Family Law in Ghana

The Human Rights Advocacy Centre, as well as lobbying for political, policy and legislative change, also runs a clinic that provides legal assistance directly to members of the public. I had the chance to shadow one of the initial advice sessions.

For reasons of client confidentiality I cannot discuss the case in point here, other than in extremely broad terms. It was a matrimonial dispute and the session highlighted to me some of the difficulties faced by women in relationships that have turned sour.

Women in Ghana, who more-often-than-not occupy the traditional role of the homemaker, are often economically dependent on their husbands. They often have no independent means of income, have no bank account and no pension. This makes them very vulnerable in the event that a relationship comes to an end, or if they no longer wish to remain married owing to adultery, abuse or irreconcilable differences.

I was pleased to learn from HRAC’s lawyers, however, that Ghanaian divorce law does make provision of equitable division of assets on divorce. Ghana’s ratification of the UN Convention on the Elimination of Discrimination Against Women was instrumental in bringing about this change, and was heavily relied on in the landmark case of Mensah v Mensah J4/20/2011 (2012). This just goes to show the value of international agreements and obligations in bringing about domestic change. English case law was also, interestingly relied upon in that case.

Prior to Mensah v Mensah wives had to prove a substantial contribution to the acquisition of property in order to have any claim. The court’s conclusion in Mensah is a strong one:

“The Petitioner should be treated as an equal partner even after divorce in the devolution of the properties. The Petitioner must not be bruised by the conduct of the respondent and made to be in a worse situation than she would have been had the divorce not been granted. The tendency to consider women (spouses) in particular as appendages to the marriage relationship, used and dumped at will by their male spouses must cease. Divorce as Lord Denning stated long ago, should not be considered as a stigma.”

The Court also stated:

“[C]ommon sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.”

However, efforts at ensuring justice for women in divorce may sometimes be frustrated by lack of access to justice. One woman I spoke to reported that she attempted to secure a divorce over five years ago through the traditional family-based means of resolving disputes. She reported that she was unable to secure the divorce at all, let alone on equitable terms, as her husband is a family elder and therefore commands a great deal of authority. The family-based system, she says, is biased against her.

This highlights a key issue in community based justice, and an issue that far from being a Ghanaian problem is repeated around the world. Last year, when I visited the National Law School in Jodhpur, India, the exact same problem was iterated by an advocate I spoke with there. This makes me think very carefully about how far we should, as lawyers, be advocating moves towards alternate dispute mechanisms to resolve disputes. I worry about the oversight of ADR, and whether the “weaker” party really can access justice – especially if the parties are unrepresented. It is something to bear in mind as mediation, particularly in the family sphere, becomes increasingly common.