Multiple wives, children cannot prevent 50% property ownership by a divorced wife – Supreme Court
Justice Amadu Tanko, JSC, maintained that the test, as outlined in Article 22 of the 1992 Constitution, is that once a claimant proves that a property was jointly acquired, it must be equitably shared.
In the normal course of life, one might assume that since the Holy Qur’an permits a muslim man to take up to four wives, each wife should reasonably expect to receive a fair portion of his earthly property.
Indeed, this aligns with the natural desire of any father who wishes well for his wives and children and hopes to die peacefully, knowing they will enjoy the fruits of his labor.
That said, legal nuances are likely to disrupt this expectation, sometimes enriching certain parties while depriving others of any share in matrimonial property.
This reality was highlighted in the case of Ayishetu v. Abdul, where Ayishetu averred that she had taken a loan to purchase land at Ashale Botwe, where she built a two-bedroom apartment.
Her ex-husband, Abdul, subsequently added to this by constructing their matrimonial home on the same land.
In her petition, Ayishetu argued that since she purchased the land and contributed to the construction of the matrimonial home, the court should grant her ownership of the first house she built in addition to a share of the matrimonial home.
At the Court of Appeal, however, the judges expressed concern about her claims, noting that Abdul had other wives and children. They reasoned that granting Ayishetu 50% of the matrimonial home would be inequitable and a rigid application of the old principle established in Mensah v. Mensah.
Instead, the court awarded her ownership of the Ashale Botwe property she had constructed and granted her a lump sum of GHS 50,000 as a financial provision, rather than a share in the matrimonial home.
When the matter reached the Supreme Court, a five-member panel affirmed the decision of the Court of Appeal, having regard to the fact and the special circumstances of the case and the evidence on record.
Importantly, the Justices cautioned that their ruling should not be construed as establishing a blanket principle that the dissolution of a polygamous marriage can never result in a 50% share of matrimonial property for a divorced spouse.
They emphasized that the mere fact of polygamous marriage does not absolve a husband from responsibility toward any wife with whom he jointly owns property.
Justice Amadu Tanko, JSC, maintained that the test, as outlined in Article 22 of the 1992 Constitution, is one of joint acquisition subject to equitable distribution. Thus, once a claimant proves that a property was jointly acquired, it must be equitably shared.
