PROPERTY RIGHTS OF WOMEN

DURING DIVORCE IN POLYGAMOUS
MARRIAGES

By Eric K. Baffour, Justice of the High Court

INTRODUCTION

Article 7 of the Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa (Women’s Protocol or otherwise referred to as the
Maputo Protocol)1 has been signed and ratified2 by Ghana. It calls for the enactment
of appropriate legislation to ensure that women enjoy the same rights in the event of
separation, divorce or annulment of marriage in the same manner as men. It also
demands States to ensure an equitable distribution of properties jointly acquired
during the subsistence of the marriage. And so also is article 18(3) of the African
Charter for Human and People’s Rights (African Charter) which states that “the
State shall ensure the elimination of every discrimination against women and also
ensure the protection of the rights of the woman and the child as stipulated in
international declarations and conventions”.3 Some of the international declarations
and conventions alluded to in this paper are the Universal Declaration of Human
Rights (UDHR), Convention on the Elimination of All forms of Discrimination
Against Women (CEDAW). One area that one thinks is embraced in all the
international conventions and protocols that Ghana has signed on to is the rights of
women to equitable share to properties in customary law marriages, which is
polygamous, when there is divorce.

Polygamy connotes an array of plural or different types of marriages that permits

multiple relationships. According to Martinuk4 there are three main types of
polygamy. The first is polygyny, which is a marriage relationship where multiple
women are married to one man as their spouse at the same time. The second type of
polygamy is polyandry which permits one woman to be married to multiple men.
This is known to be practiced among some native tribes in the Amazon forest. The
third type of polygamy is polyamory, being a type of marriage where the couple
rejects the exclusivity of sexual relationship. This form of polygamy could take the
form of group marriage with a combination of both polygyny and polyamory. This

1 The Women’s Protocol came into effect in 2005 after receiving fifteen ratifications by member
states of the African Union.
2 Ghana signed the Maputo Protocol on 31st October, 2003 and ratified same on 13th June, 2007
3 See article 18(3) of the ACHPR
4 See Susan Martinuk in her article “Polygamy Harmful and Must be Fought”

W W W. D E N N I S L AW G H . C O M 1
makes it possible for the man as well as the woman to have multiple wives and
husbands respectively.

It is only the first form of polygamy, being polygyny which is known to the
Ghanaian cultural society. Whenever polygamy is used in this paper it is in reference
to only polygyny and not any of the other two forms of polygamy. One characteristic
of the customary law marriage is its propensity to be potentially polygamous.

In Ghana5 there are three types of marriages; marriage under the Marriage
Ordinance, 1884, Cap 127 (Revised 1951), marriage under the Mohammedan
Ordinance, 1907, Cap 129 and customary law marriage. 6 Whiles marriage under the
Marriage Ordinance is strictly monogamous7 as it only admits of one man one
woman or one wife one husband and a breach of this principle is enough to
constitute the criminal offence of bigamy8 the last two are potentially polygamous in
nature. In the sense that a man is at liberty to marry more than one wife. Experience
has shown that quite a sizeable number of marriages under the customary law
marriage end up being polygamous in nature.9 When it comes to the distribution of
the marital property upon divorce, whiles distribution is done by the court for
marriage under the Ordinance it may not necessarily be so for customary law and
Mohammedan marriages. The law under section 41 of the Matrimonial Causes Act10
(MCA) only stipulates that spouses married under the last forms of marriages “may”
apply to the courts for redress in terms of dissolution of the marriage or for any
other ancillary relief. Most women that are likely to contract customary law
marriages are illiterate, the urban poor and may live in the rural areas, and for such
women, access to the court for redress is a remote possibility. In the end an
overwhelming number of customary law marriages do not come to the law courts
for dissolution and distribution of marital properties; but the property is distributed

5 See infra
6 See Elizabeth Archampong in her doctoral thesis captioned “Reforming Ghana’s Matrimonial
Property Law to Achieve Greater Gender Equality upon Marriage Breakdown. See also Marian C.
Ofori-Boahene in her work “Divorce in Ghana: An Examination of Women’s Property Rights”
7 See the Marriage Ordinance, Cap 127
8 See section 262 of the Criminal & Other Offences Act, Act 29 of 1960. A man convicted under the
law is liable to a prison term of up to three years as the offence is a misdemeanour
9 See W. Offei in his work Family Law in Ghana at page 129
10 Matrimonial Causes Act, 1971, section 41 …

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in accordance with the customary law of the ethnic group that the marriage was
contracted under.

Tragically, customary laws are often harsh and unfavourable to women when
it comes to property distribution.11 This leaves many married women upon divorce
in a customary polygamous law marriage, penniless, hapless and condemned to a
life of abject poverty as they walk out of the marriage without any property. It is
against this background of the shabby treatment of the rights of such women
regarding access to marital property that calls for another look at both the
international and domestic laws of Ghana to examine and explore ways for better
protection of the rights of women upon divorce when that marriage happens to be
polygamous.

The primary questions that animates this article is an examination of the Property
Rights of Spouses Bill and if passed into law, whether it can adequately deal with the
hiatus in the current protection offered women married under customary law. A look
would also be taken at the congenital deficiencies in the Bill before its birth into law?
And lastly what proposals could be made for improvement of the Bill regarding the
necessary and adequate safeguard for women to reap the fruits of their labour when
they come out of a polygamous marriage when such marriage irretrievably breaks
down beyond reconciliation.

Until recently, the Ghanaian courts applied customary law notions relating to
property upon dissolution of customary marriages in the courts. A clear account of
the distribution of marital property in a situation of divorce in customary law is
contained in Sarbah’s work.12 He states that among the Fantis, “married people have no
communality of goods; but each hath his or her particular property”.13 Atta – Boahene
citing Ofei-Aboagye also notes that marriage in the traditional customary setting has
no effect on properties acquired during the subsistence of the marriage as joint

11 See E. Archampong supra

12 John Sarbah Fanti Customary Laws: A Brief Introduction to the Principles of the Native laws and
Customs of the Fanti and Akan Districts of the Gold Coast John Sarbah is acclaimed to be the
foremost lawyer of the Gold Coast (Ghana) and became a pioneer writer of the customs of the Fanti
ethnic group of southern Ghana.
13 John Sarbah

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ownership of property by the couple is unknown. A more eloquent rendition of the
essence of customary law marriage was given by Danquah14 when he argues that
polygamy is for “practical business transaction”15 and for procreation. This is so
because in traditional Africa societies more hands were needed in farming activities
and the more wives a man has the more women and children he will have at his
disposal to help him with his farming activities. In this way there is a close
correlation between polygamy and patriarchy.16 Indeed Bowan has termed the two
as “comfortable bedfellows”.17

And it is this jurisprudence that a case like Quartey v Martey18 was based wherein
Ollenu J. (as he then was) noted that “that by customary law it is the duty of a man’s wife
and children to assist him in the carrying out of the duties of his station in life. The proceeds
of that joint effort, and any property which the man acquires with such proceeds, are by
customary law the individual property of the man, not the joint property of all”19.

The present position of the law with regard to monogamous marriage is that
property acquired during the subsistence of the marriage is deemed to be jointly
acquired and upon divorce must be equally and fairly distributed among them. This
is what has become known as equality principle that has been distilled in a line of
cases such as Mensah v Mensah20, Quartson v Quartson21 , Arthur v Arthur22. In the
Mensah case, Justice Dotse recognized the difficulty in applying the principle to
polygamous marriages. The learned Judge noted that the court was not unaware of
complications that may arise in the application of the principle of equality in the
context of polygamous marriages. And that the “complications can be tackled on a case
by case basis in subsequent law development, or by direct statutory intervention by the
Legislature”.23

14 J. B. Danquah’s work “Akan Laws and Customs: And the Akim Abuakwa Constitution”
15 Ibid
16 See Lorrain Bowan in her work “Polygamy and Patriarchy”: An Intimate Look at Marriage in
Ghana Through the Human Rights Lens
17 Ibid
18 [1959] GLR 377
19 Page 381 supra
20 J4/20/2011
21 J4/8/2011
22 CA/19/2013
23 Ibid

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 Dealing with the distribution of property during divorce in a polygamous
marriage has not yet received the case-by-case attention that the learned Judge
suggested and direct legislative intervention has not yet occurred. Though
Parliament has incubated the Property Rights of Spouses Bill for some time now, it is
worth examining if the direct legislative intervention that the Supreme Court calls
for is reflected in the Bill.

TREATMENT OF RIGHTS OF WOMEN TO PROPERTY IN POLYGAMOUS

MARRIAGES IN THE PROPERTY RIGHTS OF SPOUSES BILL, 2013

The Memorandum to the Bill claims that it is to regulate the property rights of
spouses in accordance with article 22 of the Constitution, particularly clauses (2) and
(3).24 This was against the background of different set of principles and concepts,
used in the determination of property rights of spouses. The word “spouse” has been
defined under section 2 of the Bill as a “man married to a woman or a woman married to
a man”25 under the Marriage Ordinance, Mohammedan Ordinance or under
customary law. 26 The Bill deals with cohabitation under section 3 and the law view
partners in cohabitation as “spouses” for the purposes of the law.

By applying the word “spouse” to cover all types of marriages and spelling out equal
access and distribution of marital property under clauses 12 and 13 of the Bill, the
handicap experienced in polygamous marriages seems to be overcome. This is
because the clause 12 calls for equal access by spouses to joint property in terms of
equal possession, same interest and title. The factors needed to be considered in
clause 13 include, among others, the length of the marriage, the age of the spouse,
the contribution of each spouse to the acquisition of the property, the economic
circumstance of each spouse at the time of the distribution of the property, the need
to make reasonable provision for other spouses and their children as regards joint
property after another marriage where the marriage is polygamous(emphasis mine),
financial misconduct or the wasting of assets by one spouse and any other facts
which in the view of the court is worth considering.27

24 The Memorandum to the Bill

25 Ibid
26 ibid
27 Ibid

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 The Bill’s recognition of polygamous marriage in the distribution of property
by ensuring that the court takes account of the interest of the other women and
children in the polygamous marriage is a Janus face innovation. Clause 13 must be
read in conjunction with Clause 20 of the Bill. Clause 20 states as follows:

“Where a husband has more than one wife in a polygamous marriage, the ownership of
property shall be determined as follows:

(a) Joint property acquired in the first marriage and before the second marriage was
contracted is owned by the husband and the first wife; and

(b) Any joint property acquired after the second marriage is owned by the husband and
the co-wives and the same principle is applicable to a subsequent marriage”.

This is a better formulae in dealing with property settlement in a polygamous

marriage in several respects. It ensures that a woman who is a second, third or
fourth wife and has not been married to the husband for long, does not take
advantage, to the detriment of the earlier women, to appropriate a greater part of the
property during divorce on a simplistic application of the equality is equity
principle. The latter wife does not become a part owner of the properties she came to
meet as it is left for the exclusive share and distribution of the rivals who predated
her. In the same breath if it is the first wife who is getting the divorce, all the
properties that were acquired between her and the husband before the subsequent
other wives came to the scene, becomes a property for equal distribution between
the first wife and the husband to the exclusion of the other women. The first wife
also shares in other properties acquired during the presence of the other women in
the marriage.

Besides, the Bill introduced another novel concept in property distribution in

polygamous marriage. Under clause 20(3) it states that “[H]usband in a polygamous
marriage who takes a subsequent wife or wives shall together with the existing wife or wives
make a declaration of their respective interest in the joint property”. The form of the
declaration shall be similar to the one expected of partners in cohabitation and may
define the share of property that each spouse is entitled to on divorce or separation.
The declaration may also provide for the calculation of the share and the method by
which the property may be divided. The Bill allows the declaration to be in either

W W W. D E N N I S L AW G H . C O M 6
written or oral form and if it is intended to be used in court there is a requirement for
it to be confirmed by an affidavit. The Bill also makes provision for it to be filed in
court under the seal of the court. Where a party is illiterate the requirements under
the Illiterate Protection Ordinance, Cap 262,28 must be satisfied. There must be a jurat
for an interpreter to certify that he/she duly has interpreted the document in the
language that the party understands before making a mark.

Critique and Recommendations

Notwithstanding the provisions of clauses 13 and 20 of the Bill being ground

breaking in terms of providing real and substantial guidance for the court in the
distribution of properties in a polygamous marriage when one woman is seeking or
being divorced, there are still challenges with the provisions regarding the
distribution in polygamous marriages. First, majority of the divorces in polygamous
marriages under either customary law or Mohammedan Ordinance do not come to
the court. For most women under those forms of marriage, the Bill when passed may
still not provide the solution they grave. If they cannot approach the court either due
to poverty or they will have to travel long distances, the provisions will only remain
in the statute books and may mean nothing to those people whose plight the law
was intended to remedy.

Second, the provision for an oral or written agreement to be made is itself

problematic. Polygamous marriages are usually contracted by rural or urban poor or
illiterates under custom. The apex court has held that “customary law knows no
writing”29 and the demand for such marriages to be written and filed is more likely
to be observed in its breach than in its observance.

Again, the Bill should have signaled that the rights of women and their
children in polygamous marriages are not given the best of treatment commensurate
to their status as “humans”. And the Bill should have called for education to
discourage women from going into such marriages with a view toward a progressive
and future proscription of polygamous marriages in Ghana. Nations not being
western countries have shown the way for the proscription of polygamy such as

28 The Illiterate Protection Ordinance was passed to ensure that illiterates are not taken advantage
of when such persons are parties to agreement.
29 See Brown v Quarshie supra

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Papua New Guinea. And it will not be out of the way for the Bill to have headed
towards such a possible destination.

One would have thought that even if Ghana was light years away from
abolition of polygamy which infringes on the rights of women, the Bill would have
proposed a compulsory dissolution of such marriages in court. For now such
exclusive right of the court to dissolve marriages is only in respect of those under the
Marriage Ordinance. If the Bill grants only the courts that power it will would take
away from the hands of traditional chiefs, heads of family, elders and community
leaders to dissolve polygamous marriages as they are prone to dissolve marriages
without making property distribution in accordance with the proposals in the Bill.
This should not be difficult as there is a District Court in every District in Ghana
with each court handled by a District Magistrate30. If the courts are to supervise the
dissolution of such marriages, women will be on their way to achieving real equality
in the distribution of marital property upon dissolution of marriage.

Again, the heavy toll that polygamy takes on the rights of women was not
fully appreciated in the Bill. If it did the Bill would not have taken the approach of a
palliative face management. For polygamy requires more women and invariably
teenage girls in society to satisfy the unbridled desire of men to marry them. This
leads to a situation where the education of teenage girls are truncated to be given as
bride with its attendant forced marriages. A man with multiple wives, no matter
how resourced endowed he may be, may still have inadequate resources and time
allocated to all the women and the children, not to talk of the toll for government.

Not only that but also the Bill fails to propose a compulsory registration of
customary law marriages. There is a law31 that calls for registration of marriages
under custom but such registration is not made compulsory.

30 Section 45(1) of the Courts Act, 1993, Act 459

31 Customary Marriage and Divorce Registration Law, P.N. D. C. L 112

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Conclusion

As the US Supreme Court has noted that polygamy is “abhorrent to the sentiments and
feelings of the civilized world”,32 due perhaps to many factors such as production of
inequality and perpetuation of injustice to women and children born in those
relationships, thereby limiting the overall success of societies that permits it, the
current proposals are nowhere near being a curative for this endemic cultural ill in
Ghana but a welcome palliative for now. The rights of women to property
irrespective of the type of marriage one happens to find herself must be guaranteed
at all times and in all circumstances in accordance with international and regional
human rights law. This is further highlighted by the Constitution, article 22. The
nature of the marriage should not be used as an excuse. It is in this respect that one
hopes that the safest way to guarantee such a right is for the Bill to grant the courts
of Ghana the exclusive right to dissolve all types of marriages including polygamous
ones. This will be the greatest way of ensuring that the courts supervise distribution
of properties in polygamous marriages. Otherwise the traditional authorities may
continue to dissolve such marriages but may fail to apply the principles set out in
the Bill for marital distribution.

The sociological factors and reasons provided for the practice of customary law
polygamous marriage is no longer tenable. Some of the reasons were that women in
traditional African societies sought for brave, successful, charismatic and powerful
men such as chiefs, accomplished hunters, farmers and fishermen as women reached
out to men strong enough to protect them. A society must always invent and
discover new ways of doing old things. Ghanaian society has changed and the crave
for more women and children to help out in the farms and other activities of the man
is not the order anymore.

32 Mormon Church v United States 136, US 1 (1890)

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