Marriage Agreements: The Prolematique of Cohabitation, Monogamy and Polygamy
The sections outline who can enter into this kind of agreement; what should be included; the form of the agreement; advice before entering into the agreement; power of enquiry by a court and grounds for setting aside the agreement.
Marital Property Agreement covers two kinds of agreements - pre-marriage/pre-nuptial as well as in-marriage agreements. First, Pre-marital or prenuptial agreements are simply contractual agreements between two persons who intend marrying that provides for how property will be distributed when there is divorce. Such an agreement takes effect upon marriage. While some argue that a prenuptial agreement is destabilizing to the marital relationship and encourages marital breakup; others are of the view that existence of such an agreement might actually promote the continuation of marriage. When parties know exactly what they will take away at divorce, it enables them to enjoy the relationship. Proponents of the former view need to acknowledge that divorce is a commonplace fact of life. Statutory and customary laws permit married persons to obtain divorces. It might be prudent to wait to see whether in implementing the law, there will be evidence to support the fact that prenuptial agreements actually encourage or incite divorce. Second in-marriage agreements are those that relate terms and conditions associated with property that married partners acquire during the marriage.
Further, the Ghana Bill provides for two scenarios within which a marital agreement can be entered into. In the first scenario, two persons who are contemplating cohabitation can enter into an agreement. Again, two persons who are currently cohabiting can have this agreement. Meaning people do not need to be married to decide on how property will be distributed when there is dissolution of that union. In the second scenario, two persons who intend to marry under any of the three legal forms of marriage; as well as those who are married can make such an agreement.
A number of implications derive from these two scenarios. Generally prenuptial agreements are between two persons who intend to marry. Therefore where the Bill allows this to apply to couples who do not intend to or will never be married is interesting. Does it mean that Ghanaian society now acknowledges that not all persons need to be married; and that marriage after all does not have a high premium? Since under customary law ‘mpena aware’ or cohabitation is not recognised, is this provision not promoting an illegality? What about the family values that are so embedded in our society; are we debasing the importance and value that we place on marriages as the foundation of society? Far from that! The drafters of the Bill recognize the challenges that confront persons in cohabitation who have their own property and also jointly acquire property with their partners. It is acknowledged that because some laws make reference to ‘spouse’ it cuts out several people who are in relationships that are not formalised under any of the three marriages. Whether at dissolution of the union or at death, persons in cohabitation are not protected by the Matrimonial Causes Act or the Intestate Succession Law. Partners in cohabitation often leave the relationship with no or little property even if they had contributed to the acquisition of the property. At death of a cohabiting partner, the other is not entitled to the property. When a person writes a Will in which a cohabiting partner is a beneficiary, no problems arise. The Property Rights of Spouses Bill seeks to provide protection for persons in non-formalised unions. The Bill therefore initially recognises cohabitation where, based on certain conditions, the parties are entitled to all rights that married persons have.