Implications For Property Rights Of Spouses
The purpose of this article is to examine the Implications For Property Rights Of Spouses provisions in the new Land Act relating to spousal rights to landed property in Ghana.
By: BENJAMIN TACHIE ANTIEDU, LEGAL PRACTITIONER &
GOODNUFF APPIAH LARBI, LEGAL RESEARCHER
According to Louis Glickman, the best investment on earth is earth. Though this statement may appear contentious, it goes to demonstrate the enormous prospects of land as instrument for investment. Besides investment, land is used for residential, agricultural, recreational, transportation and commercial purposes. It must be further stated that the African puts socio-cultural value on land. This view aligns with the statement that “To the African, land is worth much more than its economic value.
The African attaches emotional and spiritual value to land as well (Antiedu, 2019 @ page 134 of Reading the Law).
Having regard to the above, it is essential that the State manages land in the best possible way to permit fair access, eliminate conflicts and guarantee secure titles to land. This can only be achieved through the development of sound legal and institutional framework. It is in the former respect that the new Land Act, 2020 (Act 1036) has been passed. The purpose of the new Act is to “revise, harmonise, and consolidate laws on land to ensure sustainable land administration and management, effective and efficient land tenure and to provide for related matters.”
It is also worthy to note that the new Land Act repeals 13 enactments and re-enacts same with modifications. The law further contains a number of novel provisions. Among these are provisions relating to property rights of spouses.
THE NEW LAND ACT AND SPOUSAL RIGHTS TO LANDED PROPERTY
According to the Committee on Lands and Forestry of Parliament which considered Bill in prior to its passage into law, the purpose of regulating spousal right to landed property under the Bill (now law) was to provide “remedial measures to guard against instances where the right or interest in land [jointly] acquired during marriage is disposed of or used for transactions without the consent of the other spouse.”
The relevant provisions of the new Land Act are found in Sections 38(3) and (4) and 47 of the Act, and same are reproduced as follows:
Parties to a conveyance
Sec. 38. (3) In a conveyance for valuable consideration of an interest in land that is jointly acquired during the marriage, the spouses shall be deemed to be parties to the conveyance unless a contrary intention is expressed in the conveyance.
(4) Where contrary to subsection (3) a conveyance is made to one spouse, that spouse shall be presumed to be holding the land or interest in the land in trust for the spouses, unless a contrary intention is expressed in the conveyance.
Restrictions on transfer of land by spouses
Except as provided in subsections (3) and (4) of
section 38, in the absence of written agreement by the spouses in a marriage, a spouse shall not, in respect of land, right or interest in land acquired for valuable considerable during the marriage,
(a) sell, exchange, transfer, mortgage or lease the land, right or interest in the land,
(b) enter into a contract for sale, exchange, transfer,
mortgage or lease the land, right or interest in the land, or
(c) give away the land, right or interest in the land in the land inter vivos or
(d) enter into any other transaction in relation to the land, right or interest in the land without the written consent of the other spouse, which shall not be unnecessarily withheld.
IMPLICATIONS OF THE PROPERTY RIGHT OF SPOUSES UNDER THE ACT
The above provisions in the law have far-reaching
implications for the property rights of spouses in Ghana.
Five important implications may be gleaned from the law as follows:
The first implication is that landed property acquired by a person before marriage shall remain independent property of that person after the marriage. This property shall not form part of the joint property of the spouses in the marriage.
The second implication is that a landed property received by a spouse as a gift inter vivos or through a testamentary disposition shall be an independent landed property of that spouse. Such landed property shall not form part of the joint properties of the spouses in the marriage.
The third implication is that a spouse who purchased landed property for valuable consideration prior to the coming into force of the new Land Act on 23rd December, 2020 shall continue to hold that immovable property as an
independent property. Such a property shall not form part of the joint properties of the spouses.
The fourth implication is that if a spouse attempts to acquire landed for himself or herself during the marriage but fails to indicate that intention in the transfer document, both parties shall be deemed to be parties to the transfer. The property so acquired shall form part of the joint properties of the spouses in the marriage.
The last implication is that a spouse cannot unilaterally sell, exchange, mortgage, lease the landed property or otherwise dispose of same. Again, a spouse cannot unilaterally enter into a contract to dispose of or encumber a joint landed property of the spouses. A spouse seeking to unilaterally deal with such joint landed property must first obtain a written agreement of both spouses to that effect.
The writers take the view that the passage of the new Land Act, 2020 (Act 1036) is a giant step towards dealing with the plethora of challenges confronting Ghana’s land sector. Of particular significance is the aspect of regulating spousal rights to landed property in Ghana.
The writers commend highly the Rt. Hon. Speaker and Members of the 7th Parliament, the Hon. Members of the Committee on Lands and Forestry, the then Minister for Lands and Natural Resources, the former Attorney- General and Minister for Justice, Officials of the Lands Commission, Office of the Administrator of Stool Lands, Experts from the Land Administration Project, the Ghana Institute of Surveyors and other stakeholders who contributed to the passage of the new Land Act.
The writers respectfully urge the Right Honourable
Speaker and Members of the 8th Parliament, the incoming Attorney-General to prioritise the passage of the Property Rights of Spouses Bill to comprehensively deal with the thorny issues regarding property rights of spouses in Ghana.
LIST OF REFERENCES
Antiedu, B. T.: 2019: Reading the Law (Pentecost Printing Press Limited, Accra).
Ahwireng-Obeng, F., 2015: Contemporary Principles of Family Law in Ghana.
Fynn, A., 2016: The Ownership of Matrimonial Property in Ghana, 50/50 or Nay.
The Constitution of the Republic of Ghana.
The Land Act, 2020 (Act 1036).
Mensah v. Mensah  GHACA 8.
Fynn v. Fynn  GHACA 129 (SC).
Legal Profession: a River of Endless Opportunities