Sources of Law for Family Law

Introduction:

This note will briefly outline the sources of family law in Ghana. The sources to be outlined are the Constitution, 1992; the Marriages Act, 1884-1985 Cap. 127; the Matrimonial Causes Act, 1971 (Act 367); and the Children’s Act, 1998 (Act 560).

1. Constitution, 1992:

The Constitution, 1992, makes several provisions that touch on the scope of family law. These provisions are usually geared towards protecting individual members of the family.

In Article 22 of the Constitution, 1992, it is provided that:

1. A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.
2. Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
3. With a view to achieving the full realization of the rights referred to in clause (2) of this article
1. spouses shall have equal access to property jointly acquired during marriage;
2. assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage

Lowe and Douglas [1], as well as Offei, in Family Law in Ghana, posit that family law is concerned with rights in property. According to Offei, for instance, family law covers “rights in property which are created and affected by membership of the same family (i.e., husband, wife, and children).” The provision in Article 22 (supra) ensures that spouses are not deprived of access to property during the pendency of the marriage and upon the dissolution of the marriage.

Additionally, Article 28(1) makes various provisions for the protection of children. In particular, Article 28(1)(b) provides that:

Parliament shall enact such laws as are necessary to ensure that –

every child, whether or not born in wedlock, shall be entitled to reasonable provision out of the estate of its parents.

This provision also ensures that children are not deprived of access to the property of their parents.

Further, Article 28(1)(e) provides that:

Parliament shall enact such laws as are necessary to ensure that –

the protection and advancement of the family as the unit of society are safeguarded in promotion of the interest of children.

According to Lowe and Douglas [1], family law plays a remedial role; it makes provisions for the protection of weaker members of the family. The provision in Article 28(1)(e) (supra) enjoins Parliament to make laws to advance the family unit as a whole, particularly for the promotion of the interests of children.

2. Marriages Act, 1884-1985 CAP. 127:

This is a consolidated Act that regulates the different types of marriages in Ghana. Under this Act, there are three types of marriages:

1. Customary marriages - also known as marriage under Part One of CAP 127.
2. Marriage of Mohammedans - also known as marriage under Part Two of CAP 127.
3. Christian marriages – also known as marriage under Part Three of CAP 127.

These types of marriages are discussed extensively in subsequent notes.

3. Matrimonial Causes Act, 1971 (Act 367):

This is

An Act to provide for matrimonial causes and for other matters connected therewith.

Among others, it makes provisions for divorce, annulment of marriages, financial provision for spouses, and child custody. The provisions of this Act will be discussed in subsequent notes.

4. Children’s Act, 1998 (Act 560):

This is:

AN ACT to reform and consolidate the law relating to children, to provide for the rights of the child, maintenance and adoption, regulate child labour and apprenticeship, for ancillary matters concerning children generally and to provide for related matters

Among others, it makes provisions on the rights of the child and parental duty; parentage, custody, and maintenance; adoption; and provision of care to children.

Conclusion:

This note has discussed the major sources of law relevant to family law. Note that the sources of law discussed in this note are not exhaustive. There are other sources of law such as Criminal and Other Offences Act, 1960 (Act 29) and the Courts Act 1993 (Act 459).