Introduction
Ghana
operates pluralistic legal system. Under
this system, different sources of law are recognised as co-existing with each
other. Most of these laws are imposed,
while others are written laws or customary laws. There are even religious tenets and
principles enshrined in the customary laws.
How is customary
marriage performed in Ghana?
Before
going into the details of how English courts recognise customary marriages
consummated in Ghana, an insight of how customary marriage ceremony is
performed in Ghana is crucial.
Customary marriage is the most
common form of marriage in Ghana. The specific customary marriage ceremony that
are followed vary insignificantly from group to group, although in virtually
all cases customary marriage involves a gathering at which the bridegroom's
family makes payment of a bride-price and the provision of alcoholic and soft
drinks to the bride's family, followed by the bride being asked if she will accept
the bridegroom as her husband. In all
cases the bridegroom does not hesitate to consent since the two are already
acquainted.
The Ghanaian marriage starts with
the traditional ceremony as expatiated above where the groom accompanied by his
extended family members formally asks for the bride's hand in marriage in the
presence of the intended bride’s family, friends and well-wishers. The
traditional ceremony is a necessary common rite of marriage for all Ghanaian
couples. In Ghana today, some couples perform
this alone as a marriage ceremony, however, most couples also go on to perform
the western wedding in a church or in the Government Registrar’s office in
addition to the traditional marriage ceremony.
This additional western ritual is optional but enhances the legal status
of the marriage when it comes to the issue of redistribution of the family
properties when the marriage breaks down or inheritance – when one spouse dies
without any valid Will.
The legal status
The
Customary Marriage and Divorce (Registration) Law 1985 provided for the
proper registration of customary marriages and divorces in Ghana, but it was
retroactive (i.e. applied to customary marriages and divorces contracted
before, as well as after, its enactment). Non-compliance was punishable by fine
or imprisonment, but the marriage would still be regarded as valid. However, the Customary Marriage and Divorce (Registration) (Amendment) Law 1991
provided that registration of customary marriages and divorces would no longer
be mandatory. However, it is advisable to register a customary marriage. By
registering your customary marriage, the State knows about the existence of the
marriage; it also prevents disputes on the existence of validity of a customary
marriage; and the certificate given to the spouses can support requests by
Foreign Missions in Ghana in applications for visas and permits. A man can
register more than one customary marriage since polygamous or potentially
polygamous marriage is valid in Ghana. There is no legal limit to the number of
customary wives a man may have, nor is there any limit to the number of such
marriages that can be legally registered under the Customary Marriage and Divorce Registration Law, 1985 (PNDCL 112). Virtually all religious organisations
and other related institutions in Ghana with the exception of the Islamic faith
frown at customary marriage and its ramifications. But this perception has done
little to revolutionise this deep-rooted practice of long standing. The
potentially polygamous nature of customary marriage distinguishes it from
marriages performed under the Marriage Ordinance.
Intervention of the judiciary on
dissolution
Customary marriages can be dissolved by either party. A customary
marriage may be ended if the wife is infertile or commits adultery, if the
husband is impotent or commits adultery, or if the couple is not compatible
resulting in the breakdown of the marriage irretrievably. Usually the families
of the couple try to reconcile any conflicts before they lead to divorce. If
this is not possible, the marriage is considered over once the party requesting
the divorce presents the family of the other party with drinks.
The Matrimonial Causes Act 1971,
(Act 367) provides that a customary marriage, an Islamic marriage and marriage
under the Marriage Ordinance can be dissolved before a court of law. However,
in the case of dissolution of a customary marriage, the Court is enjoined to
consider the customary rules of the parties.
In the case of McCabe
v McCabe [1994] 1 FLR
410, [1994] 1 FCR 257 the wife was a Ghanaian woman who became pregnant by an Irish man, Mr McCabe.
They agreed to marry in accordance with the Ghanaian Akan customary law, and husband
provided £100 and a bottle of gin which were taken to Ghana and used in a
ceremony at wife’s father’s home while both parties remained in England. They
were sent letters informing them of the ceremony and subsequent recognition of
their relationship as husband and wife. The couple separated after three years
and wife issued a petition for divorce but husband denied that there had been a
valid marriage. The judge found that under Akan customary law there had been no
valid marriage as two formal requirements of publicity and representation by
proxy were lacking. However, on Appeal it was found that the two essential
components of an Akan customary marriage were the consent of each party and the
consent of each family. The marriage was consummated after the ceremony by the
couple’s cohabitation. Publicity outside the family circle was not a formal
requirement, nor was the presence of a proxy. The marriage was therefore held
to be valid and a decree nisi of divorce would be pronounced.
The
most widely accepted definition of marriage in the law can be found in the case
of Hyde v Hyde and Woodhouse [1866] LR 1
PD 130. ‘the voluntary union for life of
one man and one woman to the exclusion of all others’. In Hyde
v Hyde the Judge Ordinary said, ‘it does not follow that because the
consequences of a marriage in Utah and in England are different, the marriage
in Utah is not to be recognised as valid in England. The validity of the marriage must be
determined by the law of the place where it was contracted; the consequences of
the marriage depend upon the law of the country where the parties reside.
Drawing inference from the decision
in Hyde, marriage, be it ordinance or customary contracted in other
jurisdictions and recognised as valid in that jurisdiction can also be
recognised as valid in England. However
there are two independent criteria which must be satisfied if customary
marriage contracted in foreign jurisdiction is to be recognised by an English
court. Firstly, the marriage must be
formally valid in the country in which it was contracted, and secondly, each of
the parties to the marriage must have capacity to marry.
The reason for the seemingly
diplomatic approach by English courts when faced with question of determination
of the validity of marriages in international divorce cases is not far-fetched. The courts approach has some public policy
considerations which weigh heavily in favour of marriage. This is based on the belief that, marriage
preserves the family unit. It has also
been viewed as vital to the preservation of morals and civilisation. The courts
also reason that before the assimilation of western culture and principles as a
result of colonisation by European countries, customary marriages were the only
means of marital affiliation between man and woman in most African countries.
The English courts strive to be
tolerant of other cultures and customs even though some may be unlawful or
invalid in England. The courts
therefore, when deciding on international divorce cases try to strike a balance
between marriages which would be offensive to the conscience of the courts and
the need for common sense, good manners and reasonable tolerance. This approach
by the English courts is based essentially on the principles of Comity of
Nations.
The case of Cheni (Orse Rodringuez) v Cheni [1965] was one of the international
divorce cases where an English court was confronted with the question of
recognition of polygamous or potentially polygamous marriage in a divorce
petition. The marriage was solemnised
under the Jewish law which allows bigamy.
In 1961 the wife filed a divorce
petition in an English court praying that the marriage be declared null and
void on the grounds of the husband’s cruelty.
English courts had the jurisdiction to adjudicate on the marriage
although polygamous when it was contracted but monogamous at the time of the
court proceedings. There was no law
prohibiting English courts from recognising marriages originally regarded as
incestuous by Christendom or civilisation.
So the question was whether a particular marriage was so offensive to
the conscience of the court that it should refuse to recognise that the
marriage was valid. But a refusal to do so would perpetrate in injustice and
affront to conscience.
The application to annul the
marriage was rejected by the court.
But not all customary marriages consummated
in other jurisdictions are recognised as valid by English courts. Where one party or both parties to the
marriage did not intend to regard the ceremony as marriage ceremony but
intended to be an engagement or introduction ceremony then the court will draw
inference as appropriate.
In Alfonso-Brown v Millwood [2006] the Family Division court came
close to recognising a purported customary marriage as valid, while according
to the facts; including video footage of the ceremony, it was just an
engagement ceremony. The Judge, Mr
Justice Singer had two pertinent issues to resolve in order to determine
whether the Petitioner, Patricia Alfonso-Brown was entitled to any financial
relief from the Respondent. The first was
whether the event that took place at Osu, Accra in Ghana on 27 December, 1997 constituted
a marriage in accordance with the customary law of Ga people of Ghana. The second would only arise if the answer to
the first question was positive. Did the
Respondent intend to marry the Petitioner at the time?
Alfonso-Brown – the Petitioner
(44yrs) is Ga-speaking woman who hailed from Accra. Millwood – the Respondent (61yrs) married
first wife in 1965 and divorced in 1999.
He remarried wife (No.2) in July 2003. In a sworn affidavit by the
Petitioner her love affair with the Respondent lasted from 1991to 2002, during
which period both the Respondent and the Petitioner were still married to their
first spouses. The Petitioner’s marriage was dissolved in 1994.
The Petitioner applied to the court
for Ancillary Relief from the Respondent on the basis that the ceremony that
took place in Ghana on 27 December, 1997 was a customary marriage. The Respondent denied any valid marriage
ceremony ever taken place. He argued
that the ceremony was only traditional engagement ceremony.
The court decided in spite of the
evidence tendered; including video recording of the ceremony and written
Affidavits from relatives of the Petitioner that the ceremony was not a
marriage ceremony and that the Petitioner had known throughout that the
ceremony was not a marriage but an engagement ceremony.
What is Comity of Nations?
Comity of Nations is a courtesy
agreement between nations where each nation will recognise the laws and institutions
of the other.
Isaac Abbey LLB
St Albans, UK
Associate Member of the Chartered
Institute of Legal Executives (CILEx)
10 September 2012
