The Law in Ghana recognizes three types of
marriages. These are the Mohammedans Marriage, the Customary
Marriage and the Ordinance marriage. Each of these three
types of marriages have their own characteristics and features. They all create
certain rights and obligations within the marriage and they also have their own
unique legal procedures to follow in order to make them valid.
In order to make this reader friendly, the three
types of marriages shall be explained in three separate write ups. Feel free to
subscribe or follow this blog so that you get notified as soon as the next
article is uploaded.
Let me warn that this article does not pretend
to give all the features, rights, responsibilities and procedures on all these
kinds of marriage as same cannot be contained and still make it reader friendly
for the general public. You are however assured that this article will contain
key general understanding of the legal status of marriages in Ghana.
We shall begin with what is called the Mohammedan’s marriage
or the Islamic Marriage in Ghana.
MOHAMMEDAN
MARRIAGE
According to Asaf Fyzee, a very respected Islamic
Scholar, marriage is a contract for the legalization of intercourse and the
procreation of children. It is an institution ordered for the protection of
society, and in order that human beings may guard themselves from foulness and
unchastity.
This definition embodies the Islamic principles that, sex
out of marriage is a sin which must be avoided at all cost and that the main
purpose of marriage and sex is for the procreation of society and the blessings
of Allah.
The Law that regulates Mohammedan’s marriage is found in
Part 2 of the Marriages Act 1884 – 1985 (CAP 129). It basically spells out how
the Mohammedan’s marriage can be registered within the district in order to
make it valid. It also regulates how divorces can also be registered.
Elements of
Mohammedans Marriage
First of all, there must be a proposal by one party or on
behalf of that party. Either the man or the woman will propose the marriage.
This proposal could also be done on behalf of the man. Sometimes his father, an
uncle or elderly persons in his family.
Upon receiving the proposal, the other party will also have
to accept that proposal. The acceptance can also be done on behalf of the
person involved. And the acceptance could be done by a father, uncle or elderly
persons in the family.
The proposal and acceptance cannot be done in darkness or
secrete. It must be done in the presence of witnesses who can attest to it.
Usually, one male adult as witness for the man and one male adult as witness
for the woman. Where a male adult is not available, two female adults can
represent one male adult for the purposes of this witness.
Finally, both proposal and acceptance should be at one
meeting to ensure a valid marriage.
Under the law, a man can marry up to four wives in Ghana.
The Islamic dictate to this is that, he should endeavor to love each of the
four women the same way and he should not treat some better than the others. A
woman on the other hand can only marry one man.
Marriage of Consanguinity and affinity is not allowed under
this type of marriage. For Example, one cannot marry his sister or mother.
A Muslim man can marry a non-Muslim woman. This is usually
called KATIBIA. However, a Muslim woman cannot marry a non-Muslim man.
Ceremony or Procedure
Most weddings have their own settings. Colors, music, food,
invited guests and anything that makes the would-be-couples happy. However, all of that
is not part of what the law looks at to determine whether the marriage is valid
or not.
The law will consider this to determine if there was a
valid marriage. At the meeting, the man or his representative proposes. The
woman is asked if she accepts it. Once she says yes, the dower is accepted by the woman’s family and the marriage is
pronounced sealed.
Registration
Section 27 of the Marriages Act 1884 – 1985 says that the
marriage must be registered after the celebration in order to make that
marriage a valid one. Section 24(1) says that “The bridegroom, the bride’s wali,
two witnesses to the marriage, and a Mohammedan priest licensed under section
21 shall as soon as conveniently may be, and before the expiration of a week
after the celebration of the marriage, attend at the office of the district
chief executive for the purpose of registering the marriage”. This means the registration
should be within 1 week. I must say that this
one-week period for registration has made it very difficult for most Muslims to
validly register their marriages in Ghana. Perhaps, a removal of that clause
will enable a lot more Muslims to register their marriages. The only option if
you do not register within 1 week is to go to court for a High Court Judge to
vary the requirement for you. You will have to provide reasons why you were
unable to register within the one-week statutory period. This is not that easy
to do for many ordinary Ghanaians.
Divorce is also to be registered in the same manner, except
that It can be done within 1 month.
Grounds for Dissolution
For an Islamic marriage to have a ground for divorce, any
of the following should have happened or existed. Where the Husband disappears for more than
four years. This gives the woman a right to pronounce the marriage as dissolved
and therefore have the right to marry another man. A man who has disappeared
means a man who cannot be found by the woman after all due diligence and
efforts to find him. A man who has traveled but is in constant communication
with the woman, cannot be said to have disappeared. It is important to also add
that for a woman to qualify as a widow to benefit under the Law for the
property of a man who has disappeared and did not have a will, that woman
should have remained married to the disappeared man for seven years. The woman
seeking to divorce a man who has disappeared for four years will therefore have
to make the choice of staying married to a “missing man” for
seven years, or choosing to divorce at four years and forfeiting any property
she might have gained after seven years when the man could be declared as dead
under law.
Again, it is the responsibility of the man to take care of
the woman. Where the husband fails to maintain the wife, the wife can legally
ask for divorce from the irresponsible man.
A husband who is suffering from any of the following is
also a ground for the wife to ask for divorce and vice versa; Insanity,
Leprosy, Venereal disease. And a wife who is found to have committed adultery
also gives the husband the right to divorce her. Under this type of marriage, a
man cannot be found to be adulterous because the marriage is polygamous.
Procedure for divorce under Mohamedan’s Marriage law
The Parties may apply to court for dissolution. This will
follow the normal procedure for divorce in law.
A husband may at his will pronounce the word TALAK which means "I divorce thee" and that if done in
the presence of witnesses, constitutes a proper divorce. This would usually
happen at a family gathering or meeting for this purpose. The two parties may
also agree to bring the marriage to an end and this is also accepted under
Islamic marriage.
You can contribute to this blog by sending in your legal
articles to nii@richardamarh.com.
Feedbacks, contrary views and criticisms are warmly welcome for the development
of the legal public education.
Next Article will discuss customary marriage. Thank you for
reading.
WRITTEN BY
RICHARD NII AMARH
ESQ.
MANAGING PARTNER
Good write up. An eye opener by all standards
ReplyDelete