Yes. This is Part 3 of this
Article. It means we have already done Part 1 and part 2. You may click on the
links in Part 1 and Part 2 to read if you want to go back to understand.
The Marriage by Ordinance is what
many people refer to as Church marriage or wedding. It is however not Church
marriage as may people call it. It is the marriage by Ordinance.
I prefer this English case law definition of an ordinance
marriage which says: The voluntary union
for life of one man and one woman to the exclusion of all others. Hyde
vrs Hyde Woodmaansee Lord Penzance [ 1866] LR 1 P&D 130
Ordinance marriage is taken care of under part three of the
marriages act, CAP 127. It is the only monogamous marriage recognized by law in
Ghana. The parties to this marriage are not allowed to marry any other person.
Even though both Islamic Marriage and Customary marriage can be converted into
Ordinance marriage, the ordinance cannot be converted into customary or Islamic
marriage. In fact, at the time of conversion, if there is a second wife, that
wife has to be divorced before the ordinance can be validly contracted.
Most people call this the church wedding. That is because,
it is usually done by Christians and in church. But it is completely wrong to
refer it to it as church wedding since the ordinance marriage is not
exclusively for Christians. In fact, the person with the right to officiate
this type of marriage is the registrar of marriages. The law however allows
other registered event centers such as churches to hold the ceremony and with a
registered priest. An ordinance marriage which is not contracted at the right
place and by the right officer is also invalid.
Let’s look at the procedure to get validly married under
the ordinance.
One of the parties makes an application for banns to the district registrar of marriages. The Banns
contains the names of the parties to the marriage, their occupation, the fact
that neither of them is married to any other person apart from the other party.
Notice of the banns is pasted in the community
where they live for 3 weeks. (in most churches, they will announce the banns
for three consecutive weeks in the church). After the three weeks, they can
marry within three month or start the whole process again. In other words,
after the three weeks’ notice, the wedding must take place within three months.
If the wedding does not take place within three months after the notice has
ended, they will have to do a new notice before they can get married validly.
During the three weeks’ notice, if anyone has a reason why the marriage should
not happen, the person must file a caveat. Caveat here is the legal procedure
to challenge the ability of the two persons to marry. Reasons why they may not
marry may include that fact that one of them is already married to someone, or
they are siblings etc. when the caveat
has been filed, the marriage cannot happen until the caveat has been
interrogated and a decision has been made. That decision has to be made by a
High court judge. He/ she can decide whether the reason is valid or frivolous.
If it is valid, the registrar will be directed to cancel the banns, if it is
frivolous, the registrar will be directed to continue with the marriage. If after the 3 weeks’ notice, no caveat is
filed, the marriage can happen within three months. If done in a church, the
church must be registered with the registrar of marriages as a celebration center.
The pastor must also be registered as a marriage official in order for the
marriage to be valid. Otherwise, the couple must go to the registrar’s office
to sign. A special license can be granted at a fee for the marriage to be
celebrated at a place which is not registered to celebrate marriages. Note that
a special license expires after that particular marriage has been done and does
not extend the liberty for other persons to also marry at that center. One
witness each is required during the singing.
A person cannot marry under the ordinance until they are 21
years and above. However, an 18-year-old person can marry if his/her parents
give a written consent to the marriage.
CONVERSION
It has become the normal practice for most Christians to do
the customary marriage and afterwards celebrate the ordinance. We have to know that the customary marriage
is not a requirement before the ordinance marriage. It is a mere formality that
most people have adopted to do. The customary marriage as discussed in the Part
2 of our article is also a valid marriage on its own. As stated already, the
customary marriage cannot co-exist with the ordinance marriage. Any celebration
of Ordinance marriage after customary marriage nullifies the customary marriage
and, in its place, imposes the ordinance marriage. That process is known as a
conversion process. You can convert a customary marriage into an ordinance
marriage, but you cannot convert an ordinance marriage into a customary
marriage.
DISSOLUTION
A Party to an ordinance marriage which is older than 2
years can bring a petition to the judge to commence divorce proceedings. A
Petition shall only be entertained for a marriage that is less than 2 years on
the following reasons.
- If it has not been
consummated and one party has discovered that the other party used
deception to get him or her into the marriage. In this situation, the
marriage itself is not valid and the court will just dissolve it instead
of granting a divorce.
- If one party can prove
substantial hardship suffered from the other party and which is a threat
to their life. For example, one party is always beating the other. The
courts cannot wait for 2 years since beating can end the life of one
party before the 2 years.
Without falling into any of the two categories above, you
cannot ask for divorce until your marriage is more than two years.
There is only one ground for the grant of divorce in a
marriage. That is the marriage has broken down beyond reconciliation.
That ground “broken down beyond reconciliation”, can be
proved by showing that any of the following facts exist or has occurred in the
marriage.
A.
that the other spouse
has committed adultery and that by reason of such adultery, the one
seeking divorce finds it intolerable to live with the other spouse. Having consensual
sexual relations with another person who is not your wife or husband is
adultery. The person seeking divorce due to the adultery of the spouse must
show that since he or she discovered that the other person has committed
adultery, he or she has not been able to live like husband and wife with the
spouse. You cannot continue to live with a spouse and have consensual sex with
him or her after discovering adultery and then come to court to say you want
divorce. That would mean you have forgiven him or her and so the marriage is
not broken down beyond reciliation.
A confession of adultery
should be voluntary. If a person is beaten until he or she confesses to having committed
adultery, it will be deemed involuntary. A person seeking divorce on grounds of
adultery does not need to prove adultery very strictly. It is enough to show
disposition and opportunity. For Example, if a married woman is seen spending
night with another man in a hotel room or any other room alone, the husband can
safely show that there was disposition and opportunity for adultery and can
rely on this for divorce without proving that there was actually a sexual
intercourse.
B.
that the other spouse
has behaved
in such a way that the party seeking divorce cannot
reasonably be expected to live with the other spouse. Most lawyers refer to
this as the unreasonable behavior rule. Marriage is a relationship and spouses
are expected to behave in a way that allows the other spouse to be reasonably
comfortable to live with them. Some actions may be considered as unreasonable
and when they are done, the other spouse is not expected to be able to live
with the one doing those acts in a marriage. For Example, a spouse who
consistently goes to the other spouse’s workplace to create a scene because the
spouse had a misunderstanding with the other at home, can be held to be a
behavior that is unreasonable. Even though misunderstandings or quarrels are
normal between married persons, constantly taking it to the public or the
workplace of the other spouse can be held to be an unreasonable behavior.
C.
that the other spouse
has deserted
the party seeking divorce. When one of the spouses has withdrawn from the
relationship, this is called desertion. Things that can amount to withdrawal
include, not talking to the other spouse, not eating from the house, cooking
separately even though they live in the same house, not sleeping in the same
room etc. These actions show an intention to bring the relationship to an end
and if they continue for a long period without resolution, they become a ground
for one party to seek divorce.
D.
that the parties to
the marriage have not lived as man and wife for a continuous period of at
least two years immediately preceding the presentation of the
petition and the other spouse consents to the grant of a
decree of divorce; provided that such consent shall not be unreasonably
withheld, and where the Court is satisfied that it has been so withheld, the
Court may grant a petition for divorce notwithstanding the refusal. Married
people are expected to live together, have fellowship with each other, and be
friends forever. When one party decides to leave the marital home without the
consent of the other, this can become a ground for divorce. If a spouse however
travels to work. For example, he or she has been transferred from one town to
the other or even travel abroad to seek greener pastures and it was discussed
and agreed, the other person cannot rely on that leaving of home to seek
divorce. The “not living together” must be continuous for two years before a
party can rely on it to petition for divorce in court. When a party leaves the
marital home for 1 year and comes back to spend 6 months and leave again, the
desertion begins to count from the time she left after coming back for the 6 months
stay.
E.
that the parties to
the marriage have not lived as man and wife for a continuous period of at
least five years immediately preceding the presentation of the
petition. This looks like the one above. The difference here is that, there is
no consent needed for the divorce. For married people to separate for five
years, the marriage is deemed to have broken down beyond reconciliation and any
court of competent jurisdiction would grant the divorce without any hesitation.
F.
that the parties to
the marriage have, after diligent effort, been unable to reconcile their
differences. The courts are not there just to dissolve marriages. In fact, it
is in the interest of public policy that marriages work. When there are stable
marriages, good citizens are made. Therefore, upon all the above-named facts,
the courts will seek to inquire if the parties to the marriage have made any
efforts at reconciliation and it has not worked. Most courts will order the
parties to attempt reconciling if it comes to know that the parties have not
tried any form of reconciliation before coming to court for divorce. Social
systems such as Family, Church and counselling are used to try and reconcile
the parties. It is only when these have failed that the court will go ahead to
hear the case for the divorce.
When one party is able to prove any of the facts above to a
court, the court will be able to grant divorce and its consequential orders. At
an appropriate time, I shall dedicate time to treat some of these consequential
orders such as Child Custody, Maintenance, Sharing of property
etc. We shall also go into detail in future articles to discuss each of the
facts upon which a party can ask for divorce.
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This is the end of our marriage series in general. But we
shall tackle different topics under marriage in future. Thank you for reading.
WRITTEN BY
RICHARD NII AMARH
ESQ.
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