Property Rights of Spouses FAQs

Frequently Asked Questions About:

The Property Rights of Spouses Bill

Is the Property Rights of Spouses Bill law? No, the Bill is just that – a Bill. It is currently before Parliament, but it has not yet been passed into law. Top

What current challenges to ensuring the equitable sharing of property between spouses during and after marriage does the Bill seek to overcome? The Bill seeks to address current challenges to the fair distribution of property between spouses during and after marriage, including gender inequality, the devaluing of women's domestic labour, and the existence of many different customs and rules surrounding property distribution across the country. Top

Why is the Bill necessary? Passage of the Bill is necessary to ensure compliance with Article 22 of the Constitution of Ghana, which calls on Parliament to enact legislation ensuring equal access to joint property during marriage and the equitable distribution of jointly acquired property on the dissolution of marriage Top

Does the Property Rights of Spouses Bill favour one sex over the other? The Bill is gender neutral – i.e. it does not confine women or men to certain socially ascribed roles on the basis of sex, nor does it discriminate on the grounds of gender. Top

Does the Property Rights of Spouses Bill regulate how property is divided after one spouse's death? No, the Bill regulates the division of property upon the breakdown of marriage or cohabitation, not upon the death of one of the spouses. Top

So the Bill recognizes unmarried, cohabiting couples as spouses? Yes, men and women that meet the Bill's definition of cohabitation are considered "spouses" under the Bill, meaning that their property would be dealt with according to the provisions of the Bill. Top

What is the Bill's definition of 'cohabitation'? A man and woman who hold themselves out to the public as man and wife, and have cohabited for five years or more are considered spouses, provided that they: a) have the capacity to enter into a valid marriage; and b) are eighteen years of age or older. Top

What is the Bill's definition of 'spouse'? A spouse include cohabitees, as well as a man married to a woman or a woman to a man under the Marriages Act. Top

Does the Bill recognize customary marriages? How about Islamic marriages? There are three forms of marriage that are captured by the Bill:

marriage under the Marriage Ordinance
marriage under the Marriage of Mohammedans Ordinance (i.e. Islamic marriage)
customary marriage Top

Does the Property Rights of Spouses Bill apply to polygamous marriages? Yes, the Bill recognizes polygamous marriages, although it remains illegal for a person married under the Marriage Ordinance to enter into another marriage. Top

What is joint property? The Bill defines 'joint property' as including:

the matrimonial home and other immovable property;
household property;
any property other than separate property acquired during the marriage;
property which was separate property but which a spouse has made a contribution towards (except where this relates to the sale of family land); and
seed money provided by a spouse for the establishment of a business Top

What is the Bill's definition of 'matrimonial home'? According to the Bill, 'matrimonial home' includes:

the house or premises occupied by the spouse and the children of the marriage during the marriage;
any other self-acquired house or premises occupied by the spouses and the children during the marriage; and
premises rented for cohabitation where the cohabitees or spouses live or reside Top

What counts as a spouse's 'contribution' to joint property? One of the most important and novel aspects of the Bill is an increased legal recognition of the contributions of non-employed spouses (e.g. housewives). The Bill gives 'contribution' a very broad definition. For example, a contribution includes:

the payment of money for the acquisition of property;
the care of children, the elderly or the infirm, or a spouse's relative or dependant;
giving up a higher standard of living than would otherwise have been available;
one spouse giving another spouse material assistance or support which allows the other spouse to acquire a qualification or to carry on his or her occupation or business;
the performance of household duties;
the payment of money or rendering of services to maintain or increase the value of property; and
work on a spouse's farm or business. Top

What is separate property? Separate property includes property acquired before the marriage or property acquired by bequest, devise, or through inheritance or by gift from a person other than a spouse. Top

Can separate property also be joint property? No, joint property excludes separate property. It is possible, however, for property that was originally the separate property of one spouse to become joint property if the other spouse contributes towards the property. Top

Does the Bill allow each spouse to have equal access to joint property? Yes, unless the spouses have different title to the property, the Bill provides each spouse with equal rights to access, and equal ability to enter, joint property. Top

Why does it matter whether property is considered joint property as opposed to separate property? While joint property will be distributed equitably upon dissolution of marriage, separate property will generally remain the property of whichever spouse it belonged to during the marriage. In addition, unless a party can prove that property is separate property, the courts will assume that it is joint property. Given that the Bill creates a legal presumption that joint property should be split 50/50 upon dissolution, it is therefore very important to be able to prove that one's separate property is in fact separate property. Top

What does it mean when the Bill says that the court should "equitably distribute" joint property? Equitable distribution means sharing property among the parties using fair means. Equitable distribution does not necessarily mean each party gets an equal share. Top

How can one prove to the courts that certain property is separate property? In order to prevent one's separate property from being considered joint property, it is important, where possible, to keeping the separate property physically separate, obtain receipts when purchasing new property, and think carefully about whose name purchases will be made under. Top

Are gifts considered separate or joint property? Gifts from one spouse to another will be considered separate property and will not be distributed as joint property. Top

How does the Bill treat spouses' debts? One spouse's debts before marriage will not be regarded as a joint debt, nor will a debt incurred by one spouse during marriage unless the other is aware of the debt and consents to jointly taking it on. Top

What is divorce? Divorce is the legal dissolution of marriage. Divorce legally dissolves all three recognized forms of marriage in Ghana – i.e. customary marriages, Islamic marriages, and marriages under the Marriage Ordinance. Top

How does one get a divorce? Unlike the other two types of marriages, where parties are married under the Marriage Ordinance, the only way to get a divorce is from a court of law. If the spouses have been married under customary law, their divorce must accord with the relevant customs in order to be valid. In the case of Islamic marriage, a valid divorce must be in accordance with Islamic law and, in addition, must also be legally registered in accordance with the Marriages Act. Top

What is a marital agreement? Marital agreements typically set out who owns what separate property, and may also agree on a distribution of certain joint property if the marriage or cohabitation ceases. These agreements can be made in contemplation of marriage, while married, while cohabiting, or while separating. Top

What are the requirements of valid marital agreements? Valid marital agreements may be oral or in writing. In either case, in order for the agreement to be legally valid each party to the agreement must have one witness present at the time the agreement is entered into. Top

Can a court decide not to enforce the terms of a marital agreement? Yes, marital agreements can be set aside by the courts on grounds of fraud, duress, undue influence, or misrepresentation. Top

If the Bill becomes law, will this mean that every time married or cohabiting spouses break up their joint property will be divided 50/50? No. Although the Bill states that "the distribution of property shall generally be in equal shares," the court will always have the ability to order that joint property be distributed other than on a strictly equal, 50/50 basis. Top

What factors will the court consider when deciding how to most fairly divide the property? In deciding exactly how much each spouse is entitled to, the court will consider the length of the marriage, the spouses' respective contributions to the upkeep of property and the maintenance of the matrimonial home, the economic circumstances of each spouse, and any financial misconduct or wasting of assets that might have occurred. Top

In deciding how to distribute property, will the court consider the reasons for the breakdown of the marriage? Not necessarily. The Bill is intended to ensure the equitable distribution of property, not to assign blame for the dissolution of a relationship. Top

How would the Bill divide property in the case of polygamous marriages? The Bill's formula for distributing property in polygamous marriage provides that if the marriage to the first wife were to end, she would presumptively be entitled to half of the joint property up to the time of the husband's marriage to the second wife, one-third of the joint property acquired from that point until the husband married the third wife (with the other two-thirds belonging to the husband and the second wife in presumptively equal shares), and so on. Top

What if the Court awards occupation of a home to a spouse that is not on the lease? The Bill forbids a landlord from evicting a spouse to whom a court gives occupation of a home even if that spouse is not named in the original lease. Top

What is spousal maintenance? Spousal maintenance refers to monetary payments made by one spouse to another, either in a lump sum or in specified amounts at regular intervals, under a court issued maintenance order. According to the Bill, spousal maintenance is designed "to provide for the reasonable needs of the [receiving] spouse until death or re-marriage." Top

What factors will the courts look at in determining whether to award spousal maintenance? In deciding the amount, if any, of spousal maintenance to award, a court will look at a number of factors, including each party's financial situation, their future earning capacity and any lost earning capacity, the parties' respective contributions made during the marriage, the parties' ages, and the duration of the marriage. Top

How long do spousal maintenance payments last for? Maintenance payments stop on the death or re-marriage of the receiving spouse. Top

download Property Rights of Spouses Bill FAQs .pdf

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Frequently Asked Questions About:

The Property Rights of Spouses Bill

The Basics of the Bill

Definitions

Joint Property versus separate property

Gifts and Debts

Divorce

Marital agreements

Distribution of Joint Property

Maintenance

download Property Rights of Spouses Bill FAQs .pdf

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