INTRODUCTION
There are three types of Marriages as stipulated under the Marriages Act. These are Customary Marriage, Marriage of Mohammedans and Marriage under the Ordinance.
The Marriages Act 1884-1985 consolidates the Customary Marriage and Divorce Registration Law (1985), the Marriage of Mohammedans Ordinance, 1907(Cap 129) and the Marriage Ordinance. 1884(Cap 127).
Customary Marriage is defined as a marriage that follows the customary laws of the couple and their families. Ghana is made up of different people with customs peculiar to the people in that community.
Customary laws are regarded as a source of law by our Constitution. The 1992 Constitution therefore, by Article 11 (3), defines customary law as rules of law which by custom are applicable to particular communities in Ghana.
Customary marriage as defined by Ollenu J. in Yaotey vrs Quaye is "a union between a man's family and a woman's family".
Additionally, customary marriage is a contract between the man and the woman.
ESSENTIAL VALIDITY OF CUSTOMARY MARRIAGE
Although Part 1 of the Marriages Act deals with customary marriage, it highlights the registration of customary marriage as well as the registration of customary divorce.
In order to determine whether a customary marriage has taken place, there are four essentials of this type of marriage as set out by Ollenu J. in Yaotey vrs Quaye (1961)2GLR 573 at 578 which are as follows:
- Agreement by the parties to live together as man and wife.
- Consent of the family of the man that he should have the woman to be his wife; that consent may be indicated by the man's family acknowledging the woman as wife of the man.
- Consent of the family of the woman that she should be joined in marriage to the man; that consent is indicated by the acceptance of drink from the man or his family or merely by the family of the woman acknowledging the man as the husband of the woman.
- Consummation of the marriage by cohabitation.
FEATURES OF CUSTOMARY MARRIAGE
- POTENTIALLY POLYGAMOUS
The key feature of a customary marriage is that it is potentially polygamous. This means that a man who marries a woman under custom (or performs a customary marriage) can marry other women under custom. However, he cannot marry any of the women under Ordinance. If he wishes to do so, he must divorce the other wife/wives or else the ordinance marriage will be void. A marriage under the Ordinance and a customary marriage are mutually exclusive, and the existence of one precludes the other. This was succinctly stated in Re Caveat by Clara Sackitey (1962) 1 GLR 180.
- CONSENT OF THE TWO FAMILIES
Another feature of customary marriage is that it requires the consent of the two families. Hence with regards to the essentials, there is the consent from the family of the man and family of the woman. This also goes to buttress the fact as stated by Ollenu J in Yaotey vrs Quaye that customary marriage is a union between a man's family and a woman's family.
- CAPACITY TO MARRY
The parties must have the capacity to marry. Sarbah, in his book Fante Customary Laws (2nd ed), stated that "in order to be valid, a man must not be in violation of any rule as to tribal relationship or consanguinity. A man may not marry his uterine sister, his father's sister or mother's sister or brother's daughter etc...."
REGISTRATION OF CUSTOMARY MARRIAGE.
A marriage contracted under customary law before or after the commencement of the Marriages Act, may be registered in accordance with the Act.
This means that registration of a customary marriage is not mandatory or obligatory for the parties hence the use of the phrase "may be registered". Thus the registration of a customary marriage is not a sine qua non for its validity. Whether a customary marriage is registered or not, it is valid.
Section 2 of the Marriages Act deals with the application for registration and stipulates that either party to the marriage contracted under customary law or both parties may apply in writing to the registrar of the district in which the marriage was contracted for the registration of the marriage in the register of marriages.
The application for the registration of the marriage may be made at any time after the marriage. However, the Minister responsible for justice may at any time prescribe the periods within which the failure to register a customary marriage contracted before or after the commencement of this Act shall be an offence.
The Application for registration of the marriage shall have attached to it a statutory declaration stating the names of the parties to the marriage, the places of residence of the parties at the time of the marriage and that the conditions essential to the validity of the marriage in accordance with the applicable customary law have been complied with.
This statutory declaration shall be supported by the parents of the spouses, or the persons standing in locus parentis living at the time of the application for registration.
This equally emphasizes the fact that customary marriage is essentially between the two families.
On receipt of the application for registration of a marriage, the registrar of the district shall register the marriage and shall by notice in the form as set out in the Second Schedule notify the public of the registration of the marriage.
This notice shall be displayed on a public notice board at the office of the Registrar within twenty eight days of the application for registration.
However, by Section 5 of the Marriages Act, a person who knows of a cause why the Registrar should not have registered the marriage, or objects to the validity of the marriage under the applicable customary law may at any time after the publication of the notice file the grounds of the objection in the District Court in the district in which the marriage was registered.
Copies of this ground of objection shall be served on the parties affected by the objection.
On the hearing of the grounds of objection the District Court, where it is satisfied that legal grounds have not been established for the objection, shall dismiss the objection.
However, where the District Court on the hearing of the grounds for the objection is satisfied with the legal grounds, it shall order the Registrar to expunge the entries made in the register in respect of the dissolution of the marriage.
CONCLUSION
In conclusion, customary law marriages must be in accordance with the applicable customs of the couple. Essentially, the Intestate Succession Law (PNDCL 111) applies to a spouse of a customary law marriage registered under the Act. Despite a customary law marriage not being registered, where a court is satisfied by oral or documentary evidence that a customary law marriage had been validly contracted between the deceased and a surviving spouse, the Court shall make an order for the estate of the intestate to be distributed in the same manner as a customary law marriage registered under the Act.
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.