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Can Concubinage relationship be equated to a valid customary marriage; the decision in Mintah v Ampenyin in retrospect

Source: Derick Adu-Gyamfi

Can Concubinage relationship be equated to a valid customary marriage; the decision in Mintah v Ampenyin in retrospect
MarryRight Ghana

Introduction

Customary law has been defined under Article 11(3) of the Constitution 1992 as:

“Rules of law which by custom are applicable to particular communities in Ghana.”

These include the rules of customary law that have been determined by the Superior Courts of Judicature. Customary law therefore, is now part of the common law of Ghana, the establishment of which is no more a question of fact but a question of law.

Article 11(2) of the Constitution 1992 provides:

“The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.”

This means that customary marriage is highly recognized under our laws so it cannot be thrown into the abyss.

Black’s Law Dictionary defines concubinage relationship as:

“A relationship of a man and women who cohabit without the benefit of marriage. The woman in the relationship, the concubine, cohabits as a wife without title. Although a concubine was expected to serve all the functions of a legitimate wife, she has no authority in the family or household, and was denied certain legal protection.”

Sarbah’s Fanti Customary Laws define a valid customary marriage as:

“When there has been a marriage in fact, the validity thereof presumed, and where caprice, avarice, or ambition of a parent has not been excited to force on a marriage, it will be found by careful study of the people and examination of the local marriage institution, that marriage entirely rests on the voluntary consent of and a woman to live together as man and wife; which intention, desire, consent, or agreement, is further evidenced by their living together as husband and wife.”

 

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