GRACE MARTEY V. FRANCIS MARTEY

JUDGMENT 

Petitioner, Grace Martey, filed a petition for divorce on the ground that her  marriage with respondent had broken down beyond reconciliation. Among  others, she claimed that respondent had subjected her to physical and  emotional abuse and sold property belonging to the couple without  accounting to her. She therefore prayed for the following reliefs; 

a) That the marriage between her and respondent be dissolved.

b) A declaration that she is joint owner of their houses at Ashongman  and Prampram and the block factory at Ashongman.

c) A further declaration that all properties or any of the aforementioned  properties jointly acquired and owned by the parties but registered  in the sole name of respondent are being held in trust for the  petitioner by the respondent.

d) An order directed at the respondent to account for the proceeds of  the block factory or pay same into court pending the determination  of this suit.

e) An order distributing their two houses between the parties with  petitioner and her children taking the Ashongman house whilst the  respondent keeps that of Prampram.

OR  

f) In the alternative an order settling on the petitioner and her two children the Ashongman House.

g) Financial provision in the lump sum of GHC50,000 be paid to petitioner by the respondent.

h) Costs and legal expenses be paid by respondent to petitioner.

i) Any other orders that the court shall award. 

The respondent, on the other hand, filed an amended answer and cross petition in which he also claimed that petitioner had assaulted him  verbally and physically during the course of their marriage. He admitted that their marriage had broken down beyond reconciliation and cross petitioned for divorce. Additionally, he prayed that each party should be ordered to retain the respective property that he/she acquired during the  marriage.  

In his answer to the divorce petition, the respondent claimed that he  acquired a six-bedroom house at Old Ashongman and assisted petitioner  to put up a six bedroom house at Ashongman. He also claimed that petitioner put up a three bedroom house at Ablorh Adjei where she  currently resided as well as a three bed room house at Dodowa. He further  claimed that he assisted petitioner to renovate her father’s house at  Dodowa at tremendous cost and expense to himself. 

Upon examination of the petition and answer, the main issues that arose for determination were; 

1) Whether or not the marriage between the couple had broken down beyond reconciliation; 

2) What would constitute equitable property distribution given the  facts of this case and; 

3) Whether or not petitioner was entitled to an order for financial  provision in the sum of GHC50,000 

1. WHETHER OR NOT THE MARRIAGE BETWEEN THE COUPLE HAD BROKEN DOWN BEYOND RECONCILIATION 

On this issue, both parties appeared to be ad idem that there was no hope  for reconciliation. The evidence showed that on a number of occasions, at  least three, the petitioner had left the matrimonial home only to return  after the storm had calmed. On the last occasion that she left, she took all  her belongings and proceeded to file for divorce. Thus the finality of this  departure can be inferred from the conduct of the petitioner. 

According to respondent, attempts were made by family members from  both sides to reconcile the parties; however, the petitioner’s family  members demanded that he return her to her family immediately  preceding the filing of the petition. It can therefore be inferred from the  testimonies of the parties and their conduct or posture after petitioner  moved out finally that their marriage had irretrievably broken down.  

In the circumstances, the customary marriage celebrated between  petitioner and respondent on 4th August 1990 that was subsequently  converted into an ordinance marriage on 22nd May 2004 is hereby  dissolved. 

2. WHAT WOULD CONSTITUTE EQUITABLE PROPERTY  DISTRIBUTION FOR BOTH PARTIES? 

In her petition, the petitioner listed three properties that the couple  acquired jointly during their marriage. These were; the Ashongman House,  the Prampram House and the block factory in front of the Ashongman House that was set up from proceeds from the sale of land acquired by  respondent during the marriage. 

The respondent, on the other hand, in addition to the properties mentioned  by petitioner, stated that petitioner built two houses, one at Ablorh-Adjei  and one at Dodowa. In order to arrive at an equitable distribution of the  properties, each property will be examined below. 

ASHONGMAN HOUSE 

From the evidence led by the parties the Ashongman House, which  appears to be the matrimonial home, was built during the subsistence of  their marriage. Respondent paid for the land in the presence of petitioner  and the document was made out in respondent’s name. Respondent  claimed that petitioner did not contribute a pesewa towards the  construction of the main house and outer house, except that she made  partial payment for the kitchen cupboard, which she took with her when  she moved out.  

Petitioner, on the other hand, claimed that she contributed to the  construction of the Ashongman house by applying for a loan from her  employer that was expended on the Ashongman House. It is significant to  note that petitioner moved out of the Ashongman House into the house at  Ablorh-Adjei before filing for divorce.

ABLORH-ADJEI HOUSE 

Petitioner omitted to add this property to her list of properties jointly  acquired by the parties in her divorce petition. However, under cross examination, she admitted that she acquired land at Ablorh-Adjei while  respondent bought two adjoining plots. She admitted that she  singlehandedly built a three bedroom uncompleted house on the Ablorh Adjei land and moved in with her children.  

Respondent, for his part, admitted that he did not contribute towards the  construction of the Ablorh -Adjei House. 

BLOCK FACTORY 

In her evidence-in-chief petitioner stated that respondent sold the plots of  land he bought at Ablorh-Adjei at the time she bought the one on which  she had constructed her house and used the proceeds to construct a block  factory. She claimed that he did not account for the proceeds of the block  factory to her and requested that he be asked to do so.  

On his part, respondent admitted that he acquired two plots of land at  Abloh –Adjei adjoining the one bought by petitioner, sold them and used  the proceeds to set up a block factory in front of the Ashongman House.  He claimed that the block factory was no longer operational and that he used the proceeds therefrom to take care of the children when he was  placed on interdiction at his work place. 

PRAMPRAM HOUSE 

Although the petitioner listed the Prampram House as one of the properties  jointly acquired by the parties during their marriage, she admitted under  cross-examination that the said House was situated on land that belonged  to respondent’s family. She further admitted that she did not contribute  towards the acquisition or construction of the Prampram House. 

The following transpired during cross-examination of petitioner by  respondent’s Counsel on 2nd July 2014 

Q: Did you contribute towards the acquisition of the Prampram land?

A: No I did not contribute.

Q: Are you aware the land on which the building is situated is family land  of respondent.

A: Yes I know

Q: Did you contribute to the building construction of the building on it?

A: No 

In his evidence in chief on 23rd October 2015, the respondent stated as  follows: 

Q: The petitioner told the court that you acquired property at Prampram.  How was it acquired? 

A: The property in Prampram is built on family land. My mother who is  related to the chief requested for land, which was given to her. I do not  own that land. I did not buy it. I constructed the building alone. The  petitioner did not contribute anything. I have a document on the  Prampram property I have an indenture. I requested for a document to  enable me to seek financial assistance from the bank. I used it as collateral  to collect a loan from Prampram Rural Bank. The indenture is still in the  custody of the bank although I have finished repaying the loan. 

In the case of In re Yalley (decd) Yalley v. Kells (2001-2002 ) SCGLR 762 at  767, Ampiah JSC, as he then was, adopted the ratio in the case of Ansah  v. Sackey (1958) 3 WALR 325, wherein it was held that; 

(i) The interest retained by a family member in buildings erected  by him, using his own private resources, on family land  otherwise unbuilt upon is an interest limited to his own life.  Although the life interest itself is fully alienable (eg it can be  given as security for a loan) it is not open to life tenant, unless  he acts with the consent and concurrence of the head and  principal members of the family, to alienate any greater  interest or estate. On the death of the life tenant the interest  in the property vests in the family and any disposition by the  life tenant purported to have any other effect is ineffective. 

(ii) Where a family member using his own resources builds on  family land by way of addition or extension to existing family  property he acquires no special rights in the building he erects  and these are deemed to comprise family property form the  date of erection. 

Thus the position of the law is that an individual, who constructs a  building on family land with his personal resources, has a life interest in  the house. Upon his death the interest in the property reverts to the family  and the individual cannot make a valid testamentary disposition of his interest in same. By application, the Prampram House which was built by  respondent through his own resources on family land, would not qualify  as marital property of the couple as the reversionary interest in the house  is vested in respondent’s family. 

DODOWA HOUSE 

Respondent asserted that the petitioner had constructed a six bedroom  house at Dodowa. He was however unable to prove this assertion in his  evidence. The evidence showed that the Dodowa House belonged to  petitioner’s father and that respondent contributed towards its renovation.  

After assessing the properties to be distributed it is important to consider  the legal position in relation to the distribution of spousal property. 

With regard to the legal position on the distribution of property jointly  acquired during a marriage, Article 22(3)(a) and (b) of the 1992  Constitution provides that: 

“(a) spouses shall have equal access to property jointly acquired  during marriage; 

(b) assets which are jointly acquired during marriage shall be  distributed equitably between the spouses upon dissolution of the  marriage.” 

In the case of Mensah v. Mensah [2012] 1 SCGLR 391 it was held per  Dotse JSC,that property acquired during the subsistence of a marriage is  marital property. 

Furthermore, in the case of Arthur v. Arthur, Civil Appeal No.  J4/19/2013 Date Bah JSC, as he then was, affirmed the ratio in Mensah  v. Mensah (supra) when he stated thus;  

“we are bound to follow this holding of the Supreme Court in Mensah v. Mensah (supra). Marital property is thus to be understood  as property acquired by the spouses during the marriage,  irrespective of whether the other spouse has made a contribution to its acquisition. We re-affirm this concept of marital property. It should be emphasized that, in the light of the ratio decidendi in Mensah v. Mensah, it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage”  

From the above definition of marital property, it can be seen that property  acquired during the subsistence of a marriage, constitutes marital property regardless of whether or not a spouse contributed to its  acquisition. Thus, the Ashongman House, the Ablorh- Adjei House, the  Block factory, and the Prampram House are the four properties that were  acquired during the subsistence of the marriage between the couple.  

It must be emphasized that because the Prampram House was built on  land belonging to respondent’s family, the respondent has a life interest in  it. This means that the Prampram House would revert to respondent’s  family after his death. Hence, the Prampram House must be eliminated  from the list of properties that can be distributed between the parties. 

Thus, three properties remain, namely, the Ablorh Adjei House, the  Ashongman House and the Block Factory. In my considered opinion, it  would be equitable, under the circumstances, to settle the Ablorh-Adjei  House in favour of petitioner in addition to one half of the Ashongman  House. 

In view of the fact that respondent admitted selling the two plots of land  he acquired at Ablorh-Adjei and using the proceeds to establish a block  factory, which is currently not operational, one half of the Ashongman  house will be granted to respondent. 

In conclusion the petitioner is entitled to the Ablorh-Adjei house and one  half of the Ashongman House. Respondent is entitled to one half of the  Ashongman House. 

3. WHETHER THE PETITIONER IS ENTITLED TO FINANCIAL  PROVISION IN THE SUM OF GHC50,000 

Section 19 of the Matrimonial Causes Act, 1971 provides that; 

“the court may, whenever it thinks just and equitable, award  maintenance pending suit or financial provision to either party to  the marriage, but an order for maintenance pending suit or financial  provision shall not be made until the court has considered the  standard of living of the parties and their circumstances” 



In the present case, petitioner is requesting for financial provision of  GHC50,000 to be paid by respondent. It is not in dispute that the two issue  had between petitioner and respondent are currently living with petitioner.  Respondent tendered exhibit 4 series to show that while on interdiction,  he continued to pay the school fees of the children and to cater for their  needs. He also admitted that petitioner paid the school fees of one of their children who attended Wisconsin University.

In view of the continuing obligation of respondent to maintain the children  he had with petitioner, in view of the fact that respondent is currently  unemployed having been dismissed from his work place since February  2015, and in view of petitioner’s contribution towards the upkeep of the  children, I shall award a sum of GHC25,000 as financial provision for  petitioner. 

Costs of GHC1,000 awarded to petitioner. 

 (SGD)

BARBARA TETTEH-CHARWAY (MRS) 

 JUSTICE OF THE HIGH COURT.