One of the most enduring debates in Ghanaian family law is whether divorce automatically entitles a spouse to half of the other spouse’s property. For years, phrases like “equality is equity” have been loosely interpreted as meaning a guaranteed 50–50 split. In Amma Owusu Sarpong v Kojo Owusu Sarpong, the Supreme Court has firmly corrected that assumption and clarified, in careful detail, the current position of the law.
At the heart of the case was a familiar dispute: a marriage had broken down, property had been developed during the marriage, and one spouse sought an equal share upon dissolution. What followed was a three-tier judicial journey that now stands as an important guide for courts, lawyers, and spouses alike.
Background to the Marriage and the Dispute
Amma Owusu Sarpong and Kojo Owusu Sarpong contracted a customary marriage in 2002. Three years later, on Valentine’s Day in February 2005, they celebrated an ordinance marriage at Koforidua, thereby bringing their union within the regime of the Marriage Ordinance.
The marriage did not produce children. Before the marriage, however, the husband had acquired land at Tetegu near Kasoa and had begun constructing a residential building. By the time the parties married, the structure had reached window level.
During the subsistence of the marriage, construction continued. The parties lived mainly in the United Kingdom, while supervision of the building was carried out in Ghana. The wife claimed she supervised construction when funds were sent to her, contributed money directly and indirectly, and supported the household financially. She also alleged that a sum of £4,000, originally intended for IVF treatment, was diverted by the husband for use on the building.
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By 2015, the marriage had broken down irretrievably. The parties separated, and in October 2018, the wife petitioned the High Court at Koforidua for dissolution of the marriage and for an equitable share in the house.
The High Court’s Approach: Equality as Equity
The High Court dissolved the marriage without difficulty, finding that it had broken down beyond reconciliation. The real contest concerned the property.
Relying on Article 22(3) of the 1992 Constitution and established Supreme Court authorities, the trial judge held that the wife had made sufficient financial and non-financial contributions to the property. Emphasis was placed on her supervisory role, her alleged monetary contributions, and her support of the marriage while the parties lived abroad.
On that basis, the High Court concluded that the house had acquired the “colour of marital property” and ordered that it be shared equally between the parties, awarding the wife a 50% interest.
The Court of Appeal: Rebalancing the Equities
The husband appealed, challenging only the property distribution. He argued that the land was solely his, construction had substantially progressed before the marriage, and that the wife’s contributions did not justify equal ownership.
The Court of Appeal agreed in part with the High Court. It accepted that, by reason of the parties’ conduct during the marriage, the property could properly be treated as marital in character. However, it faulted the trial court for failing to properly evaluate the equities between the parties.
In the Court of Appeal’s view, several factors were decisive:
- The land was acquired solely by the husband before the marriage
- Construction had begun and progressed significantly before the marriage
- The evidence did not support a presumption of joint ownership from the outset
- The wife’s contributions, though real, were not equal to those of the husband
Accordingly, the Court of Appeal set aside the 50–50 order and substituted it with an award of 20% interest in favour of the wife.
The Supreme Court: No Automatic Right to Equal Sharing
Dissatisfied, the wife appealed to the Supreme Court, insisting that her contributions entitled her to an equal share and that the Court of Appeal had misapplied established principles.
The Supreme Court dismissed the appeal and affirmed the decision of the Court of Appeal.
In a detailed and far-reaching judgment, the Court revisited its earlier jurisprudence on spousal property rights and clarified the true meaning of Article 22 of the Constitution.
The Supreme Court’s Key Pronouncements
1. Equity Does Not Mean Mathematical Equality
The Court reaffirmed that Article 22(3) of the 1992 Constitution mandates equitable distribution of jointly acquired property, not automatic equal division. While equality may sometimes be equitable, it is not a universal rule.
2. Contribution Remains Central
A spouse seeking a share in property must demonstrate contribution, whether financial or non-financial. Domestic work, supervision, and support are recognised, but their weight depends on the evidence and context.
3. Pre-marital Property Is Not Automatically Joint
Property acquired before marriage does not become jointly owned simply because marriage subsisted during its completion or improvement. The timing and source of acquisition remain critical.
4. Not Every House Is a Matrimonial Home
The Court rejected the characterisation of the Tetegu property as a matrimonial home. The wife had never lived in the house, and there was no evidence that the parties intended it to be their permanent residence. Physical occupation and intention are key.
5. Appellate Courts May Reassess Percentages
Where a trial court fails to properly balance the equities, appellate courts are entitled to vary the distribution, provided the variation is supported by the evidence.
6. No Proof of Unrefunded Financial Contribution
The Supreme Court accepted the trial court’s finding that the wife failed to prove that certain sums allegedly contributed were not refunded. Unsupported assertions could not ground a claim for equal ownership.
The Broader Legal Position in Ghana Today
This decision fits squarely within the Supreme Court’s evolving jurisprudence, including Mensah v Mensah, Boafo v Boafo, Quartson v Quartson, Arthur v Arthur, and the more recent cases of Ayisha Abdul Kadiri v Abdul Dwamena and Abena Pokua v Yaw Kwakye.
Taken together, the law in Ghana is now settled as follows:
- There is no automatic 50–50 rule in divorce proceedings
- Joint acquisition must be proven, not assumed
- Contribution determines entitlement
- Equity is assessed on a case-by-case basis
- Courts may award proprietary interests or monetary compensation under section 20 of the Matrimonial Causes Act, 1971 (Act 367)
- Individual property rights remain constitutionally protected
The decision in Amma Owusu Sarpong v Kojo Owusu Sarpong sends a clear message. Marriage does not erase individual property rights, and divorce is not a mechanical exercise in equal division. Ghanaian courts will look closely at evidence, intention, contribution, and fairness before allocating property.
For spouses, the lesson is straightforward: equity must be earned and proven. For practitioners, the case is a timely reminder that the language of “50–50” must always give way to careful legal analysis grounded in evidence and justice.
