Wilma Akuya Osei
Lawyer|| Administrator|| Founder and Managing Counsel, The Pocketlaw Project
You would think that the legal implications, benefits or ramifications of marriage is one subject that is as well appreciated as it is celebrated in Ghana, yet despite increasing marital counselling and marriage seminars, experience suggests this may not be exactly the case.
Ask the simple question, “are you married?” and times too many a person married under customary law would respond, ‘No, we just did engagement’ or ‘We have done blessing’. Others may respond with, ‘We went to church’ or ‘We signed’ at the court. Truth is, most of the time the person responding is either uncertain whether she/he is indeed married or what marriage he/she is in. In a case in which a customary wife objected to an impending ‘wedding’ between her husband and another woman, the husband justified his actions with the explanation that the union between him and the complainant (the customary wife) was an ‘engagement’ and not marriage!
The law in Ghana recognizes 3 types of marriages. These are identified as Customary Marriage, Marriage of Mohammedans and Christian and Other Marriages in the Marriages Act. The 3 types of marriage recognized under our laws do not include ‘engagement’, ‘blessing’ or ‘wedding’. Therefore, it is no answer to say you are engaged, have done a blessing or a wedding when asked whether you are married or not. A person married under the laws of Ghana has either contracted a customary marriage, a Mohammedan marriage or a Christian or Other marriage and nothing else.
Customary marriages, follow traditions identifiable to communities in the country. Generally, when a woman’s hand is asked for in marriage by the family of a man in the manner prescribed by custom, the families are contracting a customary marriage if nothing more is done. The procedure followed is usually that of the family of the woman whose hand is being asked for in marriage. Common features of a customary marriage are the consent of those to be married and subsequent living together (or conducting themselves in the eyes of the world) as man and wife. This is very important as the days of forced marriages are gone; that is to say, forced marriages are against the law.
It is commonly said that customary law knows no writing, therefore except for photos nowadays, customary marriages are usually not known to be documented. However, the great thing is that the Marriages Act allows persons married under custom to register their union. This is useful because it allows the parties to the marriage and anyone interested to secure an official record of the ceremony. Names of the couple, witnesses, the date and place where the marriage took place will be recorded officially. To repeat, registration of customary marriages is not mandatory but, in my experience, parties will do themselves a favour if they choose to do so because the certificate of registration is acceptable as evidence in court and for the conduct other business.
In the case of a Mohammedan marriage, the procedure must follow the prescription of Mohammedan law. A recognized Mohammedan religious leader who is licenced must officiate the ceremony, the required witnesses must be present and the marriage must be registered within a week of the ceremony taking place for the marriage to be valid.
The procedure for Christian or Other Marriages (or what is popularly known variously as marriage under the Ordinance or civil marriage) is also prescribed by law and must be followed strictly for it to be valid. This is the marriage that includes publication of banns (public announcement of an impending marriage). It must be conducted by a licenced marriage officer (who could be a religious leader or registrar of marriages) in a place licenced for the conduct of marriages. No other marriage can exist alongside this marriage. Mind you, when a couple present themselves to their church for their union to be blessed, it does not necessarily make their union one that is recognized as a marriage under the laws of Ghana. This is what happened in another case when a couple ‘blessed’ their marriage in church and signed the church’s register. The woman who thought she had been lawfully married under the Ordinance, found out some years later when the husband was courting another woman, that contrary to her assumption, this was not the case at all. In other words, no marriage had taken place between her and the ‘husband’.
Now, here is the thing. All 3 types of marriages mentioned here are equal in the eyes of the law. In other words, they all carry the same weight. The only difference between the 3 types of marriage is that Customary and Mohammedan marriages are potentially polygamous, while marriage under the Ordinance is monogamous. In other words, a man can marry more than one wife if he marries all the women under customary law on one hand, or under the law of Mohammedans on the other hand. A man married under the Ordinance (Christian or Other Marriages), being a civil union cannot marry another woman - that would be an offence called bigamy under our Criminal Offences Act. Besides this, none of the 3 types of marriage is better in law than the other.
A few things to keep in mind;
To be valid, each of the 3 marriages must be conducted in the manner required by law and when so done, they all enjoy equal status in respect of the law.
A customary marriage can be converted into a marriage under the Ordinance. What does this mean? A couple who are married under customary law can subsequently get married under the Ordinance but not the other way round. It also means that a couple who intend to get married under the Ordinance need not contract a customary marriage first before getting married under the Ordinance. And don’t forget, a customary marriage can be registered for record purposes.
Customary marriages can be dissolved in a court just the same as a civil marriage or marriage under the Ordinance and any of the parties to the marriage can petition the court for dissolution.
A person cannot be in more than one of the types of marriage at the same time (and with different partners). In other words, a man cannot contract a customary marriage with one woman and contract a marriage under Ordinance with another woman while the customary marriage is still in existence. The same is true vice versa.
The Intestate Succession Law which specifies the way a person’s assets should be distributed or dealt with after death, is applicable to all persons and the type of marriage in which the person was or their religion does not matter.