Prior to the 1992 Constitution, distribution of property between spouses upon divorce had been determined largely by customary law or the Matrimonial Causes Act. 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 air of uncertainty as there was no specific legislation dealing with the property rights of spouses either upon divorce or upon death. Therefore, there was a need for legislation to be made to address the plethora of issues divorcees and those in widowhood, especially the women, faced when it came to the sharing or distribution of property.
All hail the 1992 Constitution.
Many were those who sighed with relief when the 1992 Constitution came into effect as the supreme law of Ghana on 7th January, 1993. Article 22 of the 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 are to have equal right to enjoy any property that they jointly acquire during their marriage. In the event of divorce, the couple are to share any property they acquired together equitably.
The role of Parliament in realizing the benefits of Article 22.
The Constitution specifically mandated Parliament to pass a law to regulate the property rights of spouses as soon as practicable after the Constitution became operational. Now, whether by design or by destiny, ‘as soon as practicable’ only became a reality almost 16 years after the Constitution came into effect when a Property Rights of Spouses Bill was laid before Parliament for the first time in 2009. The Bill was not passed and it lapsed.