Annulment of marriage in Ghana is grounded in law, specifically the Matrimonial Causes Act, 1971 (Act 367) and the Marriages Act, 1884-1985, CAP 127.
A marriage celebrated under the Marriages Act may be considered valid, void or voidable in accordance with the statutory provision governing marriages. Thus, an annulment of marriage is the process by which a party to a statutory marriage (Marriages Act) seeks to completely obliterate the marriage on the basis that the marriage right from inception is void or voidable by arguing a statutory basis. It is imperative to note that a marriage is valid if it is contracted in consonance with the strict stipulations of the laws of the Republic of Ghana.
Lord Greene, MR offers a fine distinction between Void and Voidable Marriages. In the case of De Reneville v. De Reneville (1948) 1 ALL ER 56-60, CA, Lord Greene, in the following words, described what the distinction is between Void and Voidable Marriages:
"A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it: a voidable marriage is one that will be regarded by every court as valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction".
The annulment of a void or voidable marriage, like divorce, changes the party's status by a judicial decree. Whatever the theoretical differences between them are, both are means of terminating a marriage that has broken down. Divorce, however, does not act retrospectively; the parties are still regarded as having been husband and wife up to the time when the decree was made absolute.
Where a party to a valid marriage wishes to terminate it, he has to file a divorce proceeding for the dissolution of the marriage. However, where a proceeding is initiated to bring a void or voidable marriage to an end, it ought to be one for annulment and not a dissolution of the marriage. Such a proceeding for the annulment of the marriage is called nullity proceedings.
The grounds for the annulment of void and voidable marriages are governed by the explicit stipulations of the enacted laws of the Republic.
- Matrimonial Causes Act, 1971 (Act 367)
- Marriages Act, 1884-1985 (Cap 127)
The Matrimonial Causes Act governs the grounds for the initiation of voidable marriages, whiles the Marriages Act extensively deals with the ground for the initiation of void marriages.
To speak of a void marriage is merely a compendious way of saying that, although the parties have been through a marriage ceremony, they have never acquired the status of husband and wife due to the presence of some impediment.
If they have never been through any ceremony at all, their union cannot be termed a void marriage.
Grounds For Declaring Marriages Void
According to section 74 of the Marriages Act, 1884-1985 (CAP 127), the grounds for setting aside a marriage for it being void ab initio is as follows:
- Existing Lawful Marriage
Where either of the parties, at the time of the celebration of the marriage, is lawfully married to another person, the subsequent marriage shall be declared null and void and of no effect. The marriages Act state unequivocally that, even where one of the parties is married under the applicable customary law to a person other than the person with whom the marriage is celebrated, the subsequent statutory marriage shall remain void ad initio.
Section 74 (1) (b) of the Marriages Act, 1884-1985, Cap 127 succinctly provides that a marriage is not valid:
"where either of the parties, at the time of the celebration of the marriage is married under the applicable customary law to a person other than the person with whom the marriage is celebrated."
From the above reading of the law, it is worth understanding that parties to a previous customary marriage should jointly undertake a subsequent statutory marriage to avoid the subsequent statutory marriage being declared null and void.
- Prohibited Decree of Consanguinity and Affinity
Section 74 of the Marriages Act provides another viable ground for declaring marriage void ab initio. A marriage shall be liable to become void on the basis of consanguinity of affinity. Consanguinity is a form of a marriage contracted between persons related by blood. At the same time, an affinity is a form of a marriage contracted by individuals with whom one is related via marriage.
- Formal Defects
A marriage becomes void for certain formal defects, among which includes the following:
- Where both parties knowingly and willfully acquiesce in its celebration in any place other than the office of a registrar of marriages or a licensed place of worship (except where authorized by Special Licence).
- Where the parties marry without the Registrar's Certificate of Notice or the Marriage Officer's Certificate of Notice or Special Licence.
- where the marriage is solemnized by a person who is not a recognized minister of some religious denomination or body or a registrar of marriages.
- Where the parties celebrate the marriage under a false name or false names.
- Marriage Age and Consent
Under section 59 of the Marriages Act, if either party to the marriage is not of marriageable age, the marriage is null and void. The said section 59 provides as follows:
"Where either party to an intended marriage, who is not a widower or a widow, is under twenty-one years of age, the written consent
- Of the father, or if the father is dead or is of unsound mind or is absent from the Republic, of the mother, or
- Of the mother, or if the mother is dead or of unsound mind or is absent from the Republic, of the guardian of that party, shall be produced annexed to an affidavit before a licence can be granted or a certificate issued".
The requirement here is mandatory. The use of "shall" makes it compulsory for a person to be twenty-one and above, or in situations where he is below, to fulfil the strict legal obligation by producing written consent.
Section 13 (4) of the Matrimonial Causes Act and Its Effects on Marriage
Section 13(4) of Act 367 states that nothing in the section shall be construed as validating a marriage that is by law void but with respect to which a decree of nullity has not been granted. The above section plainly demonstrates that if a marriage is void, it is void whether a Court says so or not.
A voidable marriage is considered valid until a party takes practicable steps to initiate proceedings in court to have it declared nullity. In essence, it is valid until declared otherwise.
Grounds For Declaring Marriages Voidable
Section 13(2) of Act 367 states that in addition to any other grounds on which a marriage is by law void or voidable, a marriage shall be voidable on the grounds that:
- the marriage has not been consummated owing to the willful refusal of the respondent to consummate it; or
- at the time of the marriage, either party to the marriage was of unsound mind or subject to recurrent attacks of insanity; or
- the respondent was at the time of the marriage pregnant by some person other than the petitioner; or
- the respondent was at the time of the marriage suffering from an incurable venereal disease in a communicable form.
Restriction In Respect of The Grounds in Sections
13 (2) (b), (c), (d) of the Matrimonial Causes Act, 1971
However, the court will not grant a decree of nullity in any of the cases falling under b, c and d unless a party can demonstrate any of the following:
Section 13(3) states that the court shall not grant a decree of nullity in a case falling within paragraph (b), (c) or (d) of subsection 2 unless it is satisfied that:
- the petitioner was at the time of the marriage ignorant of the facts making the marriage voidable,
- proceedings were instituted within one year from the date of the marriage, and
- marital intercourse with the consent of the petitioner has not taken place since the petitioner discovered the existence of the facts making the marriage voidable.
Section 13 (2) intends the consideration of an additional grounds, aside from the one listed with the introductory words, "in addition to any other grounds on which a marriage is by law void or voidable..."
The question remains, what other grounds did the Legislature intend? It has been argued that one such ground is the common law principle that where a marriage has not been consummated because of incapacity of either party, as opposed to willful refusal to consummate the marriage, the aggrieved party may petition for annulment of the marriage. In addition, in some cases, the incapacitated party may himself petition for annulment.
Children of Annulled Marriages
Section 14 of the Matrimonial Causes Act, 1971, provides the consequences of annulment marriages on children. It states that, where the decree of nullity is granted, a child of the parties to the decree shall be deemed to have the same status and rights as if the marriage of the parties had been dissolved rather than annulled. However, this provision is limited to a voidable marriage.
Difference of Void and Voidable Marriages
Among the difference between void and voidable marriages are as follows:
- Where the marriage is void, the legal position is as if there had been no marriage at all, and it is not necessary to obtain a court order to say that it is void. On the other hand, a voidable marriage is regarded as valid in all respects until a court annuls it.
- Where a marriage is void, it may be addressed while the parties are alive or any time after their death. On the other hand, a voidable marriage may be put in issue only during the lifetime of the parties.
- Any person affected by a void marriage can initiate an annulment proceeding to end the marriage. On the other hand, only a party to a voidable marriage can bring proceedings to annul the marriage.
- During the existence of a void marriage, any party to it can legally contract another marriage to a third party, and the aggrieved party cannot seek any remedy regarding the marriage. On the other hand, a party to a voidable marriage cannot legally marry a third person until a court of competent jurisdiction has annulled the existing union.
Marriage is a creation of law. Therefore, a marriage is valid if it is in conformity with all legal requirements as established. To establish that marriage is either void or voidable, an initiating party must prove with certainty any of the grounds as listed above to succeed in a nullity proceeding.
It is crucial for a party to a marriage to consider the option of divorce. In particular, where he or she cannot establish a ground for nullity since there are several grounds for divorce under the Matrimonial Causes Act, 1971, including the ground of unreasonable behaviour.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.