preclude the enforcement of prenuptial agreements which often provided for the eventuality of divorce. There has been a lot of debate surrounding the legality of prenuptial agreements in Ghana, with some lawyers advocating for it being given a legal backing.
Prenuptial agreements cover properties acquired before marriage only. Since it is an agreement that is made before marriage, it cannot cover properties that were acquired during the subsistence of the marriage.
Prenuptial agreements cannot be said to be equitable when it comes to spousal property distribution since it does not cover jointly acquired properties of the spouses.
PRENUPTIAL AGREEMENTS AND EQUITABLE DISTRIBUTION OF SPOUSAL PROPERTY
It is my opinion that, even though prenuptial agreements are very helpful, they do more harm than good and that, the already existing system that governs distribution of property is more equitable than prenuptial agreements will ever be. The reasons for my position are elaborated below.
- Firstly, properties categorized as spousal property are subject to distribution in case of marriage dissolution. Spousal property mainly includes assets acquired jointly during the marriage. Prenuptial agreements, made before marriage, raise questions about assets acquired before marriage. While some argue such assets can be considered spousal property, the law generally classifies them as individual assets of each spouse. Courts typically don't distribute these assets unless one spouse significantly contributes to them after marriage, a scenario not covered by prenuptial agreements. Thus, prenuptial agreements may not always be necessary since assets to be shared do not exist before the marriage, and those that do may not require distribution.
- Secondly, if the appeal of a prenuptial agreement lies in its status as a legally binding document, it's worth noting that the court system allows for such agreements even after the marriage ends. Following the dissolution, spouses can either wait for the court to distribute the marital property or they can mutually agree on the distribution, document it, and file it with the court as a consent judgment. The court will then approve it, making it a binding order. This agreement is advantageous as it is made after the dissolution, with the spousal property already clearly defined and identified, eliminating doubts about its status. Therefore, to prevent conflicts, spouses can opt for this form of agreement within the current legal system of spousal property distribution.
- The court system is viewed as more equitable than a prenuptial agreement, as the latter can be influenced by one spouse's higher bargaining power, leading to potential exploitation. Prenuptial agreements are based on circumstances at the time of marriage and may not anticipate future changes, leaving one spouse vulnerable, especially if they had lower bargaining power initially. In contrast, the court aims for equality by scrutinizing contributions from both parties. It objectively evaluates each case, considering evidence and contributions from both spouses, and may rule that individually acquired property remains the self-acquired property of that spouse if there was no contribution from the other party.
- Lastly, prenuptial agreements defy the institution of marriage. Although the courts have held that divorce is no longer seen as the forbidden fruit of the Garden of Eden, it is nevertheless not an ordinary outcome of marriage. Marriage is seen as a sacred institution where the two parties become one. Since divorce is not an ordinary outcome of marriage, it is presumed that people do not enter into marriages foreseeing divorce. However, distribution of spousal property is tied to divorce. Hence if someone makes an agreement on distribution of property even before the marriage itself, it seems that the person is foreseeing divorce, which should not be. It makes marriage a transactional business instead of the sacred institution it actually is.
THE WAY FORWARD
In my opinion, the court system for distributing spousal property is sufficient. As discussed above, the introduction of prenuptial agreements into the laws of Ghana may result in unfairness and a lesser regard for the institution of marriage. Instead of diverting resources towards legitimizing prenuptial agreements, our focus should be directed towards enhancing the efficiency of the existing court processes. Expedited court proceedings and streamlined legal mechanisms can alleviate the burden on couples undergoing marital dissolution while ensuring that equitable outcomes are achieved in a timely manner
CONCLUSION
In summary, within the context of Ghanaian law, prenuptial agreements are deemed unnecessary given the comprehensive framework governing property distribution. The existing laws regarding spousal property ensure fair and just division during divorce proceedings, as previously elaborated. Through the principle of equitable distribution, assets are typically divided fairly based on various factors such as contribution, thereby assuring Ghanaian couples of the protection of their property rights in alignment with constitutional provisions.
Furthermore, the legal system promotes resolving spousal disputes through settlement terms endorsed by the courts. Instead of introducing potential conflicts and complexities associated with prenuptial agreements, couples are encouraged to concentrate on fostering their relationship and establishing a solid foundation for their marriage.
ABOUT THE AUTHOR
BLESSING SARFO BOAKYE is a Part II Student of the Ghana School of Law and interning with SUSTINERI ATTORNEYS PRUC, a client-centric law firm specializing in Transactions, Corporate, Disputes and Tax (www.sustineriattorneys.com)