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WHAT IS A VALID MARRIAGE? THE RIGHTS OF A SPOUSE AND CHILDREN OF AN INFORMAL CUSTOMARY MARRIAGE IN VIEW


A young lady approached me and said: Mr. Lawyer, I have been living with my partner for the past four years? He got me pregnant whiles I was an apprentice with a hairdressing saloon. After the pregnancy, he came to “see” my parents and accepted responsibility. He came with his father who presented a bottle of schnapps to my father.

After I gave birth, he came to perform the naming ceremony after which he asked me to move in to live with him. I have supported him to do his business and also build his chamber and hall apartment which we live in now.

He now has two shops where he sells hardware. I used to sell at one of the shops, whiles he sells in the other, but he has recently stopped me from going to the other shop. He claims I am spending his money. The Truth is, he doesn’t provide regular money at home, so I usually use some of the sales to buy foodstuff to cook for the three of us. I have discussed with him, that he should help me set up my own hair dressing saloon so I don’t ask him for housekeeping money, but he has refused to help me saying it is my father’s responsibility to do that. He says as for him, a woman cannot “chop” his money because he is very wise.

I used to call his father to complain about the treatment I am getting from him, but I have stopped. The reason is that, anytime his father tries to advise him to treat me well, he comes home even angrier and treats me worse. He said, ‘If I want to marry his parents, then I should go and leave with them’.

He beats me at the least provocation and tells me to leave and go to my family if I want to. I have heard he is having numerous affairs with different girls in town. There are times he can stay out for weeks. During those times, he only comes home to bathe and go out again and all he would say is that he is busy with work.

I have asked him to formally marry me since I am a Christian and my pastor is giving me pressure to either marry or stop living in sin. Each time, I raise that official marriage topic, he gets angry and tells me not to put pressure on him and that he will do it at the right time.

I am very confused. My friends have told me that since we did not marry in church or court, I cannot take him to court for any relief. I want to leave him and start my own life alone. But I am afraid I may not be able to take care of the child alone since he will not send me money if I should leave the house. He will also bring a new woman to live in the house which I have supported him to build for the period we have lived together.

Lawyer, please what should I do?



The Law in Ghana recognizes three kinds of marriages.

1. Customary Marriage

2. Mohammedan Marriage and

3. Ordinance Marriage.


Each of these are valid and acceptable to the law so long as it is done in accordance with what the law expects it to be and the courts will enforce the rights under any of these marriages.

This article has been inspired by a wide wrong perception held by many Ghanaians that a spouse who has challenges in a “marriage” cannot seek help through the law unless that marriage was an ordinance marriage or a court marriage as they say. A typical example of this wrong perception is in the advice given by the friends of the suffering lady in the short story which has been used as the introduction of this article.


I shall attempt to discuss the two types of customary marriage for the purpose of helping to advise our sister and many others who may be in need. At an opportune time, I shall discuss the two other types of marriages as well.

Customary marriage is one of the three main marriages recognized by law in Ghana. It will be very difficult to discuss the fine details of what constitutes a valid customary marriage in each of the ethnic groups that exist in Ghana since they are all independent of each other and have different customs. However, there are some broad legally accepted principles that are used to measure the validity of a customary marriage in Ghana. These principles were developed by the late Justice Ollenu in the case of Yaotey vrs Quaye [1961] GLR 573.

Customary marriage is first of all potentially polygamous. The man has the right to marry as many women as he can harmoniously live with and conveniently manage.

Customary marriage cannot happen between certain kinds of persons who are related through blood. But here again, this differs from ethnic group to the other and I don’t intend to go into details here except to say that, generally, siblings cannot marry each other.

Customary marriage cannot exist alongside ordinance marriage. What we see mostly is that a lot of couples perform the customary marriage before going to either church or court to perform the ordinance marriage. In Law, the moment the ordinance is performed, it nullifies everything that was done by way of custom and only the ordinance marriage remains. The two cannot exist side by side.

A man or a woman married under ordinance, cannot enter into another valid marriage under custom with another person. That person could be prosecuted for the offence of bigamy.

The giving of Bible and ring at customary marriage is not part of the customary marriage. It is rather evidence of a promise to marry at ordinance and this evidence can become a basis for the woman to sue in a breach of promise to marry at ordinance.


WHAT THEN CONSTITUTES CUSTOMARY MARRIAGE?

The position of the law as developed by Justice Ollenu is that there are 4 essentials of a customary marriage.

1. Agreement between the parties to marry. The man and the women should first of all agree to want to marry. This agreement should not be forced on them by any other person. They should out of their own volition agree to marry each other. Evidence of this agreement is that the man has proposed to the woman and the woman has accepted the proposal. This is however not made public until the day of the customary marriage since in Akan tradition for example, it is the father of the man who goes to seek the hand of the woman for his son.

2. Consent of the man’s Family to the marriage. The man’s family should consent to the marriage. This consent is typically seen when the man’s family escort the man to the woman’s family to seek her hand in marriage. If they do not consent, they will not follow him to the woman’s house.

3. Consent of the woman family to the marriage. The consent of the woman’s family is usually seen when they accept the drinks or other items brought by the man’s family. Here too, the women is asked if she agrees to be married to the man just for the family to be sure that the man and the woman have already agreed to marry. It s upon the declaration by the woman that she agrees, that the family accepts the bride price brought by the man’s family.

4. Consummation by cohabitation. Once the marriage has been contracted, the spouses will live together as man and woman and this will infer consummation. Any child born by the woman during the cohabitation is the child of the man.

Suffice to add that of all these four essentials, the first one which is the agreement between the couples is key and without that, the rest cannot stand on their own. Without the other three however, the first one could still hold in certain instances.

The approach discussed above shows how formal customary marriage is contracted. There is however the informal customary marriage which is contracted a little different from the above.


Informal customary marriage can occur in one of the following ways.

Where a man impregnates a lady. The man can send a drink to the father of the lady to accept responsibility for the pregnancy. This drink when accepted by the father of the lady, creates an informal customary marriage between the man and the woman. It is informal because, the family has not met to conduct a formal customary marriage in the manner prescribed by the custom. Yet, the law recognizes them as husband and wife in a customary manner especially when the woman move in to stay with the man and the man performs every responsibility which he is supposed to do as a man. This kind of marriage is called “Mpena Aware” in most Akan communities. A case in point is Quaye v. Kuevi [1934] D. Ct. [31-37] 69. Similarly, in the case of Asumah vrs Khair [1959] 1 GLR 353 the court stated that – Thus a girl becomes pregnant and her family upon discovering her condition ascertain from her who was responsible. They send to the man to ascertain from him. If the man sends drinks to admitting liability and sends a further drink or a present (however small the drink or present may be – perhaps a small token sum of money), and if the girls family accepts the present in addition to the fee of admitting liability, a valid marriage is thereby concluded.

An Informal customary marriage can also occur where the man and woman without performing any rites, start to cohabit or live with each other as husband and wife. It is given further elevation when the families of the man and the woman refer to them as husband and wife and accord them all the necessary rites and responsibilities of husband and wife during social events such as funerals. For example, if the woman is allowed to buy “Asiedie” for the death of one of the parents of the man, it signifies that she is a wife since it is only in-laws who are allowed to buy “Asiedie”. – This is for Akan communities only. There are similar rites in other communities.

A more recent case to buttress this point is the case of Gorleku vrs. Pobee and Another [2012] 42 G.M.J. In this case, the widow who claimed to be a lawfully wedded wife of the deceased husband brought an action against two children of the late husband who had applied for Letters of Administration of their late father without her (Widow’s) consent.

The two children argued that the woman was never married to their father as she simply co-habited with him without any proper marriage ceremony. The court held that since there was evidence that they had lived in the eyes of the whole world as husband and wife there was an existence of a valid informal customary marriage.

Based on the discussion of the principles above, It is my humble submission that the young lady is validly married to the man he is living with and can therefore seek remedy from the courts for the maltreatment the husband is giving to her. She should be considered as a wife and therefore entitled to a share of the matrimonial property if she decides to divorce.

The daughter of the union will also be entitled to maintenance allowance if she should decide to go for a divorce. In the interest of Justice for our women and children who suffer at the hands of many men, It is advised generally that they seek the assistance of lawyers when they find themselves in such difficult situations so they can be assisted to get justice from the law courts.

She can also be assisted by the Domestic Violence and victims support unit of the Ghana Police service since she complains of physical abuse from the man. A report from the DOVSU would even be vital in any court action she may intend to embark on in the future.



Written by
Richard Amarh ESQ.
Barrister and Solicitor
Associate at Dubik and Associates
Pax & Wells Chambers
Contact: nii@richardamarh.com

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