June, 2024

Introduction

Prenuptial agreements are becoming increasingly relevant in modern marriages, thereby necessitating a closer examination of the jurisprudence of this phenomenon in Ghana. Following the recent dissolution of Asamoah Gyan’s marriage (the retired Ghanaian football star), the debate on the enforceability of prenuptial agreements has resurfaced.

What Is A Prenuptial Agreement

A prenuptial agreement, also known as a premarital agreement or prenup for short, is a binding agreement between a would-be-married couple, stating how the marital assets would be shared between them in the event that the marriage fails. A prenup enables the parties, from the onset, to define their rights and obligations, including asset division, in the event of divorce or separation or death.

The Common Law Position

Historically, at common law, prenuptial agreements were considered unenforceable as being contrary to public policy on grounds that they interfered with the sanctity of marriage. This position is no longer the case as there has been a shift towards the recognition and enforceability of prenuptial agreements so long as the parties freely entered into such an agreement with full appreciation of its implications.[1]

The Ghanaian Position

Although presently there is no specific legislation regulating prenuptial agreements in Ghana, it appears that as far back as 1983, our Ghanaian courts duly recognised and gave legal backing to prenuptial agreements. In the case of Achiampong v. Achiampong[2] it was decided that “where the rights of the spouses in respect of any property are established or agreed, the court should uphold those rights. For example, where the court finds that there was an agreement between the spouses about any property, it must give effect to the agreement.”

It comes as no surprise therefore that the courts in Ghana are increasingly recognising the enforceability of prenuptial agreements. In the recent decision of Emmanuel Obeng v. Kate Nyamekye (Otherwise known as Mary Frimpong Rubiera (RE)[3] the Court of Appeal unanimously held that “since a marriage is a contract, the parties have the right to enter into a prenuptial agreement by which their right to create their individual property will be outlined.” The court added that “where such a premarital agreement is made on property rights, neither the provisions of article 22 (3) of the Constitution, section 38 (3) and (4) of the Land Act, 2020 or any Supreme Court cases including Mensah v. Mensah and Adjei v Adjei becomes applicable.”

It is equally worthy of mention that the learned Justice Alexander Osei Tutu in his article, “Making A Case For The Enforcement of Prenuptial Agreements in Ghana”, opines that the Supreme Court (per Date Bah JSC) appeared to have impliedly recognized prenups in Arthur v. Arthur[4] when he took inspiration from the factors that are to be considered in the division of matrimonial assets by referring to sections 12 and 13 of the Nova Scotia Matrimonial Property Act, 1980. Among the factors as stated under section 13 (c) is “a marriage contract or separation agreement between the parties.”

Conclusion

Indeed, it cannot be over-emphasised that in this day and age, prenuptial agreements play a crucial role in managing property and financial matters before, during and/or after a marriage.

Basically, what this means is that where it is established that the parties voluntarily and intentionally entered into a prenuptial agreement with a full understanding and appreciation of the legal repercussions, then upon the dissolution of their marriage or separation or on the death of one of the parties, the Ghanaian courts would uphold the wishes/intentions of the parties as agreed. The position of the courts to enforce prenup agreements is further supported by the provisions of Article 18(1) of the 1992 Constitution which guarantees every person the right to own property either alone or in association with others and section 47 of the Land Act, 2020 (Act 1036) which restricts transfer of jointly acquired marital property by one, “in the absence of a written agreement to the contrary …”.

However, as with all agreements, the courts reserve the power/authority to reject a prenuptial agreement if the terms are found to be unconscionable or are affected by vitiating factors such as duress, undue influence or fraud.

[1] Radmacher v. Granatino (2010) UKSC 42

[2] [1982-83] GLR 1017-1039

[3] Civil Appeal No: H1/51/2021 dated 20^th July, 2023

[4] (2013) 1 SCGLR 543