By Edzorna Francis Mensah
The Ministry of Parliamentary Affairs has engaged the core leadership of Parliament to revitalise the Property Rights of Spouses Bill, Ghana, and the need to pass the bill into Act in order to protect spouses.
It was envisaged that the engagement will help unravel challenges hampering the passage of the bill as well as provoke public discussions on the provisions and, to a large extent, revitalise the Constitutional obligation imposed by Article 22(2) and the Maputo Protocol through facilitation of the passage of the bill.
The objectives of the engagement would result in the realisation of the following objectives: Stimulate discussions among stakeholders on the bill, Identify and consolidate the perspectives of Parliament on the challenges hampering the passage of the bill and strengthen institutional collaborations for its passage.
In order to address the uncertainties attributed to spousal property rights, the Property Rights of Spouses Bill, 2009, was introduced in Parliament by the Ministry of Justice. However, Parliament was unable to pass the Bill as envisaged, and in that regard, the Ministry through its latest engagement, was seeking to revitalise the passage of the Bill by engaging the core leadership of Parliament and key state institutions.
The objective of the Bill was to address the plethora of issues divorcees and those in widowhood, especially women, faced when it came to the sharing or distribution of property.
Research suggests that the Bill contained many useful provisions, such as who qualifies as a ‘spouse’, the concept of cohabitation, the introduction of marital property agreements (also known as prenuptial agreements in some jurisdictions), and the need for a spouse to obtain the other’s consent before entering into any transaction that relates to a joint property of the spouses. Furthermore, under the bill, spouses were to have equal access to jointly acquired property, and there was provision for the equitable distribution of property upon divorce.
In 2007, Ghana ratified the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (the Maputo Protocol). Article 7 of the protocol called for the enactment of legislation by state parties to the protocol to ensure that women enjoy the same rights in the event of separation, divorce, or annulment of marriage in the same manner as men. It also demands that member states ensure an equitable distribution of properties jointly acquired during the subsistence of the marriage.
Also, Article 22(2) of the 1992 Constitution enjoins Parliament to enact legislation regulating the property rights of spouses. In order to implement the provisions of Article 7 of the Maputo Protocol and Article 22 (2), the Property Rights of Spouses Bill was first introduced in Parliament in 2009 and later in 2013.
Spousal property rights may vary among states based on the provisions of legal frameworks that govern the nature and type of entitlements of spouses. Irrespective of the differences, the underlying factor of spousal property rights is that they promote equality in the distribution of wealth and properties among spouses.
The concept note for the engagement mentioned the fact that the introduction of the Spousal Rights Bill (2009) in Parliament sought to address the plethora of issues divorcees and those in widowhood, especially women, faced when it came to the sharing or distribution of property.
It is said Parliament, acting in accordance with its constitutional mandate was engaged by the MoPA to revisit the need to pass the Bill. The engagement would stimulate discussions on the Bill and unravel the imminent challenges to support the legislative function of Parliament.
“It is the expectation of Ghanaians that Parliament would fulfil its constitutional duty by drawing from judicial pronouncements on the matter of distribution of spousal property and current societal norms and ethos to ensure equitable distribution of wealth in such situations”.
Spousal Property Rights has consistently dominated many judicial arbitrations globally. According to the US Spousal Right Law, a Spousal right refers to the entitlement of one spouse to inherit property from the other spouse. Similarly, the UK’s Law on property, the Property Act, 1992; also enables a husband and wife to inherit each other’s property, and also grants them equal rights to inherit the property of intestate children. Thus, the rights of spouses as provided for in the Laws of US and UK; allow spouses to inherit property even if the estate had been acquired by either spouse or jointly. Conversely, the Law on Matrimonial Property of Uganda provides that a spouse is entitled to have an equal share in the matrimonial home, property owned jointly, and property acquired during the subsistence of marriage which the parties jointly contributed.
In Ghana, Article 22 of the 1992 Constitution provides that when a person dies, his spouse (wife or husband) will be given a reasonable part of the dead spouse’s estate, whether the dead spouse left a will or not. Additionally, spouses have equal right to enjoy any property that they jointly acquire during their marriage. The laws of Ghana and Uganda, respectively, allow spouses to have an equal share of properties only if they have been jointly acquired, as opposed to what pertains in the US and UK.
Prior to the 1992 Constitution, the distribution of property between spouses upon divorce or in the case of death had been determined largely by customary law or the Matrimonial Causes Act,1971 (Act 367). The courts, therefore, gave judgments that varied in scope and content, depending upon the nature of marriage a person contracted. Similarly, issues concerning the inheritance of property by spouses upon the death of either spouse were resolved according to the customary law of the parties or the nature of the marriage they contracted. This state of affairs created an atmosphere of uncertainty as there was no specific legislation dealing with the property rights of spouses either upon divorce or upon death.