Marital Property - Distribution and the so-called 50/50 Principle

Wilma Akuya Osei

Lawyer|| Administrator|| Founder and Managing Counsel, The Pocketlaw Project

What is marital property and what is the 50/50 principle anyway? To get to that, let’s get into ourselves a little.

Imagine the scenario below;

A man and a woman come to live in the house next to yours and become your neighbours. Every morning they leave home as if to work and return. On weekends you see them in happy banter going about house chores. They take evening walks on the street and say hello to neighbours. You do not even know their names, but you assume they are a married couple, right? You also assume they are tenants in the house they live in because they look fairly young and most people in your area are tenants like you. Soon the woman is pregnant and months down the line, a baby is in the house! You see their joy and congratulate them. You probably think the baby is theirs, right? Imagine your surprise then, when you are invited to the naming ceremony and in conversation, you find out that they are not married; that the baby is not the man’s child, and the ‘couple’ are in fact brother and sister. You also find out that they own the house which was a gift to them by their parents!

The point is simply this, we make perfectly reasonable assumptions of existing situations all the time, but after the truth, real facts or all the facts of a situation become known, the assumptions we held have to be modified or completely disregarded.

Well, such is the way in which the law deals with property acquired during marriage. Courts are in the business of establishing fact or truth in order to do justice. For good reason (which you would appreciate soon), when it comes to marriage the court starts with the assumption that property or any asset that is acquired during the pendency of a marriage’ is marital property and therefore the joint property of the parties in the marriage. If a party to the marriage does not give the court any reason to believe that that assumption is not true, then that assumption will be their decision or judgement and the properties will be distributed on the principle of ‘equality is equity’ which some people call the 50/50 principle. In other words, the position of the court (law) is that it is generally fair to share property that is acquired during marriage equally between the spouses. The principle is presumptive, which means it is a starting assumption and therefore can be rebutted or proven to be wrong. Remember how that happened in the new neighbour scenario?

The assumption of joint ownership of property by married persons makes sense in the same way that we make assumptions about things and later find out that our assumptions are true or false. When two people get married, we believe, preach, advice and expect that they ‘become one’. If they become one, then it is reasonable to expect that whatever they acquire during the marriage belongs to them jointly. Why? Because, married people decide to make a life TOGETHER, and by so doing co-mingle their affairs. It is difficult in that situation, if not impossible to put a ruler to the affairs of a married couple and say for example, that this part of a child is for one party, or that part of the groceries they buy every week or money that went into buying saucepans or getting curtains is the result of the sole effort of one or the other party. Think about when one spouse stays at home so another could travel, go back to school, hang out with friends for example. Yes, the matter begs being that extreme and graphic. That is why the courts (law) have adopted the presumptive principle of joint ownership of assets or properties acquired during marriage.

“For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh. So, they are no longer two, but one flesh. …” [Matthew 19:5-6 NIV Bible]

The assumption of joint ownership of marital property is not only based on our ideas about unity in marriage or the common sense approach described above, but it is also backed by legal reason and decisions. Years back, a spouse who could not show that they had contributed substantially (usually in monetary terms) to the acquisition of a property or asset could not get a share of the property in dispute even if acquired during marriage. Sometime in 1998 the Supreme Court of Ghana, in addition to considering the circumstances in which married couples live, held that the earlier positioning of the law was unfair, inequitable, and inconsistent with the spirit of our Constitution and therefore begun to chart the course for change in the case of Mensah v Mensah (1998-1999) SCGLR.

The court stated that spouses who provided services in a marriage which though not financial, contributed to making the home and enabling the other spouse to have the freedom to go out and make money for the benefit of the married couple should not be made to suffer simply because their contributions could not be quantified in monetary terms. These contributions the court stated, were as good as money and therefore a spouse did not have to prove substantial contribution to the acquisition of marital assets as in the past.

1992 Constitution of Ghana

18. (1) Every person has the right to own property either alone or in association with others.

“22 (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 realization 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.

But the Supreme Court of Ghana did not stop there. Because the Constitution provides that all persons have the right to acquire property by themselves, married or not, and because the course of marriage does not always make the presumption of joint ownership equitable, the courts have said that each case will be looked at according to the particular facts that are brought before them. In other words, even though the courts will presume joint ownership of marital property, which is a great improvement from what it used to be, they will consider the facts of every case if there is a dispute about joint ownership.

So over time, the Court has further elaborated on the 1998 pronouncement and stated for instance, that assets such as gifts to one spouse or inheritances (and assets acquired before marriage or after dissolution) will not be considered as marital property. In recent times (April 2021), the Supreme Court by a slim majority, declared that the matrimonial home of a couple which was in dispute as marital property could not be considered as marital property properly so called because one spouse had taken a loan to fund its construction and the loan had yet to be fully paid off. This particular decision has caused some anxiety among lawyers and the general populace alike. Nonetheless the decision does not defeat the general principle already stated; that as regards marital property, the courts operate with the presumption that property acquired during marriage is joint property and therefore the principle of ‘equality is equity’ applies until it is found to be inequitable according to the facts of every case.

We will have to return in a part two of this topic to deal with some factors that the court will consider in order to depart from the assumption of joint ownership and how married couples may avert some of these difficulties.

Until then, keep the love burning.

PS: The bible quote above is for emphasis only and in reference to what seems to be the basis of popular notions about the nature of marriage and not intended to influence beliefs in any way.