Legal practitioner Kwame Boafo Akuffo has welcomed two significant decisions of the Supreme Court in family law, saying the legal doctrines in those judgments provide clarity to addressing the complex dynamics of property ownership during marriage. 

He said the cases, Ayishetu Abdul Kadiri v. Abdul Dwamenah and Mrs Abena Pokua v. Yaw Kwakye, clarified the prevailing thinking that property acquired during marriage was presumed to be marital property.

Cases

The Court emphasised the rights of a party in a marriage to own property to the exclusion of the other party in the case of Ayishetu Abdul Kadiri v. Abdul Dwamenah.

The Apex Court deepened this position in the Mrs Abena Pokua v. Yaw Kwakye case, dispelling the presumption that properties acquired during the subsistence of a marriage are presumed to be marital property.

In the Abena Pokua Case, he said the Court now constituted by two members of the Ayishetu Case – Lovelace-Johnson JSC and Asiedu JSC – departed from the definition of marital property as espoused in the Ayishetu Case.

The legal practitioner said two positions could be deduced from the ruling, adding, “Parties to a marriage have the Constitutional right to own properties to the exclusion of each other. A party is therefore entitled to a separate economic life during the subsistence of a marriage.

“Properties acquired during the subsistence of a marriage are no longer deemed to wear the presumption that the same is matrimonial property,” he said.

In the view of Mr Akuffo, whose legal practice cuts across litigation, transactional business law and advisory,  the first takeaway from the two cases is the position of the Supreme Court that a party in a marriage can lead a separate economic life with respect to the acquisition of property during marriage.

“Indeed, the Court’s position as to a separate economic practice means that parties can now enter into agreements setting out the mode of acquisition of properties they intend to exercise in the marriage.

“Parties are now therefore capable of setting out in explicit form that they will acquire properties to the exclusion of each other,” he said.

Mr Akuffo, a Partner at Kwame Akuffo and Co, said with this ruling, parties were now entitled to go a step further and to name the said properties, adding that the legal advantage of same was that during litigation, a party cannot turn around save for vitiating factors such as fraud, among others, to claim a part of those properties based on some alleged form of contribution.

“These agreements can be executed prior to marriage and form for us a unique concept of prenuptials in our jurisprudence,” he added.

Another crucial point, he said, was that the Supreme Court no longer held the position that property acquired during the marriage bore the presumption of marital property.