CUSTOMARY LAW MARRIAGE Versus MARRIAGE UNDER PART 3 OF The Marriages Act, 1885-1985

 CUSTOMARY LAW MARRIAGE 

Versus

MARRIAGE UNDER PART 3 OF MARRIAGES ACT, 1885-1985

Therefore, at the appointed time, a man shall leave his father and mother and be joined to his wife, and they shall become one flesh” (Genesis 2:24).

The time comes when a man and a woman seek to be joined as one through marriage both in the eyes of the law and the society; and when this time comes the question that arises is “what type of marriage to contract?” This question, as simple and harmless as it is clothed, could have some dire consequences as each type of marriage contracted in Ghana has its unique features as well as implications so my word of caution to lovebirds intending to tie the knot is to “look before you leap!” Today’s discussion will be centred on the unique characteristics of a Customary law marriage and a Marriage contracted under Part 3 of the Marriages Act, 1884-1985 (CAP.127).

CUSTOMARY LAW MARRIAGE IN GHANA:

Just like the name suggests this form of marriage is contracted in accordance with the specific dictates of the applicable custom of the to-be husband or his to-be bride.

The first thing to note is that this type of marriage is potentially polygamous (polygyny) with ONLY a man being allowed to marry more than one woman. There is no cap on the number of wives a man can have so long as he can harmoniously live with them. At any given day or time, a man married under customary law may bring home a new wife and she will be entitled to be treated and regarded as his lawful wife once all the needed rites under customary law have been compiled with.

This is a typical case of 1: infinity.

Secondly, contrary to the popularly held notion in Ghana, a customary law marriage and a marriage contracted under Part 3 of CAP 127 (of a monogamous nature) can be likened to oil and water, the two do not mix or co-exist; they are mutually exclusive. Thus, a man married under customary law with any woman will first and foremost, be required to divorce her before he can validly marry another woman under the Ordinance or Part 3 of CAP 127. In Ghana the law makes provision under Section 56 of CAP. 127 for any person, in this case, the customarily married wife who may enter a caveat to prevent her husband from marrying another woman under the Ordinance during the sustenance of her customary marriage. This objection (caveat) is, however, to be raised timeously. Should such a man having a validly customarily married wife, go ahead and marry another woman under the Ordinance, the marriage contracted by Ordinance or Part 3 of CAP. 127 will be void and of no legal effect, Ladies Beware!!!!!

Thirdly, In Ghana a customary law marriage can be converted to marriage contracted under Part 3. When such a conversion is validly done in line with dictates of the law, then the customary marriage is set aside for the Ordinance marriage to step in; the old makes way for the new. However, if the conversion is not carried out in accordance with the law, that marriage to all intents and purposes will still remain a customary marriage. 

MARRIAGE UNDER PART 3 OF THE MARRIAGES ACT 1884-1985 (Christian and Other Marriages):

FORMULA=

One MAN

      +

One WOMAN

       -

All others

This kind of marriage is monogamous in nature; and should you go in for this option, be reminded that it is one man and one woman in wedlock for life, so choose your partner wisely!

It is important to note that a marriage contracted under this part MUST COMPLY with the dictates of the law as provided for under Sections 35 to 85 of CAP. 127.

Solemnisation of a marriage under this part can ONLY be done under three main authorities as stipulated under Section 41 of CAP. 127: a registrar’s certificate; a marriage officer’s certificate; a special licence from the Registrar.

Each of these authorities has laid down procedures to be followed, for example, under a Registrar’s Certificate, the process starts with one of the parties to the intended marriage signing and presenting a notice of marriage to the registrar in the district in which the marriage is to be celebrated.

Non-compliance with the requirements stated particularly under Section 74 of CAP. 127 will result in an invalid marriage of no legal effect.

Unlike a marriage contracted under customary law, a marriage contracted under this part cannot be converted into a customary law marriage for example. 

A man who is validly married under Part 3 of CAP. 127 cannot validly marry any other woman either under customary law or the same ordinance during the sustenance of his validly contracted marriage. If he does so, he is guilty of ‘Bigamy’ contrary to Section 262 of the Criminal Offences Act, 1960 (Act 29).

Knowledge is Power; make an informed decision on the type of marriage to contract only after being properly educated on the position of the law regarding marriages in Ghana and after carefully weighing the pros and cons of each option.