Developing Jurisprudence or Creating Chaos?: An Examination of the Decisions of Ghana's Supreme Court on Property Rights of Spouses

The rise in global recognition of women’s rights has led modern legal systems to devise measures to prevent discrimination against women, particularly in respect of property rights of spouses. In Ghana, the property rights of women have evolved from an era of zero recognition to a time of equal sharing of spousal property upon divorce. Redeeming the law from the clutches of unfair and discriminatory customary law that denied women any share in property acquired during marriage, the courts in Ghana developed the substantial contribution principle which entitled women to a share of only property to which they made substantial financial contributions. From the 1998 decision of Mensah v Mensah, the Supreme Court purported to have abolished the substantial contribution principle and in its place evolved equitable theories in sharing spousal property upon divorce. In the absence of any legislative framework notwithstanding, the Supreme Court has sought to evolve a jurisprudence of equality for sharing property acquired during the subsistence of a marriage. But far from being consistent, the Supreme Court has failed to develop a meaningful jurisprudence on the property rights of spouses. A review of the decisions of the Supreme Court over the last three decades reveals an embarrassing trend of contradictions and conflicts in judicial theory and reasoning. This Article explores the contradictions and conflicts in the theory of the Supreme Court, whilst emphasising that the jurisprudence of the Supreme Court is in fatal disarray and anarchy. The so-called jurisprudence of equality does not only lack constitutional anchorage, but it is forged on the anvil of judicial activism, and influenced by chauvinistic tendencies of individual judges to achieve gender equality of spouses and not to do justice per se. What we have now is a chaotic jurisprudence which offers no meaningful guide for the distribution of matrimonial property upon divorce. This Article concludes that the ghost of the substantial contribution principle haunts the Supreme Court as it continues to rule from the shadow of its supposed grave.