Customary Marriage

Question 1

What is the Definition of a customary law marriage

Answer 1

A customary law marriage, as defined by Justice Ollenu in Yaotey v Quaye, is a union of a man’s family and woman’s family that imposes rights and duties on both families.
The woman’s family gains the right to perform certain rites in certain eventualities and the man’s family also gains the right to perform certain rites in certain eventualities”.

Question 2

What are the special characteristics of a customary law marriage?

Answer 2

1. Customary law marriages are potentially polygamous – the man is entitled to marry as many as he can harmoniously live with and conveniently manage -Graham v. Graham (1965) GLR PG 407. A mere promise by a man to his wife not marry additional women does does not prevent the marriage from being potentially polygamous.

Question 3

What are the special characteristics of a customary law marriage? (Consanguinity)

Answer 3

2. Some marriages are prohibited on grounds on consanguinity -i .e. Where there is blood relationship between the man and the woman. The prohibition differs from tribe to tribe. In places like India and Malaysia and in some tribes in Ghana , you can marry your blood relation. The prohibition is to avoid unnecessary (negative) traits borne of consanguinity that run through the family.

Question 4

What are the special characteristics of a customary law marriage? (Mutual Exclusivity)

Answer 4

3. Customary law marriages and marriages under the Ordinance are mutually exclusive.
   o One is potentially polygamous and the other is monogamous thus they cannot co-exist.
   o Where a man married under customary law wants to marry another woman under the Ordinance or vice versa, the first marriage must be dissolved or else the latter/second marriage is null, void and not of any consequence.
   - Similarly, if a man has married different women under customary law and wants to marry one of them under the Ordinance, he must divorce the others or else the purported conversion is void.

Question 5

What are the special characteristics of a customary law marriage? (Conversion)

Answer 5

4. A customary law marriage may be converted to an ordinance marriage.
   o Graham v Graham: Court held that after the solemnization of the marriage under the Ordinance, the customary law marriage ceases to exist.
   When this happens, the customary law marriage falls away automatically. A man married under ordinance cannot enter into a valid customary law marriage or, a marriage under the ordinance with another woman. The second marriage is null and void and the man could also be charged with bigamy.

Question 6

What are the special characteristics of a customary law marriage?

Answer 6

5. Customary law marriages have become synonymous with engagements. The ring is not part of customary law, but it is invariably given at traditional weddings. The giving of the Bible and ring, shows an intention to marry under the ordinance and can form the basis for an action for breach of promise to marry under the ordinance – Affrifah v. Class-Peter.
6. The existence of a customary law marriage is not a condition precedent to the creation of an ordinance marriage. The existence of a customary law marriage, is not one of the mandatory requirements stipulated in the Marriages Act. Some churches may however demand the existence of a customary law marriage before a church marriage ceremony. This is a church rule that has nothing to do with the provisions of the Marriages Act.
7. There is a first stage in the marriage ceremony known as knocking which is the preparatory stage of the marriage.

Question 7

What are the types of customary law marriage?

Answer 7

• There are 2 types of customary law marriage: formal and informal marriage
  • Formal customary marriage is where drinks are brought to signify the marriage
  Informal is where the couple are living as husband and wife with no exchange of drinks and are acknowledged by the man’s family as well as the woman’s family.
  o Gorleku v Pobee: Court stated that there are two forms of marriage, one involves the presentation of drinks and other items and the other is devoid of such formalities. In both cases, the marriage is considered valid, provided there is consent from the parties and their families of the union.

Question 8

Formal and Informal Marriages According to Justice Ollenu

Answer 8

Justice Ollenu created two forms of customary marriage: the formal and informal customary law marriages. This notion was formulated because of the uncertainty that surrounded the finding of a valid customary law marriage since it was difficult to prove a customary law marriage (i.e there was no formal proof of a customary marriage such as a marriage certificate).

Question 9

Formal Customary Marriage

Answer 9

The formal customary law marriage occurs where the man’s family formally presents drinks to the woman’s family and the drinks are accepted by the family of the woman

Question 10

Informal Customary Marriage

Answer 10

There are 4 or 5 types of informal customary law marriages. Some may apply today and others may not apply today. However it is important to know about them as you will have to discuss them if a question is asked on it.
(1) The first type identified by Ollenu J is where a man impregnates a woman, he sends drinks to acknowledge the pregnancy and thereafter he starts living with the woman as though they are husband and wife. If they live for a considerable length of time, the baby is born but the man has not performed any marital rites, the court may hold after sometime that an informal marriage is in existence. The drinks are for the pregnancy not the informal marriage, Quaye v Kuevi

Question 11

Informal Customary Marriage (cont’d)

Answer 11

(2) The second type is where a man impregnates a woman and he sends a first drink to acknowledge that the pregnancy is his and then he sends a second drink without stating the purpose. The law says if the family of the girl accepts the second drink then an informal customary law marriage has been created. This is because it may be assumed that the sending of the second drink is the man asking the girl’s hand in marriage. The difference between this and a formal customary marriage is consent (express or implied).

Question 12

Informal Customary Marriage (cont’d)

Answer 12

(3) The third informal marriage occurs where another man sleeps with someone else’s wife . Where this occurs, the man can either keep the wife and accept compensation for his injured feeling or send the woman on her way and dissolve the marriage. Where the marriage is dissolved, the man can demand a refund on all expenses he incurred at the time he was marrying the woman from the woman’s family. The paramour (the man who slept with someone’s wife) can decide to pay for the refund and then step into the shoes of the husband. Because he has paid for the refund of the expenses he does not have to perform any other marriage rites , he will just take the woman. The law will recognize this as an informal marriage. See Assumah v Khair

Question 13

Informal Customary Marriage (cont’d)

Answer 13

(4) Another form of informal customary law marriage is where the man and the woman are acknowledged by their respective families as husband and wife. No ceremonies would have been performed. See Yaotey v Quaye, Essilfie and another v Quarcoo; Re Dixon alias Appiah; Aboagye and another v Quayson; Gorlekuu v Pobee

Question 14

What are the four essentials? Yaotey v Quaye (A - C - C - C)

Answer 14

A - C - C- C (Agreement, Consent of man’s family, Consent of woman’s family, Consummation by cohabitation)

In this case, Ollenu first established that there can be two forms of customary law marriage: formal and informal. He set up four essential elements that the court should consider when deciding whether there is a valid customary law marriage in existence. He also stated that these four essentials should apply to all tribes. These four essentials are:

a) whether there was an agreement between the man and the woman to live as husband and wife
b) the court must consider whether there was consent on the part of the man’s family that he should take the woman as his wife.
c) Consent of the family of the woman that she may have the man as her husband.
d) Consummation by cohabitation.

Question 15

Why did Ollenu introduce the four essentials?

Answer 15

• Justice Ollenu introduced the four essentials to correct the injustices of the past and also to facilitate proof of the existence of a valid customary law marriage, especially in issues relating to succession.
• Ollenu was of the view that woman who lived with men and were for all intents and purposes their wives, even though there was formal ceremony or exchange of drinks. These women often lost out and were not given any proportion of the man’s estate if he died intestate because it could not be proved to a degree of sufficient certainty for the court that a marriage existed, mostly because there was no documentation.

Question 16

What are the implications of the 4 Essentials?

Answer 16

That no one may be forced to marry another person and that the parties to marriage contract must voluntarily agree to live as husband and wife.

Question 17

Akorniga v Akawagre (implications)

Answer 17

No one may be forced to marry another person and that parties to a marriage contract must voluntarily agree to live as husband and wife.

F could not be treated as a chattel, instead she was a human being who had equal rights to those of the husband.

Question 18

What are the criticisms of the 4 essentials?

Answer 18

• Agreement to marry- this essential is not challenged since agreement to marriage is crucial because no 2 parties can be forced to enter into a marriage (even per freedom of association in the constitution). It is the most important essential.
• Re “drinks”- type or quantity not specified. The essentials were to apply to all marriages in all tribes when some tribes don’t have drinks as part of their custom (eg some customs require cattle)
• Re “family”- no specification of who in the families must acknowledge or how many people. Nuclear or Extended family? Family head? Consent of the family is desirable but not a condition precedent to the marriage. Ordinance marriages don’t require family consent.
• Re consummation by co-habitation: consummation not defined. Also, how do you test whether or not two people had sex. Lack of offspring is not a valid argument. Also, persons do not have to live together to have sex. This essential is particularly problematic. Can consummate without cohabitation and can cohabit without consummation. Case: Sowah v Sowah (Remember with “Sower” = consummate)
• No indication of whether all 4 essentials need to be present or if some will suffice. Case: Badu v Boakye [1975] 1 GLR 283, where court insisted on family consent

Question 19

What are the conclusions drawn in respect of the essentials?

Answer 19

• The agreement between a man and a woman to live as husband and wife is the most important of all the essentials.
• Consummation need not be established to prove the validity of a customary law marriage.
• Family consent is merely desirable and the absence of it should not render an otherwise valid marriage invalid.
• All four essentials need not be present in order to create a valid customary law marriage. Insistence on family consent as in the case of Badu v. Boakye could lead to undesirable consequences.

Question 20

What is the law relating to the registration of customary law marriages?

Answer 20

The Registration of Customary Law Marriages and Divorces is governed by the Customary Marriages and Divorces (Registration) Act 1985 PNDCL 112, Part One of the Marriages Act, 1884-1985.

Question 21

What was the purpose of the passage of Law 112

Answer 21

To facilitate proof of the existence of customary law marriage, especially in respect of inheritance and succession matters and to also assist in keeping track of the number of customary law marriages existing in the country because customary law marriages are not documented.

Question 22

What is the Procedure for the Registration of Customary Law Marriages?

Answer 22

The Procedure is simple but can be expensive because it involves the services of a lawyer.

• Either party to the marriage may apply to a registrar of marriages by way of a statutory declaration stating that all the substantive requirements of a customary law marriage have been complied with. The registrar will then enter the marriage in the marriage register and give a copy of the restoration known as the ENTRY to the parties.
• The notice of registration of marriage will be published for objections to be raised by interested parties. If any valid objections are raised the registration of the marriage will be expunged from the marriage register.

Question 23

What must be included in the Statutory Declaration?

Answer 23

• The names of the parties to the marriage.
• Their places of residence.
• The fact that there are no prohibitions according to the applicable customary law e.g. that the marriage is not prohibited on grounds of consanguinity or affinity.
• Evidence of support from the parents of the applicants or persons standing in loco parentis.

Question 24

What is the effect of registration?

Answer 24

Section 13 of CAP 127. Registration per se does not render a marriage valid. It merely proves that a marriage is or was in existence. The Entry (certified true copy of the Registration given to the parties) may be used as evidence, but does not make the marriage valid.

Section 13 does not state that mere registration is proof of the validity of a marriage. Therefore more evidence is required to prove the validity of a marriage in addition to the registration.

After all a registrar of marriages is not mandated to decide on whether a marriage is valid or not. His duty is merely to register a marriage.

Question 25

Can spouses whose marriages are not registered benefit under the Law 111? (Adade v Dade and another)

Answer 25

In Adade v Dade and another, one of the issues that had to be decided was whether the provisions of the Intestate Succession Act, 1985 (PNDCL 111), were applicable to a marriage which was not registered under Part One of the Marriages Act, Law 112. The court expressed the view that ‘it is not necessary for a customary law marriage to be registered before a spouse can benefit under PNDCL 111 and that the section does not make the registration of a customary marriage a condition precedent to the exercise of a right under PNDCL 111.’

Question 26

Section 15 of PNDCL 112

Answer 26

Section 15 of the Customary Marriages and Divorces (Registration) Act, PNDCL 112, was introduced to clarify the application of the Intestate Succession Act, 1985 (PNDCL 111) to unregistered customary law marriages.

The effect of Section 15 is that where a court or tribunal is satisfied by oral or documentary evidence that a customary law marriage has been validly contracted between the deceased and a surviving spouse, the estate of the deceased will be distributed in the same manner as a customary law marriage registered under Law 112.

This means that a spouse could benefit even if a marriage was not registered upon proof (oral or documentary) that there was marriage and that the marriage was valid.

Question 27

Should Customary law divorces also be registered.

Answer 27

Yes.
Section 6 of Law 112 states that: If a marriage is registered under Law 112 the dissolution of the marriage must also be registered.

Section 6(2)(1) states: The dissolution of a customary law marriage registered under Law 112 need not be registered if dissolved under Section 41 of the Matrimonial Causes Act.

Question 28

Which Enactment and Section governs divorce in Ghana?

Answer 28

Section 41 of the Matrimonial Causes Act (Act 367) governs dovorces

Question 29

What law governs the registration of a customary law marriage?

Answer 29

The Registration of a customary law marriage is governed by Customary Marriages and Divorces Registration Act 1985 PNDC 112, Part one of the Marriages Act, 1884-1985.

PNDCL 112 was promulgated to facilitate proof of the existence of customary law marriages, especially with regard to inheritance and succession matters and to assist in keeping track of the number of CLM existing in the country.

Question 30

What is the procedure for registration of customary law marriages as provided by PNDCL 112

Answer 30

First, either or both spouses may prepare an application to register to the registrar of marriages, the marriage shall be registered in the district the marriages rites were performed
The application must be supported by a statutory declaration which shows names of parties, place of residence that the marriage is not prohibited on grounds of consanguinity/affinity and evidence of support from the parents
The registration will be noted in the registrars book and will provide the parties with an entry or a receipt. He will also provide the couple with a certified copies of a registration certificate
The registrar will publish marriage registrar on notice board asking for objections to the marriage, which if any, will be referred to a magistrate.