This divorce case involved a couple that was married for 25 years. The petitioner-wife filed for divorce due to unreasonable behavior and adultery. She requested custody of their minor child, property rights as the court deemed fit, and that the respondent-husband vacate the marital home, pay a dissolution settlement, and cover court costs. The respondent, who was the family’s primary source of financial support, funded the construction of the parties’ marital home. Despite her inability to contribute financially, the wife oversaw construction of the home and took care of the couple’s children while the husband was away for years, both for work and in prison. The Supreme Court determined that, despite her failure to contribute financially to the parties’ acquisition of the marital home, the wife’s in-kind contributions to the family entitled her to a share of the marital home. Specifically, the court held that “principles of general fundamental human rights require that a person who is married to another and generally supervises 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.”
Ghana
Domestic Case Law
Quartson v Quartson Supreme Court (2012)
Odamtten and Others v. Wuta-Ofei Supreme Court (2018)
This case concerns the ability of women to pass on their life interest in an estate to their children under customary law. In this case, the deceased, the grandfather of the appellants, died intestate. According to the customary law of the Ga people of Osu, the deceased’s female descendants only have a life interest in the estate rather than ownership rights. The first respondent, having outlived his siblings, claimed the right as the head of the family to sell one piece of the estate’s property. The appellant, the daughter of the deceased’s daughter, sought to set aside the sale of said property by the first respondent on the grounds that she was not consulted before the sale, and additionally sought an order of perpetual injunction restraining the respondents from dealing with the property. The appellant contended that the Court of Appeal erred in holding that the customary law of Gas prevent a female child who inherits property from a deceased parent to pass on her interest to her children. However, the Supreme Court upheld the Court of Appeal’s decision, holding that the Court of Appeal stated the true position of customary law and practice of the devolution of property in Osu and other parts of Ghana, and that this customary property system is backed by judicial precedents on patrilineal forms of inheritance. The appellants’ argument that the Intestate Succession Law banned this patrilineal inheritance practice failed to take into account that it is not retroactive and thus does not apply to estates that have already been distributed. Thus, the sale of the property was deemed valid.
Arthur v. Arthur Supreme Court (2014)
This Supreme Court case is notable for solidifying the “Jurisprudence of Equality” doctrine as predominant in determining the sharing of marital property upon divorce. Following the termination of the marriage, the wife was granted by the High Court of Accra in May 2010 (i) custody of the children; (ii) ownership of a house and a “half share of the ‘storey building’; and (iii) a half share of ‘the shops at Weija, Accra. The husband appealed the decision to the Court of Appeal. The Court of Appeal set aside and replaced the orders of the High Court. The wife appealed that decision to the Supreme Court. The Supreme Court restored the decision of the trial judge in its entirety and noted that its decision was based on the marriage equality principle delineated in Article 16 (1) of the Universal Declaration of Human Rights 1948. The Court affirmed the principle that property acquired during marriage is a joint property and that the sharing of spousal property should no longer be dependent on the substantial contribution principle.
Mensah v. Mensah Supreme Court (1998)
This case concerns the sharing of spousal property upon divorce. On 22 December 1986, the High Court dissolved the marriage between the husband (“H”) and his wife (“W”) on a petition and cross-petition for divorce filed by H and W, respectively. Subsequently, the Court heard the parties’ claims for ancillary relief in which both H and W claimed ownership of the same house. The High Court found that W was the sole owner of the house. H appealed to the Court of Appeal, which concluded that the main house belonged to both H and W but since the extensions to the house were solely funded by W, W was the sole owner of the extensions. H appealed this decision to the Supreme Court. The Supreme Court found that H made some contribution to the extensions as well as to the household expenses and the clear intention of the parties in acquiring the extensions was to provide more space in the house for their joint benefit and that of their children. It was therefore held, dismissing the appeal, that the principle that property jointly acquired during marriage became joint property applied; and such property was to be shared equally on divorce.
Mensah v. Mensah Supreme Court (2012)
The petitioner filed for divorce and sought an equal share of assets acquired during the marriage. At the time of marriage, neither party owned any property. During their marriage, the plaintiff assisted in building their business and managed their shop while her husband continued to work for the Controller and Accountant General's Department. The plaintiff also advised the respondent on property investments. The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him, and therefore should not be considered an equal holder of marital assets. The trial court and the Court of Appeals ruled in favor of the petitioner, finding that she was a joint owner of the property and was therefore entitled to an equal share of the marital assets. The Supreme Court affirmed. Previous case law denied a wife a share in property acquired during the marriage unless the wife could show that she had made a "substantial contribution" to the acquirement of these assets. Yet, because more recent cases supported the "equality is equity" principle in the division of marital assets, the Supreme Court concluded that "the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under Article 22 (3) of the Constitution 1992." Thus, the court held that even if it determined that the petitioner did not make a substantial contribution to the acquisition of marital property, she would still be entitled to a share of the property. To further support its decision, the Supreme Court referenced Article 1 and Article 5 of CEDAW, in addition to the Universal Declaration of Human Rights, which emphasize equality between the sexes.
Re Caveat by Clara Sackitey: Re Marriage Ordinance High Court at Accra (1962)
This case concerns the criteria for what constitutes a valid customary marriage. In question was whether or not the respondent was precluded from marrying another as a result of the prior customary marriage alleged. The case arose after the complainant filed a caveat against the issue of a registrar’s certificate in respect to an alleged ordinance marriage between the respondent and another woman. The complainant claimed that she was married to the respondent under customary law at a ceremony held in March 1958 at which both her family and the respondent’s family were present and that was presided over by the head of the larger family to which both of the families belong; that the ceremony called “fiapun” in Adangbe was performed; and that the respondent’s family provided drinks and a customary fee for the marriage. Therefore, the complainant claimed that the respondent was precluded under Ordinance from marrying another. The respondent denied that the ceremony held in March 1958 constituted a lawful marriage under customary law and further maintained that whatever relationship subsisted between him and the complainant was determined by their subsequent separation. The Court confirmed that the essential pre-requisites laid out in Yaotey v Quaye. It also held that consent by the two parties’ families may be actual or constructive. The Court held that the unrefuted evidence presented by the complainant of the ceremony and cohabitation contained all the essential elements of a valid customary marriage. The Court also held that since the marriage is as much the families’ concern as it is the concern of the two individuals, the agreement of the parties to live apart does not affect their legal status, and the marriage will subsist until the marriage is dissolved by the family. The Court confirmed that a marriage under the Ordinance and a customary marriage was mutually exclusive, and the existence of one precluded the other. The complainant’s application for prohibition of the Registrar of Marriages from issuing the certificate was sustained, as she and the respondent were still married under customary law.
Mensah v. The Republic Court Martial Appeal Court (2009)
In 2008, Mr. Mensah married ABI Dosu Theresa when they were both members of the Ghana Armed Forces. Because Mr. Mensah was an officer and Theresa was a female of a different rank, the marriage violated the Armed Forces Act, which requires that for a male officer to marry a lower-ranked woman, the woman must first resign and obtain the “requisite prior approval for her release from the Ghana Armed Forces.” Mr. Mensah was thus dismissed from the Armed Forces. The Court upheld the dismissal, holding that the law was not discriminatory and was a justified means that the Armed Forces used to maintain discipline.
Amponsah v. Nyamaah Superior Court of Judicature (2009)
Mrs. Amponsah filed for divorce from her husband Mr. Nyamaah. She asked that a property the couple held be partitioned and that she receive her portion of its value. Mr. Nyamaah asserted that the house belonged to his father, who then granted the land to him. He argued that Mrs. Amponsah had no interest in the house, relying on a precedent which held that “a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. She only had a right to live in the matrimonial home as long as the marriage subsisted.” The court held that Mr. Nyamaah’s father was the owner of the house because the papers were in his name, and rejected the evidence that both parties paid water and electric bills as a rebuttal to the presumption. As such, the house was not subject to a partition by the court, because it “did not belong to the couple so it could not be settled on either of the parties.”
Esseku v. Inkoom Superior Court of Judicature (2012)
Ms. Esseku and Mr. Inkoom had been married for 30 years. The husband claimed to have divorced his wife in 1995 under Muslim tradition and custom. They had one property together, which Mr. Inkoom sold without consulting Ms. Esseku or their five children, all of whom he evicted off the property. The trial court held that the property was a joint property of both parties, and nullified the sale. Examining the evidence, the Superior Court affirmed the holding because Ms. Esseku had made a “substantial contribution” to the property by building an additional two bedrooms to the house. Furthermore, the Court held that even if she had not made a substantial contribution to the acquisition of the property, she still would have been entitled to an equal share of the property because of her valuable considerations made during the marriage, like “the performance of household chores” and the “maintenance of a congenial domestic environment for the respondent to operate and acquire properties.” As such, both parties were entitled to equal shares of the property, and Mr. Inkoom could not sell the house without consulting her first.
Legislation
The Customary Marriage and Divorce (Registration) (Amendment) Law (1991)
This amends the previous law to make the registration of customary marriages optional rather than mandatory. The law also makes optional notification to the state of the dissolution of customary marriages registered under the act. The amendment mandates that a marriage performed under customary law under the act will follow customary intestate succession law granting that the reviewing court or tribunal is satisfied by oral or documentary evidence that the deceased and surviving spouse had been validly married under customary law.
Human Trafficking Act (2005)
The Human Trafficking Act ("the Act") criminalizes the trafficking of persons within and across borders by the use of threat, fraud, and exploitation of vulnerability or by paying to gain consent. Under the Act, induced prostitution, all other forms of sexual exploitation, and slavery all constitute trafficking. The Act mandates that persons with information on trafficking have a duty to inform authorities. Authorities in this case include the police or the Commission of Human Rights and Administrative Justice, the Department of Social Welfare, the Legal Aid Board, or a reputable Civil Society Organization. The Act covers the rescue, rehabilitation, and reintegration of trafficked persons, as along with creating a fund for victims. Punishment for trafficking is imprisonment for not less than five years.
Intestate Succession Law (1985)
The Intestate Succession Act governs family inheritance when a property owner dies without a will. The law provides a uniform system of intestate succession applicable regardless of the type of marriage (i.e., secular, customary, or Muslim). The estate is distributed through the various sections according to the number and type of heirs involved in the distribution. Section 5, for example, sets guidelines for how to divide an estate survived by both spouse and child, while section 6 dictates how to divide an estate when survived by a spouse only.
Domestic Violence Act (2007)
The Domestic Violence Act (the “DVA”) defines and prohibits domestic violence. Here, domestic violence means any act under the Criminal Code 1960 (Act 29) that constitutes a threat or harm to a person within the context of a domestic relationship. This includes specific acts, threats to commit, or acts likely to result in physical, sexual, or economic abuse. Emotional, verbal, or psychological abuse, including harassment, also fall within the definition of domestic violence. After a complaint has been brought, the police have a duty to provide assistance and protection to the victim of domestic violence even though the victim did not file the complaint. Thus, the police will interview the parties and witnesses, record the complaint, help the victim to obtain medical treatment and inform the victim of his or her rights. The victim can then seek a protection order in the court with original jurisdiction.
Labour Act (2003)
The Labour Act outlines workers’ rights in the public and private sectors. Part VI provides specific safeguards for women, such as the protection of pregnant women and the right to maternity, annual, and sick leave. Any violation of these provisions can be reported to the National Labour Commission. Section 55 prohibits employers from assigning pregnant women workers night work or overtime without their consent. Further, after the fourth month of pregnancy, employers cannot assign pregnant women to work outside her place of residence if the assignment is deemed detrimental to her health by a medical practitioner or midwife. Female workers are entitled to a period of maternity leave of at least 12 weeks in addition to any period of annual leave she is entitled after her period of confinement. Moreover, while on maternity leave a worker is entitled to full remuneration and benefits and cannot be dismissed for absence. The Act also specifies that every worker shall receive equal pay for equal work without distinction of any kind. Finally, section 87 prohibits an organization’s or trade union’s constitution or rules from discriminating against any person on grounds of race, place of origin, political opinion, color, religion, creed, gender, or disability.
Matrimonial Causes Act (1971)
This Act relates to divorce, nullity of marriages, and child custody. According to Section 1, a petition for divorce will only be granted if the “marriage has broken down beyond reconciliation,” which includes adultery, unreasonable behavior, desertion, and unreconcilable differences. The petition may be filed by either party. Part 2 discusses other matrimonial issues, such as nullity of marriage, presumption of death, and neglect. Finally, Part 3 outlines the Court’s power to split property between the parties and decide child custody. To that end, the Court can issue restraining orders to prevent one party from leaving the jurisdiction or removing a child of the household from the jurisdiction.
Children's Act (1998)
This Act consolidates the laws relating to children. It provides an overview of children’s rights, delineates the broad requirements concerning child maintenance and adoption, regulates child labor and apprenticeship, and discusses other ancillary matters concerning children generally. Part 1, Sub-Part 1 specifies several children’s rights and parental duties such as the right to parental property, education and well-being, social activity, and opinion. This Sub-Part also protects children from exploitative labor, torture, degrading treatment, and forced betrothal, dowry, or marriage. The penalty for any violation of these rights is imprisonment not to exceed one year or the payment of a fine not to exceed 5 million currency points or both. Section 14 of this Sub-Part sets the minimum age for any marriage at 18. Part IV of the Act then outlines the adoption process and gives jurisdiction to the High Court, Circuit Court, or Family Tribunal in the area where the adopter or adoptee resides at the time of the application. It further states that only a minor (a child under the age of 18) can be adopted by husband and wife jointly; father or mother alone or jointly with the spouse; a relative of 21 years; or a single person of 25 years and at least 21 years older than the child to be adopted. Finally, Part V of the Act delimitates the employment of children and prohibits any type of work before 13 years old.
Constitution of the Republic of Ghana (Amendment Act 1996) (1996)
Article 15 of the Constitution of the Republic of Ghana relates to respect for human dignity and prohibits torture or cruel and inhuman punishment. Article 16 prohibits involuntary servitude or slavery. Article 17 relates to equality and non-discrimination and establishes that every person in Ghana is equal before the law. To this end, Article 17 specifically prohibits discrimination on the grounds of gender, race, color, ethnic origin, religion, creed, or social or economic status. Article 18 pertains to property rights and states that every person has the right to own property either alone or in association with others. Article 22 builds upon Article 18 and establishes that a spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died with a will. Article 22 states that Parliament shall enact legislation regulating the property rights of spouses as soon as possible after the Constitution came in to force. Article 22 clarifies that spouses shall have equal access to property jointly acquired during marriage and that assets that are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. Article 24 of the Ghanaian Constitution concerns economic rights and establishes pay parity as a constitutionally enshrined principle. It states that every person has the right to work under satisfactory, safe, and healthy conditions and shall receive equal pay for equal work without distinction of any kind. Article 26 concerns cultural rights and practices and states that (a) every person is entitled to enjoy, practise, profess, maintain, and promote any culture, language, tradition, or religion subject to the provisions of the Constitution; but also that (b) all customary practices that dehumanise or injure the physical and mental well-being of a person are prohibited. Article 27 refers specifically to women’s rights. It states that special care shall be accorded to mothers during a reasonable period before and after childbirth; and during these periods, working mothers shall be entitled to paid leave; that facilities shall be provided for the care of children below school-going age to enable women, who traditionally care for children, to realise their full potential; and that women shall be guaranteed equal rights to training and promotion without impediments. Article 36(6) refers specifically to the economic obligations of the state, which include ensuring that the State afford equality of economic opportunity to all citizens. Article 36(6) emphasizes that the State must take all necessary steps to ensure the full integration of women as equal partners in Ghana’s economic development.
Ghana Criminal Code Part II, Chapter 3 (Female Circumcision) (2003 Amendment Act (FGM)) (2003)
The Criminal Code (Amendment) Act introduced Section 69A, which prohibits female genital mutilation. In 2007, Parliament amended 69A, and expanded the definition of liability to include anyone who “carries out female genital mutilation and excises, infibulates or otherwise mutilates the whole or any part of the labia minora, labia majora and the clitoris of another person” and specified that liability on summary conviction mandated imprisonment for a minimum of five years and a maximum of 10 years.
Ghana Criminal Code Part II, Chapter 6 (Offences Against the Person: Marriage-related Offences) (1960)
Within Chapter 6, certain prohibitions related to marriage and clarifications related to the rights of children are outlined in the Criminal Code. If a woman is forced to marry under duress the marriage is voidable under Section 100. Likewise, compulsion of marriage is criminalized in Section 109. It states that a person who causes another to marry against his or her will shall be guilty of a misdemeanor. Section 110 pertains to the custody of children. It states that if a parent or guardian is guilty under Section 108, which outlines causing or encouraging child seduction or prostitution, the Court may divest that person of authority over the child and appoint someone willing to take care of the child until he or she is twenty-one years of age or an age directed by the Court. The Court may also rescind or vary the appointment or order. Section 111 outlines the power of the Court to issue a warrant to search for a child detained for an "Immoral Purpose."
Ghana Criminal Code Part II, Chapter 6 (Offences Against the Person: Sexual Offences) (1960)
Chapter 6 of the Criminal Code outlines various sexual offenses criminalized in Ghana. Rape is criminalized in Sections 97 and 98 and is defined as the "carnal knowledge of a female of sixteen years or above without her consent." Rape is classified as a first-degree felony, and a person convicted of rape shall be imprisoned for a minimum of five years and a maximum of 25 years. Section 99 clarifies that "carnal knowledge or unnatural carnal knowledge" is complete upon proof of the least degree of penetration. Statutory rape is outlined in Section 101. It states that a person convicted of having sexual intercourse with a child under 16 years of age, with or without his or her consent, shall be imprisoned for a minimum of seven years and a maximum of 25 years. Similar punishment is outlined in Section 1012 for the defilement of anyone who is considered an "idiot, imbecile or mental patient." It states that a person who has sexual intercourse with a person they know has a mental incapacity commits an offense and shall be imprisoned for a minimum of five years and a maximum of 25 years. Indecent assault is outlined in Section 103. It states that a person commits indecent assault if he or she, without consent, forcibly makes any sexual bodily contact, or sexually violates another person, in any manner not amounting to “carnal knowledge or unnatural carnal knowledge.” Indecent assault is a misdemeanor and carries a minimum of six months imprisonment. “Unnatural carnal knowledge” is outlined in Section 104, which states that a person convicted for having ‘unnatural carnal knowledge’ may face different penalties depending on what act he or she commits. "Unnatural carnal knowledge" is defined as sexual intercourse with a person in an unnatural manner or with an animal. Section 104 has been interpreted as prohibiting homosexuality.
Ghana Criminal Code Chapter 2, Section 14 (Provisions relating to consent) (1960)
Section 14 of Chapter 2 of the Ghanaian Criminal Code provides the definition of consent. It states that consent is void if the person giving it is under years.12 of age, or in sexual offences under 16 years of age Consent is void if the person is insane, immature, intoxicated, or is as a result of any other cause unable to understand the nature or consequences of the act to which he consents. Consent is void if obtained (i) under duress or by means of deceit; (ii) by undue influence; or (iii) given on behalf of a parent or guardian in bad faith or (iv) by reason of a fundamental mistake of fact or (v) if actual authority to consent is not present. Consent is considered to have been obtained by the preceding causes if consent would not have otherwise been given but for those causes. A person should not be prejudiced by the invalidity of any consent if he did not know and could not have known of the invalidity by exercise of reasonable diligence.