The new land act: Implications for property rights of spouses

INTRODUCTION

According to Louis Glickman, the best investment on earth is earth. Besides investment, the land is used for residential, agricultural, recreational, transportation and commercial purposes. Further to this, the African places extra value on land. This is fortified by the view that “To the African, land is worth much more than its economic value. The African attaches emotional and spiritual value to land as well (Antiedu, 2019 @ page 134 of Reading the Law).

Ghana has enacted a new Land Act, 2020 (Act 1036). The law came into force on 23rd December 2020.

PROVISIONS REGULATING SPOUSAL RIGHTS TO LANDED PROPERTY

Among others, the new Land Act regulates spousal rights to landed property. This is intended to “guard against instances where the right or interest in land [jointly] acquired during marriage is disposed of or used for transactions without the consent of the other spouse.”

The relevant provisions are Sections 38(3) and (4) and 47 of the Act and same are reproduced as follows:

“Parties to a conveyance

38. (3) In a conveyance for valuable consideration of an interest in land that is jointly acquired during the marriage, the spouses shall be deemed to be parties to the conveyance unless a contrary intention is expressed in the conveyance.

(4) Where contrary to subsection (3) a conveyance is made to one spouse, that spouse shall be presumed to be holding the land or interest in the land in trust for the spouses, unless a contrary intention is expressed in the conveyance.”

Restrictions on transfer of land by spouses

47. Except as provided in subsections (3) and (4) of section 38, in the absence of written agreement by the spouses in a marriage, a spouse shall not, in respect of land, right or interest in land acquired for valuable considerable during the marriage,

(a) sell, exchange, transfer, mortgage or lease the land, right or interest in the land,

(b) enter into a contract for sale, exchange, transfer, mortgage or lease the land, right or interest in the land, or

(c) give away the land, right or interest in the land in the land inter Vivos or

(d) enter into any other transaction in relation to the land, right or interest in the land without the written consent of the other spouse, which shall not be unnecessarily withheld.

IMPLICATIONS OF THE ACT ON PROPERTY RIGHT OF SPOUSES

The following are the five implications of the new law:

The first implication is that landed property acquired by a person before marriage remains the independent property of that person after the marriage. The property does not form part of the joint property of the spouses.

The second implication is that landed property received by a spouse as a gift shall be an independent landed property of that spouse. Such landed property shall not form part of the joint properties of the spouses in the marriage.

The third implication is that a spouse who purchased landed property for valuable consideration prior to the coming into force of the new Land Act on December 23, 2020, shall continue to hold that immovable property as an independent property. Such property shall not form part of the joint properties of the spouses.

The fourth implication is that if a spouse attempts to acquire landed for himself or herself during the marriage but fails to indicate that intention in the transfer document, both parties shall be deemed to be parties to the transfer. The property so acquired shall form part of the joint properties of the spouses.

The last implication is that a spouse cannot unilaterally sell, exchange, mortgage, lease joint landed property or enter into a contract to dispose of or encumber the same without a written agreement executed by both spouses.

CONCLUSION

The writers have noted the far-reaching implications of the provisions in the law regulating spousal right to immovable property. In view of this, they humbly urge Parliament and the incoming Attorney-General to prioritise the passage of the Property Rights of Spouses Bill to comprehensively deal with the subject.