Making a Case for the Enforcement of Prenuptial Agreements in Ghana

Introduction

In 2014, Citifmonline.com[i] reported a news item in which a family lawyer and former lecturer of the Ghana Law School, Dr. Kofi Adinkrah who incidentally happened to be my Family Law lecturer[ii], in a post captioned ‘Prenups don’t generate controversy’, urged “Ghanaian couples to enter into prenuptial agreements to tackle unforeseen challenges associated with divorce”.[iii]

In 2019, another news item, “Lawyer urges women to sign Prenuptial Agreement before marriage” was carried by myjoyonline.com[iv]. In the said report, a Muslim lawyer, Halima El-Alawa Abdul-Basit advised Muslim women in particular to sign prenuptial agreements before they finalize their marital process.[v]

Perhaps, these reports offered opportune moments for Ghanaians to have deliberated on the issue of prenuptial agreements in Ghana, but we let them slipped by. Not much has since been heard about prenuptial agreements in Ghana. In fact, many are the lawyers in this country who have serious hesitation about whether prenuptial agreement is enforceable under Ghanaian law.

It is quite perplexing that the legal fraternity that is expected to show the path is itself divided on an issue so important as this and is therefore unable to edify Ghanaians as to its legality or otherwise in  Ghana. In the face of this uncertainty, it may appear that while some are urging the Ghanaian public to enter into such agreements, others are vacillating about their validity under Ghanaian jurisprudence.

The aim of this article therefore is to discuss the concept of prenuptial agreement. In doing so, the historical background, its benefits and drawbacks will be considered with the view to determining the way forward. Relying heavily on the existing literature within and without Ghana on the subject matter, a strong case will be made in this paper for the concept to be embraced as part of our laws. It is expected that this write-up would trigger the necessary debate on the issue within the legal community, so that as a nation we can take a definite and decisive stance on either accepting and enforcing prenuptial agreements or rejecting them and banishing them from our jurisprudential space.

Meaning of Prenuptial Agreement.

Prenuptial agreement is ‘an agreement made before marriage usually to resolve issues of support and property division if the marriage ends in divorce or by the death of a spouse[vi]. It is sometimes shortened to ‘prenup’.[vii] Such agreements usually deal with the consensus of the parties on issues like debts, entitlements to retirement plans and accounts, separate and joint property, living expenses, gifts, separation and divorce, rights of parties to property in the event of death, child support/maintenance among others. By the concept, persons getting ready to walk down the aisle bargain in the shadow of love. Prenuptial agreements are therefore contracts entered into between parties to an intended marriage that seek to regulate their affairs in the event of divorce or death. They might lightly be considered as ‘a will for the death of a marriage’ (either due to actual death or divorce), just as a will can be used to avoid some of the hassles of property distribution after death.

In modern times, the scope of prenuptial agreements in many countries has widened considerably and may manifest in varied forms and shapes. Not only do they provide for what happens in the event of divorce or death, but they may also deal with issues during the pendency of the marriage. For instance, some couples in America nowadays include social media provisions in the prenups, setting forth rules as to what is permissible to be posted on social media networks during the marriage or upon the dissolution of the marriage.[viii]  Others also include sunset provisions specifying that after a certain period, the agreement will expire.[ix]

History of Prenuptial Agreements

Prenuptial agreement may appear to be relatively new, but is quite an old concept. For thousands of years, women have desired an assurance that in the event of a divorce or death of their husbands they would not end up homeless. For instance, the ancient Hebrew marriage contract known as the ketubah dates back at least 2,000 years. The ketubah is a Hebrew word which means ‘It is written’ and is one of the first marriage contract documents giving rights of legality and finances to women.

In the seventh-century writings recounted in ‘Marriage of Ireland’’, dowries were considered to be an early form of a prenuptial agreement deemed necessary for marriages.[x] In France, the customary prenuptial derived from dowry was first recorded in the ninth century.[xi]

History put it that the royals were the early adopters of the modern interpretation of a prenuptial agreement. Between 1461 and 1464, Edward IV reportedly signed a prenuptial agreement with Eleanor Butler.[xii] About three centuries later, Elizabeth Oglethorpe required General Oglethorpe to sign a prenuptial agreement protecting her property rights before their marriage in 1744.[xiii]Throughout the 19^th and 20^th centuries, prenuptial agreements continued to evolve.

Prenuptial Agreements across the world

Prenuptial agreements have long been familiar with civil law jurisdictions. In recent times, their popularity has grown considerably across almost all continents. For instance in Europe, they are valid in many countries including France, Switzerland, Sweden, Norway, Germany, Denmark, Poland and Finland. In South America, prenups are recognized in Brazil[xiv]. In Asia, prenups are now enforceable in China[xv], Thailand[xvi], Goa State in India[xvii] and many others. Countries in Oceania like New Zealand[xviii] and Australia recognize prenups.

The wind of change blowing across the continents has not left out Africa. In South Africa, prenups are enforceable[xix] and a family lawyer, Jeremy D. Morley in an article, ‘Prenuptial Agreements in South Africa”[xx] makes that point clearly.  In 2013, Kenya reviewed its matrimonial laws with the enactment of the Matrimonial Property Act, 2013[xxi] to recognize prenuptial agreements[xxii], hence prenuptial agreement was applied by the court in the case of MBK v. MB[xxiii]. It is gratifying to know that although there are no express laws on prenuptial agreements in Nigeria, their courts have been relying on section 72 (2) of their matrimonial law[xxiv] to enforce them. The Nigerian Court of Appeal case of Oghoyone v. Oghoyone[xxv] vindicates my assertion. Under section 72 (2) of their Matrimonial Causes Act, the judge is required to be ‘just and equitable’ by taking into consideration any prenuptial agreement in the event of divorce or separation.

In the past few years, some influential common law countries like the US, Canada[xxvi] and Australia have become chief campaigners of prenups. In Australia, prenups are called Binding Financial Agreements (BFA) and are recognized by the Family Law Act 1975[xxvii] as amended in 2000. Per the statistics, 60% of married people sign the legally binding contract before they say ‘I do’. In the US, prenuptial agreements are now recognized in all the fifty states and the District of Columbia. It has been reported that the demand for prenuptial agreements in the US has increased considerably since 2017, particularly among millennial couples.[xxviii] The term ‘millennials’ also known as ‘Generation Y’ are used by researchers and popular media users to refer to those born from 1980 to 1995 during which the world experienced a declining fertility rate and the children born within the period  themselves also have fewer children than their predecessors.[xxix]

Prenuptial Agreement & Religion

• Catholicism: Catholic canon law does not rule out prenuptial agreement in principle and may be relied upon to determine how property would be divided among the children of a prior marriage upon the death of one spouse. In practice however, prenuptials may run contrary to the Church law in a number of ways. For example, they cannot subject a marriage to a condition concerning the future.[xxx]

• Judaism: Prenuptial agreement is recognized in Judaism in the form of ketubah as noted earlier in this article. Ketubah is a Jewish marriage contract, considered an integral part of a traditional Jewish marriage and outlines the rights and the responsibilities of the groom towards the bride. It came to replace the biblical mohar[xxxi] which was paid by the groom to the bride or her parents at the time of the marriage. As an excursus, the biblical mohar created a major social problem because many young prospective husbands could not raise the mohar at the time when they would normally be expected to marry. So to enable these young men to marry, the rabbis at the time delayed the time the amount would be payable when they would be more likely to have the sum. Both the mohar and the ketubah were intended to protect the bride and served as financial support. The difference between the two was the timing of the payment. Whereas the mohar was paid by the groom at the time of the marriage, the ketubah was deferred until divorce. The mohar may be compared to a bride price while the ketubah is more like an alimony.
• lslam: A Muslim woman may lay down some conditions before signing the marriage certificate in order to safeguard her rights and welfare. According to Ramadan Hisham, the woman may amend or add further conditions later.[xxxii] In most Arab and Islamic nations, there is a marriage contract which has been established as an integral part of an Islamic marriage usually signed at the marriage ceremony.[xxxiii] The contract is similar to the ketubah in Judaism and outlines the rights and responsibilities of the groom and the bride or other parties involved in the marriage proceedings.[xxxiv]

Benefits of Prenuptial Agreement  

1. Used to protect a child from a prior marriage: If one party has a child from a previous marriage, prenup may be important so that the parent can support that child with marital income.
2. The desire to keep property brought into the marriage: According to a divorce lawyer in Florida, Russell D. Knight, ‘[o] ften people want a prenup so that they can keep what they brought into the marriage, which the law typically already protects – it’s when financial assets get commingled that things get complicated, and that, happens easier than you think”.[xxxv]
3. It protects a spouse from accumulated debt: If a spouse comes into the marriage with extensive amount of debt, a prenup will help the parties to define liabilities and how such liabilities will be handled in the event of a divorce.
4. It helps to protect one’s business: If a party has a business prior to the marriage and it is designated as a separate asset in the prenup, it ensures that in the event of divorce, the business will be immune and will not be forced to liquidate.
5. It opens the parties to solid lines of communication: Since both parties open up at the beginning of the marriage and are honest to themselves, there is an element of trust that can hold the relationship together in turbulent times as compared to one which the parties did not open up nor signed any contract.
6. It makes divorce less complicated: The marriage contract may settle most of the issues on divorce and that limits the evidence that may have to be adduced. Divorce has generally been found to be expensive and frustrating, and a prenup may minimize the pains associated with it.
7. When third parties have stakes in the asset or property: For instance where a piece of land or a house is gifted to a spouse and his/her siblings and the couple intends to live in it or settle there during the subsistence of the marriage as their matrimonial home. A prenup listing the property as separate will avoid contention in the event of a divorce.
8. It may serve as a guarantee for women: At the onset, what the man owns and plans for the woman may be known before she agrees to commit herself into the marriage. Imagine a woman moving in to live with a man in his house thinking the house belongs to her husband only for the man to die before discovering that their matrimonial home was a family property.
9. It may ensure full disclosures and prevent disappointments in the marriage: A man pursuing a woman may say anything to cajole her, including telling lies. Traditionally, ‘coaxing’ a lady is literally associated with telling her ‘lies’. Some men go to the extent of borrowing heavily to impress the women at their weddings, while others collect vehicles from friends and relatives just to show off. When the women enter into the marriage and come to terms with the realities, they become disenchanted. At that stage, it becomes too late to back out especially if they are Christians. Where the couple disclosed their properties and signed a prenup, such a disappointment can be avoided.

Drawbacks

1. It is a romance killer: It is said that proposals and thoughts of a fairy-tale ending often bring up images of romantic dinners. But one writer has cautioned: “That there is no better way to kill that vibe than bringing up the potential for a future divorce”.[xxxvi]
2. It can be a trap: Prenups can be a tool to control the partner who is coming into the relationship with less assets.
3. It can be burdensome: Since people cannot predict what will occur in their lives and marriages, it may be difficult to predict how potential issues should be handled in the future and what initially seemed like a compromise may end up becoming burdensome.
4. It may not seem attractive to believers of some faith: In some religions like Christianity, marriage is viewed as a sacred institution and goes beyond contract. It is expected to last till death do the couple part. Therefore, any agreement at the beginning of the marriage making arrangement for divorce may appear ungodly.
5. It can be confusing in the minds of the people: Some people view prenup as ‘planning for the divorce’ before ‘planning for the wedding’.

Why prenup is perceived to be unlawful in Ghana

Generally, lawyers who contend that prenups are unlawful in Ghana usually premise their argument on the common law. Indeed, Ghana is a proud adherent of the common law tradition[xxxvii]. The position at common law was that marriage is a sacred institution where the parties became one upon its celebration. Blackstone, the renowned English Legal Scholar aptly described it thus: “By marriage the husband and wife are one person in law”. Because it was deemed as a sacred institution, the parties were expected to stay together till death doth them part. At common law, any contract that interfered with the sanctity of marriage or contemplated the separation of the parties was deemed contrary to public policy and unenforceable.[xxxviii] In 1929, the English Court decided in Hyman v. Hyman[xxxix] that public policy should preclude the enforcement of prenuptial agreement which often provided for the eventuality of divorce.

The Public Policy Argument supporting the Common Law Position Queried

The argument that prenups are contrary to public policy has not been spared some judicial bashing. What irritates the critics is the reliance on the public policy argument. In Bevan Ashford v. Geoff Yeandel[xl]., Sir Richard Scott V.C. described public policy as not being a rigid concept. He claimed that it differs from state to state and may change over time. In Posner v. Posner,[xli] the American Supreme Court of Florida refused to follow the English public policy conception. Their Lordships emphasized that public policy argument was out of tune with current changes in the society. Similarly, in Fender v. St. John,[xlii] the court stressed that public policy should not be based on the personal ‘idiosyncratic’ views of a few judges.

In her authoritative book: ‘The Law of Contract in Ghana’, Christine Dowuona-Hammond contributed to the debate thus: “The concept of public policy has proved difficult to define… public policy is a variable or changing notion, depending on changing manners, morals and social and economic conditions of a particular society. By its nature, the law on public policy cannot remain unchanged. It changes with the passage of time. Beyond that it changes with the place, since social and economic conditions are invariably reflected in the ideas of public policy”.

The learned author proceeded to urge the courts of Ghana to be mindful of that fact and apply the public policy of U.K. with the necessary modification. She noted: “For this reason, notions of public policy in the U.K. are bound to be different from the notions of public policy in Ghana and therefore the role of the courts is to adapt the common law notions of public policy to fit the peculiar social and economic circumstances in Ghana”.[xliii]

It must be emphasized at this point that the perception of the people of England towards marriage and divorce substantially differed from that of the people of Ghana and we shall soon appreciate the point better later in this article. For this reason, although English text writers usually include contracts that interfere with the sanctity of marriage and those relating to divorce or separation, in  discussing contracts that are contrary to public policy[xliv] Dowuona-Hammond was careful not to include that point in her contract book supra.

Christopher Albert Fynn[xlv] in his impressive article, Its prenuptial Time: The Legality of Prenuptial Agreements to a Ghanaian, in his defence of prenups agreements, carries the attack on the public policy argument further that: “On the validity of Pre-nup, some legal minds argue on the old common law rule that, agreements providing for a future separation of marriage are contrary to public policy. Unfortunately, we have moved past the stage where divorce was seen as the forbidden fruit of the Garden of Eden”.[xlvi]

The learned author proceeded to refer to the dictum of Dotse JSC in the famous case of Mensah v. Mensah[xlvii]  where Lord Denning was admirably quoted thus[xlviii]:  “There is no longer any binding knot for marriage. There is only a loose piece of string, which the parties can unite at will. Divorce is not a stigma. It has become respectable, One parent families abound”. His Lordship continued: “The quotation can equally be said to be applicable to the Ghanaian society as well”.

During the development of the English law, divorce was originally next to impossible, hence it was not necessary to make arrangement to cater for impossibilities. Professor Akua Kuenyehia writing on the topic: “Distribution of Matrimonial Property upon the dissolution of Marriage – A Reappraisal”published in the University of Ghana Law Journal[xlix] noted: “Divorce in the modern sense of a judicial decree and dissolving a valid marriage and allowing one or both parties to remarry did not exist in England until 1857 when the ecclesiastical courts transferred their exclusive jurisdiction over marriage to the civil court system and divorces were authorized for adultery.”

In 2010, even United Kingdom that charted the path of reproving prenuptial agreement on grounds of public policy buried its pride and recognized it in the famous case of Radmacher v. Granatino[l]. The U.K. Supreme Court upheld a prenup which protected a woman’s £106 million fortune. The husband, a French investment banker, married a wealthy German woman. Prior to the marriage, a prenuptial agreement was signed by both parties at the instance of the wife’s family. In the agreement, each party was to forgo any interest or benefit from the other’s property acquired either before or during the marriage. The couple had two issues but divorced after nine years and the husband claimed ancillary relief against the wife’s assets. He contended that he should not be bound by the prenuptial agreement signed because he was nowhere near as wealthy as the wife and that he did not seek an independent legal advice before signing the agreement. He further argued that prenuptial agreements are contrary to public policy which the courts do not enforce.

The wife on the other hand argued that there was no legislation prohibiting such agreements and parties should be free to agree between themselves how their properties are to be held and that the husband having entered into the prenup, on his own free will, should be bound by its terms. The Court ruled in favour of the woman to the effect that if prenups are freely entered into, pursuant to all relevant information available to both parties, and in the absence of pressure, such agreements should be upheld, unless it would be unfair to do so.

The UK Supreme Court in arriving at that decision made startling revelations. Lady Hale did not mince words when she wrote about the English System thus: “There is not much doubt that the law of marital agreement is in a mess. It is ripe for systemic review and reform.”

After Her Ladyship had clamoured for a systemic reform, the Law Commission in its 2014 report on Matrimonial Property agreed generally with the decision of the Court and recommended for the enactment of a comprehensive prenuptial legislation by their Parliament[li]. In 2015, Cusworth QC following the decision in the Radmacher case (supra), gave significant weight to a prenup agreement projecting the wife’s inherited wealth of £27million in the case of WW v. HW[lii] and there is now no dispute about the enforcement of prenup agreements in UK courts.

The question is, if the frontrunners of the common law system have found the system ‘messy’ and are yearning for a reform, why should Ghana be ‘handcuffed’ in perpetual shackles? When America, Australia, Canada and other leading common law countries found that the public policy reasoning which the common law prided itself in, to reject prenuptial agreements was illogical, they parted way with that common law principle and charted a new path – a flexible course that enabled them to apply prenuptial agreements. It is therefore appropriate that in the absence of any binding judicial precedent in Ghana, the foreign decisions especially that of U.K. Supreme Court, though persuasive, provide us the needed motivation and basis to recognize prenups in Ghana.

 In order to further appreciate why prenup was perceived to be contrary to public policy, it is necessary to examine the historical status of women and their right to deal with their properties before and after their marriages at common law. Lady Hale’s historical account in the Radmacher v. Granatino will offer us some useful insight. She noted: “It may be helpful to give a brief account of how the law got into its current mess (for which I take some of the blame). The common law regarded husband and wife as one person, and that person was the husband. He acquired ownership or control over all his wife’s property and income … She had no contractual capacity of her own and of course they could not make contracts with one another”.

For this reason, married women lacked the essential testamentary capacity to lawfully make wills disposing of their properties after marriage. It was not until in the year 1882 that the cord was broken for the first time to allow married women under the common law to exercise their testamentary right of disposing of their own property by way of a will.[liii] Ironically, the Ghanaian married woman was not under any such testamentary bondage like their counterparts in England even before 1882 or colonialism. The learned Kludze in his Modern Law of Succession surmised: “Before 1^st January 1883, married women in England could not make wills. They were not liberated until the passage of the Married Women’s Property Act, 1882 … The women of Ghana did not have to fight for this right and it had been assumed that our married women could make wills”.[liv]

Since Ghanaian women never lacked testamentary capacity, it means that marriage did not extinguish their right to deal with their properties and could therefore have entered into prenups even before 1882 and that offers us a good reason why prenups should not be considered unlawful in Ghana.

It is worth mentioning that under the common law, where a property was devised in a will, it became automatically revoked upon marriage[lv] and this was also premised on the notion that after marriage the couple became one person. It was not until in the year 1925 that a subsequent marriage ceased to automatically revoke wills made before the marriage.[lvi]

 It should be borne in mind that because our laws permit divorce, even for those contracted under the Ordinance, divorce automatically invalidated a gift of a property in a will made by one spouse to the other unless a contrary intention appears from the will.[lvii] According to the learned author and Supreme Court Judge, Kludze JSC (as he then was), “although marriage does not revoke a will now in Ghana, divorce has been introduced as a means of automatic partial revocation.”[lviii]

It may be argued that our law makers as far back 1971 recognized the reality of the breakdown of many marriages especially those celebrated in accordance with the ‘English style marriage’ otherwise known as marriage under the Ordinance and probably prenuptial agreements. This is because they were careful in choosing their words and provided a window of escape for spouses who had been assured by the other that the gift granted them in the will shall not be invalidated in the event of divorce. One thing is clear here. The law does not limit the contrary intention to only wills made during the subsistence of a marriage. It could have been agreed between the parties before the marriage was contracted, especially if they decided to make mutual wills.

Why prenups should not be considered illegal in Ghana

Constitutionally, perhaps those who perceive that prenups are illegal cast their minds on Article 22 of the 1992 Constitution which guarantees equitable share of property for spouses upon death or dissolution of marriages. I find it more convenient to discuss the provision on the dissolution of marriage and defer the one on death of a spouse to a later discussion in this article. Clauses (2) & (3) of Article 22 deal with divorce and thus provide as follows;

“(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.”(My emphasis).

 

It is evident that the above provisions deal with only properties acquired during the subsistence of a marriage and not those acquired prior to the marriage as prenuptial agreements may sometimes deal with. Even where the properties were acquired during marriage, they should have been jointly acquired.[lix] It must be stressed here that there is therefore no constitutional fiat against prenuptial agreements as noted by Christopher Albert Fynn in his article supra.

On the other hand, the 1992 Constitution guarantees the freedom of individuals to own property alone or with others and this right, in my view, cannot be interfered with under the guise of marriage. Article 18 states:

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

(2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.”

Although the right to interfere with the property of a person is subjected to law, I do not think Parliament even has the mandate to pass a law that can adversely affect that right. Article 107 (b) of the Constitution provides:

“(107) Parliament shall have no power to pass any law –

(b) which … adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person …”

In Fynn v. Fynn[lx], the Supreme Court held that the right guaranteed individuals in the state to own properties is not eroded by marriage. Christopher Fynn in his article supra therefore queries: “So on what public policy considerations should one argue as rendering prenups invalid?”

It may appear that the Constitutional right of any person to own property either alone or with others should be encouraged and not discouraged. It is in this regard that I consider prenup as intending to achieve that objective. It is worth quoting Article 33 clause (5) to buttress my point.

“(5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man”.

 The Land Act, 2020 (Act 1036)

Ghana has recently consolidated and harmonized its land law by enacting the Land Act, 2020 (Act 1036) and one cardinal provision which has already generated debate among lawyers and law students is the restriction on spouses to transfer land. Act 1036 appears to demonstrate the attitude of the legislature towards prenups in recent times. On this point, sections 47 & 38 are worth discussing. For ease of reference, the applicable portions of the law are being reproduced for their full effect.

“Restriction on transfer of land by spouse

47. Except as provided in subsections (3) and (4) of section 38, in the absence of a written agreement to the contrary by the spouses in a marriage, a spouse shall not, in respect of land, right or interest in land acquired for valuable consideration during marriage,

(a) sell, exchange, transfer, mortgage or lease the land, right or interest in the land

(b) enter into a contract for the sale, exchange, transfer, mortgage, mortgage or lease of the land, right or interest in the land,

          (c) give away the land, right or interest in the land inter vivos, or

          (d) enter into any other financial transaction in relation to the land, right or interest in the land without the written consent of the other spouse, which consent shall not be unreasonably held”.

Section 38 (3) & (4) also read:

“(3) In a conveyance for valuable consideration of an interest in land that is jointly acquired during the marriage, the spouse shall be deemed to be parties to the conveyance, unless a contrary intention is expressed in the conveyance.

(4) Where contrary to subsection (3) a conveyance is made to only one spouse that spouse shall be presumed to be holding the land or interest in the land in trust for the spouses, unless a contrary intention is expressed in the conveyance”.

Indeed, the law makers measured their words by ensuring that properties of spouses that were acquired prior to the marriage were not included in the application of the above statutory provisions just like article 22 of the 1992 Constitution.

Further, section 37 (3) is an exception to section 48 and clearly limits the application of the latter to properties jointly acquired during the marriage. Therefore, the Supreme Court decision in Fynn v. Fynn supra to the effect that nothing prevents a married person from acquiring his own property and disposing of it without having to obtain the prior written consent of the other spouse remains good law. It is therefore my view that the best way to achieve this objective is by making a prenup.

Again, it is respectfully submitted that where the properties were even acquired jointly during the subsistence of the marriage, nothing prevents the parties from intending or agreeing otherwise. It does not appear from the provisions that the law requires the contrary intention to be formed only during the subsistence of the marriage. In my view, where the parties entered into a prenup as regards how their properties or certain properties shall be acquired during the marriage, the courts are most likely to give effect to their intention.

 The Intestate Succession Law, P.N.D.C.L. 111

In order to appreciate PNDCL 111, it is important to precede the discussion with a quotation regarding the other leg of article 22 of the Constitution which states in Clause (1) as follows:

“(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spousewhether or not the spouse died having made a will.

It is common knowledge that upon the demise of a person, P.N.D.C. Law 111 is the applicable statute used to distribute his estate in the absence of a will. The law applies only to the self-acquired properties of a deceased person and section 2 (2) is explicit that stool, skin and family properties are not included. The Constitutional clause above also provides that what can be benefitted is what actually forms part of the estate of the spouse. The practical challenge which normally occurs is about the determination of the self-acquired properties, especially where the person was occupying a family position like head of family during his/her lifetime. Often times, the extended family may lay claim to some of the properties which were in the possession of the deceased person during his lifetime, while the nuclear family on the other hand, may insist that they are his/her self-acquired properties. In such instance, a prenup cataloguing the family properties in the possession of the person and that of his own would have been of great assistance to the courts in resolving the issue without any hassle.

Import of the constitutional and statutory provisions referred

From the constitutional and statutory provisions above, it is crystal clear that none of them seeks to prohibit prenups. Their intended purpose is to emphasize a person’s right to jointly acquired properties during the marriage and leaving out the properties acquired before the marriage and those solely acquired during marriage – thereby supporting the prenup concept.

Views from the Courts

There is a dearth of Ghanaian legal authorities on prenups and my effort in searching for one led me to nowhere. However, I managed to get some snippets of opinions from their Lordships at the Supreme Court and the Court of Appeal in the cases of Arthur v. Arthur[lxi] and Achiampong v. Achiampong[lxii] respectively. Perhaps, they may assist us in discerning the minds of our judges on the concept of prenups.

In the Arthur v. Arthur case supra, the Apex Court was guided by the Canadian legal framework Nova Scotia Matrimonial Property Act[lxiii] which defined matrimonial assets to exclude a lot of properties like gifts, inheritance acquired before or during the marriage as well as properties exempted under a marriage contract or separation agreement (prenuptial agreement) among others. The Supreme Court per Date Bah JSC (as he then was) further took inspiration from the factors that are to be considered in the division of matrimonial assets by referring to sections 12 and 13 of the Nova Scotia Act supra. Among the factors as stated under section 13 (c) is “a marriage contract or separation agreement between the parties”. By this decision, the Ghanaian Supreme Court appeared to have impliedly recognized prenups agreements in the determination of jointly acquired properties during divorce.[lxiv]

Similarly, in the case of Achiampong v. Achiampong supra, Abban JA at page 1035 unambiguously held: “Where the court finds that there was an agreement between the spouses about any property, it must give effect to the agreement” (Emphasis is mine).

There is therefore no shadow of doubt that from the two decisions that their Lordships acknowledged the possibility of spouses agreeing on their properties. In Achiampong case supra, because the Court did not restrict the period that the agreement can be entered into by the spouses to the pendency of the marriage, it may be argued and quite conveniently, that the agreement could be made by the parties prior to the marriage. It is worth noting that although the English law at the time had not started recognizing prenups, the Court of Appeal relied on some English authorities to arrive at the above decision.

Their Lordships quoted from Wilson v. Wilson where the English Court of Appeal held: “Where the parties had shown an intention that a particular piece of property should belong to one or other or both of them jointly whatever happened and in any event, the court could not … override that intention”.[lxv]  The common law position that upon marriage the couple becomes one in law and so it was practically impossible to enter into a contract with themselves appeared to have been diffused by the House of Lords as far back 1970. Lord Morris in the case of Pettit v. Pettit honourably conceded: “Today, it is clear that a husband and wife can enter into a contract with each other and can sue each other on such a contract”.[lxvi]

Consequently, His Lordships at the Court of Appeal were not far from right when they further held in the Achiampong case: “Where the rights of the spouses in respect of any property were established or agreed, as in the instant case, the court shall uphold those rights”.[lxvii] Though in the Achiampong case, the couple agreed in respect of the properties during the subsistence of the marriage, the decision of the Court offers us some useful guide in the treatment of agreements by the parties over their properties prior to the marriage and with the combined effect of the Arthur v. Arthur case, the argument in favour of prenups agreement become forceful.

Understanding what we mean when we say a country recognizes and enforces prenuptial agreement

When we say a country recognizes prenuptial agreement, it does not mean all prenuptial agreements are enforceable no matter how ‘offensive’ or deficient they might be. A study of the countries that recognize prenups will show that each country sets the minimum standards. In the UK case of Radmacher v. Granatino (supra) where prenups were recognized for the first time, the UK Supreme Court set out three conditions to be met before a prenup agreement would be enforced. In South Africa for instance, it has to be signed by the parties in the presence of a notary public and registered with the Deeds Registry within three months. In Thailand, instead of a notary public, the prenup must be signed by the parties in the presence of two witnesses[lxviii]. In US, prenups are not permitted to regulate issues relating to children of the marriage, in particular custody and access.[lxix] Further, they do not enforce arrangements which require that one spouse will do all the housework or that the children will be raised in a certain religion.[lxx]  In some countries too, where there is an element of fraud, it would not be enforced.

In Ghana, where the parties listed their individual properties and signed the document before the marriage, I do not see why, upon divorce the prenuptial agreement cannot be relied upon to distinguish the properties of the spouses prior to the marriage from the jointly acquired properties. A person who signs a prenup document and later wants to resile from it would be confronted with the document which would operate as a conclusive presumption against him/her under our laws.

Section 25 of the Evidence Act, 1975 (NRCD 323) provides:

“25. Facts recited in written instrument

(1) Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the document, or their successors in interest”.

Much as prenups cannot oust the jurisdiction of the matrimonial courts, I believe they can be of great evidential value by precluding a party from adducing further evidence in establishing matters clearly stated within the agreement and signed by the parties. As one writer had said, “It is the surest way to ring fence property acquired or amassed before marriage, so it is not preyed upon”.[lxxi]

It is conceded that where the prenup is unconscionable or tainted by fraud and thereby denying a spouse of benefitting from properties jointly acquired during the marriage, the courts will not enforce it. Similarly, where the prenup is contrary to a constitutional or statutory provision, the court will decline to enforce it. But these should not be a basis for anyone to argue that prenups are invalid in Ghana. In any event, contracts including commercial contracts and land transactions that are tainted with a vitiating factor such as duress, misrepresentation, unconscionability, fraud, illegality among others may not be enforced by the courts, but that does not mean commercial and land contracts are invalid or unenforceable in Ghana. Similarly, under section 1 (3) of the Wills Act[lxxii], a will may be rendered void if obtained by duress, undue influence or fraud. But it would be so unfair and ridiculous for anyone to suggest that wills are unenforceable or not recognized by the courts of Ghana.

Will prenups not be of great assistance to the courts by narrowing down the issues especially in cases involving property distribution if one exists, more so, in polygamous marriages? We need to be guided by Ghanaian legal system that of the three types of marriages recognized by law, two are potentially polygamous i.e. Customary marriage and Mohammedan marriage.

Conclusion

From the foregoing, the case for the enforcement of prenuptial agreement in Ghana can be summarized as follows:

1. There is no constitutional or statutory provision which outlaws prenuptial agreements in Ghana.
2. Our laws generally are accommodative of prenups.
3. Marriage and divorce as understood under the common law and Ghanaian context are different rendering the public policy argument on prenuptial agreement in Ghana untenable.
4. Virtually all the big shots following the common law tradition have found the argument against prenuptial agreement irrational so they have dumped the common law principle to recognize prenuptial agreements.
5. If UK that stood at the forefront of disregarding prenuptial agreements has found it necessary to recognize it, what makes it difficult for Ghana to do so?
6. If UK was able to apply prenups in Radmacher v. Granatino (supra) because there was no specific legislation that made prenup illegal, is it not reasonable to make the same argument for Ghana since there are also no specific legislations in Ghana forbidding prenups?
7. Since the courts in Ghana have not decided that prenups are illegal, why do some lawyers believe that prenups are illegal in Ghana?
8. Even if our courts had not said anything about prenups agreement, the decisions of UK and other common law jurisdictions recognizing prenup are of persuasive value (precedent) to light our path.
9. If African countries such as Nigeria, Kenya and South Africa have all joined the global train, what then withholds Ghana from joining same?
10. The UK Supreme Court has found the English law on marital contract ‘messy’ and have moved away from it. What then is the incentive for Ghana to stay in ‘the mess’ they themselves created and have extricated themselves from?

The Way Forward

It is my view that our laws should be forward looking. They should be receptive to the global trend and adapt particularly to the realities of Ghanaian situation as appropriate. I am not oblivious to the fact that prenups have their own issues. Nonetheless, the few challenges associated with them should not blind our eyes to the extent of throwing away the baby with the bath water. As one writer has stated, “A relationship based on reality is stronger than one built on illusion”.[lxxiii] It is on record that even a former English Parliamentarian Secretary, as far back 1998, before UK came to recognize prenups, gave a boost to prenuptial agreements when he conceded that there are ‘significant advantages’ to legally binding prenuptial agreements.[lxxiv]

Many are already sceptical about the provisions of section 38 & 47 of the new Land Act requiring spouses to give their written consent to land transfers. They believe that identifying properties owned before marriages and those acquired during the marriage is likely to generate a lot of issues in our law courts in the coming days. For this reason alone, I believe that the call for us as a nation to embrace prenuptial agreements could not have come at any better time than now. What do you think?

 Acknowledgement

My sincerest gratitude goes to the following:

• Her Ladyship Justice Gertrude Tokorno of the Supreme Court for the constant motivation and waking me up from my slumber.
• Her Lordship Justice Victor Ofoe of the Court of Appeal, who is a proud mentor and despite the distance barrier was ‘present’ throughout the production of this article.
• Justice Janapare Bartels-Kodwo and Justice Eric Kyei Baffour of the Court of Appeal for your diverse contributions.
• Col. Awuah Ameyaw Esq. for your great inputs and fine tuning this work.

[i] Citi 97.3 FM is a privately owned radio station based in Ghana.

[ii] Nicknamed ‘Akotoagyan’ by his students due to his strong and passionate views on what a customary marriage is; a term derived from the case of Badu v. Boakye (1975) 1 GLR 283.

[iii] See the Article by Marian Efe Ansah/Citifmonline.com Ghana: “Prenups don’t generate controversy” on May 21, 2014.

[iv] Joyfm is a radio station in Ghana that also broadcast online.

[v] See myjoyonlinefm.com article captioned, “Lawyer urges women to sign prenuptial agreements before marriage” (Reported on 4 November 2019 at 3.56pm).

[vi] Prenuptial agreement is also termed ante-nuptial agreement, ante-nuptial contract, premarital agreement, premarital contract and marriage settlement.

[vii] Black’s Law Dictionary, Ninth Edition at p. 1301

[viii] Effron Laura: “I Love You, You’re Perfect, but Watch What You Facebook: Social Media Prenups”. (ABC News) Retrieved 27 August 2017.

[ix] See for example, “Maine Uniform Premarital Agreement Act, Sec. 606. Effect of children”. Maine Revised Statutes. Main Legislature. Retrieved 27 August 2017.

[x] See Sheri Stritof: “The History of Prenuptial Agreements”. Updated 01/13/20.

[xi] Seymour J. Reisman: ‘Prenuptial Agreements in History’ – The New York Times – April 22, 1990

[xii] According to Michael Miller: “Wars of the Roses”.

[xiii] See the Manor of Bishop’s Ockendon

[xiv] In Brazil, Prenuptial Agreement is regulated by Article 256, II of the Civil Code

[xv] See Article 19 of the Marriage Act of 2001.

[xvi] See the Commercial and Civil Code of Thailand.

[xvii] Prenups are rare in India although in modern times it is becoming popular by virtue of the recent rise in divorce cases. In the Goa State of India, prenups are governed by the Portuguese Civil Code of 1867.

[xviii] See Matrimonial Property Act of 1976.

[xix] In South Africa, the parties are supposed to sign the prenuptial agreement in the presence of a notaray public and registered at the Deeds Office within three months from the date of signing.

[xx] Jeremy D. Morley: “Prenuptial Agreements in South Africa”.(Available online)

[xxi] The Act came into force on 16^th January 2014.

[xxii] Prenuptial agreement is found under section 6 of the Matrimonial Property Act in Kenya.

[xxiii] MBK. V. MB (2016) eKLR; See also Joseph Mwaniki: Prenuptial Agreement in Kenya: Marriage and Divorce Laws”(Available online)

[xxiv] Matrimonial Causes Act, section 72 (2).

[xxv] See Oghoyome v. Oghoyome (2010) 3 NWLR (Pt. 1182) 564.

[xxvi] In Canada, prenups are enforceable and may be governed by the territorial or provincial legislations. In Ontario for instance, they are called marriage contracts and are regulated by section 53 of the Family Act.

[xxvii] See the Family Law Act 1975, section 90 (c) (Commonwealth Consolidated Acts. Australasian Legal Information Institute Retrieved 18 June 2012)

[xxviii][xxviii] Grant, Kelli: “Jeff Bezos didn’t have a prenup. But maybe you should” (January 10, 2019) CNBC Retrieved December 2019; Hoffower, Hillary: “Prenups aren’t just for the rich or famous – more millennials are signing them before getting married, and you probably should too” (February 5, 2019) Business insider retrieved December 2, 2019; Shain, Susan: “The rise of the Millennial Prenup” (July 6, 2018) – The New York Times Retrieved December 3, 2019 & Gardner Heather: “Millennials are the Reason for the Spike in Prenups” (April 8, 2019. Huffpost Retrieved December 3, 2019.

[xxix] Bodin Maja: “A wonderful experience or a frightening commitment? An exploration of men’s response to (not) have children. Oxford Living Dictionaries describes a millennial as ‘a person reaching young adulthood in the early 21^st century”.

[xxx] See CIC 1102 (Available online)

[xxxi] Genesis 34:12; Exodus 22:16

[xxxii] Ramadan Hisham: “Understanding Islamic Law: From classical to contemporary”. AltaMira Press. P. 119 (2006).

[xxxiii] In Egypt, Syria, Palestine, Jordan and Lebanon, the marriage contract is called Katbel-Kitab

[xxxiv] The difference between the Muslim marriage contract and the modern one is that the former does not define how assets are to be divided or inherited in the event of the death of a spouse.

[xxxv] Nicole Spector: “Prenuptial agreements: What is a prenup and should I get one?” (April 12, 2019).

[xxxvi] Melisa Heinig: “Prenuptial Agreement Benefits and Drawbacks”

[xxxvii] See article 11 (1) (e) & (2) of the 1992 Constitution.

[xxxviii] See Wilson v. Carnley (1908) 1 K.B. 729.

[xxxix] Hyman v. Hyman (1929) A.C. 601; MacLeod v. MacLeod [2008] UKPC 64, [2010] A.C. 290..

[xl] Bevan Ashford v. Geoff Yeandel (1998) 3 WHR 172 at p. 181.

[xli] Posner v. Posner (1979).

[xlii] Fender v. St. John (1938) A.C. 1.

[xliii] See page 250.

[xliv] See for instance, D.G. Cracknell: “Obligations: Contract Law” (4^TH Edition); G.H. Trietel: “The Law of Contract” (4^Th Edition) & P.W.D. Redmond: “General Principles of English Law”, Sixth Edition at p. 147.

[xlv] Christopher Albert Fynn is a Legal & Compliance Officer at Appolonia City, Ghana

[xlvi] Christopher Albert Fynn: “Its Prenuptial Time: The Legality of Prenuptial Agreements to a Ghanaian mind”. (Published on January 25, 2017) Available on line.

[xlvii] Mensah v. Mensah (2012) 1 SGLR 391; (2014) 78 G.M.J. 155.

[xlviii] Lord Denning in “Landmarks in the Law” (Butterworth 1954) page 176.

[xlix] {1990-92) XVIII UGLJ 94-108

[l] Radmacher v. Granatino (2010) UKSC 42.

[li] The English Parliament is yet to come out with the Act.

[lii] WW v. HW (2015) EWHC 1844

[liii] See section 1 of the Married Women’s Property Act 1882 which provided that a woman married on or after 1^st January, 1883 could dispose by will of all her property whether real or personal as if she were a feme sole.

[liv] Kludze A.K.P.: “Modern Law of Succession in Ghana” (2015 Edition) at p. 28 & 29.

[lv] See section 18 of the Wills Act, 1837.

[lvi] See section 177 of the English Law of Property Act, 1925.

[lvii] See section 38 of the Matrimonial Causes Act, 1971 (Act 367) which provides: “A gift or an appointment in favour of a spouse in a will of the other spouse shall be invalidated if the marriage has been terminated under this Act by divorce or annulment unless the will contains an express provision to the contrary”.

[lviii] See page 68 of his book, Modern Law of Succession in Ghana (2015) supra.

[lix] Arthur v. Arthur (2013) 1 SCGLR 543.

[lx] Fynn v. Fynn (2013-2014) 1 SCGLR 727.

[lxi] Arthur v. Arthur (supra).

[lxii] Achiampong v. Achiampong (1982-83) 2 GLR 1010, C.A.

[lxiii] Nova Scotia Matrimonial Property Act, SNS 1980, c 9, as amended in 1995-96.

[lxiv] See also: Yaw D. Oppong: “Contemporary Trends in the Law of Immovable Property in Ghana” at pp. 466 & 467.

[lxv] Wilson v. Wilson (1963) 1 WLR 601 at 602, C.A.

[lxvi] Pettit v. Pettit (1970) A.C. 777, H.L.

[lxvii] See page 1021 of Achiampong case supra.

[lxviii] See ‘Marriage Contract Prenups in Thailand’ www.thailandonline.com (Retrieved – 2017-07-05)

[lxix] Larson Aaron: “Mistakes to avoid in Prenuptial Agreements”.ExpertlLaw. Retrieved 27 August 2017.

[lxx] Fields Jonathan: “Forbidden Provisions in Prenuptial Agreements: Legal and Practical Considerations for the Matrimonial Lawyer” (Journal of the American Academy of Matrimonial Lawyers (2008)

[lxxi] Christopher Albert Fynn: Its Prenuptial Time: The Legality of Prenuptial Agreements to a Ghanaian mind”. (Published on January 25, 2017) Available on line.

[lxxii] See Wills Act, 1971 (Act 360)

[lxxiii] Adeniran Bukuumi: ‘Enforcing Prenuptial Agreements in Nigeria’ (September 6, 2019)

[lxxiv] IFEMEJE: “A Case of Global Enforceable Prenuptial Agreements”.