New Law To Protect Spouses

The Provisional National Defence Council (PNDC) Law 111 is to be repealed and replaced with a new intestate succession law which would cater for spouses in polygamous marriages.

The Intestate Succession Bill, 2013, which went through its Second Reading in Parliament yesterday, makes provision for ‘intestate spouses’ in polygamous marriages.

According to the memorandum of the new bill, the PNDC law 111, which was enacted 28 years ago to, among other things, protect spouses did not consider spouses in polygamous marriages.

As a result, spouses in polygamous marriages often engage in disagreements over how property of persons who die intestate are to be distributed, because the current law is silent on the issue.

The memorandum indicated that some of the provisions of the PNDC Law 111 had proved inimical to the interest of the immediate family of the deceased.

“The provisions on fractional distribution of the estate of the deceased have been difficult to implement. The specific portion of the estate fixed by the current law to devolve on the spouse irrespective of the number of spouses, creates a problem,” it said.

Clause Six of the new bill provides for the devolution of the property of an intestate, who is survived by more than one spouse, and indicates that “in this instance, 50 per cent is to go to the surviving spouses, 40 per cent to the surviving children, five per cent to the surviving parent and five per cent in accordance with customary law”.

The bill further gives judges the discretion to give a surviving spouse who is estranged from the deceased, and who has been living separately for a period of time, a percentage of the estate of the deceased, but which is not less than 35 per cent of the estate of the intestate.

The bill makes provision for the property rights of spouses of the deceased, especially where the surviving spouse contributed towards the acquisition of the property, and implies that spouses who contributed towards the acquisition of property with the deceased spouse would be given their contribution of that property, before the remainder would be distributed in accordance with customary law.

Clause 12 of the bill makes it obligatory for the needs of school-going and other dependent children of the deceased to be met before the distribution of the estate of the intestate.

The rationale is to afford those who depend on the estate for the payment of educational fees and other necessities of life, the opportunity to continue with their education or training.

“Any person who does not comply with this provision is subject to a fine or to a term of imprisonment or to both,” it said.

A report by the Committee on Constitutional, Legal and Parliamentary Affairs said the Intestate Succession Bill 2013 would provide a uniformed intestate succession that would be applied everywhere in the country, irrespective of the inheritance system of the intestate and the type of marriage contracted.

It said although the PNDC Law 111 provided some protection beyond the customary law, it appeared to be overtaken by the changes in the Ghanaian family system.

“The anomalies in the law are such that they could not be treated in an amendment, as the issues are numerous and intertwined. There is, therefore, the need to enact a completely new law to address the changing circumstances, hence the introduction of the Intestate Succession Bill,” it said.

By Yaw Kyei

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