When a husband purchases a property or makes an investment in the name of his wife, it is presumed in law to mean that the husband intended that property or investment be a GIFT to his wife. Meaning the law deems it to belong solely to the wife as a gift unless the husband proves otherwise to rebut that presumption.
Okay, now, let’s flip the coin lol, this doesn’t apply when a wife buys a property or makes an investment in the name of the husband ooo. As for that one, the Law will deem the husband to be holding that property or investment in trust for the wife. It means the husband is only a trustee who is holding the property or investment for the wife and not that the law sees it to belong to the husband, it is neither a gift to him, nor does he have a legal interest in that property.
My Authority is Ramia v Ramia. This concept is called the principle of advancement – and the presumption of advancement is also rebuttable by evidence of a contrary intention.
Ok, so what about a side chick? If a Married man buys a property in the name of a side chick or mistress, how does the law see it? As in let’s say, me; BigGodwin, I am married but bought a property and titled it in a name of a girlfriend other than my lawfully wedded wife – what happens to the advancement principle in such a scenario concerning me BigG, and the side chick?
Let us look at a case law that would shed a little light on it.
In Ussher vs. Darko, a husband purchased land in the name of his side chick (or let’s say in the early days; it was called a concubine) with whom he had six children. He built on the land and let it out to tenants who directly paid rent to him. The side chick who had the legal title to the property relied on the title in her name and attempted to sell it to someone else. The title transfer (Conveyancing) failed, it was held that although the mistress had a legal title, she held the property as a bare trustee, i.e. on a resulting trust for the purchaser of the said property which is the married man. The court further held that the presumption of advancement operated ONLY in favor of a lawful wife. And since the side chick wasn’t the lawful wife of the purchaser which is the man, the presumption did not arise in her favor.
But even for a lawfully wedded couple, our courts have been oscillating lately, looking at the new development from the Land Act, especially in recent departures from Mensah v Mensah, Boafo v Boafo and the recent Supreme Court decision of Adjei v Adjei which was a departure from Equality is Equity principle, the courts seem to have developed a new jurisprudence that sees properties acquired within marriage to be jointly acquired which is also a rebuttable presumption, but the principle of advancement which is actively a common law concept is still very much alive in our Ghanaian jurisprudence.
This dichotomy between Adjei v Adjei’s departure and the golden Mensah v Mensah was also seen in the adjudication of the recent Supreme Court case of NANA YAA KONADU VRS ALHAJI ABDUL RASHEED, popularly called THE NAYAK CASE.
Pardon the legal jargon, some of them are inevitable, but you can ask questions if you are unclear about anything.
Source: BigGodwin Martey
