DIVORCE IN GHANA: WHAT HAPPENS TO YOUR PROPERTY, MONEY AND CHILDREN?

Getting a divorce may be the beginning of a long legal battle. Once the decision to end the marriage has been made, some important questions arise. What happens to the family home? Can a spouse claim part of a business? Does the wife automatically get half of the husband’s property? What happens to the children? Can one spouse sell the property before the divorce is completed? These questions can sometimes be more difficult than the divorce itself. Under Ghanaian law, the rights of spouses upon divorce are governed principally by the Matrimonial Causes Act, 1971 (Act 367), the 1992 Constitution, and decisions of the Ghanaian courts.

Does a Wife Automatically Get Half of Her Husband’s Property?

NO.

This is one of the biggest misconceptions about divorce in Ghana. There is no automatic rule that says, once the marriage ends, the wife gets 50% of everything the husband owns. There is also no rule that says, “The property belongs entirely to whoever’s name appears on the documents.” The court considers the circumstances of the marriage and the property before deciding what is just and equitable.

Article 22(3) of the 1992 Constitution provides for equal access to property jointly acquired during marriage and equitable distribution upon dissolution of the marriage.

Section 20 of Act 367 also gives the court power to order the payment of money or the transfer of property from one spouse to the other where appropriate.

What If the Property Is Only in One Spouse’s Name?

A name on a title document does not necessarily matter. For example, imagine a husband buys a house during a 15-year marriage and registers it solely in his name. His wife did not contribute directly to the purchase price, but she;

• raised their children;
• managed the household;
• supported the husband’s career; and
• contributed to the family’s expenses.

It would be too simple to say, “The husband paid for the house, so the wife gets nothing.”

The court may consider the circumstances in which the property was acquired and the contributions made by both spouses. This principle has been recognised in Ghanaian matrimonial property cases, including Mensah v Mensah [1998-99] SCGLR 350.

Does a Stay-at-Home Spouse Have Any Contribution?

YES, potentially.

One of the important developments in Ghanaian matrimonial property law is the recognition that contribution to a marriage is not necessarily limited to money. A spouse who stays at home may contribute through;

• caring for the children;
• managing the household;
• supporting the other spouse’s work;
• running a family business;
• providing domestic services; and
• making other contributions that allow the family to build wealth.

This does not mean that every stay-at-home spouse automatically receives half of the other spouse’s property. Rather, it means that the court should not look only at who wrote the cheque because marriage involves different forms of contribution.

What About Property Acquired Before the Marriage?

This is an important question that people often overlook. Not every asset owned by a spouse automatically becomes jointly owned simply because the parties got married. The circumstances surrounding the acquisition and ownership of the particular property matter.

Therefore, if a husband owned a house before the marriage, or a wife had already established a business before getting married, the legal position may differ from property acquired or developed during the marriage. The court will consider the particular facts rather than applying one automatic rule to every asset.

Can a Spouse Claim an Interest in a Business?

YES, depending on the circumstances.

Matrimonial property is not limited to houses and land. A marriage may involve:

• businesses;
• companies;
• shares;
• investments;
• bank accounts;
• vehicles;
• land;
• houses; and
• other valuable assets.

Suppose a husband establishes a business during a 15-year marriage while his wife manages the home and assists with the business. The fact that the business is registered in the husband’s name does not necessarily mean the inquiry ends there.

The court may examine how the business and its assets were acquired and developed and the contributions made during the marriage. This is why a spouse considering divorce should identify the family’s significant assets and liabilities.

What If One Spouse Tries to Sell Everything?

Imagine that a husband knows his wife is about to commence divorce proceedings. He begins transferring land to relatives, selling vehicles and moving money from accounts. Can he simply do this to prevent his wife from making a claim?

A spouse who is concerned that matrimonial assets are being sold, transferred or hidden should inform their lawyer immediately. The court has powers under Act 367 to make appropriate orders where necessary to protect the parties’ interests and give effect to matrimonial orders. Do not wait until the property has disappeared before seeking legal assistance.

Can One Spouse Be Ordered to Transfer Property to the Other?

YES.

Where the court determines that a spouse is entitled to property or an interest in property, Act 367 gives the court power to make appropriate orders for the transfer or conveyance of that interest.

This is important because a spouse cannot necessarily defeat a court order simply by refusing to sign the transfer documents. The law provides mechanisms for giving effect to the court’s decision.

Can a Husband Claim Financial Support from His Wife?

YES, in an appropriate case.

Financial provision is not automatically a right belonging only to the wife. Section 19 of Act 367 allows the court, where it considers it just and equitable, to make orders for maintenance or other financial provision. Therefore, a financially dependent husband may, depending on the circumstances, seek financial support from his wife.

The same principle applies to a financially dependent wife. The court considers the circumstances of the parties before deciding whether an order should be made.

What About the Children?

Divorce does not end the responsibilities of parenthood. Even after the marriage is dissolved, parents may continue to have financial and other responsibilities towards their children.

The court may make orders concerning custody, access, education, healthcare and maintenance. Most importantly, the welfare and interests of the child remain central. A parent should therefore not assume, “I have custody, so the other parent has no rights” nor should a parent say, “I don’t have custody, so I don’t have to support the child.” Custody and financial responsibility are separate issues.

What If Both Spouses Agree on How to Divide Everything?

Divorce does not always have to become a prolonged battle over every asset.

Spouses may reach an agreement concerning

• property;
• maintenance;
• custody;
• access;
• school fees;
• medical expenses;
• debts; and
• other financial arrangements.

Where the agreement is legally proper and adopted by the court where necessary, it can help bring the dispute to an end. But there is an important warning, do not sign a full and final settlement simply because you want the divorce to be over. Understand exactly what property, money or rights you are giving up before signing.

What About Debts?

Divorce is not only about assets. There may also be:

• mortgages;
• personal loans;
• business debts;
• credit obligations; or
• other financial liabilities.

These should be disclosed and considered when the parties’ financial affairs are being dealt with. A proper financial picture should therefore include both assets and liabilities.

What Should You Do Before the Divorce Is Finalised?

If you are going through a divorce, do not focus only on obtaining the decree. Make a proper list of;

• Property — houses, land, vehicles and other assets.
• Money — bank accounts, investments and savings.
• Businesses — companies, shares and business interests.
• Debts — loans, mortgages and other liabilities.
• Children — custody, access, education, healthcare and maintenance.
• Financial support — whether either spouse may require maintenance.
• Important documents — title documents, company records, bank records and other evidence relating to assets.

This information can make a significant difference when negotiating or litigating the financial consequences of divorce.

The Bigger Picture

The end of a marriage is not simply about obtaining a divorce certificate. For many couples, the real dispute begins with, “What happens to everything we built during themarriage?” The answer is not always, “Everything goes to the husband”and it is not always, “Everything is divided 50/50”. It is also not always, “Everything belongs to the person whose name is on the document.” The court looks at the law and the circumstances of the marriage to determine what is fair, just and equitable.

Conclusion

Divorce can affect much more than the marital relationship. It can affect the family home, businesses, investments, financial support and the care and maintenance of children. Ghanaian law recognises that spouses may make different kinds of contributions to a marriage, including contributions that are not directly financial.

The important lesson is therefore simple. Do not assume that you have no rights simply because your name is not on the property. At the same time, do not assume that marriage automatically gives you half of everything your spouse owns. The rights of each spouse must be considered considering the Constitution, the Matrimonial Causes Act, the nature of the property, the contributions made and the circumstances of the marriage.