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THE TYPES OF GHANAIAN MARRIAGES SIMPLIFIED PART 3 - ORDINANCE

 





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.

    1. 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.
    2. 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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