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 in so far 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 emphasized 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 inMrs. 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 Judgment, 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.

1. A property acquired by any of the spouses before the marriage does not qualify as a marital property.
2. Acquisition can be sole (that is by one of the spouses alone) or joint.
3. The constitutional formula for the distribution of properties acquired in the life of a marriage applies only in relation to jointly acquired properties.
4. 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.
5. 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 other means of contributions whether in kind, material or otherwise, but for which the other spouse could not have solely acquired the property.
6. 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.
7. The settlement of an interest in a jointly acquired marital property can be converted in monetary terms where the special circumstances of the case warrants, and as sanctioned under Section 20(1) of the Matrimonial Causes Act, 1971 (Act 367).
8. Despite being a 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 recognized 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 recognized 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 conducts 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.

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 Judgment 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” (Emphasis mine)

 

“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 theAyishetu 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.

It is important to note that the Apex Court took pains to show that the concept or thinking that property acquired during marriage as set out in the Arthur No 1 VRs Arthur No 1 [2013 -14] 1 SCGLR 543 bore the presumptive badge of joint acquisition is completely wrong. In that regard the Court took steps to set out its thinking at pages 13 to 15 of the Judgment in the Abena Pokua case (supra) as follows:

“[4.6]. The Court stated in Arthur (No.1) vs. Arthur (No.1) [2013-2014]1 SCGLR 543 that:

“The Supreme Court in Mensah v Mensah had interpreted the provision in article 22(3) (b) of the 1992 Constitution liberally and purposively to mean that joint acquisition of assets was not limited to property that had been acquired as joint or as common tenants; but rather any property acquired by the spouses during the course of their marriage was to be presumed to be jointly acquired. In other words, property acquired by the spouses during marriage was presumed to be marital property. Thus, marital property was to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse had made a contribution to its acquisition. The Supreme Court would affirm that concept of marital property. However, consideration of cases and statutes in the United States would suggest that property acquired by gift during the marriage should be excluded from the concept of marital property. That exception seemed sound in principle. Indeed, other exceptions might need to be carved out to the broad definition of marital property. Mensah v Mensah [2012] 1 SCGLR 391 at 401 affirmed.

In this very case, the Supreme Court expanded the meaning of the term ‘jointly acquired property’ or ‘joint acquisition of assets’. Thus, in the words of the Court, ‘any property acquired by the spouses during the course of their marriage was to be presumed to be jointly acquired. In other words, property acquired by the spouses during marriage was presumed to be ‘marital property’. Again, in coming to this conclusion, the Court did not consider the effect of article 18(1) of the Constitution, 1992 which states that:

“18. Protection of privacy of home and other property
(1) Every person has the right to own property either alone or in association with others”.

IN MY HUMBLE OPINION, TO STATE THAT EVERY PROPERTY ACQUIRED DURING MARRIAGE IS PRESUMED TO BE MARITAL PROPERTY IS TO DEPRIVE COUPLES OF THEIR CONSTITUTIONAL RIGHT TO ACQUIRE PROPERTY EITHER ALONE OR IN ASSOCIATION WITH OTHERS AS GUARANTEED BY ARTICLE 18(1) OF THE CONSTITUTION, 1992. AS A COURT, WE MUST NOT BE SEEN TO DEPRIVE GHANAIANS OR ANYBODY RESIDENT WITHIN OUR BORDERS OF THEIR RIGHT TO INDEPENDENTLY ACQUIRE AND ENJOY PROPERTIES JUST BECAUSE THEY DECIDED TO MARRY. MARRIAGE MUST NOT BE AN INSTRUMENT OF DEPRIVATION OR A BURDEN BUT MUST BE AN INSTITUTION THAT HUMAN BEINGS MUST ENJOY. THE COURT MUST NOT TRAMPLE UPON CONSTITUTIONAL RIGHTS IN ITS QUEST TO ENSURE EQUITY AND JUSTICE IN THE DISTRIBUTION OF PROPERTY ACQUIRED DURING MARRIAGE. THE DEFINITION GIVEN BY THE COURT TO ‘MARITAL PROPERTY’ IN ARTHUR (NO.1) VS. ARTHUR (NO.1) HAS THE POTENTIAL TO PROVOKE INJUSTICE. THE DECISION DOES NOT CONFORM TO THE DOCTRINE OF HARMONIOUS INTERPRETATION OF STATUTES AS ESPOUSED IN NATIONAL MEDIA COMMISSION VS. ATTORNEY- GENERAL [2000] SCGLR 1 WHERE THIS COURT STATED THAT:

“IN INTERPRETING THE CONSTITUTION, CARE MUST BE TAKEN TO ENSURE THAT ALL THE PROVISIONS WORK TOGETHER AS PARTS OF A FUNCTIONING WHOLE. THE PARTS MUST FIT TOGETHER LOGICALLY TO FORM RATIONAL, INTERNALLY CONSISTENT FRAME WORK. AND BECAUSE THE FRAME WORK HAS A PURPOSE, THE PARTS ARE ALSO TO WORK DYNAMICALLY, EACH WORKINGS ACCOMPLISHING THE INTENDED GOAL.”

 

AT ANY RATE, ARTICLE 22(3)(B) WHICH THE COURT INTERPRETED IN THAT CASE DOES NOT SAY WHAT HAS BEEN ATTRIBUTED TO IT. MARRIAGE DOES NOT TAKE AWAY FROM ANY COUPLE THE RIGHT BESTOWED UNDER ARTICLE 18(1) OF THE CONSTITUTION.” (Emphasis mine)

Needless to say, there is a compelling sensitivity to the importance of the difference between the two cases – the destruction of the bell that bellowed the aged – old tune that property acquired during marriage is presumed to be marital property. It is “difficult” to understand why this learning was not pressed by Lovelace Avril Johnson JSC and Asiedu JSC in the Ayishetu case (supra). Nothing however turns on that point for present purposes, for we know where the law is presently berthed on the matter.

In the end, there are two notable takeaways from the case law. ‘The first takeaway’ is the position of the Supreme Court that a party in a marriage can lead a separate economic life with respect to the acquisition of property et al during the subsistence of the said marriage.

Indeed, the Court’s position as to a separate economic practice means that parties can now enter into agreements setting out the mode of acquisition of properties they intend to exercise in the marriage. Parties are now therefore capable of setting out in explicit form that they will acquire properties to the exclusion of each other. Parties are entitled to go a step further and to name the said properties. The legal advantage of same is that during litigation, a party cannot turn around save for vitiating factors such as fraud et al to claim a part of those properties based on some alleged form of contribution. These agreements can be executed prior to marriage and forms for us a unique concept of pre-nuptials in our jurisprudence.

‘The second point’ is the important “walk back” on the definition of marital property. The Apex Court no longer holds the position that property acquired during the subsistence of marriage bears the presumption of marital property.

Under the circumstances, practitioners are to take note in their pleadings of this notable development in the law. By establishing clear guidelines on what constitutes individual and joint property within a marriage, the above decisions have settled the uncertainty that previously surrounded distribution of properties acquired during the subsistence of marriage. Consequently, individuals entering into marriage can now better understand their rights and obligations regarding ownership of property. The Rulings of the Supreme Court have established the framework for distinguishing between individual and joint property, ensuring a more equitable distribution of properties upon divorce. These developments without argument offer a sense of security and predictability for couples, allowing them to make informed decisions about their financial future.

Kwame Boafo Akuffo, Esq. Of Akropong Akuapem.