Introduction to Family Law and Practice

Introduction:

This note examines the meaning of family, family law, and the scope of family law.

Meaning of Family:

In Black’s Law Dictionary, 9th ed., family is defined as:

1. A group of persons connected by blood, by affinity, or by law, esp. within two or three generations.
2. A group consisting of parents and their children.
3. A group of persons who live together and have a shared commitment to a domestic relationship.

Lowe and Douglas [1], in Bromley’s Family Law, 11^th ed., recognised that it is difficult to define a family, but posited that:

In one sense, it can mean all persons related by blood or marriage…in another sense, it may include all the members of a household, including parents and children with perhaps other relations, lodgers, and even servants.

They added that for their purposes, they will regard the family as a basic social unit that consists of at least two people, whose relationship may fall into one of three categories:

1. Category one: Two people in a marital relationship.
2. Category two: A parent living with one or more children.
3. Category three: Brothers and sisters or other persons related by blood or marriage.

Summarily, the learned authors first recognised that family can be defined in a narrow sense (blood and relations) and in a broad sense (members of a household). They, however, decided to stick with the narrow definition of family.

According to Ollennu, in Principles of Customary Land Law in Ghana at p. 159,

The Ghanaian family whether matrilineal or patrilineal, is a circle of persons who have a community of origin, relationship of consanguinity real or adoptive.  Thus by customary law the stranger' is a member of the family of the person with whom he lodges, or of the family of his landlord, or of the family to which he voluntarily attaches himself upon giving drink to the head and elders thereof, i.e., by commendation, and if not attached to any particular family, he belongs to the family into which he marries.

This was cited with approval in the case of Omane and Another v. Poku and Another [1972] 1 GLR 295-316. It will be noted that this customary law position on the meaning of a family appears to conceptualise the family in the broader sense, as strangers can be considered part of a family.

The Land Act, 2020 (Act 1036), defines 'family' in a narrow sense. In Section 281 of Act 1036, it is provided that a family is:

a group of persons who trace their ancestry from a common lineage and who, at customary law, are recognised as a land-owning group.

This narrow conception of a family under the Act is justified, as the Act recognises or confers an inherent right on members of the family to acquire a usufruct in family land. A broad conception would have allowed strangers and lodgers to acquire a usufructuary interest.

Meaning of Family Law:

At its core, family law is the body of law that regulates the formation, recognition, rights, duties, and dissolution of family relationships and the legal consequences that flow from those relationships, including marriage, parenthood, and succession, among others.

Per the Course Manual on Family Law and Practice by the Ghana School of Law, family law can be defined as:

A body of rules of different types, and it defines and alters status, provide specific machinery for regulating property, protects both individuals and groups, and attempts in so doing to support the family structure of our society.

Scope of Family Law in Ghana

According to Lowe and Douglas [1], family law has three distinct but related functions:

1. It defines and alters status: Family law is concerned with the rights a family member can claim over another family member or over the property of another family member. It also deals with alteration of status, such as divorce, which brings about a change in a person’s marital status and redefines the rights, obligations, and proprietary interests that previously existed under a marital relationship.
2. It plays a normative role: Family law prescribes acceptable relationships and gives legal recognition to such relationships. Per the learned authors, the state decides which relationship to give recognition to, and “the legal recognition of marriage, and the lack of equivalent recognition for cohabitation, for example, should be seen as a deliberate decision to encourage intimate relationships to be fitted within the framework of marriage …law.” In Ghana, family law promotes heterosexual marriages and proscribes homosexual marriages.
3. It plays a remedial role: According to the learned authors, the courts may be required to resolve disputes between members of the family, provide protection for weaker members, and manage the termination of the family unit. For instance, the court can protect weaker parties by making a restraining order or a non-molestation order. It can also provide economic protection to weaker members by making financial provision or maintenance orders.

Offei, in Family Law in Ghana, 5th ed., at page 1, advanced that family law covers the following four matters:

1. The relationship between a husband and wife, the form of marriage, the annulment or dissolution of the marriage and the legal effects of the breakdown of marriage.
2. The relationship between a parent and a child; legal effects of the relationship; adoption, guardianship, and custodianship.
3. Rights in property which are created and affected by membership of the same family (i.e., husband, wife, and children).
4. Legitimacy of children.

The Course Manual on Family Law and Practice also reveals that family law covers the following:

1. Marriage: types, validity, dissolution, divorce, conversion, annulment, and registration of marriages. It also
2. Property rights of spouses: types of property, presumption as to joint ownership, among others.
3. Children: rights of children, custody of children, juvenile justice, parent rights over children, adoption, among others.
4. Domestic violence.
5. Intestate succession.

Conclusion:

This introductory note defined the meaning of family and family law, and the scope of family law. In subsequent notes, we will discuss the sources of law for family law in Ghana and the jurisdiction of the courts to deal with family law matters, among others.