Published March 11, 2025
“In conclusion, the law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that of natural love and affection which counts so little in these cold courts. Per – JUSTICE FRANCIS OBIRI
Introduction
As William Shakespeare once wrote, “Love looks not with the eyes, but with the mind, and therefore is winged Cupid painted blind.” This poetic observation captures the essence of marital relationships, where trust and affection often take precedence over formalities. However, when love falters and disputes arise, the courts are left to grapple with promises made in the intimacy of marriage—promises that are rarely documented or bound by legal formalities.
Facts of the Case:
In the case of Yaa Serwaa v. Eric Asamoah (2022), the Petitioner initiated divorce proceedings against the Respondent, seeking to dissolve their marriage and secure financial support, joint ownership of the matrimonial home and a Honda CR-V vehicle, as well as compensation for household expenses, maintenance, medical bills, and school fees.
The Respondent opposed this action and filed a counterclaim, requesting custody of the children and a declaration that the marriage was invalid.
The court established that the couple had initially entered into a customary marriage in 2002, which they later formalized under ordinance law in 2013. It was determined that the marriage had irreparably broken down due to the Respondent’s unreasonable behavior.
In its ruling, the court noted that the matrimonial home and the Honda CR-V vehicle were jointly acquired during the marriage, entitling each party to a 50% share or the value of these properties.
Custody of the children under 18 was awarded to the Petitioner, with the Respondent granted reasonable access during weekends and school vacations. Both parties were ordered to provide for the children’s needs until they completed their education.
Furthermore, the Respondent was directed to pay GH¢20,000 to the Petitioner as financial support and GH¢15,000 towards expenses incurred for the children. The Petitioner was also awarded GH¢8,000 in costs against the Respondent. The Respondent’s counterclaim was dismissed by the court.
In concluding the case, Justice Francis Obiri (as he then was) emphasized that “the law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that of natural love and affection which counts so little in these cold courts.” This observation highlights the informal nature of spousal agreements, which are often based on love and trust rather than enforceable legal obligations. This principle is consistent with the court’s approach in similar cases, such as Tabury v. Yeboaba (2013), where the courts have been cautious about enforcing promises rooted in personal relationships due to their subjective nature.
The case of Yaa Serwaa v. Eric Asamoah (2022) brings this issue into sharp focus. Justice Francis Obiri’s statement that “the law does not regulate the form of agreements between spouses” highlights the informal nature of spousal commitments. These agreements, built on natural love and affection, lack the tangible consideration required for enforceable contracts in “cold courts.” This article explores the legal and cultural implications of such informal agreements in Ghana, examining their intersection with property rights, equitable distribution, and legislative gaps.
The Informal Nature of Spousal Agreements: A Legal and Cultural Perspective
The High Court’s holding in Yaa Serwaa v. Eric Asamoah (2022), where it was stated that “the law does not regulate the form of agreements between spouses,” sheds light on the unique dynamics of marital relationships. This observation reflects the informal nature of spousal agreements, which are often rooted in trust, affection, and cultural practices rather than strict legal formalities. In this article, we delve into the significance of this holding, supported by judicial precedents and academic insights, to explore the interplay between law, culture, and marital relationships in Ghana.
Love and Affection as Consideration: A Legal Limitation
The court’s assertion that spousal agreements are not “sealed with seals and sealing wax” underscores their informal nature. Unlike commercial contracts, which require valid consideration to be enforceable, spousal agreements are often based on natural love and affection. However, as noted in Juliet Buntuguh’s article on spousal property rights in Ghana, love and affection do not constitute valid legal consideration under traditional contract law frameworks.
This principle is evident in Tabury v. Yeboaba (2013), where the courts avoided enforcing promises rooted in personal relationships due to their subjective nature. The lack of measurable value in emotional bonds makes it difficult for courts to adjudicate disputes arising from such agreements. Consequently, while love and affection form the foundation of marital relationships, they hold little weight in legal proceedings.
Informality Rooted in Customary Practices
In Ghana, customary marriages—recognized alongside statutory marriages—are deeply rooted in cultural norms. These unions often rely on verbal agreements or family arrangements rather than formal documentation. For instance, customary marriages may involve symbolic acts such as the payment of bride price or family consent, as highlighted by Mavis Kwainoe in her study on marriage and divorce laws in Ghana.
This informality aligns with the court’s observation that marital promises are not bound by legal formalities. However, it also creates challenges when disputes arise, as courts must navigate a complex interplay of customary practices and statutory laws.
Judicial Challenges and the Role of Courts
The reference to “cold courts” by Justice Francis Obiri highlights the judiciary’s limited ability to adjudicate matters based on emotional or moral obligations. Courts prioritize enforceable legal rights over subjective feelings, making it challenging to regulate personal promises between spouses. This limitation is further complicated by the coexistence of customary and statutory laws in Ghana.
For example, the Matrimonial Causes Act of 1971 (Act 367) provides a statutory framework for divorce but does not adequately address issues related to informal spousal agreements or property distribution. As noted by Juliet Buntuguh, the absence of a clear statutory framework governing spousal property rights remains a significant challenge.
Calls for Legislative Reform
The lack of clear legislation governing spousal property rights has led to calls for reform. Article 22 of Ghana’s 1992 Constitution mandates Parliament to pass laws regulating property rights upon divorce or death. However, as noted in an article on Property Rights of Spouses, multiple attempts to pass a comprehensive Property Rights of Spouses Bill have failed. This legislative gap leaves courts to rely on case law, such as Mensah v. Mensah (No. 2) and Quartson v. Quartson, which emphasize principles like “equality is equity” but lack consistency.
Conclusion
The holding in Yaa Serwaa v. Eric Asamoah captures the essence of marital relationships—informal yet deeply personal. While this fosters flexibility and cultural authenticity, it also creates challenges for courts tasked with resolving disputes. As noted by scholars like Juliet Buntuguh and Mavis Kwainoe, there is a pressing need for legislative clarity to balance cultural practices with legal norms.
Ultimately, the statement reflects a broader truth: marital relationships operate within a unique space where love and trust prevail over formalities. However, as societal dynamics evolve, aligning these relationships with legal frameworks will be essential for ensuring fairness and predictability in resolving disputes.
Andrew Kofi Annan is a legal consultant at Minkah-Premo Osei-Bonsu Bruce Cathline and Partners. He holds an LLM from Kwame Nkrumah University of Science and Technology (KNUST), where he’s also a Graduate Assistant
References
1. Juliet Buntuguh (2023). Tracing the Development of Spousal Property Rights in Ghana. Ghana School of Law Student Journal.
2. Mavis Kwainoe (2024). Marriage and Divorce: Perspectives from the Bench. Wisconsin Journal of Arts and Sciences.
3. Property Rights of Spouses in Ghana: Why the Next Parliament Should Pass a Bill to Regulate It. HG.org (2023).
