Jurisdiction of the Courts in Family Law Matters

Introduction:

This note will discuss when various courts in Ghana will have jurisdiction to entertain a family law matter. The note will discuss the jurisdictions of the District Courts, Circuit Courts, the High Court, the Court of Appeal, and the Supreme Court in family law matters.

1. Jurisdiction of the District Court in Family Law Matters:

Under the Courts Act, 1993 (Act 459), a District Court has jurisdiction in the following cases:

1. Divorce and other matrimonial causes and actions for paternity: In Section 47(1)(f) of Act 459, it is provided that “A District Court shall within the area of its jurisdiction have civil jurisdiction in the following matters - in divorce and other matrimonial causes or matters and actions for paternity and custody of children;”
2. Actions under the Children’s Act, 1998 (Act 560): In Section 50 of Act 459, it is provided that “A District Court also has jurisdiction to hear and determine any action that arises under the Children's Act, 1998 (Act 560) and shall for the purposes of that enactment be the Family Tribunal and exercise the powers conferred on a Family Tribunal under that Act and any other enactment.”

2. Jurisdiction of the Circuit Court in Family Law Matters:

1. General matrimonial jurisdiction: In Section 31 of the Matrimonial Causes Act, 1971 (Act 367), it is provided that The Court, defined in Section 43 of Act 357 to be the High Court and the Circuit Court, shall have jurisdiction in proceedings under Act 367 where either party to the marriage
1. is a citizen, or
2. is Domiciled in Ghana, or
3. has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings.
2. Additional jurisdiction relating to financial provision: In Section 33 of Act 367, it is provided that “In addition to any other jurisdiction conferred by this Act the Court shall have jurisdiction, where a party who may be ordered to make financial provision has assets in Ghana, to order that party to make financial provision not exceeding the value of those assets.”
3. Additional jurisdiction relating to child custody: In Section 34 of Act 367, it is provided that “In addition to any other jurisdiction conferred by this Act, the Court shall have jurisdiction to make child custody arrangements whenever the child whose custody is in question is present in Ghana.”
4. Appointment of Guardians of Infants: In Section 42(1)(a)(iv) of Act 459, it is provided that the Circuit Court has “original jurisdiction in civil matters - to appoint guardians of infants and to make orders for the custody of infants.”

3. Jurisdiction of the High Court in Family Law Matters:

1. Original jurisdiction in civil and criminal matters: In Section 15(1)(a) of Act 459, it is provide that “Subject to the provisions of the Constitution, the High Court shall have— (a) an original jurisdiction in all matters.” In Article 140(1) of the Constitution, 1992, it is provided that “The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.” A family law matter is a civil matter.
2. Appellate jurisdiction in any Judgement of a District Court: In Section 15(1)(c) of Act 459, it is provided that the High Court shall have appellate jurisdiction in any judgment of a District Court.
3. General matrimonial jurisdiction: In Section 31 of the Matrimonial Causes Act, 1971 (Act 367), it is provided that The Court, defined in Section 43 of Act 357 to be the High Court and the Circuit Court, shall have jurisdiction in proceedings under Act 367 where either party to the marriage
1. is a citizen, or
2. is Domiciled in Ghana, or
3. has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings.
4. Additional jurisdiction relating to financial provision: In Section 33 of Act 367, it is provided that “In addition to any other jurisdiction conferred by this Act the Court shall have jurisdiction, where a party who may be ordered to make financial provision has assets in Ghana, to order that party to make financial provision not exceeding the value of those assets.” Note that “the court” includes the High Court and the Circuit Court
5. Additional jurisdiction relating to child custody: In Section 34 of Act 367, it is provided that “In addition to any other jurisdiction conferred by this Act, the Court shall have jurisdiction to make child custody arrangements whenever the child whose custody is in question is present in Ghana.” Note that “the court” includes the High Court and the Circuit Court

4. Jurisdiction of the Court of Appeal in Family Law Matters:

1. Appellate jurisdiction to Hear and Determine Appeals from a Judgement of the High Court: In Section 11(1) of Act 459, it is provided that “The Court of appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of the Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by the Constitution or any other law.”
2. Appellate jurisdiction to Hear and Determine Appeals from a Judgement of the Circuit Court: In Section 11(3)(a) of Act 459, it is provided that “The Court of Appeal shall also have jurisdiction - to hear appeals from any judgment of a Circuit Court in a civil cause or matter.”

5. Jurisdiction of the Supreme Court in Family Law Matters:

The Supreme Court has an appellate jurisdiction to hear and determine appeals from a judgement of the Court of Appeal. This is provided for in Section 4 of Act 459, which reads:

(1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court—

1. as of right, in any civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a Judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction;
2. with the leave of the Court Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest;

Conclusion:

This note discussed the jurisdiction of the District Courts, Circuit Courts, High Court, Court of Appeal, and the Supreme Court in family law matters.