Property and inheritance rights

During a divorce proceeding, a matter arose regarding contribution and participation receivables, particularly the application of the Turkish Civil Code, Number 4721, Article 219, Sub-Article 2, Sub-Paragraph 5, dated November 22, 2001, which provides that the income from a personal asset is such spouse’s acquired asset. The court of first instance held that this provision violated the Constitution, Articles 2 and 35, because it unreasonably interfered with property rights and would, therefore, prevent civil marriages.

This article provides that in order to obtain protection from violence, threats or harassment, a person (the “applicant”) may request a court to order the offending party to refrain from approaching the applicant or the applicant’s home, contacting and harassing the applicant, and frequenting specific locations. If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period, which may be extended on one occasion for good cause.

This Supreme Court case is notable for solidifying the “Jurisprudence of Equality” doctrine as predominant in determining the sharing of marital property upon divorce. Following the termination of the marriage, the wife was granted by the High Court of Accra in May 2010 (i) custody of the children; (ii) ownership of a house and a “half share of the ‘storey building’; and (iii) a half share of ‘the shops at Weija, Accra. The husband appealed the decision to the Court of Appeal. The Court of Appeal set aside and replaced the orders of the High Court.

If a married person dies, the surviving spouse inherits the estate of the deceased. The spouses’ common children inherit from both spouses when the surviving spouse dies. If the spouse who dies had children with another person at the time of their passing, the non-common children may receive their inheritance immediately. It is possible to write a will on who is to inherit, however, a direct heir (e.g. the deceased’s non-common child) always has the right to its share of that spouse’s inheritance.

In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue.

Wife and husband married in community of property, where all property of either spouse is combined in a joint estate regardless of whether it was acquired before or during the marriage and regardless of how much each spouse contributed. Despite marrying in community of property, the couple was not permitted to register newly purchased land in both of their names because the wife had continued to use her maiden name.

The Attorney General appealed the High Court’s ruling that section 2(3) of the Intestate Succession Act is unconstitutional. Under section 2 (3) of the Intestate Succession Act of 1953, a surviving wife is limited to a child’s share or E1200 (equivalent to U.S. $109.37), whichever is greater, of the estate. In contrast, section 34 (1) of the Constitution, entitles a surviving spouse to a “reasonable provision” of the estate, which could exceed Intestate Succession Act’s limitation.

Until 1976, the rules applicable on marriage and divorce originated in the Code Napoléon. At that time, the right to manage property within a marriage was held entirely by the man. To ensure that women would not suffer the negative consequences of bad management by their spouse (i.e., debts), in the event the marriage was dissolved they had the option to decline or to accept the division of assets and liabilities within a specified period. Silence meant that all matrimonial property rights and obligations were declined.

Here, the Court held that “having a child or children by the deceased is not enough to confer on the woman widowhood.” Consequently, the claimant was unable to inherit property from her deceased partner.

The appellant filed a complaint to divorce her husband and an action of summary proceedings to recover her property from the appellee.   The appellee-husband claimed he was entitled to a property acquired during the marriage because a married woman cannot acquire property in her own name solely for herself.