You may read our Part 1 of the types on Ghanaian Marriages
by clicking this link. In this Article, we explore the Customary Marriage.
Customary marriage is the commonest marriage in Ghana
because, it is the traditional type of marriage known to the indigens of Ghana
and secondly the incidence of this type of marriage by its nature, happens
almost immediately upon, the failure to achieve a valid Islamic marriage or a
valid Ordinance marriage. Note that, how customary marriage happens differ from
one ethnic group to the other. However, there is a broadly accepted legal
framework to affirm if there has been a customary marriage or not.
Definition:
A union of the
man’s family and the woman’s family. It imposes rights and duties upon the two
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. Justice Ollenu in Yaotey Vrs. Quaye [1961]
GLR 573. Per the definition of
Justice Ollenu, this involves two families and not just the two individuals who
are getting married. Whilst this may be a predominantly Akan view, it holds
true in various forms for the many other ethnic groups in Ghana.
Elements or Essentials
For a valid customary marriage to occur, Justice Ollenu
tells us that four key elements must be realized. These are: 1. Agreement by
the parties to live as man and wife; 2. Consent of the Family of the man; 3. Consent
of the family of the woman. and 4. Consummation by Co-habitation.
There are two main types of customary marriage. They are
the Formal Customary marriage and the informal customary marriage. Whilst the
Formal Customary marriage goes with elaborate ceremony and a formal
pronouncement of the marriage, the informal happens based on the occurrence of
the elements of the customary marriage between two people. It is called “Mpena
Aware” in Akan settings. An example of the informal customary marriage
occurs when the man and woman begin to live with each other as husband and wife
without any formal ceremony. The Act of living together signifies an agreement
of the parties to live together as husband and wife, thus meeting the first
element. Secondly, the family of the man sees him living with the woman and
they do nothing to separate them. This means there has been consent from the
man’s family and that kind of consent is implied rather than actual. They may
even call the woman as an in-law (Asew) and allow her to perform special rites
reserved for in-laws during funerals in the man’s family. The woman’s family
also becomes aware that she is living with the man and they do nothing to take
her away from the man. They may also refer to the man as an in-law publicly and
allow him to perform special rites reserved for in-laws during festivals and
funerals. And finally, since they are living together, it can be safely
concluded that they have consummated the marriage. This is an informal
customary marriage and is accepted in the law.
The formal one on the other hand happens, when the man’s
family goes to the woman’s family to seek the hand of the woman in marriage for
their son. The Act of the man’s family moving to the woman’s family to seek her
hand in marriage signifies consent from the man’s family and this is an actual
consent. The woman’s family provides all the conditions they want and the man’s
family meets those conditions. The two family’s set a date to celebrate the
marriage and on that date all the necessary rites are performed. This concludes
a formal customary marriage between the two parties and the two families.
The parties then go ahead to live together as husband and
wife and consummation is assumed through the co-habitation.
Some characteristics of customary law marriage
Potentially Polygamous. A man can always decide to marry
more women under customary marriage. “The man is entitled to marry as many
wives as he can harmoniously live with and conveniently manage”. Graham vrs. Graham [1965] GLR 407 HC. The
marriage remains potentially polygamous until the man marries another woman
then it becomes polygamous.
Some marriages are prohibited on grounds of consanguinity
and affinity. This differs from ethnic group to ethnic group. Generally, a
person is not allowed to marry his sister, cousins, mother and other close
relatives. The individual ethnic groups however, make appropriate exceptions.
Customary law marriage and ordinance are mutually
exclusive. This is to say that, the two cannot exist together. Whilst customary
marriage is potentially polygamous, the ordinance is exclusive and monogamous.
The contraction of the ordinance totally cancels any existing customary
marriage.
A customary law marriage can be converted into an ordinance
marriage. But an ordinance marriage cannot be converted into customary law
marriage.
The existence of a customary marriage is not a condition
precedent for the creation of a marriage under the ordinance.
REGISTRATION
Regulated by Part 1 of the marriages Act or PNDC LAW 112,
1985. Customary Marriages and Divorce Registration Act.
The law is that, either of the parties to the marriage can
pick up a form from the district assembly and begin the registration process.
Each party is to appear with 2 witnesses to the marriage. They all complete
their details as prescribed by law and indicate that they saw the conclusion of
the customary marriage. The registrar after being satisfied, issues a customary
law marriage certificate to the parties. This certificate is a piece of
evidence of the marriage but does not change the marriage into an ordinance
marriage.
SOME LEGAL GROUND THAT MAY LEAD TO DIVORCE IN CUSTOMARY LAW
Seduction – where a married woman is found to have had sex with
another man other than her husband, or if that other man even touches some
vital parts of the married woman, the Husband can divorce or claim damages
known as Ayefare and continue with the wife. If he chooses to
demand the damages, he cannot go ahead to divorce the wife. If he chooses to
divorce the wife, he cannot claim the damages.
Note that under the customary law, a man cannot commit
adultery since the marriage is potentially polygamous.
Enticement – If another man convinces the woman to withdraw
her services to the man. The husband can claim damages. Services which can be
withdrawn include cooking, consortium etc.
A woman can also ask for divorce where she is mistreated by
the man. Mistreatment includes violence and non- provision of the daily
necessities of the woman.
DISSOLUTION PROCEDURE
Usually a meeting of the two families. The person seeking
to divorce is allowed to present his/her reasons for seeking the divorce. The
elders from the two families listen and attempt a resolution of the matter. For
purposes of the resolution, the meeting could be adjourned to allow some
consultation and mediation. If all of that fails, the person seeking divorce
will now return the drink his family took during the marriage ceremony and the
marriage will be pronounced as dissolved. If such a marriage was registered,
the parties must go back to the registrar to cancel the registration or update
it to divorce status.
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Next Article on this topic (Part 3) will discuss Ordinance
marriage. Thank you for reading.
WRITTEN BY
RICHARD NII AMARH
ESQ.
Greet piece keep up on it council
ReplyDelete