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Private Legal Practitioner and Partner at Beyuo and co., Iris Aggrey-Orleans, says property jointly acquired during the course of a marriage shall be equitably distributed upon a divorce.
According to her, this law applies to both spouses in the marriage as the law as stated in Article 22 of the 1992 constitution is gender neutral.
“It is gender neutral, so both man and woman can enjoy and should enjoy from jointly acquired property upon dissolution of the marriage. There must be an equitable distribution – and when you say equitable distribution the courts have used the words historically as fair play, commonsense, when it comes to the equitable distribution. So on a case by case basis, both parties can enjoy marital assets,” she said.
Speaking on divorce and property distribution on JoyNews’ The Law, the renowned lawyer explained that property distribution upon divorce is different from financial settlement upon divorce.
She explained that financial settlement or provision as stated under Section 19 of the Matrimonial Causes Act “is a just and equitable award of financial provision considering the standard of living of the parties.”
“So when it comes to that, what you’re claiming is not based on what you have put in. what you’re claiming is based on the fact of marriage being that the parties have married, you have been reliant on the income of one party, you have been given a certain standard of living for a certain period of time and you have reasonably expected to continue to enjoy that standard of living.
“You have acted in detriment to yourself and therefore the court will look at factors such as the income earning capacity, the standard of living, the age of the parties, your individual needs etc. and then make an award of financial settlement that is separate,” she explained.
Property distribution upon divorce, she said, is when property jointly acquired in a marriage is equitably distributed to divorcing spouses.
She stressed that “The two of you have put together resources and I will not use the word money because resources could be time, could be energy and it could be money. So you’ve put together resources to acquire property. Upon divorce, whether or not that property is registered in another person’s name, that property becomes matrimonial asset and you’re entitled to enjoy that equitably.”
According to Aggrey-Orleans, equitable distribution does not always mean equal distribution as each divorce case and the circumstance surrounding the divorce is unique.
“Equitably does not mean equally. In some instances it would mean equally, in others it would not mean equally. And so you’d have to look at the intricacies of every case. We can look at it as if two people are filling a barrel, one person has a smaller bucket, the other person has a bigger bucket. Obviously, the bigger bucket will fill the barrel faster. It doesn’t mean that the one who has that smaller bucket is not filling the barrel.
“And so the court will not look at the ordinary incidence of commerce where it will say that because Ama brought in five cedis out of her salary of 10 cedis and Kofi brought in 10 cedis out of his salary of 20 cedis suddenly Ama and Kofi’s contribution to the property is not equal. You will look at all those incidents and then come to a conclusion whether it should be equally distributed or it should be distributed in a 30:70 portion or 60:40 portion. So it is on a case by case basis,” she said.
