By way of introduction, let us all understand that this write-up is not of universal application. The focus is on women and not men because the reverse is even not remotely possible. This little piece is to throw light on the childless widow. It further focuses on a woman that most of us are likely to admire – the one who is unable to have children of her own, but welcomes or accepts, the children her husband has outside the marriage. She decides to remain married, whether she has biological children or not.
What happens when such a husband passes on intestate?
This article is to discuss whether or not such women are better off divorced with regard to their access to spousal property during the dissolution of the marriage compared to what pertains upon the death of a husband intestate given the current applicable legal framework.
For centuries, women have fought for a lot of rights. One would think that making strides in attaining certain rights would finally put an end to their struggles. New battles seem to come up almost immediately after major ones are nipped in the bud or at least thought to be done.
The facts that have given rise to this introspection come from a certain predicament that came to my notice. Due to the potential that it may end up in court and for the sake of artistic license, I shall tweak them a little.
The parties married under the Marriage Ordinance in 1990. The husband (now deceased) at the time of the marriage was a junior manager at a certain firm while the wife was a teacher.
They both rose to high levels in the course of the marriage with the lady becoming a District Director of Education and the man becoming a Branch Manager in the firm.
Unfortunately, and not for lack of trying, there were no issues to the marriage.
The parties, like most Ghanaians, lived in rented accommodation in various parts of the country until they eventually moved into a home of their own, put up through their joint efforts, while in their mid-forties. The land was acquired through the man’s company and as such, the deed bore his name. It was not in the name of “Mr. & Mrs. ……”
There is no question that they both contributed to putting up the building which was their matrimonial home until the unfortunate demise of the husband a few months shy of retirement. The husband died intestate.
Even though the deceased had two children before the marriage, they never stayed in the matrimonial home but the wife assisted the deceased in taking care of them in all aspects. They would spend some holidays with their father and stepmother from time to time without incident. The wife, being a senior educationist, also made sure that they all got admission into the best of senior high schools and they have turned out well.
Upon the death of the deceased, the wife has come to know (and one can imagine the shock and even more grief) that the deceased had three other children with another woman. The youngest child was a mere two years old. The other two were also minors! As can be expected, her in-laws (and even some friends she considered close) all knew about the children. In fact, they considered their mother to be their late brother’s second wife. She participated in the funeral as a widow. One can only imagine the confusion at the funeral. The church was just as surprised and helpless.
Of course, there is no question that the children are her late husband’s. The children all have names given to them by their father and these are well-known family names of the deceased husband.
The family of the deceased wish to bring an application for Letters of Administration and are seeking to distribute the property in accordance with the applicable Intestate Succession Act, 1985 (PNDCL 111) and the matrimonial home is the first item listed in the inventory.
THE DEVELOPMENT OF THE LAW ON SPOUSAL PROPERTY
The debate on spousal property rights in respect of women within our jurisdiction has been going on for some time now. We can point out earlier judicial decisions such as Quartey v. Martey & Anor where the Court held the position that property acquired during the subsistence of the marriage was not joint property and that the wife gives assistance as is required of her and so only entitled to a right of maintenance. This was to the effect that the wife had no interest whatsoever in property acquired during the subsistence of the marriage.
Over time, the Court began to recognize the contribution of women in acquiring marital property. In Abebrese v. Kaah & Ors, the Court recognized upon the death of the husband intestate that the wife’s involvement in acquiring the property. The court found that her contribution towards the purchase of the land, materials and supervision of the construction was more than mere assistance and as such the principle in Quartey v. Martey (supra) were inapplicable in the circumstances.
This decision gave way to the principle of substantial contribution in the distribution of spousal property upon the dissolution of marriage. In this instance, where there is evidence that the wife contributed financially or in some substantial manner, the Court was amenable to hold that she also had an interest in the jointly acquired property.
Subsequent to the reign of the principle of substantial contribution as a basis distributing marital property was the equality is equity principle as enshrined in the 1992 Constitution.
The Constitution 1992 provides under article 22 that:
A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.
Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
With a view to achieving the full realisation of the rights referred to in clause (2) of this article
spouses shall have equal access to property jointly acquired during marriage;
assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.
The Judiciary went ahead to interpret and enforce the constitutional provision in judicial decisions such as Boafo v. Boafo and Mensah v. Mensah. In applying Article 22 (3) (b), the Court of Appeal upheld in Boafo v. Boafo (supra) the equality is equity principle unless one party could prove separate proprietorship.
The Court was also of the opinion that equal sharing should amount to just and equitable sharing and that what is equitable is in essence, what is just, reasonable and accords with common sense and fair play. It is a question of fact and depends purely on the particular circumstances of each case. It also held that the issue of proportion was to be fixed in accordance with the equities of each case.
In Mensah v. Mensah (supra), the Supreme Court per His Lordship Jones Dotse JSC held that:
“Thus, even if this court had held that the petitioner had not made any substantial contributions to the acquisition of the matrimonial properties, it would still have come to the same conclusion that the petitioner is entitled to an equal share in the properties so acquired during the subsistence of the marriage. This is because this court recognizes the valuable contributions made by her in the marriage like the performance of household chores referred to supra, and the maintenance of a congenial domestic environment for the respondent to operate and acquire properties. Besides, the constitutional provisions in article 22(3) of the Constitution 1992, must be construed to achieve the desired results which the framers of the Constitution intended”.
In Quartson v. Quartson , the Supreme Court reaffirmed the equality is equity principle and also cautioned that; “The decision in Mensah v. Mensah(supra) is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled. Its application and effect will continue to be shaped and defined to cater for the specifics of each case. The ruling, as we see it, should be applied on a case by case basis, with the view to achieving equality in the sharing of marital property. Consequently, the facts of each case would determine the extent to which the judgment applies.”
Furthermore, in the case of Arthur v. Arthur per Date-Bah JSC (as he then was), the Court stated that there is a presumption in Ghanaian law in favour of the sharing of marital property on an equality basis in all appropriate cases between spouses after divorce.
The Court further interpreted marital property to mean “Property jointly acquired means any property acquired by the spouses during marriage is presumed to be marital property irrespective of whether one spouse made a contribution or not.”
This, is to the effect therefore that marital property is presumed to be jointly owned and cannot be transferred to another suo motu by one of the parties in their lifetime or posthumously.
In Fynn v. Fynn the Supreme Court was of the opinion that spouses could hold individual property in accordance with Article 18 of the Constitution 1992 irrespective of the decisions in the earlier cases. As pointed out before, the Court will be informed by the merits of each case.
In clarifying this point, the Court held per Wood CJ as she then was that:
We do not think this court’s thinking on the status of property acquired during the existence of any marriage is shrouded in confusion. Indisputably, during the existence of the marriage union, it is most desirable that the couple pool their resources together to jointly acquire property for the full enjoyment of all members of the nuclear family in particular. But 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.
The points discussed so far above have been the progression of the law regarding the distribution of spousal property upon the dissolution of the marriage.
The problem of the distribution of marital or spousal property upon divorce has now been ably resolved by the Courts. The fact of the distribution is not affected by whether or not the parties to the marriage had children. The same cannot be said for a couple parted by death.
THE LAW ON INTESTACY
The distribution of property upon the death intestate of a husband, is governed primarily by the Intestate Succession Law.
The objective of the law was to protect the spouse and children from the discriminatory practices in customary law where they are deprived from benefitting from the self-acquired property of the deceased once he (or she) died without a Will in cases where the husband and wife were not married under the Marriage Ordinance (Cap. 127).
The truth be told though, in my opinion, the common mischief that the law sought to cure was in relation to surviving wives and children in the day when the family of a deceased husband would descend upon a widow and lock up the bedroom she shared with her husband pending “inspection”. In those dark days, a widow could be accused of theft if she dared to take anything purported to be her husband’s.
The implementation of this law for the benefit of married women upon the death of the husband intestate has however not been a smooth ride at all. The Intestate Succession Law as it is now provides that the spouse and child/children are entitled to the household chattels.
The law is best suited for families under circumstances with no “dysfunction”, with one husband, one wife and all the children being issues of their marriage. The problems rear their heads where there is a deviation from this “norm”.
In an instance where the estate includes only one house, the surviving spouse or child or both as the case may be are entitled to the house as tenants in common if it devolves to both spouse or child/ children.
The law further provides that where the Intestate is survived by a spouse and child/children, the residue of the estate shall devolve in the following manner:
three-sixteenth to the surviving spouse;
nine-sixteenth to the surviving child;
one-eighth to the surviving parent;
one-eighth in accordance with customary law
This provision is mandatorily subject to making a reasonable provision for the education of a minor child(ren) before distribution even takes place.
The definition of an estate has been clearly outlined as the self – acquired property which the intestate was legally competent to dispose of during the lifetime of the intestate and in respect of which the interest of the intestate has not been terminated by or on death.
To my mind, the combined effect of these provisions indicates that upon the death of a married person, the property which he possessed of must be scrutinized carefully to determine the deceased’s actual interest in same. A presumption that the matrimonial home belongs solely to the man is an erroneous and totally rebuttable one.
It is evident from above that in this instance the wife has to share the property with the child(ren) as tenants in common which means that each beneficiary has an equal interest in the property and which also means that the children will likely have a portion more than the widow’s. In fact, where there are many children, like the five (5) in this case, going by the provisions of PNDCL 111, the widow’s portion would be less than 20%.
In a situation where the children are of the same mother (who is the widow) and younger, the problem does not seem out of control because the widow would be in possession and control of the property. The situation is however terrible where the widow is childless and the deceased does have children, no matter how and when born.
In a situation where the residue is being distributed by the percentages, the widow is entitled to about 18.75% of the residue.
LETTERS OF ADMINISTRATION
Order 66 of the High Court Procedure Rules (C.I 47) provides the order of priority in applying for letters of administration of a deceased. The order of priority is in the order of the surviving spouse, children, parents and customary successor.
Upon the death of a married man, his surviving spouse is thus the first in line to make such application. A mere concubine cannot make an application for letters of administration despite the number of years and extent of the relationship. That should give the surviving widow some respite, but not so, really. In the case of In Re Asante (DECD); Owusu v. Asante, an attempt by such an incompetent party to make such an application for the grant of the Letters of Administration was held to be misconceived and fraught with fraud thus making the whole application void.
In addition, capacity and jurisdiction go to the root of every case and where it is realized that the party to a matter does not possess the requisite capacity, the court will not entertain applications from mere busy bodies who do not have the requisite capacity to even appear before the court.
(See Musamma Disco Christo Church v Jehu-Appiah  MLRJ 56).
The fact of the matter though is that the mere entitlement to the grant of Letters of Administration excludes issues of ownership.
(See: In Re Gyan-Fosu (Decd.); Boafo v. Akwatia Perko III  1 GLR 145)
In most circumstances however, the harsh reality is that when the husband predeceases the wife and Letters of Administration are being applied for, the properties listed in the inventory section are erroneously presumed to belong solely to the man although the same property would have been deemed as marital property in the face of a divorce and by that, the wife would more probable than not to be entitled to 50% of the property.
It is unusual to find in the application for Letters of Administration, the actual interest the deceased had in the marital property which is passed off and listed as selfacquired property of the deceased. In this instance, once the Letters of Administration are granted, child(ren) out of wedlock who surface out of the blue also become entitled to a portion of the estate and it gets worse to the detriment of childless widow where they are minors and a reasonable provision has to be made for them prior to the distribution of the listed properties.
Following the decision of Mensah v. Mensah, the matrimonial home is declared a joint property of the spouses and thus, where a surviving spouse goes a step ahead to prove actual substantial contribution to the acquisition of same, then the surviving spouse deserves an equal share of same and such interest cannot be sidestepped on the death of one party by the provisions of the PNDCL 111.
Be that as it may, the equal distribution principle can be gleaned from the 1992 Constitution to which all other laws are subject.
The supremacy of the constitution above all other enactments need not be disputed as held in Mensima v. Attorney General & Others and Tufuor v. Attorney General
THE INTESTATE SUCCESSION BILL, 2018
Sections 4, 8, 9 and 10 of the Intestate Succession Bill which is yet to be laid before Parliament seems to deal quite effectively with the issue of marital property and intestacy.
Clearly, the Bill does take cognisance of the fact of marital property in the distribution of intestate property.
The said sections provide as follows:
Spouse, child or both entitled to one house
4. 1. Subject to sections 8 and 9, where the estate includes only one house, the surviving spouse is entitled to fifty percent interest in the estate.
2. Subject to section 8, where the estate includes one house and the surviving spouse partly owns that house, the estate available for distribution shall not include the part owned by the surviving spouse.
3. Subject to section 8, where the estate includes more than one house, the surviving spouse is entitled to one house and the children are entitled to another.
4. Where there is disagreement as to which of the houses devolves to the surviving spouse or child, the surviving spouse has priority and the exclusive right to choose any one of the houses.
5. Where the surviving spouse is, or the spouse and child are unwilling or unable to make the choice, the court shall determine which of the houses devolves to the surviving spouse or child on application made to it by the administrator of the estate.
Interest of surviving spouse in matrimonial home
8. 1. Where the intestate is survived by a spouse, the surviving spouse shall have a fifty percent interest or share in the matrimonial home.
2. Where the surviving spouse partly owns the matrimonial home, the estate available for distribution shall not include the part owned by the surviving spouse.
Option to buy out
9. Where the estate of the intestate consists of only one house and the surviving spouse made a contribution to the acquisition of the house, the surviving spouse shall have the option to buy out the other beneficiaries.
Interest of surviving spouse who is a joint owner
10. Where the deceased owned other property in addition to the matrimonial home and the surviving spouse owns part of that property, only that part of the property owned by the deceased spouse is available for distribution.
From the above analysis of the law and the facts in question, it appears a divorced woman is more fortunate whether or not she is childless. This is because she stands to appropriate 50% of the jointly acquired property unless otherwise proven upon the dissolution of marriage which is more than what she would gain from the estate of her deceased husband which in reality may include jointly acquired property as illustrated by the facts in this article.
The Courts exist to administer Justice fairly and in accordance with the law and so matters such as the present facts, will be resolved on the merits or circumstances of each case.
Also, the proposal in the Property Rights of Spouses Bill which is also yet to be dealt with by Parliament for parties to freely enter into a marital property agreement to determine their proprietary rights whether jointly acquired or otherwise is a step in the right direction when passed as regards a dissolution of marriage or even upon the death of one spouse.
In like manner, the Intestate Succession Bill once passed will remedy some of these unjust situations since some of the provisions seek to protect the interest of the surviving spouse, whether childless or not, in jointly acquired properties.
Let us pause and ponder, is a woman better off divorced than widowed under Ghana law as it stands now?
  GLR 377
  2 GLR 46
 [2005 2006] SCGLR 705
  1 SCGLR 391
  2 SCGLR 1077
 [2013-14] 1 SCGLR 543
 [2013-14] 1 SCGLR 727
 (1985) PNDC LAW 111
 Section 3 of PNDC L 111
 Section 4(a) of PNDCL 111
 Section 5(1) of PNDC L111
 Section 18 of PNDCL 111
 [1993-94] 2 GLR 271
 [1997-98] 1 GLR 159
  GLR 637
Source: Afia Serwah Asare-Botwe J.
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