Dear Mirror Lawyer,
I have heard that a wife, under customary law, cannot own property she jointly developed with her husband.
The property, I am told, remains the man’s property because it is part of the wifely duties of the woman to assist the man. My question is can a husband gift such a property to his wife.
Kwesi Keli, Kete-Krachie
Dear Keli, The right of wives to own property they jointly acquired with their husbands has been a controversial issue in our law for decades.
The controversy started with the principle propounded by Ollennu J (as he then was) in the case of QUARTEY v MARTEY [1959] GLR in which the wife sued the relatives of her husband for denying her the right to own her late husband’s properties, although she had assisted him financially during his lifetime and had given active assistance to him in all jobs he did.
Hence, properties mentioned in the writ of summons were acquired by him with moneys which he had made from the jobs in which she had rendered assistance to him, and, therefore, she was entitled to a share of the proceeds from his work or to a share of the properties he acquired.
Ollennu J held that by customary law, it is the duty of a man’s wife and children to assist him in carrying out the duties of his station in life.
The proceeds from that joint effort and any property which the man acquired with such proceeds are, by customary law, the individual property of the man, not the joint property of the two of them.
This proposition was followed in the case of ADOM V KWARLEY [1962] GLR. Robert Owusu Adom, deceased, was a mason.
He built a house at Kaneshie, Accra, with the active involvement of his wife, Dodua, who sold the produce of their vegetable farm to raise the necessary funds, and his son, the first plaintiff herein, an apprentice mason.
By his will, Robert devised the house to his sister, the defendant herein.
The plaintiffs, all children of Robert, sued that the property belonged jointly to the father, the wife and the children, and Robert could not deal with it without their consent.
Ollennu J again held that by customary law, a child is entitled to his upkeep, i.e. maintenance and training, from his father, and he is under a duty to assist the father in his trade or business.
But that assistance does not entitle the child to any beneficial interest in any property which the father may acquire with the earnings from the said trade.
Similarly, a wife who assists her husband in his trade does not become a joint owner of what the husband earns or of any property he acquires with his earnings.
Thus, although the wife helped to raise the money for the building, the house nevertheless belonged to Robert exclusively.
This view expressed by Ollennu J sparked controversy in the Judiciary, with some Judges either refusing to follow Ollennu or clarifying the principle to ensure fairness.
By 1992, when the Fourth Republican Constitution came into force, Ollennu’s proposition of the customary law had been debunked and it became a thing of the past.
Thus, in the Supreme Court case of BOAFO v BOAFO [2005-2006] SCGLR, Date-Bah JSC decried the law as propounded by Ollennu J in Quartey v Martey and after reviewing the 1992 Constitution, which provides for equality in the distribution of properties acquired jointly during marriage, concluded that for certain sections of the Ghanaian society, however, the Quartey v Martey approach to the distribution of the material fruits of a matrimonial joint enterprise could be regarded as outmoded in the light of the 1992 Constitution.
The bold approach by Date-Bah in the Boafo v Boafo case energised the Supreme Court in 2012 to give the coup de grace in the cases of Gladys Mensah v Stephen Mensah SC February 22, 2012 and Quartson v Quartson. In Mensah v Mensah, Dotse JSC, delivering the unanimous opinion of the court, stated the law as follows: “This court is of the view that the time is ripe for improvements to be made to the far-reaching decisions in the cases just referred to”.
“We believe that common sense and principles of general fundamental human rights require that a person who is married to another and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs, as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved”.
“This is so because it can safely be argued that the acquisition of the properties were facilitated by the massive assistance that the other spouse derived from the other”.
“In such circumstances, it will not only be inequitable but also unconstitutional as we have just discussed to state that because of the principle of substantial contribution which had been the principle used to determine the distribution of marital property upon dissolution of marriage in the earlier cases decided by the law courts, then the spouse will be denied any share in marital property when it is ascertained that he or she did not make any substantial contributions thereof”.
“Using this principle as a guide, we are of the view that it is unconstitutional for the courts in Ghana to discriminate against women in particular whenever issues pertaining the distribution of property acquired during marriage come up during divorce. There should, in all appropriate cases, be sharing of property on equality basis.”
One can then safely conclude that the viewpoint that wives are not entitled, under customary law, to a share of properties jointly acquired with their husbands does no longer represent the current law of Ghana.
Even if the property is solely owned by the husband, the law permits him to gift it to anyone, including his customary wife, once all the ingredients of a valid gift of landed property has been complied with.
Thus in the case of ANAMAN VS EYEDUA [1978] GLR, a wife sued that certain farms of her deceased husband was gifted to her by her husband during his lifetime.
The court held that it was a valid gift and that the customary wife should benefit from it.
The court further held that by paying the husband’s debt to the local council, which fulfilled the objective which the giving of ‘aseda’ was meant to fulfil, namely, expression of gratitude and the symbolic acceptance of the gift and entering into possession of the farm and enjoying the fruits for three years before her husband’s death, she has satisfied the requirement for accepting a customary gift.