Do wives have the option to pursue legal action against individuals commonly referred to as “side chicks”?
The term “side chicks” denotes individuals (females) engaged in discreet relationships with legally married partners (men). While this phenomenon is as old as the practice of man, it has recently gained societal and media attention due to the growing boldness of these extramarital partners (side chicks), who are now more public about their affairs. These persons now deploy conscious, purposeful, and deliberate steps to break the homes of married couples.
Whenever these affairs become public (through whichever means), it is often the case that the unsuspecting spouse (wife), unaware of the affair, bears the brunt of the consequences without a clear remedy. This spouse (wife) endures significant shame and is compelled to leave their home through divorce. In Ghana, can a wife sue a side chick for breaking up her home?
The possible answers can be found in two main sources of our law: the common law and customary law.
The common law encompasses inherited laws from our colonial masters (UK). Common law principles are applicable in Ghanaian courts unless expressly repealed by legislation. For instance, at common law, a court could compel a partner refusing conjugal duties (refusing to have sex with the partner) to resume them. However, Ghana has since made a law that has changed this common law position, and as such no court will order a partner to go and have sex with the other partner if he/she does not desire.
In the context of a third party interfering with marital relationships, common law permits a person to bring an action tort, known as “alienation of affection” against a side chick or home wrecker for the award of damages. To succeed, the plaintiff must prove that:
- Love between the married spouses existed prior to the onset of the extra-marital relationship;
- The marital love was alienated and destroyed as a result of the relationship with the third-party; and
- The defendant’s malicious conduct contributed to or was the cause of the loss of affection.
A successful plaintiff may be entitled to damages.
The defendant in these cases may be able to defeat the claim if she can show;
- That she didn’t know the adulterous spouse was married; she was not the active aggressor in the relationship; or
- That the adulterous spouse was so unhappy in the marital relationship that it belies the claim that love between the spouses existed prior to the extra-marital relationship.
It must be said that although this action has been abolished in many common law jurisdictions there is still a similar remedy known as “action for Enticement”. If a person consciously and maliciously persuades a wife to leave the husband, the husband could sue the enticer for the court to award damages for enticement. The challenge with enticement is that it seems to provide remedies to only husbands against “side guys” and not the other way around based on some judicial pronouncement made to that effect.
Also, many Ghanaian customary tort laws recognize actions against home-wreckers, with damages typically awarded in favor of the aggrieved party. This is known as “ayefare” by the “Akans and Krobos”. It is the Ghanaian version of “action for enticement”. Customary law remains part of Ghana’s legal system unless expressly outlawed by statute or judicial pronouncement thus, “ayefare” and or “the Ghanaian version of enticement” are still part of our laws.
There is the view that “ayefare” is also a remedy available for men only because men have been the one’s invoking it often. This perception that wives are not entitled to this remedy is also supported with the argument that the customary man is polygamous and is allowed to marry more than one and on that basis a woman being in a relationship with a married man commits no wrong in custom.
It must be stated that this position is not accurate and represents a misunderstanding of customary marriage to the extent that although the customary man married under customary law is allowed to be polygamous (to marry more than one wife), it is no bases for him to commit adultery, engage in infidelity and amorous relationships or have a known side chick without a consequence. The fact that a customary wife can seek divorce under customary law on grounds of adultery goes to confirm the fact that polygamy is no license for infidelity for a customary man.
The only plausible argument from the foregoing is that women never got the courage to assert their rights under customary law for the reliefs it provided and not that they were expressly denied or not entitled.
With the recent clamour and advocacy for equal rights, I cannot envisage any court maintaining the argument that this customary law should be interpreted and applied solely in favour of men but not for women.
In Ghana, where divorce proceedings include allegations of adultery, the petitioner is allowed to name the adulterous partner (side chick) as a respondent although no specific claims are often made against them. It is my considered view that they are not to remain on the petition without consequences.
Marriage is the nucleus of the family system. The courts have a public duty to uphold the dignity and sanctity of the family system, given the profound consequences of its breakdown. I am confident that a court faced with the issue would have a lot to take into consideration including public policy to pronounce judgement in favour of a wife who takes a bold step where the evidence is overwhelming.
SO YEA, WITH SIDE CHICKS GETTING BOLDER TO SUE FOR BREACH OF PROMISES, WIVES MUST ALSO TEST THE LAW.
About Writer
Israel Tetteh, Esq., is a lawyer at Babajamal & Associates, specializing in litigation, minority rights advocacy, and immigration. He combines his legal skills with self-taught expertise as a crypto trader and analyst, exploring the legal aspects of these emerging markets.
