A man's property is shareable, not wife's: exploring entitlement to spousal assets | The Law with Samson Lardy Anyenini (22-10-23)
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NewsTranscript
00:00 For the avoidance of doubts, the "Equality is Equity" principle ought not be applied
00:08 to a wife, however wealthy she might be, that is, even if she is richer or wealthier than
00:16 the husband.
00:18 Thus, this is the surest way to save most marriages, which are tearing apart principally
00:26 because of issues about who is entitled to which property and by what percentage, whether
00:33 or not a wife or wives who share their wealth with their husbands should be left to their
00:40 sense of generosity and magnanimity.
00:45 In other words, any law that compels married women to compulsorily share with their husband
00:52 any property acquired by them during the subsistence of the marriage with or without the support
01:00 of their husband is retrogressive and ought to be removed from our statute books or departed
01:08 from if it is a binding decision of the courts.
01:15 Don't go anywhere.
01:16 We'll be right back engaging the author of this particular quotation, the head of the
01:29 Ghana School of Law and Legal Education.
01:34 He believes that when it comes to property and distribution of same, when there is an
01:41 issue in the marriage, the man's property ought to be the one to be affected.
01:49 If the woman has acquired whatever wealth, they should keep it.
01:56 It's controversial and it's got many of you talking already.
02:01 This is the law.
02:03 It's your legal light.
02:04 It's your health law.
02:05 We'll be right back.
02:06 You're welcome back.
02:12 This is the law.
02:13 It's your legal light.
02:14 It's your health law.
02:15 I'm Samson Ladia Yeneni.
02:17 And this afternoon, we are very privileged once again to be hosting Berimah Nanayiao
02:22 Kodie Opong, who is the director of legal education and director, Ghana School of Law.
02:30 We are going to talk about an issue that we have discussed a couple of times here, but
02:35 from a different perspective.
02:38 What happens to property in marriage when the marriage goes wrong?
02:44 Who must get what?
02:48 There is a principle that's been known and advanced, including by our courts.
02:54 Equality is equity.
02:56 It comes in with the HES principle, which we have codenamed the equality is equity Kodie
03:08 principle.
03:10 Thank you very much for making time to join us this afternoon once again.
03:13 I'm grateful.
03:14 Great.
03:15 Good to have you.
03:16 Good to have you.
03:17 Great.
03:18 Great.
03:19 But, you know, on such a day, we cannot begin this discussion without talking about the
03:27 law school or the school of law.
03:31 And there are people who have been very excited about the numbers that have just been called
03:37 to the bar two days ago and the numbers that have also gained access to begin their education,
03:47 legal education in the Ghana school of law.
03:52 Many of you have asked that we should ask him questions about that.
03:58 Is it questions we should ask him or we should be celebrating him about that?
04:03 There are people on social media, including Justice Fremsey, Dr. Justice Fremsey, who
04:10 have taken time to celebrate our guests for the transformation that has happened in the
04:19 Ghana school of law.
04:20 But there are some who also say it could be better because they are in excess of 2000
04:27 who didn't get access after the entrance exams.
04:31 Where should they go?
04:33 Professor Kukwaza has interesting views.
04:35 We'll ask him what he thinks about that as well.
04:38 So once again, good afternoon and welcome.
04:40 Thank you very much for having me.
04:43 So you must be a very happy person, as in the legal fraternity, many are happy with
04:49 you and celebrating you for the huge numbers, over a thousand being called and an equal
04:56 number going through the entrance and getting ready to start legal education.
05:02 Thank you very much.
05:04 Good afternoon.
05:05 I dedicate this, if you permit me, to my hardworking staff.
05:11 Everybody knows that I put the genitus, that's the cleanliness above all, because they put
05:16 the place in shape and make the place clean for us before we can start work.
05:21 Then my hardworking deputies, that's the registrar and the deputy registrar, the rest of the
05:30 hardworking team, the lecturers.
05:33 And of course the students, they also allow themselves to receive instructions that we
05:39 give them.
05:40 And we are very grateful to God above all for how far he has brought us.
05:44 So until last year, the highest number that had become lawyers, the students from Ghana
05:52 School of Law that became lawyers, were in 2020, they were about 446 or thereabout.
06:01 Now then last year...
06:02 That was celebrated as huge.
06:05 Huge, yes.
06:06 Then last year it reduced over a couple of years and then last year it got to 846.
06:13 And that got a massive celebration.
06:16 In fact, that is when two of the personalities, the candidates, unfortunately didn't comply
06:22 with the Robin ethics and they had to be denied.
06:26 So those that were actually called were 844, even though 846 were in the room.
06:33 And that is also a discussion for another time for those who may not understand what
06:38 exactly we do on the day of the call.
06:40 I say that it's an individual application that you make.
06:43 As if you are making an application in court, it can be granted or dismissed.
06:49 And that is what happens.
06:50 It doesn't matter that you have passed your exams.
06:52 No, that is one stage.
06:55 Then the other stage is about compliance with rules, the ethics.
06:59 Because there's a character criteria, which you actually make them swear an affidavit
07:05 before they come in.
07:06 Yes, yes.
07:07 And it is by law.
07:10 And I checked, you see also in the Medica Indicta Act, I mean it has a full name, that
07:16 also requires that you also comply with ethical rules.
07:20 So we are very happy, we are very excited that 1097 of our students exited.
07:30 And I would have viewed that.
07:32 Unprecedented.
07:33 Yes, well, I mean, so that's about 30%, about 25% more than last year.
07:39 And remember, I mean, last year we also had the mini-call that gave us 195.
07:45 And this year we have a few that will also be called by May.
07:51 On the whole, within two years, we've called about 2,000 plus lawyers.
07:59 And I think we all have to celebrate ourselves.
08:02 We've all done well, especially members of council, very progressive in my view.
08:08 They have really opened the way for us to be able to get these students leave.
08:13 So as we crave for more students to enter, they must definitely leave, exit.
08:19 And then because the view is that the law school is just a holding area, a holding institution,
08:25 a transitional institution.
08:28 No one comes there to stay there.
08:30 It's not a military camp or barracks.
08:32 I'm looking at the brochure in which you put the first batch of those who were called to
08:42 the bar.
08:43 The Pania class of Ghana School of Law called to the bar on the 22nd of June, 1963.
08:52 And they were just nine.
08:56 But they entered--
08:57 Yes, about 600 entered.
08:58 Then they did their way to enter.
08:59 They did the entrance exams.
09:00 And only 97 qualified.
09:01 So we are even doing better now.
09:02 97 qualified.
09:03 And at the end of the day, only nine.
09:04 At the end of the day, some still fell out.
09:14 Mainly academic.
09:15 Because the initial idea by Komin Krumah, our first president, doctor, was that the
09:22 members of parliament, civil servants, public servants, business personalities, should be
09:29 given the opportunity to study the professional law.
09:34 Because previously, they were all going to the UK and so on.
09:38 And he thinks that we're not producing enough.
09:40 And that based on his philosophy that a black man is capable of managing his own affairs,
09:47 he established the Ghana School of Law and I think the medical school too in Accra.
09:51 So yes, and I've quoted him extensively on the day when he opened, that is the first
10:01 batch were called to the bar.
10:02 And sadly, the last person joined the majority or died just last August.
10:08 That's right.
10:09 Our friend, Barama Williams' father.
10:10 That's right.
10:11 He still rests in perfect peace.
10:13 So there were actually 10.
10:14 Kokuba, our good old Kokuba, and I understand there was some issue unrelated to Ghana School
10:21 of Law.
10:22 I think purely political also.
10:23 You should forgive me if I'm not getting it right.
10:26 And so he was not able to join his colleagues that year to be called to the bar.
10:30 Otherwise, there would have been 10.
10:31 The question that is being asked is that if you can graduate or call as many as 1,097
10:41 to the bar this year, it means that you have the capacity to be calling such numbers.
10:49 If you have admitted how many again after the entrance?
10:54 This time?
10:55 Yes.
10:56 It's 964.
10:57 Almost 1,000.
10:58 Almost 1,000.
10:59 Then it means you have the capacity to do such numbers.
11:03 Why are you not doing it?
11:04 Well, in the first place, I'm on record several times that if, for example, all the 2,700
11:13 people that wrote the entrance exams were lucky or were able to pass, we'll provide
11:19 accommodation for them.
11:21 Because contrary to the conventional belief that the Ghana School of Law is only at Makola,
11:26 we have the Makola as the main campus.
11:28 We host mainly the final years.
11:31 And when there's a spillover, as it were, we take them to GIMPA.
11:36 There are some in KNUST.
11:38 So we have the main campus at Makola.
11:41 We have KNUST.
11:43 UPSC alone takes about 600 students.
11:48 And so, and in fact, two years ago when we needed more spaces, we got a place in Lagon.
11:55 Except that, you should forgive me, but I have to say that the rent they were charging
11:59 were beyond our means.
12:01 So we had to now move.
12:02 If they had passed and we had to get a place at Lagon.
12:06 So the idea really is that all UPSC students can decide to stay on UPSC campus.
12:13 Just choose the Ghana School of Law campus there.
12:17 All those from Lagon, if we are to go back, will then just transit to Lagon.
12:23 KNUST, from the KNUST Law School, the same campus, you transit and you go to the new
12:29 block that the school had offered us, which we are renting.
12:33 The same for GIMPA.
12:34 So these four, or potentially four if you are at Lagon, public schools where law is
12:42 taught as it were, we have our presence there.
12:47 So it is not as if anybody...
12:50 There is a deliberate effort to cut the numbers.
12:53 And brother, I can tell you that there are council members whose children feel the essence.
12:57 In fact, one of them this year told me, "My daughter is going to write."
13:01 I'm not very sure, so I've also registered her for Gambia.
13:06 But if there was an opportunity, you'd think someone would love somebody else's child more
13:11 than you.
13:12 And there are...
13:13 You know, when I heard about the circumstance where even the Chief Justice then, Justice
13:18 Nyi Nyebwa, had to get his...
13:20 No, two of his children.
13:21 Two of his children to go and do it elsewhere because they couldn't enter here.
13:25 That is the case.
13:28 You will not even know who is who.
13:31 Are your standards not too high?
13:34 Because they go elsewhere and they enter easily and they turn out to become the best students
13:39 there.
13:40 Oh yes, that's a fact.
13:41 In fact, the person who was the best post-course student just two days ago was also the best
13:46 student in Gambia, I hear.
13:48 But they said that here because of patriotism, somebody else would give in a bit above her.
13:56 So again, you are mentioning that the person is a post-core.
13:59 Meaning the person for not being able to enter here, potentially, went to Gambia, did there
14:07 and finished, and came to do post-core where there's no entrance exam.
14:11 No, they just interviewed.
14:13 And the person did seven subjects, including constitutional or legal system.
14:17 It's possible the person may have even written here in the entrance and didn't get it, therefore
14:22 went to Gambia.
14:23 A substantial number of them tried the entrance exam and they are unsuccessful.
14:26 They go there, they come back.
14:28 I won't say all of them go through successfully here, but I mean 80% or more of them come
14:36 back, meet the very student, their own mate that they couldn't start with here.
14:41 Because they do one year in Gambia, then they come back here and within seven months they
14:46 become lawyers.
14:47 The argument for and against can still be discussed.
14:51 But the point really is that there is no deliberate policy that restricts access to the Ghana
15:00 School of Law.
15:01 I wouldn't have been here as a lawyer anyway.
15:04 And I can tell you just to conclude that when you do assessment of wealth, value in terms
15:12 of wealth, there are quite a large number of people who had to depend on the scholarship
15:18 we got for them from the scholarship secretariat.
15:21 So they were able to pay their fees or examination fees.
15:25 But you think that...
15:26 And this is a new development under your regime where you are seeking scholarship for those
15:30 who cannot afford but are qualified to do the law.
15:33 We actually have an agreement with scholarship secretariat.
15:37 In the meantime, we will advance 500,000 Ghana cities to our students.
15:43 And I ask the students, some students to just handpick their own colleagues they know they
15:49 are in need.
15:50 Not needy.
15:52 We have a concept in need of these facilities as and when.
15:56 And they got us 100 people.
15:58 Some needed 10,000.
15:59 We have been given some 4,000, some 2,000.
16:04 And the point is that if there was a deliberate effort to cut the numbers, then the wealthy,
16:11 those who are rich and the powerful, will have their children qualified.
16:15 If I should tell you the number of messages, calls I received on the day the publication
16:23 was done about the entrance exam, and even a few weeks before.
16:27 I mean, these are coming from very powerful people.
16:31 And yet, their children couldn't pass and they couldn't enter.
16:36 So we have a cross-section of people in the school now.
16:39 And the school and the profession has become so attractive that nearly every professional
16:44 now want to enter.
16:46 Medical doctors, pharmacists, even paramount chiefs, consultants, top police officers,
16:55 politicians abound.
16:56 Top military officers, they all come into the Ghana School of Law.
17:01 Even those who have retired still want to learn at the school.
17:07 And so you cannot have any evidence, in my view, and there is none, that anybody deliberately
17:14 want to restrict.
17:15 In fact, when exams are written, and this time, I can say, if I hope I'm permitted,
17:26 that Ghana School of Law, for example, had nothing to do with the entrance exams in terms
17:29 of setting questions and marking.
17:31 It was rather some people from the various universities that were involved in the assessment,
17:40 during the moderation, just to see the extent to which they themselves would recommend their
17:45 own students.
17:47 And I can tell you that sometimes when we are not involved, or the council is not involved
17:52 legitimately, the numbers would have been far, far low.
17:55 And this is assessment by their own lecturers through the entrance exam.
18:01 Thank you.
18:04 Thank you very much.
18:05 But there's another development that is coming up.
18:07 I know our time is running because people are eager and ready to maul you, especially
18:15 some of the men, for suggesting what you are putting up.
18:22 The other problem that is coming up, it is a problem we know that exists elsewhere in
18:29 the UK.
18:30 People have finished the law school, they have been called to the bar.
18:34 Now there's a requirement for them to do the mandatory six months of pupillage.
18:40 But they can't find a place to do that pupillage.
18:43 Therefore they will not get a practice license to begin to practice the law.
18:50 How are you thinking about that?
18:53 We have provided the answer partially, if I may say so.
18:56 And I can say on authority here that the Ghana School of Law has a legal department.
19:02 We have lawyers, mainly lecturers, who are prepared to receive some of these students
19:07 and train them as pupils.
19:09 If I do receive someone, we train for the internship.
19:13 So if there's any student who has just become a lawyer and doesn't have a place to do pupillage,
19:19 I am saying on authority, they should just write to us.
19:22 There are some lawyers who don't even know how to attract them.
19:27 They come to us.
19:28 We can also do so.
19:30 Now you see that a large number of them are choosing.
19:34 They prefer law firms that are famous.
19:38 They wouldn't like to come to your pawn chambers.
19:41 Oh, come on.
19:42 Come on.
19:43 Don't say that.
19:44 Well, so if they are willing, and it's OK because the law specifies who is qualified
19:54 to receive a pupil.
19:55 Once a person qualifies, I would urge them to go and start however humble, if you like,
20:02 the environment is.
20:04 You never know.
20:05 You can then even become a part of it, not just for the pupillage.
20:09 So if there's anybody who, and we are going to put up on the platform, if there's any,
20:14 I've already asked the SRC president to tell them, whoever wants to come to my chambers
20:20 or the Ghana School of Law chambers, to write their names.
20:23 This is just about three days ago, even before they were called to the bank.
20:27 So it's not a problem.
20:28 But also, we don't want to go to the villages.
20:31 We don't want to go to the districts.
20:33 We don't want to go to the regions.
20:36 When that is also part of the reason we must train a lot more lawyers.
20:40 And these beautiful pictures are on social media, as you can see.
20:44 That's A. Sankoma and three of his children.
20:48 All of them have become lawyers.
20:49 Two of them were called on Friday.
20:52 And then there is also the Fikzen O family.
20:56 Three boys, three guys, all called to the bar the same day.
21:03 So people are asking, how come three people from the same family, they get access and
21:09 get called to the bar, and one person is struggling to get in, they can't get it?
21:13 Well, that's what I'm saying.
21:15 It has nothing to do with any deliberate policy.
21:19 It is just by the effort, and I think by the grace of God.
21:23 I mean, the A. S.'s two daughters were my students in the post-college.
21:27 Very brilliant, hard-working personalities.
21:29 Until I went to the law school.
21:32 Post-college?
21:33 That also means that they perhaps didn't attempt your entrance exams for not being
21:40 sure that they would get it.
21:42 And then they went and did it somewhere else, and then came for post-college where they
21:46 won't have to write an entrance exam.
21:48 Yes, so that is also coming up.
21:53 But for the entrance, we interview.
21:55 And if you are not successful at the interview, we drop you.
21:58 That may not be an exam, but it's a form of a mechanism to assess the student.
22:04 And there have been instances where at the interview, some people have been dropped from
22:08 who wanted to go through the post-college session.
22:12 But I'm saying that until I went to the school, I never, I thought that the general
22:16 view that, we call them children or students of these days are lazy.
22:21 I wouldn't have known that there was an exception at the law school.
22:25 And you can ask any post-college student in particular.
22:28 The final system is so rigorous that it's incomparable in many of the universities they
22:33 attended in London and the US and Canada and elsewhere.
22:39 It's so regimented that, I mean, you just cannot find the briefing space.
22:45 And until your results are published, the anxiety and the pure sense of despondency
22:54 is immeasurable.
22:55 So, just to conclude, you can ask any of those who got some of our students for internship.
23:01 I did.
23:02 I close by.
23:03 I take up a maximum of four every year.
23:06 And I can tell the anxiety is just palpable.
23:10 But you can also tell that their competence is at least at the level where they can enter.
23:17 That's right.
23:18 I say that, if you can forgive me, the principle is just like the iPhone principle.
23:23 Produce more.
23:24 That should be quality.
23:26 And I got a call from one top personality who cannot be easily convinced about a position
23:33 of law which, I mean, she doesn't share.
23:36 But it means that she has so much knowledge and skill.
23:42 She called me and said, well, I stopped taking students from law school.
23:46 But last year, those I took really surprised me.
23:49 It means you guys are doing well.
23:51 And it's a crossroad.
23:52 So nobody should just ridicule the numbers and say, oh, the law school has become cheap
23:58 and so on.
23:59 These are students that you can engage them on one-on-one.
24:03 And you'll be amazed at how much knowledge and skill they have acquired.
24:07 Thanks to our lecturers as well.
24:09 Thank you very much.
24:12 That is the director of legal education and director of the Ghana School of Law, Berima
24:22 Yau Kodiye Opong.
24:35 Director of legal education and director of Ghana School of Law.
24:36 We'll take a quick break.
24:38 And then when we return, we will be getting to the subjects that you are itching to hear
24:46 about.
24:47 We should find another time to discuss a lot more about this particular subject.
24:52 Because I know there are many people who are also interested in this one as well.
24:57 But I think congratulations are in order.
25:00 And you guys are doing a good job.
25:02 We hope that the numbers can continue to appreciate the way they have been going up.
25:06 Yes.
25:07 We said that we won't ask lawyers in particular to come and support us.
25:11 The same thing that motivates them to go to their secondary schools to expand the infrastructure.
25:18 Because a number of the students come in are lawyers' children.
25:21 They don't come to help.
25:22 Okay.
25:23 We'll take a quick break.
25:24 We'll be right back.
25:32 You're welcome back.
25:33 And in my introduction, I read an excerpt.
25:38 I'm going to read that again to put our discussion in perspective.
25:44 At the Ghana Bar Association conference, annual conference this year, he presented a paper,
25:52 a 26-page paper, and made an argument to the end that he says, "For the avoidance of
26:01 doubt, the equality-executive principle ought not be applied to a wife, however wealthy
26:10 she might be.
26:12 That is, even if she is richer or wealthier than the husband.
26:18 Thus, this is the surest way to save most marriages, which are tearing apart principally
26:24 because of issues about who is entitled to which property and by what percentage.
26:31 Whether or not a wife or wives will share their wealth with their husbands should be
26:38 left to their sense of generosity and magnanimity."
26:42 In other words, any law that compels married women to compulsorily share with their husband
26:51 any property acquired by them during the subsistence of the marriage, with or without the support
26:59 of their husband, is retrogressive and ought to be removed from our statute books or departed
27:07 from if it is a binding decision of the courts.
27:13 Then he ended that, "This recommendation is, however, subject to the applicability
27:20 of the fault principle.
27:23 The person whose conduct engenders dissolution of the marriage must not take the full benefit
27:31 for it."
27:34 Already, once we put out our flyer and people got to know that this was the discussion in
27:42 perspective, we have received messages.
27:47 And I don't remember seeing one that is in favor of this proposition.
27:54 Where are you coming from?
27:56 From the point where the wife was required to have shown that she had made contribution
28:01 to the property before she would get a share, to the point where the Supreme Court says,
28:06 "Well, all the chores that the wife has been doing, that's for you."
28:08 We can't quantify that in monetary terms.
28:11 So she deserves to get a portion of the property.
28:15 And then you say, "The equality is equity principle.
28:21 This is the Cordier perspective."
28:25 Justify this.
28:26 That's what you have ably represented and read to the viewers.
28:33 So after the paper, I also received a number of messages, and even personal.
28:40 And I call it, "Condemnation by women, condemnation by men."
28:51 But one particular personality, very huge personality, who was a key member of those
28:56 who drafted our constitution, sent a message to one of his grandsons, who is also an outstanding
29:02 lawyer, that, "I never thought that Article 22 was drafted for men, or for the benefit
29:11 of men instead of the women."
29:14 And that this is the first time his attention has drawn to it, that traditional, and he's
29:19 a traditional man, a very important paramount chief, that traditionally, customarily, it
29:26 is an abomination, like I discussed, for a man to just stand in the presence of his in-laws
29:37 and say that, "Yes, my wife is diseased.
29:39 My wife is dead.
29:41 Don't you know that under Article 22, or PNDC Law 111, or even during my divorce, Matrimonial
29:51 Curses Act, Article 22, I have a right to a reasonable share in the estate of my wife,
29:59 when it's about death, or I have a right to equal share, or as a quantum that is determinable,
30:07 of the property of my wife."
30:09 I want someone to just tell me, how many communities in this country, if at all, can this be tolerated?
30:18 Because the point really is, and I said that from the days of Adam, God assigned responsibilities,
30:24 that you, the man, should sweat, till the land, and have food, and after you have also
30:31 gone to bring somebody else's daughter to your house, you feed that person and their
30:36 children.
30:37 It is not a woman to also carry the baby for nine months, or more if she's not lucky,
30:45 and she will go through travel until she gives birth.
30:49 These are distinct responsibilities God gave to us.
30:53 And that is why it is not a woman that should go to another person's wife to marry a man,
30:58 at least the dominant position is the opposite.
31:01 But the idea that now people go to other people's house, take their daughter, and you now enter
31:10 into a joint venture with her.
31:13 Use your money to buy food, or use her top money.
31:17 I will use mine to build a house.
31:19 And when there is dispute, you say, "Show me your contribution."
31:23 In actual fact, under custom, the same.
31:30 That is why even upon the death of a man, there is responsibility imposed on the members
31:36 of that man's family to continue to provide for the wife and children in terms of their
31:42 maintenance and all the necessities of life.
31:45 There's no such responsibility on a woman, that when your husband dies, you or the customary
31:52 successor of yours will then now take care of the man.
31:58 So in the face of this, I'm saying that any law that has recently been crafted, and I
32:07 didn't know that now even the understanding is that it was actually done for men, substantially,
32:13 because we are the ones that traditionally we cannot be entitled to property of a woman.
32:18 Let's read Article 22 in perspective, and then he'll explain further.
32:23 And then also, you did this in the face of the Land Act, which is a new law, which appears
32:30 to also somewhat tilt towards the perspective from which you come.
32:42 Now Article 22 of the 1992 Constitution says, "Property rights of spouses.
32:50 A person shall not be deprived of a reasonable provision out of the estate of a spouse, whether
32:58 or not the spouse died having made a will.
33:03 Parliament shall, as soon as practicable, after the coming into force of this Constitution,
33:09 enact legislation regulating the property rights of spouses."
33:14 We have tried.
33:15 We have not been able to do that.
33:17 So it is said that the property rights, they smuggled some of it into the Land Act.
33:24 Clause three, "With a view to achieving the full realization of the rights referred
33:28 to in clause two of this article, a, spouses shall have equal access to property jointly
33:35 acquired during marriage."
33:38 And this is the one that is prominently known.
33:42 "Spouses shall have equal access to property jointly acquired during marriage.
33:50 B, assets which are jointly acquired during marriage shall be distributed equitably between
33:57 the spouses upon the dissolution of the marriage."
34:03 So why do you say this was made for the men?
34:06 Well, as I said, even one of those who was prominent in drafting said that he never even
34:11 heard of it.
34:12 He had not adverted his mind to the fact that it was exclusively drafted for men.
34:18 But it favours the men even more than the women.
34:21 As I said, traditionally, a woman has always been entitled to part of the estate of the
34:26 husband, traditionally during divorce.
34:30 Even if it is the woman who is divorcing, sooner, it is rather the man who will be asked
34:37 generally to at least provide some compensation.
34:41 Sumo, alimony.
34:42 Sumo, alimony, yes.
34:45 Provide some compensation for the woman.
34:48 You understand?
34:49 So that has always been the case.
34:51 And I'm saying that if we go back to first principles from the days of Adam up to customary
34:57 law up to the areas where we were so struggling for this situation, if we just concentrate
35:06 on the fact that that is what some people misunderstood in the Kote and Mate case.
35:14 It is the responsibility of a man to provide for the necessities of life, maintenance for
35:21 his wife and children.
35:22 There is no corresponding duty on a woman.
35:25 If a woman decides to do so, I'm saying that it is just by way of generosity and her own
35:34 sense of magnanimity.
35:37 And this is the reason why, in my view and I've asked, Parliament is not even able to
35:43 comply with this mandatory provision of the constitution.
35:48 At least that is what, and this law, this bill was drafted as far back, I understand,
35:54 as 2008 when Dugati was there.
35:57 Spousal property bill.
35:59 And for 30 years now, since the constitution said we should do so as soon as it's practicable,
36:08 we are struggling.
36:09 Other laws have been passed with alacrity.
36:12 Why is this one not being passed?
36:14 And I'm saying that now you go to court in divorce proceedings and it is found so, quote
36:20 unquote, forgive me, but nauseating, that men are now emboldened to openly demand equal
36:29 share or reasonable share in the property of their wife.
36:34 That is an aberration because wives are wealthy, wives are richer.
36:38 It's not the time when the man had the opportunity to make wealth and the woman did it.
36:44 These days, women, some women are the breadwinners.
36:48 They go out and bring the most money.
36:51 So the property in the family, much of it is made by that woman.
36:56 Why should that man not be equally entitled in the same way that if the man were the one
37:02 who was richer and had made all the property, the woman would be entitled?
37:07 But then the woman is playing a double role because these men generally don't even also
37:12 play the role of a woman.
37:15 Why don't they also now stay at home, build their children, cook, support whatever domestic
37:23 chores that they are to engage in.
37:27 They still let the woman see that, look here, I am the one that paid your bride price and
37:34 so I continue to be your husband.
37:36 And I'm saying that as far as I'm concerned, if we go back to the first principles and
37:41 the customary law and so on, when it is an abomination, and even now, and I use the illustration
37:48 loosely, if you are a man, just like this jacket, if the button is changed to the left
37:55 and I were sitting here with it, I would be laughed at.
37:58 I would be ridiculed because it's a woman's dress.
38:01 But women can wear our dress.
38:03 Why don't we ridicule them?
38:05 So the general position, I'm not saying that the law of the constitution is supreme, but
38:12 I'm saying that until we look at it again, we are not going to even be successful in
38:18 passing a new law.
38:19 So help us, let's go back a bit.
38:23 What has been the law, the jurisprudence, the legal position in Ghana when it comes
38:28 to matrimonial property distribution, when there's a dissolution of the marriage?
38:36 Where have we come from?
38:37 Would you discuss chronologically before you come to your position?
38:42 So let's understand first of all that customary law is part of the laws of Ghana.
38:48 It's not just a source of law.
38:49 It's part of the laws of Ghana.
38:51 According to Article 11.
38:52 Article 11, thank you.
38:54 And so I start from customary law and I have highlighted that the dominant position of
39:00 customary law, and I'm saying that I'm prepared to educate myself.
39:04 If there is any dominant position other than this, that a man can just stand in the presence
39:10 of say his in-laws and boastfully demand for a share in the property of the wife.
39:21 Even when you give me an example, I can say that is not a dominant position in Ghana.
39:25 Most communities.
39:26 In some communities, the insults and the vulgar way they will use against you will be enough
39:31 for you to shut up as a man demanding part of the property of a woman.
39:37 So customary law does not support that kind of aberrant conduct, as I put it.
39:45 Then also, I related it to the days of Adam, which in most cases we see that the origin
39:52 of our laws is the original law and natural law, the law of God and so on.
39:57 That I've also said that generally doesn't support that conduct.
40:01 Then over time, our court started to entertain other principles.
40:07 So it then started from contribution.
40:12 Substantial contribution.
40:13 First contribution, then substantial.
40:16 Then that one, you have to show, for example, that when the property was being built, the
40:21 woman was going to the site to provide kinky and water for the workers, the foreman and
40:27 the masons and so on.
40:28 In fact, she was the one that was buying the cement with the money of the husband anyway.
40:33 She was running errands and so on.
40:36 These were the sort of things that you should-
40:38 So that there was some agreement that she would use her money to take care of the home
40:43 while the man uses his money to do the building.
40:46 Building.
40:47 Okay.
40:48 Yes, the chop money principle.
40:49 Or to do the property.
40:50 Yes.
40:51 The chop money principle, as I call it.
40:53 Then it was realized that a lot of times, the women in particular were unable to establish
40:59 these facts.
41:00 They don't have the evidence.
41:02 Because in a matrimonial setting, you don't go about keeping receipts or other concrete
41:08 evidence, unless you have a view to divorce it.
41:13 That's what they say that a woman who doesn't want to remain in marriage for long, when
41:19 he takes the cassava from the ground, she doesn't plant again, because she knows that
41:24 very soon she will divorce.
41:25 But if you know that you are not going to go through divorce very soon, why should you
41:30 be in the habit of even keeping receipts?
41:34 And the absence of that amounted to the fact that she was unable to substantiate the fact
41:39 that she made a contribution and was denied.
41:42 Mainly, it was in the case of a woman, the wife.
41:46 Then when the substantial contribution was also found not to be in accordance with justice
41:54 and fairness, then the equality is equity started developing.
42:00 What does that mean?
42:01 It had always been in our constitution until sometime in 2010, when a case came to court.
42:08 The famous Mensa and Mensa.
42:10 But I say that from the facts of the case, the equality is equity principle didn't have
42:16 to be invoked at all.
42:17 Because there was sufficient evidence that the woman who was married to a public servant
42:23 in Accra, who go to the rural areas, buy zoomi, red oil, gari, plantain, and bring it to around
42:31 the ministries where the husband was working.
42:33 And the husband will get some of his friends, or you can purchase some on credit.
42:39 At the end of the month, I'll take the money from you.
42:42 So it became like a credit sort of thing.
42:44 And the woman continued to bring these with her own money, substantially.
42:49 Then eventually there is divorce.
42:52 Properties have been acquired, including companies, enterprises, and so on.
42:57 Then she was asked to show evidence that in fact, she made any contribution.
43:02 I mean, you don't need equality is equity to establish that at least if you want to
43:08 go by even the substantial contribution principle, she had done more than what was substantial.
43:13 In fact, she made more contribution than the man in establishing these properties.
43:19 But at least it was applied then.
43:21 And there, the Supreme Court said that, well, Parliament has been asked about 20 years earlier
43:29 to take steps to pass a law.
43:32 It's obvious it has not been done.
43:33 And so we, the Supreme Court, we will not wait for them.
43:36 I have expressed my own criticism of it, that we should also be careful not to also invade
43:51 the territories of the second arm of states when they've been given that opportunity.
43:56 Because the Supreme Court can even compel Parliament in a way if there's a matter before
44:02 them.
44:03 And that's it.
44:04 So we got the equality is equity principle.
44:06 So we had Mensah and Mensah.
44:09 Then came Kwasi and Kwasi and similar.
44:11 And then Kwasi said, no, yes, equality is equity.
44:16 But we should be very careful not to violate a very important constitutional provision,
44:21 Article 18, that a person may acquire property either by himself that is a loan or in association
44:30 with others.
44:31 If we give a blanket check that once the property is acquired during the subsistence of the
44:37 marriage, then automatically the other spouse also has an equal share, it may be unfair.
44:45 From there on, after another came, it completely ignored this proviso in the Kwasi and Kwasi
44:51 case and also went back to Mensah and Mensah and then the famous Finn and Finn.
44:56 I will urge those who read the cases, go back to the law report and examine the personalities
45:03 of the judges.
45:05 It is this place that we don't have that jurisprudence.
45:09 Elsewhere, you will see certain lines running through some of these cases.
45:16 And there's nothing wrong with it.
45:18 Sometimes religious, social, economic inclinations.
45:22 And what's your argument when you bring in Parliament's sort of intrusion somehow in
45:29 2020 by the Land Act?
45:33 And the provisions that were made that have been talked about by many people about the
45:40 presumption that once the property is acquired during the marriage, the man doesn't even
45:46 have the right or either spouse, you don't have the right to dispose of the property
45:51 without the written consent of the other spouse.
45:57 When you are going to register and they even suspect that you are married, they will register
46:03 it in the name of the two spouses, not just in your name alone.
46:06 Because the law says so.
46:07 Because the law says so.
46:09 Until you prove that, no, my wife has agreed that this one is mine alone.
46:16 But that doesn't completely satisfy the requirement under Article 22 as we have spoken about.
46:21 My wife has agreed or I have shown enough documentation that in fact it is mine and
46:27 it was not acquired for the two of us.
46:30 Well the presumption is that once it was acquired during marriage, then it is matrimonial property.
46:36 The presumption is there rebuttable by you.
46:39 You the person saying it is not jointly acquired.
46:43 It's not the duty of the wife to even give evidence now on this generally.
46:47 So when you move from there and then you consider it in its totality.
46:53 That's why I hold the view that it is just unfair because we know in our society, even
46:59 though we have done better than many societies in terms of acquisition of property by women,
47:04 I think it is too regressive that now that gradually women are also able to leverage,
47:12 we now bring in a law that says that once a man can show that a woman acquired property
47:19 during the time of their marriage, then upon divorce, if he has some limited evidence that
47:29 in fact he contributed to it, some even say that, oh, I sponsored her further education
47:36 and training or trade business.
47:40 Now she has become let's say a commander in the army, earning so much.
47:45 So that is my contribution as a man.
47:49 But why did you marry the woman if you are not to ensure the improvement in her status
47:54 in life, especially economically?
47:57 Do you want the person to remain the same way?
48:01 And that used to be the mentality of some men.
48:04 They don't even want their wives.
48:07 So why do you say that claim to some sort of equality in the property is not fair?
48:15 If either spouse contributed so much to your progress, you know, by way of education and
48:26 how you came to where you are and you are earning sufficiently to make the property
48:34 that you want to say that is my property.
48:37 Why?
48:38 I'm saying that even for the woman, it's not as simple as that.
48:42 When you also have a child who is a male, remember the same principle will apply to
48:48 him as well.
48:50 And so on and so forth.
48:51 So my view, as I have stated, since there is no requirement that a woman should go to
48:57 a man's house and marry her, I mean, marry that man, the responsibility is on the man
49:04 solely to maintain the woman in her status in life together with children that will come
49:10 out of it.
49:11 And if a woman in the course of that acquires property, there shouldn't be any law that
49:16 compels her to also share it with a man.
49:20 But we know that they do it most times or all the time by generously committing themselves
49:28 apart from the role they play as mothers to our own children.
49:32 They also provide the means.
49:34 Many times they add to the child money we give them.
49:38 And so for me, I think if the law is looked at again, and if even for those who still
49:46 think that equality is a good thing, when they confront me and ask that, do you really
49:51 want your wife's property?
49:52 Oh, you can see it's not me, but you see, for others whose wife may be rich.
49:57 I say no.
49:58 So but anybody you ask, that is what they tell you.
50:02 Why don't we rather ensure that women advance further up to the level that we men in particular
50:11 have by our circumstance been able to reach?
50:15 And then we can think about a law which minimally may require a woman to make provision for
50:22 the husband.
50:23 And even that, I also insist that.
50:25 So now your proposition is that the law that Parliament was supposed to make, that it has
50:32 still not made, it should make it and state in very unambiguous terms that this is what
50:40 it has to be.
50:41 That is what I'm saying.
50:42 Yes, and it is only the man's property that will be shared when the relationship or the
50:48 marriage is dissolved.
50:50 But that of the wife should be left to the wife's own generosity.
50:54 Unless the wife, by evidence, engendered the divorce by, for example, committing adultery
51:02 or making it impossible for the marriage to be sustainable because she wants the property.
51:07 And that can easily be ascertained.
51:09 In that case, as I have concluded, that is the fault principle, even though in UK and
51:14 so on, they have now abolished the fault principle.
51:16 We still have the fault principle in our statute books.
51:20 So if, because then you are also careful not to encourage people coming into a marriage
51:26 after a few years, then I'm leaving properties that are acquired, the man's own.
51:32 But I've also argued that the property that should be shared should be that which has
51:39 already taken account of the amount of money the man has provided for maintenance for the
51:47 children and then for himself minimally.
51:51 It is the bonus that he has to share with the wife.
51:57 But all that belongs to the wife to be kept for her according to her own generosity.
52:02 You couched that in two statements.
52:05 One, by this proposition, the man's property alone will be shared in accordance with legally
52:11 founded discretion, subject of course to conditions including one, maintenance of issues of the
52:20 marriage, that's children, till they attain the age of majority, 18, correct?
52:26 Or 23.
52:27 Or even young in terms of education.
52:30 And are in the position to maintain themselves.
52:33 Two, reasonable consideration is made regarding the man's responsibility to his extended
52:40 family who may have immensely contributed to the development of the man, especially
52:45 in his formative years.
52:48 Was this to sort of placate the men who are not happy with your position?
52:55 Because it is acknowledged that the man too, it's somebody who helped them.
53:00 Yes.
53:01 Our mothers.
53:02 My mother had to sell her precious jewels and she took them from A-type, you know A-type?
53:09 Yes, trunk.
53:10 Because it's A-type.
53:11 Yes.
53:12 To sell it, to take care of me.
53:15 You understand?
53:16 That is what I'm saying.
53:17 So that aspect.
53:18 So it's not a holistic sort of thing.
53:20 When you take all this into account, then whatever is left to be shared according to
53:26 the discretion of a judge because or whoever will be responsible for the dissolution,
53:32 whether it's family members or so.
53:34 And then also on account of the man's own personal needs, he must drive some luxurious
53:40 car that his means can afford generally.
53:44 And then the rest can be shared with the wife while the wife keeps her own to make herself
53:49 happy and beautiful for you.
53:51 What else do you want as a man?
53:54 Interesting.
53:56 If you just join us.
53:57 I wish you can publish it so people can read it in the meantime.
54:00 Okay, so we have your permission to publish this.
54:06 So it's a 26-page presentation, a scholarly presentation that was made to lawyers at the
54:14 Ghana Bar Association's annual conference.
54:17 And we have been talking to, having a conversation with Berima Nanaia Okodio-Opong.
54:24 He's the director of legal education and director of the Ghana School of Law.
54:30 And he is provoking all of us to begin to think whether the present legal provisions
54:41 or circumstance, how to distribute property when the marriage ends or is dissolved is
54:48 fair and does justice to the woman.
54:52 Thank you very much.
54:53 This is one thing, since you are closing.
54:55 We are waiting for the celebration of life of our brother, Master Pukuwa Jemani.
55:00 He's 60 years.
55:01 He has also done a lot for law school.
55:03 He's now exiting.
55:04 You know, we're still coercing him to come.
55:07 Your predecessor.
55:08 Yes, yes.
55:09 We are attending.
55:10 Thank you very much.
55:13 Thank you very much once again.
55:15 This has been The Law.
55:16 It's your legal light.
55:17 It's your health law.
55:18 Please continue to chew upon these provoking proposition and particularly for the attention
55:25 of Parliament also.
55:27 Have a good afternoon.
55:28 I'm Samson Ladi-Ayene.
55:29 Thank you.
55:34 (upbeat music)
55:37 (upbeat music)