Supreme Court Affirms Equity As Starting Point for Property Distribution

The Supreme Court in Amoakohene v Amoakohene[1] has affirmed its long-standing position of “equality is equity” as the basis for the distribution of property acquired during a marriage. The Court, speaking through Dordzie JSC, explained that: “properties acquired during marriage are presumed to be jointly acquired and should be shared equally.” But the court was quick to remind itself that the “equality is equity” rule has its limits and is not applicable in all cases.

The parties to this suit, a husband and wife, were involved in a dispute over the ownership of two properties – Property A and Property B. Whiles the male plaintiff insisted that the Property B was jointly acquired during the subsistence of the marriage, the Defendant denied this. According to the Defendant, Property B was acquired using her own funds and also funds from a son from a different marriage.

The duty of the court was to ascertain whether Property B was acquired during the pendency of the marriage and as a result jointly acquired.

The Supreme Court, after evaluating the evidence, concluded that it was not convinced that the Defendant acquired the property by herself. The Court’s conclusion was informed by the fact that the Defendant used money from a joint account operated by the Plaintiff and Defendant to acquire the property. “The conclusion we reasonably draw from the evidence on record is that property “B” was acquired from the joint earnings of the parties, the said property, therefore, is a jointly acquired property of the couple”, the court noted. The court also found no evidence that the Defendant received financial support from one of her sons (from a different marriage) for the building project.

PS: This case is one of the few cases in which a male plaintiff has successfully sought to have property advanced to him under the equity is equality principle. For largely economic reasons, most of the cases on property distribution have females as plaintiffs seeking a stake in property either jointly held or acquired during the pendency of a marriage.

It is worth noting that, under Ghanaian law, whether a property is jointly acquired or not is a question of fact and depends on the circumstances including the intention of the parties. The Supreme Court has previously in Fynn v Fynn and Another[2]  expressed the view that merely being married does not prevent married persons from acquiring properties in their own name. According to Wood CJ, “the decided cases envisage situations where within the union parties may still acquire property in their individual capacities as indeed is their guaranteed fundamental right as clearly enshrined under article 18 of the 1992 Constitution, in which case they would also have the legal capacity to validly dispose of same by way of sale, for example, as happened in this instant case”.

[1] (J4/2/2019) [2020] GHASC 18 (13 May 2020)

[2] (J4/28/2013)[2014] GHACA 129

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