This was a landmark case in the Supreme Court that had to decide on the Women’s Matrimonial Property Rights as regards to Article 22 of the 1992 Ghanaian Constitution.
Mr Mensah and Mrs Mensah were married under customary law in March 1989. They converted to a marriage under the Ordinance in June 1989. In April 2000 Mrs Mensah, the petitioner, filled a petition for divorce and distribution of the jointly acquired asses.
In this specific case Mrs Mensah was contesting Mr Mensah’s claims to all the properties and stores that he had acquired during their marriage. The Supreme Court and the Court of Appeal found that Mrs Mensah contributed equally in economic terms to the acquisition of property through her earnings at their stores. The Court therefore decided that all the properties that were bought during the marriage should be spilt equally amongst the two parties.
The Court also reflected on Article 22 and 35 of the Constitution as well as Baofo vrs Baofo, Anang vrs Tagoe, and other cases and the Matrimonial Cause Act,1971, The Court came to the conclusion that in the event of a divorce of any of the 3 recognized marriages (Customary, Marriage under Ordinance or Marriage of Mohammedans), 50% of property will go to each partner. This is whether or not the women have been involved in the acquisition of that property or a contributor to economic activity. Their reasoning takes into account the large contributions made by the women in the form of household chores and maintaining a good household atmosphere that allows the man to pursue economic activities.
It also makes allowance for women who have not actually been married but if it can be proved that the couple is in the process of formalising a traditional marriage or if the couple has been living together (co-habitation) with joint contributions to the property then both have the right to half of the property
There is currently a bill (the Spousal Bill) that is sitting in parliament which would would regulate the property rights of married couples, primarily to codify the rights of women in law. To date, women who are divorcing experience significant difficulties in obtaining a fair portion of assets. The Spousal Bill would rectify this injustice.
The Justice’s in the Mensah vrs Mensah case did state a warning to women in the country who did not participate in the economic affairs of the marriage, that while he court would uphold their right to an equitable share of all jointly acquired property, the court would not be able to successfully do this if the women was completely unaware of her husband’s financial exploits.