20 May Peter Adjei V Magaret Adjei(Civil Appeal No: J4/06/2021) Judgment of the Supreme Court dated 21st April, 2021
“Property acquired by spouses during marriage is presumed to be marital property. Upon dissolution of the marriage, the property will be shared in accordance with the “equality is equity” principle except where the spouse who acquired the property can adduce evidence to rebut the presumption”.
After a divorce trial at the High Court between Mr. Adjei (the husband) and Mrs. Adjei (the wife), the judge granted the order for divorce but dismissed the husband’s petition for custody of the children. Custody was granted to the wife with the husband having limited rights of access to them.
The trial judge held that the four flats, which were the subject of dispute were acquired by the husband during the marriage and at a time when the wife was “nurturing the family unit by cooking meals, cleaning, doing laundry and all the associated chores that the stay-at-home partner in a marriage is expected to do without remuneration. Upon this finding, the trial judge ordered that the wife be entitled to one of the flats as the matrimonial home.
Furthermore, the trial judge ordered the husband to pay the sum of five hundred thousand Ghana cedis (GHC500,000.00) to the wife as alimony and one thousand, five hundred Ghana cedis (GHC1,500.00) as monthly maintenance for the two children in the wife’s custody. The trial judge awarded GHC500,000.00 instead of the 400,000.00 the wife asked for; an additional GHC100,000.00 to complete the uncompleted matrimonial house she had been granted.
Upon the husband’s appeal, the Court of Appeal reversed the decision of the trial judge on the issue of the matrimonial home, stating that the property was not jointly acquired by the couple and did not qualify to be devolved on the “equality is equity” principle.
The wife appealed against the Court of Appeal’s reversal. She maintained that her husband constructed the flats during the subsistence of their twelve (12) year marriage, and therefore she was entitled to an equal share notwithstanding the fact that the Petitioner acquired the plot of land on which they were constructed long before their marriage.
The husband contended that he single-handedly took a loan from the Bank to develop the four units of flats. He stated that he had not yet fully acquired the four units of flats at the time of the dissolution of their marriage, since the loan had not been fully repaid.
The Supreme Court per Appau JSC reiterated that jointly acquired property or property jointly owned during the marriage (irrespective of the type of marriage) must be shared upon divorce, based on the principle of “equality is equity”.
Having said that, it was worthy of note that not every property acquired single-handedly by any of the spouses during the marriage can be categorized as “jointly acquired property” to be distributed at all cost. The caveat was that the property had to be shown by way of evidence presented, to have been jointly acquired. Thus, where a spouse is able to present evidence to the contrary, the presumption theory of joint acquisition will collapse.
In this instance, Mr. Adjei had taken out an individual loan to develop his self-acquired plot during the marriage, and the loan was still outstanding at the time of the divorce; the property stood the risk of being lost upon the failure to liquidate the full loan. Consequently, the property could not be said to have been jointly acquired matrimonial property until it can be demonstrated that the loan had been fully paid off during the marriage.
The wife was unable to establish that, at the time the marriage was dissolved in 2014 the parties had jointly acquired any property to be distributed between them. The court agreed with the decision of the Court of Appeal. thereby confirming the existence of exceptions to the “equality is equity” principle, envisaged by the Supreme Court in the case of Arthur V Arthur[1].
Insight:
Property single-handedly acquired by a spouse under a loan, can only qualify as jointly acquired marital property after such a loan has been fully liquidated during the course of the marriage.
An award of alimony by a lower court cannot be interfered with by the Supreme Court, unless there is evidence of miscarriage of justice. The Matrimonial Causes Act, 1971 (Act 367) does not mandate the court to offer a basis for an award.
[1] Arthur (No. 1) V Arthur (No. 1) [2013-2014] SCGLR 543