Longer Summary: Mensah vs. Mensah

Gladys Mensah vs Stephen Mensah 

Institutionalising the principle of equality in the sharing of marital property by spouses after divorce, of all property acquired during the subsistence of a marriage in appropriate cases.

Facts

This case was an appeal from the Court of Appeal, dated 23/7/2009 in the Superior Court of Judicature in the Supreme Court, Accra, which affirmed the judgement of the High Court dated 31st January 2003.

At first instance, the issue to be resolved was whether or not the petitioner, Gladys Mensah, was a joint owner of marital property acquired during her marriage and therefore entitled to her claim of 50% of the property. The Court gave judgement in favour of the petitioner.

The respondent then appealed to the Court of Appeal, whereby there was a unanimous decision to dismiss the appeal.

The respondent finally appealed to the Supreme Court on the following grounds:

  1. the court of appeal failed to consider adequately the evidence of the Respondent and placed unnecessary weight on the evidence of the Petitioner.
  2. Court erred in assessing the amount to be paid as her share of the profits
  3. Court erred in ordering payment out of respondent’s limited liability company’s profits without regard to the interests of the other shareholders in the company.

Main issue for determination:

  1. Whether the equality principle, as opposed to the substantial contribution principle, used by the trial and appellate courts in the distribution of the martial property acquired during the marriage, following the dissolution of the marriage between the parties is sustainable under the current state of the laws in Ghana.

The properties listed by Mrs Mensah included land, a number of houses, shares in companies, vehicles and bank accounts. She did not call any witness. Her husband called five witnesses. She was able to give an account of how the properties were acquired and the role she played in their acquisition.

They first lived in rented premises at La. She started farming, planting and processing cassava into gari at Krobo. She traded in palm oil, and then later cooking oil, rice and sugar. They then started investing in building properties as the business grew and started a shop at the ministries area. Mrs Mensah managed the shop. They later started selling electrical appliances, vegetable oil and bicycles.

They recorded cash sales in a book which was checked and tallied by Mr Mensah every evening. He paid himself GH¢50 (¢500,000) and paid Mrs Mensah nothing. Mrs Mensah acquired the first two landed property on which she built houses and also the first vehicle that was bought from the proceeds of her susu.

The trial judge believed Mrs Mensah’s testimony, though she called no witnesses. The judge found her more convincing than Mr Mensah, and though he maintained throughout the trial that she had never worked during the 10 years that the marriage lasted, his own witnesses contradicted him.

The judge found that Mrs Mensah supervised the running of the shop and worked at the shop. Mr Mensah said he acquired a Spintex road property with a bank loan but the judge found out that the property had been acquired long before he contracted the loan.

Historical Development of the Law

Customary law:

The customary law position was that the wife and children had a domestic responsibility of assisting the husband/father with his business and as such the wife could not claim any interest in any property she assisted her husband to acquire. Property acquired with the assistance of a wife was regarded as the sole property of the husband.

Substantial Contribution Principle:

This principle has been eroded by changes in the traditional roles of men and women and the economic empowerment of women.

It is both inequitable and unconstitutional when the spouse will be denied any share in marital property when it is ascertained that he or she did not make any substantial contributions thereof.

Currently, substantial contribution by a spouse to the acquisition of property during the marriage would entitle that spouse to an interest in the property.

If there is evidence of substantial contribution to acquire property, then the courts seek to provide some protection. What amounts to substantial contribution is determined by looking at the facts surrounding the acquisition of the property. There must be an inference that there was intention by the parties to own the property jointly.

However, section 20(1) of the Matrimonial Causes Act, 1971 Act 367 provides that courts will not employ mathematical division to determine each spouse’s share in the property, but use the equality is equity principle, which is backed by Constitutional force in article 22(3)(b) of the 1992 Constitution.

Therefore, as stated in the Matrimonial Causes Act, and the Constitution, the principle to be used in dividing marital property acquired during marriage is the equality is equity principle.

Equality Principle:

In the case of Mensah v Mensah [1998-1999] SCGLR 350, the court favoured equal sharing of joint property, stating:

“the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce because the ordinary incidents of commerce have no application in marital relationship between husband and wife who jointly acquired property during marriage.”

However, this position has been modified and clarified in the case of Boafo v Boafo [2005-2006] SCGLR 705.

In this case, the degree of financial contribution by the wife to the acquisition of the joint properties was not clear. The trial judge did not make distribution orders which her half and half. The Court of Appeal held that the properties should have been distributed equally on a half and half basis, allowing the wife’s appeal. The Supreme Court dismissed the husbands appeal, stating that equal sharing was what would amount to a just and equitable sharing. The equitable principle applies, unless one spouse can prove separate proprietorship. It was held that an equal division will often, though not invariably, be a solution.

Equitable means what is just, reasonable and accords with common sense and fair play. It is a question of fact, and the proportions are therefore fixed in accordance with the equities of any given case.

The paramount goal of the court would be to achieve equality, so the courts favour a case by case approach as opposed to a wholesale application of the principle.

Applicable International Law:

Article 1 of the Universal Declaration of Human Rights provides:

“all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Even though the UDHR is not a binding treaty, its principles and underpinning philosophy has been incorporated into national constitutions and referred to by several national courts. This is the context into which our national Constitution has to be understood in relation to this principle of Jurisprudence of Equality.

Ghana is also a signatory to the convention on the elimination of all forms of discrimination against women. Discrimination against women described in article 1 as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 5 adds a key concept to international equal protection analysis; the need to eradicate customary and all other practices which are based on the idea of the inferiority or the superiority of the sexes or on stereotyped roles for men and women.

Principle of jurisprudence of equality into our rules of interpretation such that meaning will be given to the contents of the constitution especially on the devolution of property to spouses after divorce.

Using this principle, view that it is unconstitutional for the courts in Ghana to discriminate against women in particular whenever issues pertaining to distribution of property acquired during marriage come up during divorce. In all appropriate cases, sharing of property should be on equality basis.

In Tabitha Wangeci Nderitu v Simon Nderitur Kariuki, it was held wife’s contributions even as a housewife, in maintaining the house and creating a congenial atmosphere for the respondent to create the economic empire he has built are enough to earn for her an equal share in the marital properties on offer for distribution upon the decree of divorce.

Application to the current case:

The Supreme Court has stated the criteria that will enable it to depart from the decisions of the lower courts (Gregory v Tandoh IV & Anr. and Obeng v Assemblies of God, Church Ghana). They must be slow in coming to different conclusions, unless it was satisfied that there were strong pieces of evidence on record which made it manifestly clear that the findings by the trial court were perverse.

It was held that no such facts were present, so the court was unable to depart from the findings of fact. The petitioner satisfactorily discharged the burden of leading sufficient evidence, and the trial and appellate courts were thus right in coming to the conclusions reached by them.

Even if it was held that the wife had not made any substantial contributions to the acquisition of the matrimonial properties, the court noted that she would still be entitled to equal share in the properties acquired. This is because the court recognises the valuable contributions made by her in the marriage like the performance of household chores and the maintenance of a congenial domestic environment for the respondent to operate and acquire properties.

A person who is married to another and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner has a free hand to engage in economic activities, must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.

The court also took into account the Jurisprudence of Equality Principle, which has been defined by the international association of women judges in their November 2006 USAID Rule of law Project as “the application of international human rights treaties and laws to national and local domestic cases alleging discrimination and violence against women”.

The court held that the rights of women will no longer be discriminated against and there will be equal application of laws to the determination of women issues in all aspects of social, legal, economic and cultural affairs.

Further, Article 33(5) of the Constitution which guarantee’s other rights, duties, declarations not specifically mentioned in the constitution as applicable by Ghanaian courts in order to ensure the dignity of the human race.

‘Thus, even if this court held that the petitioner (Mrs Mensah) had not made any substantial contributions to the acquisition of the matrimonial property, it would still have come to the same conclusion that the petitioner is entitled to an equal share in the property  so acquired during the subsistence of the marriage.

This is because the court recognises the VALUABLE contributions made by her in the marriage like the performance of household chores and maintenance of a congenial domestic environment for the respondent (Mr Mensah) to operate and acquire property.

And so housewives, rest assured, even if you are not working because you are a housewife and do not contribute one pesewa to the construction of your matrimonial home or other property your husband acquires during the marriage, and it can be proved that you maintained a congenial atmosphere in your home, used the washing machine to wash clothes, I mean you did the laundry, performed the household chores, you are EQUALLY entitled to all the matrimonial property acquired during the marriage. The thing is, the courts can only help you if you KNOW the property.