Customary wife as a lawful wife for the purposes of distribution
Under the Statute of Distribution a “wife” means a “lawful wife”, and child means “a lawful child.” The question of “lawful wife” and “legitimate child” are questions of status to be decided by the law of domicil. Therefore, if a marriage between a man and a woman is by the law of their domicil a valid marriage, the “wife” is a lawful wife for the purposes of the Statute no matter whether or not the marriage is invalid by the law of England or of any other place. Similarly, if a child is legitimate by the law of the country where at the date of its birth its parents were domiciled, he is a legitimate child for purposes of the Statute, no matter whether or not that child would be illegitimate by English law. In such cases the law of England recognises and acts on the status declared by the law of domicil, and such persons will be “wife and child for the purposes of the Statute of Distribution.
Distinguishing marriage from betrothal and concubinage
The impression that customary marriages require very little ceremony and are only a shade above concubinage must be decried. With very great respect this interpretation of the custom is not in accord with the older authorities. There are clear lines of cleavage, discerned in the authorities, between concubinage, friendly alliances, engagement or betrothal and marriage. In any of these cases cohabitation may take place with the consent of parents, and yet not necessarily amount to marriage. Sarbah carefully draws the distinction between betrothal and marriage. (See Sarbah, Fanti Customary Laws (3rd ed.) at p. 45). That these distinctions are necessary, becomes apparent when issues relating to status, and succession arise for determination as many persons have found to their grief.
Borrowing the words of the learned author of Sarbah’s Fanti Customary Law, we say that the customary law relating to marriage in simple in the extreme. At pages 39 and 99 of the work cited, there appears the following statement of the essentials of valid customary marriage: it was made by the Chiefs to D.P. Chalmers, the Judicial Assessor in the case of Panin v. Duncan (Oct. 11, 1869): “When a man intends to have a certain woman for his wife, he applies to her family, asks her to be given in marriage, by taking to the family, according to his means two flasks of rum, or two ackirs of gold dust (9/-) or 4 or 6 ackirs according to his means. Upon this, if the family approve, they agree to give the woman. This request and the consent with the first present alone make a valid marriage.”
If the man sends some drink, admitting liability, and sends a further drink or present (however small the drink or present may be - perhaps a small token sum of money), and if the girl’s family accepts the present in addition to the fee on admitting liability, a valid marriage is thereby concluded. By custom, the sending of the additional drink or present amounts to a request by the man for the hand of the girl, and the acceptance of that additional drink or present amounts to consent by the family.
The question of marriage vel non is a question of law, which must be determined upon the facts before the court. Moreover, a person on whom the onus lies to establish certain facts need not lead further evidence of the facts necessary to prove his case if his opponent admits those facts, whether in his pleadings, or in evidence given in-chief or in cross-examination. In such a case the party must be deemed to have discharged the onus.
Remedies where another man interferes with a customary wife
Where a man has obtained the consent of a girl’s family, and has completed the marriage by making the token gift, and another man interferes with his wife, two remedies are open to him. He may claim adultery fee from the offender and keep his wife, in which case any child born in consequence of that illicit relation is by customary law a legitimate child of the husband, and would be given a name by the latter. On the other hand, the husband may elect to break the marriage, and to claim the return of all the customary drinks or fees and presents which he has given to the family and to the girl. In the latter case, the family will refund those customary fees, and, in turn, claim the same from the seducer. If the offender pays the amount which the family had to refund, he steps into the shoes of the former husband and is deemed to be validly married to the girl.
Again, a woman who has been married according to custom may not have been cohabiting with her husband, and declines to cohabit with him. It is discovered that she is being induced by another man to break the marriage. If that other man is willing to marry her, the girl’s family would obtain the consent of the husband to break the marriage formally, and would refund to him all the expenses which he had incurred on the customary fees and presents. When that has been done, and the new suitor has paid that same amount to the family, he steps into the shoes of the original husband, and becomes the lawful husband of the girl.
In the instant case, therefore, even if the evidence of the plaintiff is believed that the defendant was responsible for the girl’s pregnancy in March, 1956, and that after Addo (the original husband) had agreed to accept his £40, the plaintiff claimed and recovered the same from defendant, then upon such an admission, the girl became the wife of the defendant, and no question of seduction can arise. The plaintiff can maintain an action against the defendant only if, after he (the plaintiff) had refunded the customary fee of £40 to Addo, the defendant refused to pay that amount to him.
