FAMILY LAW

● Marriages Act, 1884-1985 (CAP 127)

● Matrimonial Causes Act, 1971 (Act 367)

JURISDICTION

All courts have jurisdiction when it comes to marital affairs but the value of the property to be shared determines
which particular court will hear the issue.

DISTRICT COURT

The Courts Act, Act 459 outlines the jurisdiction of the DC in family matters. Sections 47 (1) (f) and Section 50

The value of the relief should be within the jurisdiction of the DC i.e. GHC5, 000.

CIRCUIT COURT

The Courts Act outlines the jurisdiction of the CC in family law matters. These are contained in Section 41(2) and
Section 43 of Matrimonial Causes Act, Section 41 (1) (a). Value of the reliefs sought i.e. GHS10, 000.

(Mensah v Berkoe)

HIGH COURT

The High Court has original jurisdiction in all family law matters and appellate jurisdiction in appeals from the DC.
These are contained in Section 15(1) and Section 18 of Act 459.

COURT OF APPEAL

It has appellate jurisdiction in appeals from the CC and the HC. These are contained in Section 11 (3) (a) and
Section 11(1) of Act 459.

SUPREME COURT

It is mandated to deal with appeals from the A in all matters relating to family law. Section 4(1) of Act 459

BREACH OF PROMISE TO MARRY

Marriage starts with an agreement between the man and woman to marry. There is an offer and an acceptance. If
the agreement is seriously made and it is broken, an action can be commenced for breach. The exchange of
promise is enough consideration. The agreement may either be express or implied. A promise to marry is a promise
to marry within a reasonable time.

There are 2 types of breaches; anticipatory and non-performance breach. Anticipatory breach is where the parties
agree to marry at a certain time or upon the occurrence of a certain event. If one of the parties withdraws from the
agreement before the date for the marriage or before the occurrence of the event, the party withdrawing will be in
anticipatory breach. Where this happens, the law allows the aggrieved party to immediately sue the party in
breach for damages without having to wait for the due date to pass or the event to happen.

Non-performance is where the due date passes or the event occurs and either the man or woman refuses to marry.

An agreement to marry is an agreement to marry within a reasonable time.

DEFENCES TO ACTIONS FOR BREACH OF PROMISE TO MARRY

● Fraudulent misrepresentation
● Bad Character
● Bodily infirmity
● Insanity
● Mutual release
● Unfaithfulness; infidelity on the part of the man could be a defence if the agreement is in respect of a
monogamous marriage. It will however not be a good defence if the agreement was in respect of a customary
law marriage since it is potentially polygamous. (Bench v Merrick)

A promise to marry is a promise to marry within a reasonable time; hence the courts have held that failure to
marry within a reasonable time is tantamount to a breach of promise. (Aning v Kingful)

Damages will not be granted because it is foreign to customary law marriage. The courts have held that this view is
wrong and that breach of promise to marry actions is applicable to customary law marriages and ordinance
marriages. (Kwame Addo v Adjoa Duko) (Appiah (Acheampong v Acheampong) (Djarbeng v Tagoe) – Here the
court alluded to the existence of breach of promise actions to marry in customary law. It held however that because
family consent was absent, the defendant was not in breach. (Afrifa v Class-Peter) – Here the appeal was dismissed
and the order for damages for breach of promise to marry under customary law, awarded by the lower court was
affirmed. (Donkor v Ankrah) – Here the court found that the knocking was a preparatory stage in the marriage
contract and its acceptance signified consent by the plaintiff’s family to the marriage, leaving the performance of
the dowry to seal the marriage. The court held therefore that the defendant was in breach and ordered him to pay
damages to the plaintiff.
The CA dealt with breach of promise to marry under customary law in (Amoah v Boakye Gyan) – The court further
stated that it would offend Article 17 to discriminate against a person on grounds of ethnic origin and culture. To
say that a promise to marry a person under the ordinance is well found but cannot be founded in customary law
marriage is discriminatory, unconscionable and contrary to justice and equity.

The only remedy for a breach of promise to marry is damages. Specific performance will not be ordered.

QUANTUM OF DAMAGES

The quantum of damages is not fixed. A number of factors may be taken into consideration. The court in (Donkor v
Ankrah) described some of the factors that may be taken into consideration when the quantum of damages is
being considered in a case of breach of promise to marry.

What happens to gifts that are given by the parties to each other after the exchange of promises will depend on
whether the gifts were given in contemplation of the marriage or not. If one party gives the other gift in the hope
that they would get married in the future, the party receiving the gift must return it if he or she withdraws from the
agreement – Kwame Addo v Adjoa Duko. On the other hand, if the party giving the gift is the one in breach, he or
she cannot claim it back unless he or she has good reasons for withdrawing from the contract. As soon as the
marriage takes place the gift vests completely in the person who received it. It cannot be recovered even after a
divorce.

CUSTOMARY LAW MARRIAGE

Ollennu J defined customary law marriage in Yaotey v Quaye as a union of the man’s family and the woman’s
family. It imposes rights and duties upon the two families. The woman’s family gains the right to perform certain
rites in certain eventualities and the man’s family also gains the right to perform certain rites in certain
eventualities.

Customary law marriage is a union of two families. It also creates certain rights and obligations.

CHARACTERISTICS OF A CUSTOMARY LAW MARRIAGE

● It is potentially polygamous. In cases where the man promises to marry no other woman in addition to the
customary law wife, the promise does not change the character of the marriage. The man is entitled to marry
as many wives as he can harmoniously live with and conveniently manage. (Graham v Graham)
● It is a union between two families according to Ollennu. Consent of both families is relevant.
● Some marriages are prohibited on grounds of consanguinity
● Ordinance marriages and customary law marriages are mutually exclusive i.e. they can’t co-exist.
● A customary law marriage may be converted to an Ordinance marriage. When this happens, the customary law
marriage falls away automatically. (Graham v Graham) – The court held that after the solemnization of the
marriage under the ordinance, the customary law marriage ceased to exist.
● A man married under the ordinance cannot enter into a valid customary law marriage or a marriage under the
ordinance with another woman. The second marriage is null and void. The man could also be charged with
bigamy.
● Customary Law marriages have become synonymous with engagements. The giving of the bible and ring shows
an intention to marry at a later date under the ordinance. (Afrifa v Class-Peter)
● The existence of a customary law marriage is not a condition precedent to the creation of a valid marriage
under the Marriages Act 1884-1985. The requirements for the creation of a valid ordinance marriage, as
stipulated in the Marriages Act are clear.

There is a first stage in the marriage ceremony known as ‘knocking’ which is the preparatory stage of the marriage.
Knocking entails a very simple ceremony. The knocking ceremony is not a marriage ceremony. It merely reinforces
the parties’ promise of marriage to each other. It may however form the basis of an action for damages for breach
of promise to marry.

DIFFERENT FORMS OF MARRIAGE

There are two different types of customary law marriage the formal and informal marriage. In Yaotey v Quaye,
Ollennu J introduced the 4 main essentials and stated that if these essentials were present in a relationship, then
there is a valid customary law marriage.

ESSENTIALS OF A CUSTOMARY LAW MARRIAGE

Introduced the 4 essentials and stated that if these 4 essentials were present in a relationship the court should hold
that there is a marriage. The essentials were to apply to all marriages in Ghana

● Agreement between the man and woman to live as husband and wife; this is the most important essential
● Consent of the man’s family that he could take the woman as his wife. The consent may be formal or
informal; express or implied or constructive. The consent is formal when the family members meet and accept
the drinks from the man’s family to the woman’s family. It is informal where no drinks have been presented but
the family of the man acknowledges the woman as the wife of the man and admitting her and her family to
performance of customary rites for their family e.g. funeral rites when there is bereavement in the man’s
family. (Essilfie v Quarcoo) (Yaotey v Quaye)
● Same as above but consent from the woman’s family
● Consummation by cohabitation. (Akorimga v Akawagre)
These four essentials were reiterated in the case of (Re Caveat by Clara Sackitey)

IMPLICATIONS OF THESE ESSENTIALS

That no one may be forced to marry another person and that the parties to a marriage contract must voluntarily
agree to live as husband and wife. (Akorimga v Akawagre). Article 35(4) of DPSP of the Constitution enjoins the
state to cultivate amongst all Ghanaians, respect for fundamental human rights and freedoms and dignity of the
human person. The Children’s Act, Act 560 has outlawed betrothals by its Section 14. Section 109 of Act 29 also
makes forced marriages a criminal offence. It is an offence to force a child to marry.

CRITICISMS LEVELLED AGAINST THE ESSENTIALS

● There are certain parts of Ghana where drinks are not accepted as bride price but rather cows and cola nuts
● The type and quantity of drinks are not specified
● Justice Ollennu failed to define family.
● It is not clear who in the family should accept the drink
● Difficulties could arise where the head of family, for no apparent reason refuses to accept the drinks. There
could be cases where the family is far away and cannot be reached.
● The definition of consummation was not given. And conversely should non co habitation mean that sexual
intercourse has not taken place (Sowa v Sowa). What then is the definition of co habitation?
● Another difficulty that the essentials pose is whether all four essentials must be present before a valid
customary marriage can come into existence

Critically evaluate the 4 essentials as enunciated by Ollennu J in (Yaotey v Quaye)

Badu v Boakye – The “Akotoagyan” practice has been criticised as being obsolete by the court in Abangana v
Akologo.

CONCLUSIONS TO BE DRAWN IN RESPECT OF THE ESSENTIALS

The following conclusions may be drawn.

● The agreement between a man and a woman to live as husband and wife is the most important of all the
essentials
● Consummation need not be established to prove the validity of a customary law marriage
● Family consent is merely desirable and the absence of it should not render an otherwise valid marriage invalid
● All 4 essentials need not be present in order to create a valid customary law marriage

TYPES OF CUSTOMARY LAW MARRIAGES

A formal marriage comes about when the family of a man approaches the family of a woman and asks for the hand
of the woman in marriage on behalf of their son. A day is agreed upon for the formal ceremony to take place if the
woman agreed upon for the formal ceremony to take place if the woman agrees to marry the man. On the
appointed date the family of the man and the family of the woman hold a meeting and the necessary rites are
performed according to custom. Drinks (Or its equivalent) and gifts are presented by the man’s family to the
woman’s family. The family enquires from the woman if she agrees to take the man as her husband. If she answers
in the affirmative, her family accepts the drinks and gifts and the marriage is concluded. The man and the woman
become husband and wife.

The union is also that of families and gives rise to certain rights and obligations such as the performance of funeral
rites upon bereavement in the man’s family or the woman’s family, Yaotey v Quaye.

Informal Marriage

The following cases illustrate the circumstances in which informal marriages may come about. (Quaye v Kuevi) – It
was stated that when once it has been proved therefore by proper evidence that the parties have agreed and have
lived together in the sight of the world as man and wife that of itself is sufficient; the court should hold that the
parties are married according to native custom. (Asumah v Khair) - Upon his wife’s adultery an injured husband has
a choice of two remedies: he may claim an adultery fee from the paramour and keep his wife, in which case any
child born of the adultery will rank as the legitimate child of the husband; or the husband may elect to break the
marriage and claim the return of all the customary drinks or fees and presents which he had given to the family and
to the girl. The family will claim from the paramour a corresponding reimbursement. If the paramour reimburses,
he is deemed to be validly married to the girl.

Another form of informal marriage occurs when a man and a woman are acknowledged as husband and wife by
their respective families and are treated as such by them, when no drinks have been presented. In Yaotey v Quaye,
Ollennu J held that there was an informal marriage because the evidence showed that the family of Yaotey had
acknowledged the defendant as Yaotey’s wife even though no drinks had changed hands. (Essilfie v Quarcoo) – The
court decided that the second type of marriage (informal) had been proved. (In re Dickson alias Appiah: Aboagye v
Quayson) – The court held that the two women involved were wives not concubines. They had lived with the
deceased, had children for him and the deceased had shown to the whole world that they were his wives. The fact
that none of the man’s family joined in the marriage ceremony did not matter

(Re Sapara) per Osbourne CJ, I am unable to accept the proposition that the consent of a man’s family is a legal
essential to his marriage.

Mensah Sarbah writes that upon careful examination, marriage rests entirely on the voluntary consent of the man
and woman to live together as man and wife; which intention is further evidenced by their living together. All other
ceremonies and expenses attending marriage are superfluous. Kofi Adinkra writes in Essentials of a Customary
Law Marriage that family consent is a mere ratification of the agreement between a man and a woman to live as
husband and wife. It is desirable but not a condition precedent to the creation of a valid customary law marriage.

(Gorleku v Pobee)

ASSIGNMENT

Kofi and Ama were High School sweethearts. After school they continued till date. When Ama became pregnant,
Kofi went to see Ama’s parents with his father to perform the knocking ceremony. When Ama gave birth, Kofi’s
family performed the naming ceremony. 6 months later, Kofi Invited Ama to dinner at Afrikiko. After dinner Kofi
informed Ama that he was no longer interested in the relationship and that he could not go on with the marriage.
Ama is distraught and has come to see you regarding the cause of action that she can take or institute against Kofi.

a. Whether or not by performing the knocking ceremony, Kofi had promised to marry Ama
b. Whether there has been a breach of this promise, if any?

The area of law is breach of promise to marry

Define breach of promise to marry.

On the first legal issue, for there to be a promise to marry, there must be an offer and an acceptance. This
agreement can either be express or implied. In the case of Djabeng v Tagoe, the plaintiff had an amorous
relationship with the defendant prior to his departure for the UK for further studies. A child was born to them soon
after the defendant’s departure from Ghana. On his return, the plaintiff sued him for; inter alia, damages for
breach of promise to marry her. The court found that there was no evidence that the defendant had made any
promise to marry the plaintiff either under CAP 127 or customarily. There was however evidence that the
defendant (whilst a student in the U.K.) had written to the plaintiff informing her that he had made up his mind to
marry her. There was also a mere allegation that the defendant had at an earlier paternity ceremony, agreed (even
though not present) to wed the plaintiff. It was held that on the evidence there had not been any promise to marry
the plaintiff under CAP 127. The mere statement that the defendant had agreed to wed the plaintiff did not
constitute any binding contract to marry. The defendant himself was not present and nothing was presented to
signify any such promise. And even though the defendant had written to say that he had finally made up his mind
to marry the plaintiff, there was no evidence that the alleged promise had received the approval of the family.
There was therefore no binding promise by the defendant to marry the plaintiff customarily. Ampiah J went ahead
to state that customary law required the consent of the two families concerned to any marital relationship
between a man and a woman. When a man desired to marry a woman customarily he applied to the woman’s
family through his own family for their consent taking to them certain gifts which would vary according to his
means. The family of the woman would give their consent by accepting the gifts.

Applying this, the facts state that there was a knocking ceremony. This indicates that there was an offer of drinks
and money which was accepted by the family of Ama.

Also discuss damages and quantum, using cases

REGISTRATION OF CUSTOMARY LAW MARRIAGES AND DIVORCES

This is governed by the Customary Law Marriages and Divorces Registration Act 1985 PNDCL 112, Part One of
Marriages Act, 1884-1985.

Section 15 of PNDCL 112, Section 5 of PNDCL 263 (Amendment to PNDCL 112)

PNDCL 112 seeks the mandatory registration of customary marriages and divorces. This law made the registration
of the customary marriage pre-condition for the application of PNDCL 111. Promulgated the customary marriage
and divorce (registration) (amendment) Law, 1991 (PNDCL 263). Section 15 of PNDCL 112 which limits the
application of Law 111 to registered customary law marriages is amended by PNDCL 263. PNDCL 263 says that
where a court or tribunal is satisfied by oral evidence before it, that a customary law marriage has been validly
contracted between the deceased and the surviving spouse, the court or tribunal shall make an order for the estate
of the intestate to be distributed in the same manner as the customary law marriage registered under this law.
Thus if the marriage is not registered but it can be proved by oral or documentary evidence that it has been duly
contracted, PNDCL 111 will apply.

Section 1 of PNDCL 112 required that marriages contracted under customary law had to be registered within 3
months. Section 1 of PNDCL 112 has been amended by Section 1 of PNDCL 263 by replacing the word shall which is
mandatory with the word May which is permissive.

Section 2(1) of PNDCL 112 required the parties to the marriage shall to apply in writing to the registrar of
marriages for the registration of the marriage. Under Section 2 of PNDCL 263, the parties may apply.

Under Section 2(2) of PNDCL 112, an application to register a marriage had to be made within 3 months of the
marriage. Under Section 2 of PNDCL 263, an application for the registration of the marriage MAY be made at any
time after the marriage. (Adade v Dade) (Benstill v Pratt) (Essilfie v Quarcoo) (In re Neequaye)

(Marian Obeng Mintah v Francis Ampenyin) - The Appellant commenced an action in the High Court seeking
damages for a breach of promise to marry; damages for inconveniences and loss of time wasted on the
Respondent; and payment of various sums specified in her Statement of Claim. The Respondent denied the
Appellant’s claim and Counterclaimed for the recovery of possession of a house situate in Sekondi, among others.
The said house was uncompleted when the Appellant entered into possession. The High Court dismissed the
Plaintiff’s claim in its entirety and entered judgment for the Respondent on his Counterclaim. On appeal to the Court
of Appeal, the Court found that the Respondent had made a promise to marry the Appellant but reneged on it. The
Court also found that Appellant also lived in the disputed house as a licensee. The Court thus, granted the Appellant
the sum of GHC6, 000.00 as general damages to ameliorate her injured feelings while it dismissed the rest of the
grounds of appeal. On a further appeal to the Supreme Court, the Appellant filed two grounds of appeal, thus:

a. The Court erred in its evaluation of the evidence on record on the contribution of the Plaintiff/Appellant on
the house and thereby came to a wrong decision that the Plaintiff/Appellant made no substantial
contribution.
b. The decision that the Plaintiff/Appellant was in the property as a licensee was wrong in law and not
supported by the evidence on record particularly when it was a fact that the parties were in concubinage
relationship upon which the Appellant joined the Respondent in the house and did business together for
the improvement of the house besides the Appellant’s personal contribution.

In dismissing the appeal as unmeritorious, the Supreme Court affirmed the finding of the Court of Appeal that the
relationship between the parties was that of concubinage, not marriage. [Definition of Concubinage Relationship in
Black’s law Dictionary, cited with approval]. Were it the case that the relationship had materialized into a marriage,
different consideration would arise. In the light of the evidence on the record, the Court of Appeal correctly
concluded that the appellant was a licensee of a sort since she occupied the building upon the invitation of the
owner thereof, the respondent herein

The Supreme Court further held that the principle of equality is equity as applied in the cases of Mensah v Mensah
[1998/99], Boafo v Boafo [2005/06] and Mensah v. Mensah [2012] SCGLR, was only applicable to a spousal
relationship “which creates a status that goes with certain rights and duties which are fixed by law and custom, but
the same cannot be said of concubinage relationship”. Badu v. Boakye [1975] 1 GLR, cited with approval. “The
appellant having failed to prove a marriage relationship as well as any contribution to the completion of work in the
house, the whole issue about the applicability of the principle [of equality is equity] becomes otiose.”

PROCEDURE FOR THE REGISTRATION OF CUSTOMARY LAW MARRIAGES

Either party to the customary law marriage or even both may apply to the registrar of marriages in the district
where the marriage was contracted.

The application must be supported by a statutory declaration stating the following

● The names of the parties to the marriage

● Their places of residence at the time of the marriage
● The fact that there are no prohibitions according to the applicable customary law
● Evidence of support from the parents of the applicants or persons standing in loco parentis.

The registrar is obliged to register the marriage and notify the public of the registration of the marriage. The
purpose of the notification is to allow objections of the registration if any, from persons who may wish to object to
the registration of the marriage. An objection may be raised on the ground that the marriage the applicants are
seeking to register is not valid. Any person who objects to the marriage or its registration may file the objection in
the DC in which the marriage was registered. The law demands that copies of the objection are served on the
parties to the marriage. The parties need to know of the objection in order to respond.

The law requires the court to investigate the grounds for the objection. If the court finds that there are no merits in
the objection, the court is empowered to dismiss it. If the court is satisfied that there are legal grounds for the
objection, the court will order the registrar to expunge the entry made in the register in respect of the marriage.

A certified true copy of the Entry that the registrar makes in the marriage registrar is given to the applicant showing
simply that a marriage has been registered. It is not a marriage certificate.

EFFECT OF REGISTRATION

Registration per se does not render a marriage valid. It merely proves that a marriage has been registered: Section
13 of PNDCL 112.

Spouses whose marriages are not registered can benefit under Intestate Succession Act, Law 111. Refer back to
Section 15(1) (2).

Customary law divorces should also be registered if the marriage was registered. Section 6 of Law 112 states that if
a marriage is registered under Law 112, the dissolution of the marriage must also be registered. Section 6(2)
however states that the dissolution of a customary law marriage registered under Law 112 need not be registered if
dissolved under Section 41 of the Matrimonial Causes Act, Act 367. Failure to register a divorce should not render
the dissolution invalid. Law 112 does not state either explicitly or by necessary implication that failure to register a
divorce will render the divorce null and void.

The procedure for the registration of a customary law divorce is the same as the procedure for the registration of a
customary law marriage except that in the case of divorce the law requires both the man and the woman to inform
the registrar of the dissolution of the marriage.

PROCEDURE FOR DIVORCE UNDER CUSTOMARY LAW MARRIAGE

● The family of the party seeking the divorce informs the other family of their intentions
● A date is set for a meeting between both families in an attempt to reconcile the couple
● If the attempts fail, then the drinks and items presented during the celebration of the marriage may be
returned to the woman’s family on request

Customary law divorces may be registered, however in such a situation, both parties must be present for the
registration of the divorce. If the marriage is registered, then the registration of the divorce ceases to be an option.
Section 6 of the Marriages Act states that the dissolution of a marriage registered under this Part shall be recorded
by the Registrar of the district in the register of divorces. It shall not apply to a marriage dissolved under section 41
of the Matrimonial Causes

Under Section 41 of the Matrimonial Causes Act, Customary law marriages though dissolvable customarily, may be
dissolved with leave under the MCA. A divorce under the Act entitles either party to maintenance where deemed
fit.

A customary marriage may be dissolved unilaterally if the other party is being unreasonable

(Ginbuuro v Kaba) - The respondent was married to the appellants’ daughter under customary law; all Frafraha.
They had one child. The marriage broke down and knowledge of this was given to the appellants according to
custom for the dissolution of the marriage. According to Frafraha custom, should the husband refuse to dissolve
the marriage by returning the “calabash”, a euphemism for daughter, the woman’s family could consider the
marriage unilaterally dissolved. On the refusal of the respondent to return the calabash the first appellant had
considered the marriage between his daughter and the respondent unilaterally dissolved and proceeded to give
her away in marriage to another man. Whereupon the respondent sued the appellants for doing so. It was held Per
Koranteng-Addow J (as she then was), the evidence on record shows that the request for the dissolution reached
the parents of the respondent and that the message was conveyed to the respondent but that he refused to return
the calabash. The appellants were therefore, in my view, justified in regarding the marriage as dissolved.

CRITICISMS AGAINST LAW 112

● The procedural requirements are too cumbersome, expensive and time consuming.
● Registration per se does not prove the existence of a valid marriage. More evidence is needed to establish the
validity of the marriage.
● Majority of people cannot afford the fees
● People are simply unwilling to incur the expenses involved in registration

MAINTENANCE, ENTICEMENT, SEDUCTION AND DISSOLUTION OF CUSTOMARY LAW MARRIAGES

It is no longer the sole responsibility of the man to maintain the wife and children. The position in Quartey v
Martey has changed with time. In this case, Ollennu J stated the principle that a wife is entitled to maintenance by
the husband. He reiterated the principle in Yaotey v Quaye that it is an incident of customary marriage that the
husband should provide maintenance and shelter for the wife. If the husband died, the wife was entitled to
maintenance during funeral and mourning period and was sent off if no one from the deceased husband’s family
married her.

The Matrimonial Causes Act now makes it the duty of both parties to maintain each other. The maintenance of the
man by the woman is however subject to certain conditions.

Section 16(1) of the Matrimonial Causes Act. This means that there must be evidence that the wife has deliberately
and steadfastly refused to maintain the husband. If the applicant is the husband, the courts shall consider the
following first: I R E C

● The impairment of the husband’s earning capacity (whether through age, illness or disability)
● The resources of the husband
● The earning capacity and resources of the wife, and
● Any other circumstances relating to the financial position of the parties.

Section 19 of the Matrimonial Causes Act states further.

As to whether a spouse is under an obligation to maintain a child of the household, Section 16(3) of the MCA thus
states. The courts will consider whether the respondent has assumed any responsibility for the maintenance of the
child or whether someone else is responsible for the maintenance of the child before making an order. All other
circumstances relating to the relationship between the respondent between the respondent and the child will also
be taken into consideration.

As to what happens if the spouse is unable to financially defend a suit, Section 24 of MCA states thus.

WHAT IS ENTICEMENT?

When a 3rd party induces a wife to withdraw her services from the husband, the husband may bring an action in
enticement against the 3rd party and claim damages. A wife is not entitled to this right and the rationale backing
this is not clear. Enticement is a common law tort unknown to customary law. Section 54 of The Courts Act gives
the court discretion to adopt and apply such principles of the common law or customary law or both as will do
substantial justice between the parties having regard to equity and good conscience. In the case of enticement the
principles known to the common law tort of enticement are applied. In an enticement action, the husband has to
prove that the defendant procured, Induced and persuaded his wife to leave him. It is a violation of the husband’s
legal right to the wife’s consortium.

Assignment

BURDEN OF PROOF IN ENTICEMENT ACTIONS

The burden is on the husband to prove that the wife withdrew her services as a result of the defendant’s
inducement. This means that if the wife withdrew her services as a result of some other reason other than
persuasion from the defendant, the action will fail. (Mate v Amanor) – The court further held that for an action for
enticement to succeed, it was not enough to show that the defendant committed adultery with the plaintiff’s wife,
since an action for enticement is wholly independent of sexually immoral factors. To succeed the plaintiff had to
prove that his wife was persuaded or procured by the defendant to cease co-habiting and consorting with him. The
husband must prove that the defendant induced and that the wife withdrew her duties as a result of the
inducement.

WHAT IS SEDUCTION?

It involves sexual and immoral activity between a married woman and another man. Under customary law, the
touching of a woman’s waist beads may amount to seduction in certain tribes. (Avuugi v Abugri)

The husband of a seduced woman may claim ayefare i.e. damages/compensation or dissolution of the marriage. He
can’t claim both at the same time. The marriage continues as usual after the payment of the ayefare. Its quantum is
not fixed and will depend on factors such as the social standing of the husband in the community and the wife’s
character. If the husband opts for dissolution of the marriage, the seducer must refund the dowry, the head drink
or tsirinsa and all the marriage expenses to the husband. (Asumah v Khair)

Seduction can be proved in several ways. It may be established through confession – this must be given voluntarily
and freely. There could be cases where the wife is caught in flagrante delecto. Circumstantial evidence may also be
used to establish seduction as when a wife gives birth to another man’s child.

The grounds for divorce differ from tribe to tribe. Willful neglect to maintain wife and children, impotence,
barrenness, sterility and infidelity on the part of the woman could all support a petition for divorce. The list is not
closed and the courts will grant divorce so far as there is proof that the marriage has broken down beyond
reconciliation.

PROCEDURE FOR DISSOLUTION OF A CUSTOMARY LAW MARRIAGE

A customary law marriage may be dissolved either under customary law or under the MCA.

Under Customary law dissolution, the families of the man and woman agree on a date for a meeting. At the
meeting, the families try to get the parties to settle their differences. If the attempt at reconciliation is successful,
the dissolution is suspended for the parties to try again to see if the marriage can continue. If the attempt at
reconciliation fails the parties are asked to render accounts. Items that have been borrowed are returned and the
money that has been borrowed is paid back. The husband and wife may decide not to demand anything back.

The dowry is returned to the man’s family by the woman’s family depending on the reason for the divorce. In some
instances, if the divorce is a result of the husband’s misconduct, the dowry will not be returned.

Powdering or chalking is the last stage. The husband literally puts powder on the shoulder of the woman and hands
her over to her family and the marriage comes to an end. The procedure differs from tribe to tribe.

A customary law marriage may be dissolved unilaterally if the other party unreasonably turns down a request for
the dissolution of the marriage. (Ginbuuro v Kaba)

If one party unreasonably refuses to accept a divorce, a petition under Section 41 of the MCA will be the best
solution.

Section 41(3) creates an exception to the application of the provisions of the Act and allows a party in a
polygamous marriage to petition for a divorce under the MCA. A petitioner shall attach an application to the
petition seeking leave of the court to file for dissolution of a customary marriage under the MCA.

The procedure for a petition for the dissolution of a customary law marriage under the MCA is the same as the
procedure for the dissolution of a monogamous marriage.

THE CONCEPT OF DOMICILE AND RESIDENCE

Domicile refers to the permanent home of a person. Residence refers to the place where a person decided to
remain for a considerable length of time.

There are 3 types of Domicile: Domicile of Origin, Domicile of Dependence and Domicile of Choice.

Domicile of origin refers to the domicile of the place where a child is born. This domicile is attributed to a child if
the parents cannot be found.

Domicile of Dependence is the domicile of the parents of a child. A child acquires the domicile of the father upon
birth. If there is no father, the child acquires the domicile of the mother. If the parents change their domicile, the
child’s domicile changes because a child’s domicile depends on the parents domicile. When the child attains the
age of maturity, he may acquire a domicile of choice and the domicile of origin or domicile of dependence falls
away. An adopted child under 16 whose parents are not Ghanaians acquires the domicile of the adopter when an
adoption takes place, Section 80(3) of the Children’s Act, 1998, Act 560. A married woman acquires the domicile of
her husband. However, Section 32 of the MCA states that for the sole purpose of determining jurisdiction, the
domicile of a married woman shall be determined as if the woman was above the age of 21 and not married,
Domicile of choice occurs when an adult person voluntarily and intentionally decides to reside in a place
permanently. When the person changes his or her intention to reside permanently in a particular place, the
domicile of choice comes to an end and the domicile of origin sets in once again.

The Domicile of Choice possesses special characteristics.

BURDEN OF PROOF OF CHANGE OF DOMICILE

The courts will always presume that a person’s domicile of origin has not changed until the presumption is
rebutted. Consequently, the person who claims that a domicile of choice has taken place and that the domicile of
origin is no longer in existence has to prove that fact.

STANDARD OF PROOF

The standard of proof is slightly higher than a balance of probabilities. There must be ample evidence to show that
a person has voluntarily and intentionally acquired a domicile of choice else the courts will hold that the domicile
of origin still exists and that the system of law of that domicile should apply. Mere proclamations are not enough.
(In the Estate of Fuld No. 3). (Omane v Poku) - The judge also found that Boakye acquired a domicile of choice in
this country and succession to his property must be governed by the law of this country. The question therefore is
whether Boakye was subject to customary law of this country and if so which? Although the judge found that
Boakye did not identify himself with his landlord’s family to the extent of his becoming a member of that family, he
can accurately be said to have become an Ashanti to the extent that not only was he subject to Ghana customary
law, but to the Akan system of customary law. He came to this country as a child, lived in Ashanti for the best part of
70 years, married in Ashanti, adopted an Ashanti name, acquired house and farms in Ashanti and died in Ashanti
never once visiting his home in the Ivory Coast. It would follow therefore that the properties which the late Boakye
owned at the date of his death ought to devolve on his matrilineal family. In ordinary circumstances, Akuto and the
other children of the deceased being in the contemplation of Akan customary law, strangers to their father’s family,
would be out of reckoning as far as succession is concerned. But in this case, the evidence is that there are no
maternal or indeed any relations of the deceased in this country. Accordingly, if this matter were res integra, I would
hold that his children should, ex debito justitiae, succeed to his estate.

(Abu-Jaudeh v Abu-Jaudeh) - It is only when the plaintiff-husband has convincingly shown either that he has had
his permanent home in this country; or that he must be taken to have had, all these years, a clear intention to make
his permanent home within the territorial limits of the common law of this country - it is only then, that the
plaintiff-husband must be found, as a clinching fact, to be truly domiciled in Ghana for the purposes of valid
matrimonial jurisdiction. And for this conclusive fact of domicile to avail him in the circumstances of this precedent
inquiry, it is necessary that the plaintiff demonstrates, with perfect clearness, that the twin essentials of residence
here in Ghana, and the intention to make that residence fixed, are both fully met, and purposefully present in him. It
is trite law that the original domicile of a person remains forever attached to him until he acquires a new domicile
of his own free and voluntary choice. And to effectively procure that new domicile of choice, it has been held
necessary and essential not only actually to reside in another country, but also to have, and then to exhibit, the
intention of stopping here, in that other country, permanently or indefinitely. The word “domicile” must not be
straitjacketed into the narrow concept of domestic residence, or the place where the contesting spouses have their
matrimonial home at the time of action taken. On the contrary, domicile must be thought of and considered in the
broader, more general meaning of international domicile. Even where there is no other residence shown to be either
in existence, or else in the contemplation of the parties, it is never permitted for the fact of domicile to be inferred
from mere residence in a given locality. Domicile in a matrimonial suit must, therefore, not be confused with, or
loosely taken to mean residence, simpliciter. It must be interpreted and understood to mean either the permanent
home of the spouses; or that place where it may justly be presumed the petitioner has demonstrated the purpose of
fixing his permanent residence. Lord Westbury has said that residence and domicile are two perfectly distinct
things. Residence and domicile are two perfectly distinct things and long residence per se although relevant is rarely
a decisive factor in determining domicile for the purposes of divorce jurisdiction. A person whose domicile is the
object of inquiry must prove animus manendi and must have formed a fixed and settled purpose of making his
home in the country of residence. A bare assertion that a resident has applied for Ghanaian citizenship is not
evidence that he intends to live in Ghana permanently as her citizen. Such an assertion must be supported by proof,
for instance a statutory declaration renouncing his domicile of origin and showing his intention to acquire a
Ghanaian domicile.

Question – Arthur v John Hedor; Lord Denning in McFord v United Africa Co. Ltd. 1961 ALL ER 1169

MARRIAGE UNDER THE MARRIAGES ACT, 1884-1985 (PART THREE) CAP 127

DEFINITION OF MARRIAGE UNDER CAP 127

Lord Penzance in Hyde v Hyde defined a marriage as the voluntary union for life of one man and one woman to the
exclusion of all others.

MAIN REQUIRMENTS OF LORD PENZANCE’S DEFINITON OF MARRIAGE

● The marriage must be for life; the marriage must exist until it is dissolved or annulled by a court of competent
jurisdiction or by death.
● A marriage contract cannot be forced on any individual
● A marriage must be to the exclusion of all others
● The union must be between a biological man and a biological woman. (Corbette v Corbette), the decision in
this case was adopted in (Bellinger v Bellinger)
A marriage contract is a special contract and thus possesses certain unique characteristics that make it special and
different from other contracts. These characteristics are as follows

● A marriage should be contracted in accordance with the mandatory provisions set out in CAP 127 else the
marriage will be null and void.
● The law relating to capacity to marry is often different from the law relating to capacity to enter into ordinary
contracts
● An agreement to marry is always actionable-breach of promise to marry.
● It is a dual stage contract, each stage being a contract by itself, and the 2nd contract is the performance of the
1st contract.
● Jurisdiction in matrimonial cause is granted by statute and the parties cannot subject it to a particular
jurisdiction or forum as in other countries
● Only the court can legally terminate most marriages. The parties cannot, as in ordinary contracts terminate the
marriage contract by accord and satisfaction
● Most of the rights and duties of the parties to a marriage are fixed by law and not by the parties
● Malice in the breach of the marriage contract is part of the equation for calculating damages.
● A contract of marriage cannot be terminated by frustration or breach
● Specific performance cannot be decreed in an action for breach of promise to marry
● Sex and gender in most of the world is a factor in determining capacity to marry. The parties must be
biologically male and female. (Corbett v Corbett). In (Bellinger v Bellinger) the CA still thought that a marriage
is void if the parties are not male and female
● The main purpose of marriage is the perpetuation of the human race, no other contract has this preponderant
importance
● Marriage contracts may affect 3rd parties. Thus a person whose negligence causes the death of a wife may be
ordered to pay damages to the widower.

SPECIAL REQUIREMENTS TO CREATING A VALID MARRIAGE

These requirements may be divided into two; substantive requirements and procedural requirements

Substantive Requirements

● The marriage should be prohibited on grounds of consanguinity or affinity. Section 74(1) of CAP 127 states
that “a marriage may be lawfully celebrated under this part between a man and the sister or niece of the
deceased wife, but a marriage is not void which if celebrated in England, would be void on the ground of
affinity, or where either of the parties at the time of the celebration of the marriage, is married under the
applicable customary law to a person other than the person with whom the marriage is celebrated”.
● The capacity to enter into a marriage must be present on both sides. This means that the parties must be of
the right age (21 and above) else the marriage is void because a certificate would not be issued. However,
Section 59 of CAP 127 states thus “where either party to an intended marriage who is not a widower or a
widow, is under 21, the written consent of the father, or if the father is dead or is of unsound mind or is absent
from the Rep., of the mother, or if the mother is dead, or is of unsound mind or is absent from the Rep, of the
guardian of the minor. A justice of the HC or the AG may give consent in appropriate cases”.
● The parties to a marriage must understand the nature of the contract and must freely enter into it

Non-compliance with any of these essential requirements will render the marriage null and void.

Procedural Requirements

These have been outlined under Part Three of CAP 127 (Section 41) as follows

A marriage should be celebrated under the authority of

● A registrar’s certificate
● A marriage officer’s certificate or
● A special license from the Principal Registrar of Marriages

PROCESS OF OBTAINING A REGISTRAR’S CERTIFICATE

Sections 42 to 47 of Marriages Act

An application which also serves as a notice is first made by one of the parties to the Registrar of Marriages for a
certificate to marry at the office of the Registrar of Marriages. The registrar shall publish the notice in the Marriage
Notice Book.

A copy of the notice is then fixed on the door of the registrar’s office or on a notice board outside his office until
the expiry of three months or after the grant of the certificate.

The registrar shall issue the certificate if he is satisfied on affidavit that all the substantive requirements mentioned
above have been complied with. The affidavit must state that

● One of the parties has resided in the district where the marriage is to be celebrated, for at least 15 days before
the grant of the certificate
● The parties to the marriage are 21 and above and that parental consent has been obtained where on or both
of the parties are below 21 years.
● The parties are not prohibited from marrying one another on grounds of kindred or affinity
● None of the parties is already married under customary law to any other person other than the person named
in the notice.

The affidavit in essence states that all the substantive requirements have been complied with. The affidavit may be
sworn to by one of the parties before the registrar or a magistrate.

Where the marriage does not take place within three months after the date of the notice, the notice and all
proceedings consequent on the notice become void. A fresh notice shall be given before the parties can lawfully
marry under a register’s certificate.

WHEN TO APPLY FOR A MARRIAGE OFFICER’S CERTIFICATE

Sections 48 to 54 of Marriages Act

When a couple decides to contract a marriage in the church, an application which also serves as notice shall be
made by each of the parties, to the marriage officer in the districts in which they reside, 4 days prior to the date of
the first publication of Banns.

Publication of banns entails the announcement of the intentions of the parties named in the notice, to marry. The
person making the announcement shall also call for persons who may know of a just cause why the parties should
not be joined together in holy matrimony to come forward and declare it.

If both parties have resided in the District for at least 15 days and belong to the same religious denomination, a
single notice may be given and one certificate will be issued. Where the parties do not attend the same church,
separate notices shall be required and Banns shall be published in respect of each of the notice and a joint
certificate may be issued.

The marriage officer shall personally publish the Banns of marriage between the parties in the place of worship of
the parties. The marriage officer may authorise another person in writing to publish the Banns.

Banns shall be published on 3 Sundays and if no caveat has been entered or has been entered but duly removed,
the marriage officer shall within 3 months of the date of the last publication of Banns grant the Marriage Officer’s
Certificate.

If the marriage is not solemnised within 3 months of the last publication of Banns, the publication and all related
proceedings are void. Banns shall be published all over again.

SPECIAL LICENSE FROM THE PRINCIPAL REGISTRAR OF MARRIAGES

Section 55 of Marriages Act

A special license is applied for when a couple seeks to do away with the giving of notice of the intended marriage
between them or the publication of banns.

When the principal registrar is satisfied on affidavit that no lawful impediment to a proposed marriage exists and
that the necessary consent has been obtained, the registrar may dispense with the giving of notice and with the
issue of the certificate of the registrar of marriages and the marriage officer and grant a special license authorising
the celebration of the marriage between the parties named in the license by the registrar or by a recognised
minister of a religious denomination or body.

The parties upon receipt of the special license may take it to either a registrar of marriages or a marriage officer for
the marriage to be solemnised. The principal registrar may also authorise the celebration of the marriage in a place
other than a licensed place of working or a registrar’s office.

CAVAET

Section 56 – 58 of Marriages Act

A caveat is a legal term used to describe the objection that a person whose consent is required or who may know
of a just cause why a marriage should not take place, may raise against the issuance of a registrar’s certificate or
marriage officer’s certificate.

Where the marriage is to be solemnised under a registrar’s certificate, the word FORBIDDEN may be written
opposite the entry of the notice in the Marriage Notice Book. Where the marriage is to be solemnised under a
marriage officer’s certificate, notice in writing may be given to the person publishing the banns to forbid the
marriage. In either case the notice shall be appended with the name and place of abode of the person and also the
grounds or reason that person claims to forbid the marriage. A certificate shall not be issued until the caveat has
been duly dealt with and removed.

When a caveat is entered, the registrar or the marriage officer as the case may be shall immediately refer the
matter to a justice of the HC. Where the judge is satisfied that the caveat has no merit, he shall remove it without it
without requiring any of the parties to appear before him. In any other case the judge shall summon the parties to
the intended marriage for the person objecting to show cause why the registrar or the marriage officer should not
issue the certificate. The case shall be heard and determined in a summary manner. The judge may award
compensation and costs to the party injured. If the objection is successful, a certificate will not be issued.

Section 58(2) of Marriages Act states that “on removal of the caveat the registrar or the marriage officer may issue
the certificate in due course and the marriage may proceed as if the caveat had not been entered”.
The time that has elapsed between the entering and removal of the caveat shall not be computed in the period of 3
months within which a marriage should be celebrated after the issuance of a registrar’s certificate or a marriage
officer’s certificate.

CONSEQUENCE OF NON-COMPLIANCE WITH PROVISIONS

A marriage will be declared null and void by the courts for failure to comply with the provisions.

Section 74(1) states that if a person goes through a marriage ceremony while still married to another person under
customary law or under the ordinance, then the marriage ceremony under this part of the Act is void

Section 74(2) states as a marriage is void if both parties knowingly and willfully acquiesced and celebrated it

● In a place other than the office of a registrar of marriages

● In a place other a licensed place of worship, except authorised by the principal registrar’s license
● Under a false name or names
● Without the registrar’s certificate of notice
● Without the marriage officer’s certificate, or
● Without a license from the principal registrar
● By a person who is not a recognised minister of a recognised denomination or body, or a registrar of marriages.

In addition to the above a marriage will be void in the following circumstances

● If Banns were not published in accordance with the provisions of the Marriages Act
● If Caveat was entered but was not removed
● If the marriage was not celebrated within the 3 months of the date when notice was given to the registrar of
marriages
● If the marriage was celebrated under an expired license issued by the principal registrar of marriages.

(Apomasu v Bremawuo) (In re Appiah; Yeboah v Appiah) (Setse v Setse) (Carr v Carr)

AFTERMATH OF CELEBRATION OF MARRIAGE

Immediately after the celebration of a church marriage the officiating minister shall enter the names of the parties,
the status of the parties, occupation and profession of the parties on the certificate. The certificate shall then be
signed by the minister, the parties and by two or more witnesses. The minister shall give one certificate to the
parties and within seven days, shall send the other to the registrar of marriages of the district in which the
marriage took place.
Where the marriage is celebrated under a Registrar’s certificate, the registrar shall, after the celebration of the
marriage at the office of the registrar, complete the certificate in duplicate. The certificate shall then be signed by
the registrar; parties and witnesses. The registrar shall file one certificate in his office and give the other to the
parties.

Where the marriage is under a special license, the registrar of the district in which the marriage is to take place,
shall deliver to the party producing the license, a blank certificate of marriage in duplicate and the minister or
registrar celebrating the marriage, shall fill up the certificate accordingly and give a copy to the parties. The other
copy is sent to the registrar of the district for filing.

EFFECT OF A MARRIAGE UNDER CAP 127

Section 75 of the Marriages Act stipulates as follows: Marriages celebrated under Part three of the Marriages Act is
good and valid in law to all intents and purposes.

This means that once a valid marriage certificate is produced in court, there should be a presumption that a valid
marriage existed between the parties named on the certificate. The burden shall be on the party challenging the
existence of the valid marriage to establish same.

CONVERSION

Conversion simply means changing a polygamous marriage to a monogamous marriage. The conversion may be
through legislation or change of domicile.

PROCEDURE FOR CONVERSION THROUGH LEGISLATION

In order to successfully convert a valid customary law marriage from a polygamous one to a monogamous one
through legislation, the parties must comply with the mandatory provisions of Part Three of the Marriages Act,
CAP 127.

Failure to comply with the mandatory provisions of the Act relating to procedure will vitiate the attempt at
conversion and parties will, to all intents and purposes continue to be in a polygamous marriage, (Re Appiah;
Yeboah v Appiah). In (Setse v Setse) and (Carr v Carr) the courts took the same view and stated as follows “the
provisions of the marriage ordinance, CAP 127 has not been complied with and therefore conversion had not taken
place.

BLESSING

This is not the same as conversion. Blessing occurs when parties to a polygamous marriage go through a marriage
ceremony in the church and receive blessings from the priest. No certificates are required, banns need not be
published, the place for the blessing need not be licensed and the officiating person need not be a recognised
minister of a recognised denomination or body. The character of the marriage does not change. The marriage
continuous to be polygamous

“The union continues to be loose and the man is not precluded from taking on as many wives as he can
harmoniously live with and conveniently manage”, Graham v Graham.

The parties to such a marriage still remain subject to all the consequences, incidents and effects of a customary
marriage.

CONVERSION THROUGH CHANGE OF DOMICILE

If one of the parties to a potentially polygamous marriage acquires a domicile of choice in another country, the
marriage automatically converts to a monogamous marriage if marriages in the new domicile are monogamous,
(Ali v Ali).

CHANGE OF RELIGION

Under Ghanaian law, change of religion will not change the character of a marriage. If a couple under customary
law changes their religion, that change per se will not change the character of the customary marriage from
polygamous to monogamous marriage.

EFFECT OF CONVERSION

A successful conversion dissolves the customary marriage. The customary marriage completely disappears and its
place is taken by the ordinance marriage. In essence the customary marriage ceases to exist, Graham v Graham.

Likewise, after the dissolution of a monogamous marriage, there is no other marriage to be dissolved because the
customary marriage would have fallen away as soon as the monogamous marriage was contracted.

Again if conversion is not successful, the marriage continues to be customary and therefore potentially
polygamous. The man may therefore marry other woman under the Marriages’ Act, that marriage is null and void
and of no effect.

NULLITY PROCEEDINGS

There are the proceedings for bringing a void or voidable marriage to an end. These proceedings are governed by
Section 13 of the MCA.

VOID MARRIAGE
It is a marriage which is so defective that the law regards it as being non-existent. It is a marriage that does not
comply with the substantive and procedural requirements stipulated under Part Three of CAP 127.

A marriage may be void for several reasons including lack of capacity. The fact that one of the parties is already
married. The fact that both parties are not respectively male and female.

A marriage between an adult and a child who is above 18 but below 21 years, without the consent of the parents
or guardian of the child is null and void. A marriage between two children who are above 18 years but below 21
years without the consent of their parents or guardians is null and void. (Arthur v John Hector Ansah) –
Unreported.

If the marriage is void, one of the parties or a 3rd party may petition to have it annulled.

CHARACTERISTICS OF A VOID MARRIAGE

● A decree is not needed to set aside a void marriage. This is because there wasn’t a marriage to begin with;
hence nothing exists to set aside. Section 13(4) of MCA
However, a party to a void marriage may apply for a decree to declare a marriage void for 2 reasons
● A party may use the opportunity to apply for ancillary reliefs
● The decree will prove to the whole world that the marriage was never valid
● Unlike voidable marriages, there are no defenses to a void marriage. Once void always void. It can never be
rectified or cured.
● After the death of one of the spouses, an application can be brought to declare a void marriage null and void
and of no consequence.
● The validity of a void marriage may be challenged by a 3rd party. Thus a family representative may raise an issue
to the effect that a surviving spouse cannot benefit under PNDCL 111 because the marriage between the
deceased and the surviving spouse was null and void.

VOIDABLE MARRIAGE

These are governed by Section 13 of the MCA. A voidable marriage is a defective marriage that remains valid until
annulled by a decree issued by a court of competent jurisdiction. Such a marriage may be set aside by one of the
parties to the marriage. A third party cannot petition a court to set it aside.

NB: If a marriage is void or voidable, a petitioner may petition for a decree to annul it. If a marriage is valid, a
petitioner may petition for a decree to dissolve it. The proceedings used to annul a void or voidable marriages are
known as annulment proceedings. The proceedings for dissolving a valid marriage are known as divorce
proceedings. Because only the parties to a voidable marriage can set it aside, if one of the parties dies, before the
marriage is set aside, it is treated as valid for all intents and purposes. Because a voidable marriage remains valid
until it is annulled, none of the parties can enter into a valid marriage until it has been set aside.

CHARACTERISTICS OF A VOIDABLE MARRIAGE

● It is the right of the parties to decide to end it. A third party cannot petition to have it annulled.
● A decree is needed to nullify a voidable marriage. The marriage remains valid until a decree setting it aside is
issued. If an application is not brought to set it aside, the marriage continues as valid.
● A petition for a decree of nullity is not allowed after the death of one of the spouses
● A party to a voidable marriage cannot enter into a valid marriage with a third party until the voidable marriage
has been annulled.

CIRCUMSTANCES WHICH WILL RENDER A MARRIAGE VOIDABLE – SECTION 13(3) AND (4)

● Where there is lack of consummation due to willful refusal by the respondent to consummate
● Where the respondent was at the time of the marriage of unsound mind or subject to recurrent attacks of
insanity.
● Where the respondent was at the time of the marriage pregnant with another man’s child
● Where the respondent was at the time of the marriage suffering from an infectious and incurable venereal
disease in a communicable form

In each of the last 3 instances, the petitioner must prove to the satisfaction of the court and all 3 must be present
that

● He was at the time of the marriage, unaware of the facts making the marriage voidable. Thus if the petitioner
knew at the time of the marriage but still went ahead to marry the respondent, he cannot rely on those facts.
● That the petition for the annulment of the marriage was filed a year from the date of the marriage.
● That sexual intercourse with his/her consent has not taken place since he/she discovered the facts making the
marriage voidable.

A petition for the annulment of a voidable marriage must be filed within one year of the celebration of the
marriage, except where a marriage is voidable due to lack of consummation. A petitioner may consider filing a
petition for divorce where the voidable marriage is more than one year.

CONSUMMATION
It has been defined as achievement of full penetration in the normal sense. It must amount to full and complete
intercourse, (D-E v AG). Intercourse must amount to full and complete penetration. A transient penetration will not
amount to consummation of a marriage, consummation W v W.

Lack of consummation should be looked at from two angles; inability to have sexual intercourse and willful refusal
to have sexual intercourse.

INABILITY TO CONSUMMATE

It is when one of the parties is unable to have sexual intercourse. The condition causing the inability to
consummate must be serious and incurable for the court to hold that a marriage is voidable.

Inability to ejaculate or sterility on the part of one of the parties is immaterial, S v S. Ejaculation per se does not
amount to consummation of marriage. In W v W, Brandon J said “there are decisions binding on me that the
emission of seed and possibility of procreation are not necessarily ingredients as a matter of law to ordinary and
complete intercourse”.

The practice of coitus interruptus or the use of condoms does not amount to non-consummation, (Cackett v
Cackett) (Baxter v Baxter)

If the condition causing the incapacity can be removed without resulting in danger to a spouse, the court will hold
that the marriage is not voidable, (Napier v Napier). The impediment must exist at the time of the presentation of
the petition. If the impediment has been removed or the party is prepared to undergo an operation or receive
treatment to remove the impediment, the petition will fail, S v S.

A petition based on a psychological inability to consummate a marriage may be successful if the petitioner is able
to establish that he or she finds sexual intercourse extremely repugnant. In (Clarke (Talbot) v Clarke) the wife was
frigid and was said to have had an involuntary muscular spasm which contracted the vaginal orifice and canal on
the approach of the male organ. The court held that the marriage had not been consummated even though the
woman had given birth through fecundation ab extra.

LvL

Jodla v Jodla

WILFUL REFUSAL TO CONSUMMATE

It occurs when one of the parties refuses to have sexual intercourse without just cause. The refusal includes

● Refusal to undergo an operation to cure the condition which is hindering consummation.

● Consistent and steadfast refusal without just cause

(Jodla v Jodla)

Once sexual intercourse takes place the marriage becomes consummated and ceases to be voidable. An aggrieved
spouse may petition for divorce if there are facts to prove that the marriage has broken down beyond
reconciliation. Only one incidence of sexual intercourse is needed to consummate a marriage.

INSANITY OR RECURRENT ATTACKS OF INSANITY

Certain conditions must be established by the petitioner for the petition to succeed

● The insanity must exist at the time of the marriage. Therefore if a respondent becomes insane after the
celebration, a petitioner cannot petition for annulment by reason of that insanity. A petition for divorce may
be the right thing to do.
● The petitioner must not be aware of the insanity at the time of the marriage. Therefore if the petitioner knew
that the respondent was insane but still went through with the marriage ceremony, he/she cannot petition for
annulment on the ground that the marriage is voidable.
● The petition must be filed within one year calculated from the date of the celebration of the marriage. Failure
to file within one year, calculated from the date of the celebration of the marriage will preclude a petitioner
from relying on the insanity for annulment.
● The petitioner’s remedy will lie in divorce if he or she can establish that the marriage has broken down beyond
reconciliation.

If there is evidence that the petitioner continued to have sexual intercourse with the respondent after he or she
had learnt of the respondent’s insanity, the petitioner cannot rely on that insanity to petition for the annulment of
the marriage. The court will hold that by having sexual intercourse with the respondent, the petitioner had given
the respondent the assurance impliedly that he would not petition for the marriage to be nullified.

PREGNANCY FOR ANOTHER MAN

If the petitioner knew at the time of the marriage ceremony that the woman was carrying another man’s child and
still went ahead with the marriage ceremony, the marriage will not be voidable and the court will not nullify it. A
petition for divorce will be the right thing to do but the petitioner must establish to the satisfaction of the court
that the marriage has broken down beyond reconciliation. Thirdly, if there is evidence that the petitioner continued
to have sexual intercourse with the respondent after learning of the pregnancy, the marriage will not be voidable
and the petitioner cannot petition for annulment. If the petitioner waits for more than one year, he or she would
have given the respondent a false sense of belief that he or she will not petition for annulment and a petition for
annulment will fail,

INCURABLE VENERAL DISEASE IN AN INCURABLE FORM

The disease will render the marriage voidable only if it is in a communicable form. Thus if a respondent is suffering
from a venereal disease which is not communicable form, the marriage is not voidable. The disease must exist at
the time of the celebration of the marriage. The petitioner must not be aware of the disease at the time of the
marriage. The petition must be filed within one year of the celebration of the marriage. , if there is evidence that
the petitioner continued to have sexual intercourse with the respondent after learning of the disease, the marriage
will not be voidable and the petitioner cannot petition for annulment.

The burden is on the petitioner to establish all the facts rendering the marriage voidable and the court must be
satisfied that the marriage qualifies to be nullified.

EFFECT OF ANNULMENT

A voidable marriage becomes void after it has been annulled by a court of competent jurisdiction.

STATUS OF CHILDREN OF AN ANNULED MARRIAGE

Section 14 of the MCA implies that after a marriage has been annulled, the children shall have the same status as if
the marriage had been dissolved rather than annulled. The fact that the marriage has become void shall not affect
the legitimacy of the children.

PROVISIONS REGARDING THE PRESUMPTION OF DEATH AND DISSOLUTION OF MARRIAGE

Section 15 of MCA

The fact that for a period of 7 years or more the other party to the marriage has been continually absent from the
petitioner and the petitioner has no reason to believe that the other party has been living within that time shall be
evidence that the other party is dead until the contrary is proved.

The words “until the contrary is proved” simply mean that the presumption is rebuttable therefore evidence may
be adduced to establish that the other party is not dead.

Section 33(1) of the Evidence Act states that “where a person has not been heard of, for seven years despite
diligent effort (Whether or not within that period) to find him, he is presumed to be dead”. Here too the
presumption is rebuttable and evidence may be adduced to establish that the person is not dead.
NEGLECT TO MAINTAIN SPOUSE OR CHILD

Section 16 of MCA

1. Either party to a marriage may petition the Court for an order for maintenance on the ground that the other
party to the marriage has willfully neglected to provide, or to make a proper contribution towards, reasonable
maintenance for the petitioner or a child of the household.
2. A wife shall not be deemed to have willfully neglected her husband unless the Court is satisfied that, in all the
circumstances, it is reasonable to expect the wife to provide or contribute towards maintenance for her
husband, and for the purpose of so satisfying itself the Court shall consider
a. an impairment of the husband’s earning capacity, whether through age, illness, disability or otherwise
b. the resources of the husband
c. the earning capacity and the resources of the wife, and
d. any other circumstances relating to the financial position of the parties.
3. A respondent shall not be deemed to have willfully neglected a child of the household where that child is not
the natural or adopted child of the respondent unless the Court is satisfied in all the circumstances that it is
reasonable to expect the respondent to provide or contribute towards maintenance for that child of the
household, and for the purpose of so satisfying itself, the Court shall consider
a. Whether the respondent had assumed any responsibility for the child’s maintenance, and if so, the extent,
duration and basis of that assumed responsibility; and
b. Whether a person other than the respondent is responsible for the maintenance of the child, and if so, the
extent to which that party is maintaining, or might be able to maintain, the child; and
c. Any other circumstances relating to the relationship between the respondent and the child.

UNREASONABLE CONDUCT TOWARDS SPOUSE OR CHILD

Section 17 of MCA

Either party to a marriage may petition the Court for a child custody order on the ground that the other party to
the marriage has persistently behaved in an unreasonable manner towards either the petitioner or a child of the
household.

SECTIONS OF THE EVIDENCE ACT HAVING DIRECT BEARING ON MARRIAGE

Section 31 applies whether or not the whether or not the witnesses to the marriage are called as witnesses in the
action. This section applies both to monogamous and polygamous marriages. It has been argued by some writers
that for a marriage to be valid there must be a celebration and that because informal marriages are devoid of
celebration, they cannot be valid. Therefore, all cases decided after the passage of the Evidence Act in 1975,
holding that informal marriages are valid must have been decided per incuriam. This submission cannot be entirely
correct for a number of reasons. The correct interpretation of Section 31(1) is that if there is evidence that a
marriage was celebrated before witnesses, that fact alone is enough to establish a rebuttable presumption that the
marriage is valid. The burden will therefore lie on the person challenging its validity to rebut it.

On the other hand, if a marriage has not been celebrated before witnesses, which presumption will not apply.
Consequently, the person who claims that there is a valid marriage will bear the burden of establishing that,
indeed, there was a valid marriage.

In cases of informal marriage, the burden will be on the person who claims that there was a valid marriage to
establish that even though there was no celebration, in substance, he or she lived with the other party as husband
and wife. Furthermore, the section does not state, either categorically or by necessary implication that a marriage
has not been celebrated before witnesses is not valid.

Consequently, the decisions declaring that informed marriages are valid marriages could not have been decided per
incuriam.

Section 32 applies both to monogamous and polygamous marriages.

QUESTION

QUESTION

DISSOLUTION OF A MONOGAMOUS MARRIAGE

The dissolution of marriages contracted under the Marriages Act is governed by the Matrimonial Causes Act, 1971
(Act 367) herein after referred to as the MCA.

Section 1(1) of the MCA allows either party to a marriage to present a petition to the court for divorce. Under
Section 31 either party must be a citizen of Ghana, domiciled in Ghana or must have been ordinarily resident in
Ghana for a continuous period of 3 years.

Section 1(2) of MCA states that the sole ground for granting a petition for divorce shall be that the marriage has
broken down beyond reconciliation.

A wife or a husband may authorise a third party through a power of attorney to petition for a divorce on his or her
behalf. This third party may give vica voce evidence on behalf of the person he/she is representing and also be
subject to cross-examination during the divorce proceedings. Rule 3A of CI 87 mandates a court to allow a witness
to give evidence through a video link or by any other means. A party seeking divorce must file a petition. Order 65
Rule 2 of CI 47 states that all proceedings for divorce, nullity, presumption of death, maintenance orders and child
custody orders shall commence by a petition. This rule should be strictly complied with. Only a court of competent
jurisdiction can dissolve a marriage contracted under the Marriages Act.

Petition cannot be filed at any time after the celebration of the marriage. There are restrictions on the time for
filing a petition. Section 9. Thus a spouse who is desirous of filing for divorce has to wait until 2 years after the
celebration of the marriage. There are exceptions. A court may allow the presentation of a petition for divorce
within 2 years from the date of the marriage, on grounds of substantial hardship suffered by the petitioner or
depravity on the part of the respondent. Substantial hardship occurs for e.g. when one of the parties constantly
beats the other and threatens him/her with a knife. The courts will not wait for two years before a petition is
allowed.

Depravity describes a situation where for e.g. a husband demands that the wife have sex with a 3rd party in his
presence or demands a threesome. Section 9(5) of MCA

DEATH OF A PETITIONER

The death of an original petitioner in a matrimonial action will bring the action to an end. This is because such a
cause of action is a personal action and does not survive the death of a party. Likewise if the respondent dies, the
action will come to an end.

The SC dealt with the issue and others in (Benjamin Mensah (substituted by Bernard Mensah and Barbra Mensah)
v Margarette Mensah Single judge Review Motion). Here the petitioner filed a petition for divorce at the HC. The
respondent also cross-petitioned for a dissolution of the marriage and pleaded for ancillary reliefs. The trial
commenced in 97 and in the course of proceedings, the court ordered the petitioner to pay to the respondent,
maintenance pending the determination of the suit. The marriage was dissolved on 4th December the same year.
The court ordered that the petitioner settle amongst others, the matrimonial home on the respondent. The
petitioner appealed against the decision. The petitioner unsuccessfully appealed to the HC for stay of execution of
the maintenance order pending the hearing of the appeal. The petitioner repeated his application for stay of
execution of the order to pay maintenance pendent lite. This application was also dismissed. The petitioner died in
2013 while his appeal was pending at the CA. The court made the following observation: That there is absolutely no
doubt that the death of the original petitioner in the matrimonial action would have brought the case to an end.
This is because such a cause of action is a personal action and is generally referred to as one in personam and as a
result does not survive the death of a party. Secondly, being interlocutory in nature, it would even have ended with
the delivery of final judgment unless it was incorporated into the final judgment. But then there is the disposition
that some immovable properties have been resolved in favour of the respondent in the final judgment. If that is so
then it would appear that these would be relating to real property therefore in rem. The appeal in the interlocutory
appeal did not survive the death of the original petitioner.
Any arrears of maintenance in existence prior to the death of the petitioner also could not survive against the
estate of the petitioner because it was an action in personam. Again, the passage above implies that even if the
petitioner had not died, the maintenance order would have come to an end upon the delivery of the final judgment
because it was an interlocutory order. However, if the order for maintenance was incorporated in the final
judgment then maintenance would have continued during the hearing of the appeal. The order regarding the
immovable property was an order in rem and once the order in respect of that property had been resolved in
favour of the wife, that resolution survived the demise of the petitioner.

The court in (Ribero v Ribero) also made the point that: it is a complete misconception to maintain that a
conveyance ordered under Section 20 would be caught by the Act and cease to have effect if the wife remarried or
on the death of either herself or her husband.

ESTABLISHING THAT A MARRIAGE HAS BROKEN DOWN BEYOND RECONCILIATION

For the purposes of showing that a marriage has broken down beyond reconciliation, a petitioner shall prove to the
satisfaction of the court one or more of the following six facts. A U D F F I

● Adultery
● Unreasonable Behaviour
● Desertion for a continuous period of at least 2 years
● Failure to live together as husband and wife for a continuous period of at least 2 years immediately preceding
the presentation of the petition and the respondent consents to the grant of a decree of divorce
● Failure to live together as husband and wife for a continuous period of at least 5 years immediately preceding
the presentation of the petition
● Inability to reconcile differences after diligent efforts

This is captured by Section 2(1) of MCA. A petitioner may rely on one of these facts. A petitioner may also rely on
more than one of these facts. It is pertinent to know that these are facts (not grounds) one or more of which may
be used to prove that a marriage has broken down beyond reconciliation.

FUNCTION OF A JUDGE AT A DIVORCE HEARING

Section 2(2) of the MCA enjoins a court to inquire, so far as is reasonable into the facts alleged by the petitioner
and the respondent. Because the section makes this enquiry mandatory, failure on the part of a court to conduct
an enquiry will render any judgment given and any orders made null and void

Section 2(3) of the MCA further states that a court shall not grant a petition for divorce unless it is satisfied on all
the evidence that the marriage has broken down beyond reconciliation. This section emphasizes the fact that the
court should only grant a decree of divorce when it is satisfied that the parties cannot be reconciled. Therefore if
the respondent demonstrates that he or she does not intend to contest a petition, the onus on the petitioner does
not shift. The petitioner still has to prove to the satisfaction of the court that the marriage has broken down
beyond reconciliation. A petitioner therefore is required to present a witness statement stating his/her case in
accordance with Rule 3B (1) OF CI 87 in addition to the petition. The court may then cease the opportunity to
inquire, based on the contents of the witness statement, in an inquisitorial manner whether the marriage has
broken down beyond reconciliation. Indeed, parties to divorce proceedings cannot file terms of settlement or
consent judgment that the marriage has broken down beyond reconciliation. This will not dissolve the marriage.
The court must always be satisfied that indeed the marriage has broken down beyond reconciliation by at least
studying the witness statement, listening to the evidence of the petitioner through cross-examination.

When a petitioner proves one of the facts mentioned under Section 2(1) he or she may be deemed to have proved
that the marriage has broken down beyond reconciliation.

Section 2(3) directs the judge to conduct an inquiry to determine whether in truth the marriage has broken down
beyond reconciliation. If upon inquiry the judge is satisfied that the marriage has broken down beyond
reconciliation, then and then only should a divorce be decreed. The enquiry enjoins a judge to adopt an
inquisitorial approach to satisfy itself that a marriage has indeed broken down beyond reconciliation. Such an
inquest will be conducted not in all cases but only when it is reasonable to do so.

Failure on the part of a court to take evidence at least from the petitioner, in divorce proceedings will render a
judgment void and all orders based on that judgment also void. (Partey v Partey) – The CA stated the following
principles

a. There is no time limit for setting aside a void judgment

b. A breach of Section 2 of the MCA will render the whole divorce proceedings a nullity
c. A court must examine the evidence in divorce proceedings to find out if there exists such substantial difference
or differences between the parties to demand dissolution of the marriage.

Per Osei-Hwere in (Donkor v Donkor), The MCA does not permit spouses to come to court and pray for the
dissolution of their marriage just for the asking. In discharging the onus of the petitioner, it is immaterial that the
respondent has not contested the petition, he must prove the charges and flowing from all evidence before the
court, the court must be satisfied that the marriage has irretrievably broken down.

(Danquah v Danquah) – Here, adultery was pleaded but because it was not proved, the petition was dismissed. In
(Adjetey v Adjetey) the court stated that “on a proper construction of Section 2(3) of the MCA, a court can still
refuse to grant a decree even where one or more of the facts set out in Section 2(1) had been established. It is
therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it. A mere
assertion by one of the parties that the marriage has broken down beyond reconciliation will not be enough.
ADULTERY

The MCA defines Adultery as follows: Voluntary sexual intercourse of a married person with one of the opposite sex
other than his or her spouse.

Section 2(1) (a) of the MCA

This means that a petitioner must prove two things: Firstly, that adultery has been committed and secondly that
the petitioner as a result of the adultery finds it intolerable to live with the respondent. Proof of the commission of
adultery alone is not enough. Intolerability on the part of the petitioner must be established.

For adultery to succeed as a fact, showing that a marriage has broken down beyond reconciliation, the following
must be established.

● That there was penetration of the woman by the man. Full penetration does not have to be proved. Partial
penetration is enough to constitute adultery. Lesser acts such as masturbation will not constitute adultery.
(Dennis v Dennis)
● The act of sexual intercourse must be voluntary. Thus if there is proof that consent was obtained through fear
or force there is no adultery. If a married woman is raped she will not be guilty of adultery.

The petitioner must establish these two elements in order to succeed i.e. sexual intercourse and consent on the
part of the respondent. The definition states categorically that sexual intercourse must be between people of the
opposite sex.

PROOF OF ADULTERY AND BURDEN OF PROOF

Because it is difficult to catch offenders in the act, adultery may also be inferred from circumstantial evidence. This
type of evidence must be strong for the courts to infer adultery. Disposition and opportunity must however be
established where the petitioner is relying on circumstantial evidence.

The burden is on the party who alleges adultery to prove it. When adultery is established, the burden shifts to the
respondent. The respondent may submit that sexual intercourse did not take place or that if it did, it was not
consensual.

In Quartey v Quartey, Kinglsey-Nyinah J said thus. In (Adjetey v Adjetey) the court departed from the “proof
beyond reasonable doubt approach” and stated thus. The standard of proof of adultery should be based on the
principle that, in proportion as the offence is grave so ought the proof to be clear. Therefore, even though adultery
is a civil matter, the standard of proof should be slightly higher than the balance of probabilities.

PROVING ADULTERY
Adultery may be proved in several ways: C C C C C

1. Because direct evidence is not easy to obtain, adultery may be inferred from the circumstances surrounding a
case. The act of sexual intercourse does not have to be proved. The presence of disposition and opportunity
may lead a court to conclude that adultery has been committed. Opportunity alone is not enough
(Adjetey Adjetey) (Blum v Blum)
2. Confession may be used to establish adultery. However, a confession made under duress will not be
admissible. (Quartey v Quartey)
3. If the petitioner has contracted a sexually transmitted disease from the respondent adultery may be inferred.
4. If it is proved that a child born by the respondent is not the child of the petitioner, the respondent will be
presumed to have committed adultery. (Hume v Hume)
5. Where a married person is caught having sex with a person who is not his/her spouse, adultery would have
been established.

WEIGHT OF EVIDENCE

The quantum and weight of the evidence required to establish adultery were discussed by the court in (Adjetey v
Adjetey). The court stated as follows: Adultery must be proved to the satisfaction of the court and even though the
evidence need not reach certainty as required in criminal proceedings, it must carry a high degree of probability.
Direct evidence of adultery was rare. In the nearly every case, the fact of adultery was inferred from circumstances
which by fair and necessary influence would lead to that conclusion. There must be proof of disposition and
opportunity for committing adultery but the conjunction of strong inclination with evidence of opportunity will not
lead to an irrebuttable presumption that adultery has been committed and likewise the court was not bound to
infer adultery from evidence of opportunity alone. (Quartey v Quartey)

DEFENCES TO ADULTERY

There are two main defenses open to a respondent. These are

● That sexual intercourse did not take place or

● That if it did, it was not voluntary

INTOLERABILITY TEST

If the petitioner establishes that adultery has taken place but is unable to prove that he/she finds it intolerable to
live with the respondent, his/her petition will fail. He/she would not have discharged the burden placed on him/her
by reason of Section 2(1) (a). The test of intolerability is subjective. It is how the particular petitioner feels and not
what a reasonable person will feel.

The test means that the court must decide whether the particular petitioner finds it intolerable to live with the
respondent and not what a reasonable petitioner would have found intolerable. The test therefore is subjective
and not objective.

The discovery of the adultery must make life intolerable for the petitioner. In other words, the intolerability must
be linked to the adultery.

There are reconciliation provisions regarding adultery. Section 3 of the MCA

The section implies that where the parties live as husband and wife after the discovery of adultery with a view to
reconciliation for a period or periods cumulative of more than 6 months, the petitioner would be taken to have
forgiven the respondent and cannot subsequently claim to find it intolerable to live with the respondent. However,
if the living together as husband and wife with a view to reconciliation is for a period or periods of 6 months or less,
the petitioner can rely on it. The parties must live together as husband and wife for the section to apply. Therefore
if a wife leaves the matrimonial home as a result of the husband’s adultery but returns and stays for 10 months to
nurse him after a car crash, the wife can still rely on the adultery. She returned to the matrimonial home to care for
the husband and not live with him as husband and wife and also this wasn’t in view to reconciliation.

According to Section 12 the paramour may but need not be made a party to the proceedings. Once a person is
named and made a party to the proceedings, all documents in respect of the action should be served on him or
her.

The place where the adultery occurred is not relevant. It need not be mentioned. Thus the fact that the petitioner
cannot provide the particulars of the place is irrelevant.

ADULTERY AND DAMAGES

Under the MCA damages are not recoverable from a co-respondent where a marriage is dissolved by reason of
adultery. In other words, if the parties are married under the ordinance and the marriage is dissolved by reason of
adultery, the petitioner is not entitled to damages. Section 41 allows a customary marriage to be dissolved under
the MCA and gives a court the discretion to grant any form of relief recognised by the personal law of the parties to
the proceedings in addition to or in substitution for, the matrimonial reliefs afforded by the MCA. Even here one
has to be careful because under most systems of customary law, where a third party seduces another man’s wife
and the man chooses to divorce the wife, the man may not be entitled to compensation. Under Customary law a
husband may only be entitled to compensation if he decides to keep the wife.
Section 41 of the English Matrimonial Causes Act of 1965 as amended by the Divorce Reform Act, 1969 which was
applicable to Ghana until 7th Sept. 1971, vested the divorce courts with statutory power to award damages for
adultery.

Curiously, this right extended to husbands only. Therefore if a husband was found guilty of adultery, the wife got no
damages but if a marriage was dissolved as a result of the woman’s adultery the man was entitled to damages from
the co-respondent.

In any case, this section ceased to apply upon the enactment of the MCA. Section 44 of the Act states categorically
that any English statute relating to matrimonial causes which was in force in Ghana immediately before the
commencement of the MCA shall cease to apply.

In (John v John) the petitioner sought divorce on the ground that the marriage between him and the respondent
had broken down beyond reconciliation because of the respondent’s cruel behaviour and adultery. He also sought
damages from the co-respondent. The court held as follows: Since the MCA did not give the right to a petitioner
husband to claim damages against an adulterer, the court could not assume jurisdiction over any such claim in a
matrimonial cause, and the petitioner’s claim for damages against the co-respondent must fail.

It is pertinent to know that costs cannot be awarded to a paramour who has not been joined as a co-respondent.

UNREASONABLE BEHAVIOUR

It has been defined in the English law as conduct that gives rise to injury to life, limb or health or conduct that gives
rise to a reasonable apprehension of such danger. According to this definition therefore, actual injury does not have
to be established. Mere apprehension of such injury is enough so far as it has led to the breakdown of the marriage
beyond reconciliation.

The conduct must be grave and weighty and must make living together impossible. It must be serious and higher
than the normal wear and tear of married life. Threats of actual personal violence may amount to cruelty. The
courts will not wait for the harm to take place before taking steps. Actual or presumed intention to harm does not
have to be established. The intention to the offending spouse is not relevant. Thus A cannot threaten B, his wife
with a gun and argue subsequently that he did not intend to harm her. (Gollins v Gollins)

In the following cases the English courts have dealt with unreasonable behavior P I I I

● Persistent requests for inordinate sexual acts or malpractices and wilful refusal to have sexual relations may
amount to unreasonable behaviour(Sheldon v Sheldon)
● Infecting one’s spouse with a venereal disease is tantamount to unreasonable behaviour
● Inability to have sexual intercourse as a result of impotence does not amount to unreasonable behaviour,
(Dowden v Dowden)
● Insistence on coitus interruptus knowing that it is affecting the other spouses health, (Knott v Knott),
persistent drunkenness and addiction to gambling, (H v H), nagging and insults, (Stanwick v Stanwick) have all
been held to be tantamount to unreasonable behaviour

ESTABLISHING UNREASONABLE BEHAVIOUR

Section 2(1) (b) of MCA

The section implies that the petitioner must prove two things

● The conduct constituting the unreasonable behaviour on the part of the respondent
● The fact that he or she cannot reasonably be expected to live with the respondent as a result of the bad
behaviour, (Andrew v Andrew)

The burden lies on the petitioner to establish the above.

TEST APPLIED IN DETERMINING THAT THE PETITIONER CANNOT REASONABLY BE EXPECTED TO LIVE
WITH THE RESPONDENT

The objective test is applied. Thus whether or not the petitioner cannot reasonably be expected to live with the
respondent is a question of fact for the court to decide. If the court is satisfied that it will be unreasonable for the
petitioner to continue to live with the respondent, divorce will be decreed. In (Ansah v Ansah) the court stated as
follows: The test under Section 2(1) (b) was whether the petitioner can reasonably be expected to live with the
respondent in spite of the latter’s behaviour. The test was therefore objective. But the answer has to be obviously
related to the circumstances of the petition in question. That had to be a question of fact in each case. It followed
that the conduct complained of must be sufficiently serious – since mere trivialities would not suffice.

(Happee v Happee)(Knudsen v Knudsen) – Here the court went ahead to state as follows: “The behaviour of a
party which will lead to this conclusion would range over a wide variety of acts. It may consist of one act if it is of
sufficient gravity or of a persistent course of conduct or of a series of acts of differing kinds none of which by itself
may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse,
but the cumulative effect of all taken together would do so”.

(Mensah v Mensah)

In (Ansah v Ansah) the court found that the wife had established that the husband did subject her to certain acts of
indignity and cruelty. On one occasion, she was made to stand up for the whole night because she had refused to
comment on some misunderstanding which had arisen between the husband’s son and his uncle. On another
occasion, when the wife refused to have sex with the husband, on the ground that she was in her period, he used
force on her to apply a white handkerchief to her vagina to find out whether her assertion was true. The husband
used to taunt and assault her. He also accused her of adultery. As a result of the husband’s behaviour, she became
jittery, unhappy and distressed at the sight of the husband. She eventually left the matrimonial home. The court
concluded that there was no doubt that the husband behaved in such a way towards the wife that she could not
reasonably be expected to live with the husband.

The court reiterated in (Hughes v Hughes) that it is not enough merely to refer to an isolated act which infuriated
one spouse and point it as grave and unreasonable. To succeed a petitioner has to show that the respondent’s
conduct had reached a certain degree of severity, and must be such that no reasonable person will tolerate or
consider that the complainant should be called on to endure.

In (Riby-Williams v Riby-Williams) the court also explained that: Cruelty does not exist merely because the parties
find life with each other impossible. The conduct complained of must be grave and weighty and must go beyond
the normal wear and tear of married life.

EXCESSIVE AND INORDINATE SEXUAL DEMANDS OF ONE SPOUSE

In (Opoku-Owusu v Opoku-Owusu) the court held as follows: A willful refusal by one spouse to have sexual
intercourse might entitle the other party suffering to leave if in all the circumstances of the case, it could properly
be regarded as grave and weighty and if it had an adverse effect on the health of the other spouse. Such conduct
might also amount to a just cause of leaving even though it lacked the element of intent to injure. However, one
spouse was not bound to submit to the demands of the other if they were unreasonable and inordinate or were
likely to lead to a breakdown of health. Thus, the spouse who suffered as a result of an unreasonable insistence on
sexual intercourse would be entitled to leave the other. The husband’s petition was refused but the divorce was
granted on the wife’s prayer.

RECONCILIATION PROVISIONS IN RELATION TO UNREASONABLE BEHAVIOUR

Section 4 of the MCA deals with the reconciliation provisions in respect of unreasonable behaviour. This means that
if the parties have lived together as husband and wife for 6 months or less to attempt at reconciliation since the
date of the last incident of unreasonable behaviour, the fact of attempt at reconciliation should be disregarded in
determining whether the petitioner could not reasonably be expected to live with the respondent. The 6 months
co-habitation should not mean that the petitioner can now live with the respondent. The respondent can thus rely
on the last incident. However, if the parties have lived as husband and wife for more than 6 months after the last
incident, the petitioner cannot rely on it. Here too the emphasis is on living together as husband and wife. (Ofori v
Ofori)
DESERTION

It has been defined as the unjustifiable withdrawal from cohabitation without the consent of the other spouse and
with the intention of remaining separated permanently. Section 2(1)(c) of the MCA requires the petitioner to
establish that the respondent has deserted the petitioner for a continuous period of at least 2 years immediately
preceding the presentation of the petition. Desertion may result from a physical withdrawal from a place or a
withdrawal from a state of things i.e. not leaving the matrimonial home but refusing to perform any of his or her
marital obligations. The withdrawal must amount to a total repudiation of marital obligations, (Naylor v Naylor). If
some marital duties are performed while others are withdrawn, there is no desertion. As Sarkodee J stated in
(Kotei v Kotei) mere physical separation is not sufficient: a petitioner has to prove not only the factum of
separation but also that he or she has ceased to recognise the marriage as subsisting and intended never to return
to the other spouse.

The separation must be continuous for a period of at least 2 years and must exist at the time that the petition is
filed. If separation has ended at the time of the presentation of the petition, the petition will fail.

ELEMENTS OF DESERTION

For desertion to succeed, the following elements must be established – D A L E

● De facto separation; it means a total and actual withdrawal for the performance of all marital obligations, a
complete cessation of cohabitation. A refusal to perform one or two of the marital obligations is not enough.
Thus, if a wife refuses to prepare meals for her husband but fulfills the rest of her marital obligations, the
courts will hold that desertion has not been established. (Hopes v Hopes)(Bull v Bull). A withdrawal is not only
a withdrawal from a place but also a withdrawal from the state of things. Thus, a spouse may be living under
the same roof but may not be cohabiting. They may be living as two separate units under the same roof. The
question to ask is whether the parties are living as two households or one household.
● Animus Descrendi; this is the intention to bring cohabitation permanently to an end. If the intention is to bring
cohabitation temporarily to an end, animus will be absent. The respondent must have the capacity to form the
required intention. Therefore, if a spouse becomes insane and withdraws from his/her marital obligations, he
or she cannot be accused of desertion. The burden is on the petitioner to show to the court that the
respondent had the necessary intention to permanently withdraw from cohabitation.
Desertion begins when factum and animus come together. Factum alone is not enough and animus alone is
not enough. The two must be established for desertion to succeed.
Spouses may agree to a de facto separation when one party has to for e.g. proceed to another country or town
to work. Hence there is no desertion because there is no animus deserendi. However if during this period, one
 of the parties decides to permanently bring cohabitation to an end, supervening animus occurs and de jure
desertion begins.
● Lack of consent from the other spouse; if a spouse withdraws from the performance of his or her marital
obligations without the consent of his/her spouse, the conduct may amount to desertion. Thus a spouse
cannot complain of desertion when he or she has consented to a separation. Whether or not consent has been
given is a question of fact. The court will look at all the circumstances of the case and decide whether the
separation was consented to or not. The consent may be express or implied and it should be freely and
voluntarily given. Desertion sets in once consent has been withdrawn, (Nutley v Nutley).
Desertion can take place even if the parties have not co-habited before and even if consummation has not
taken place. A withdrawal may be a withdrawal from state of things; therefore, cohabitation need not be a
condition precedent for desertion to occur. If one spouse deserts the other but subsequently returns with a
view to ending the desertion, the spouse will be presumed to have brought the desertion to an end. If the
offer is genuine, the party refusing to accept the offer will be the party in desertion. He will be the party who
intends to permanently bring co-habitation to an end without just cause and without the consent of the other
party.
● Want of reasonable excuse; a spouse will be in desertion if he/she does not have a good reason for
withdrawing from cohabitation. Therefore, if a spouse has a good reason for bringing cohabitation to an end,
he or she will not be in desertion. If the excuse for leaving is not reasonable, the party leaving will be in
desertion.

CONSTRUCTIVE DESERTION

The party who physically leaves the matrimonial home is not necessarily the deserting spouse. A spouse may be
compelled to leave the matrimonial home or to permanently bring cohabitation to an end as a result of the
conduct of the other spouse. Such desertion is referred to as constructive desertion. (Barnes v Barnes)

The spouse whose conduct compels the other to leave is the deserting spouse. The conduct will lead the courts to
conclude that the spouse intended to bring cohabitation to an end.

In constructive desertion unlike simple desertion, one spouse’s conduct chases away the other spouse. In simple
desertion the other spouse withdraws all his/her marital obligations. A husband whose controlling and
domineering character drives his wife away is the deserting party and not the wife.

In constructive desertion, factum and animus must also be established. The petitioner must therefore prove that
the respondent intended to expel him/her from the household and to thereby bring cohabitation permanently to
an end. (Hughes v Hughes) – The marriage was dissolved on grounds of unreasonable behaviour on the part of the
petitioner.
RECONCILIATION PROVISION

This contained in Section 5 of MCA.

There are reconciliation provisions in respect of desertion. In calculating the period of 2 years, the courts should
disregard any periods less than 6 months that the parties resumed living together as husband and wife.

Also, the court may treat a period of desertion as having continued at a time when the deserting party was
incapable of continuing the necessary intention if the evidence before the court is such that, had that party not
been so incapable, the court would have inferred that his desertion continued at that time.

Mere separation is not enough. There must be proof that at least one of the parties believed that the marriage had
come to an end. (Addo v Addo),

PRECISE IMPLICATION OF NOT LIVING TOGETHER AS HUSBAND AND WIFE FOR A CONTINUOUS PERIOD
OF TWO YEARS

Under Section 2(1) (d) a party may prove that a marriage has broken down beyond reconciliation by establishing
that the parties have not lived together as husband and wife for a continuous period of 2 years immediately
preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce;
provided that such consent shall not be unreasonably withheld. Where the court is satisfied that it has been
unreasonably withheld, it may grant the petition for divorce notwithstanding the refusal.

Section 6(1) of the MCA imposes a duty on the party wishing to rely on this fact to obtain consent from the other
party before a petition is filed. It is the duty of the petitioner to prove that consent has been given. The consent
must be expressly given and the petitioner must give the respondent all the information that will help the
respondent to understand the effect of the divorce decree. The court has the power to dismiss the proceedings if it
is satisfied that the petitioner intentionally or even unintentionally lied about a matter that the respondent took
into consideration in deciding to consent to a divorce – Section 6(2).

Likewise if there is proof that consent had been unreasonably withheld, the court will grant the divorce despite the
refusal. Whether or not consent is being unreasonably withheld is a question of fact. The test is objective and the
question to ask is whether a reasonable spouse, placed in the same situation of the particular spouse will withhold
consent? This means that if a court determines that consent is being unreasonably withheld but is not satisfied that
the marriage has broken down beyond reconciliation, the marriage will not be dissolved. (Addo v Addo)

(In the Estate of Park)

PRECISE IMPLICATION OF NOT LIVING TOGETHER AS HUSBAND AND WIFE FOR A CONTINUOUS PERIOD
OF FIVE YEARS
Under this section, it is enough for the petitioner to establish that the parties have not lived as husband and wife
continuously for 5 years. Consent of the respondent is not required. The commission of a matrimonial offence need
not be established. The marriage will dissolved if the petitioner is able to establish a 5 year separation. The fact
that the respondent has not committed any matrimonial offence is immaterial. (Kotei v Kotei) – The court held that
the petitioner was entitled to a divorce and stated as follows: once the facts are proved bringing the case within
any of the facts set out in Section 2(1) a decree of dissolution should be pronounced unless the court thinks
otherwise. In other words, the burden is on the petitioner to how that special grounds exist justifying the exercise of
the court’s power. Once he or she comes within any one of the provisions in Section 2(1) (e) and (f), the presumption
is in his favour; proving one of the provisions without more is proof of the breakdown of the marriage beyond
reconciliation. The court further stated as follows: Proof of 5 years continuous separation enables the marriage to
be dissolved against the will of a spouse who has not committed any matrimonial offence and who cannot be
blamed for the breakdown of the marriage.

There are reconciliation provisions in respect of Sections 2(d) and (e). Section 7 deals with the reconciliation
provisions in relation to Sections 2(d) and (e). In calculating the period during which the parties have not lived as
husband and wife, account should not be taken of any period or cumulative periods not exceeding 6 months during
which the parties resumed living with each other as man and wife with a view to attempt a reconciliation.
(Mouncer v Mouncer)

INABILITY TO RECONCILE DIFFERENCES

A petitioner may use this fact to prove that a marriage has broken down beyond reconciliation. When a petitioner
is able to establish that he/she is unable to agree with his/her husband or wife on a particular issue or issues, the
court will order a dissolution if it has led to a breakdown of the marriage beyond reconciliation. (Mensah v
Mensah)

Section 2(1) (f) states that the inability on the part of spouses to reconcile their differences may be relied upon to
prove that a marriage has broken down beyond reconciliation. This fact simply means that a marriage will be
dissolved if the court is satisfied that the parties have not been able to reconcile their differences even though they
have tried to reconcile their differences. Under this fact, there must be evidence that the parties tried to settle
their differences. It is pertinent to note that it is only under this fact that an attempt at reconciliation must be
established. Under all the other facts proof of attempt at reconciliation is not a condition precedent to the filing of
a petition or the grant of a divorce decree. Under this section, differences must be distinguished from disputes.
The differences must be between spouses and not between one spouse and a third party. (Mensah v Mensah) –
The court stated amongst other things that “where neither spouse desires a child, failure to have one is not a
difference; neither can the court introduce bareness or sterility as essential facts under Section 2(1) in relation to a
monogamous marriage. But where neither sterility nor barrenness is admitted and a hopeless disagreement arises
as to how to have a child, and a desire for a child is strongly manifested by either spouse, a difference exists under
Section 2(1) (f)”. A divorce was decreed on the ground that the marriage had broken down beyond reconciliation
because it was not reasonable to expect a wife to live with the husband who behaved in the manner that the
respondent did.

The court should be informed of attempts at reconciliation. Section 8 makes it mandatory for a petitioner or
counsel to inform the court of all efforts that have been made to reconcile the parties either by themselves or on
their behalf before or after the commencement of the divorce proceedings. Again, if at any time of the
proceedings, it appears to the judge that there is a possibility of reconciliation the court may adjourn proceedings
for a reasonable time for attempts to be made at reconciliation. The Section makes it the duty of the petitioner or
counsel for the petitioner to inform the court of any attempts at reconciliation.

It is not mandatory for a judge to adjourn proceedings for parties to attempt reconciliation. The adjournment of
proceedings for attempt at reconciliation is at the discretion of the court. The court may direct the parties to
attempt reconciliation with representatives of their families or a conciliator agreed upon by the court and the
parties. When proceedings resume, the conciliator or counsel for the petitioner shall inform the court of the
success or otherwise of the reconciliation attempt i.e. that the parties have been reconciled or have not been
reconciled. If more time is needed for the attempt to continue, the court may grant a second adjournment. The
details of the attempt at reconciliation should not be given to the court. If the attempt is not successful the divorce
proceedings will continue.

FOREIGN DECREES

There are foreign decrees recognised in Ghana. Section 36 of the MCA

Section 36 of the MCA does not talk about the recognition of extra-judicial decrees within Ghana, but it is authority
for the proposition that Ghanaian courts can recognise foreign extra-judicial decrees. Yet there is no provision for
the recognition of extra-judicial decrees within Ghana.

Gifts or bequests in favour of a spouse become invalid upon divorce or annulment. Such gifts become invalid upon
divorce or annulment unless the will contains an express provision to the contrary.

The respondent is entitled to divorce without cross-petition. Section 11 of MCA

With respect to unreasonable towards a child by a spouse look at Section 17 of the MCA.

BIGAMY (CIRCUMSTANCES UNDER WHICH A PERSON WILL BE CHARGED)

The instances in which a person may be charged with bigamy have been stated under Sections 262 to 272 of the
Criminal Offences Act (Act 29).

Section 262 - Bigamy

A person who commits bigamy commits a misdemeanour.

Section 263 - Definition of and special provision as to bigamy

1. A person commits bigamy who, knowing that a marriage subsists between that person and another person,
goes through the ceremony of marriage, whether in Ghana or elsewhere, with any other person.
2. A person shall not be convicted of bigamy or of an offence under section 264
a. If at the time of the subsequent marriage the former wife or the former husband has been continually
absent from that person for seven years, and has not been heard of by that person as being alive within
that time, and
b. If before the subsequent marriage that person informs the other party to the marriage of the facts of the
case so far as they are known to that person.
3. On proof by the accused person of the continued absence and information, the prosecutor has the onus to
prove that the former wife or husband has been so heard of.

Section 264 - Marriage to a person previously married

A person who, being unmarried, goes through the ceremony of marriage, whether in Ghana or elsewhere, with
another person whom that person knows to be married to another person commits a misdemeanour, whether the
other party to the ceremony does or does not have the guilty knowledge as to be convicted of bigamy.

Section 265 - Marriages under customary law

1. A person shall not be convicted of bigamy or of an offence under section 264, if the marriage in respect of
which the act was committed, and the former marriage, were both contracts under customary law.
2. A person may be convicted of bigamy or of an offence under section 264 if, having contracted a monogamous
marriage that person marries or purports to marry any other person under customary law, or if, being married
to a person by customary law, goes through a monogamous ceremony of marriage with any other person.

FPUM–FWM

Section 266 - Fictitious marriage

A person who, whether in Ghana or elsewhere, goes through the ceremony of marriage, or a ceremony which that
person represents to be a ceremony of marriage knowing that the marriage is void and that the other person
believes it to be valid, commits a misdemeanour.

Section 267 - Personation in marriage

A person who personates any other person in marriage, or marries under a false name or description, with intent
to deceive the other party to the marriage, commits a misdemeanour.

Section 268 - Unlawfully performing marriage ceremony

A person who is not duly qualified so to do who performs or witnesses as a marriage officer the ceremony of
marriage, or knowing that any of the matters required by law for the validity of a marriage has not happened or
been performed, so that the marriage is void or unlawful, commits a misdemeanour.

Section 269 - Making false declaration for marriage

A person who in a declaration, certification, licence, document, or statement required by law to be made or issued
for the purpose of a marriage, declares, enters, certifies or states a material matter which that person knows to be
false, commits a misdemeanour.

Section 270 - False pretense of impediment to marriage

A person who endeavours to prevent a marriage by pretense

a. that the consent of that person is required by law, or

b. that a person whose consent is so required does not consent, or
c. that there is a legal impediment to performing the marriage,

Commits a misdemeanor, if that person does so knowing that the pretense is false or without having reason to
believe that it is true.

Section 271 - Willful neglect of duty to fill up or transmit certificate of marriage

A person who, being under a duty to fill up the certificate of a marriage performed by that person, or the
counterfoil of it, or to transmit the certificate to the Registrar of Marriages, willfully fails to perform that duty,
commits a criminal offence and is liable to a fine not exceeding twenty-five penalty units.

Section 272 - Mode of proving marriage or divorce

1. Where, for the purposes of this Chapter, it is requisite to prove a former marriage of a person, it is requisite
and sufficient to prove a marriage irrespective of the place of celebration of the marriage, which would be
 admitted by the Court as a valid marriage for the purposes of a civil proceeding, or for the purposes of the
administration or distribution of the effects of a person on the death of that person.
2. Where a person accused of bigamy puts up a defence on the grounds of a divorce from a former wife or
husband, that divorce, and no other shall be deemed sufficient as would be admitted by the Court as a valid
divorce from the bond of marriage.

Question

Question

SPOUSAL PROPERTY

Spousal property for purposes of distribution may be classified into family property, household goods, property
acquired before marriage and property acquired during marriage.

FAMILY PROPERTY

If a spouse adds substantial value to his or her spouse’s family property such a spouse does not become a joint
owner of the family property. He or she, on equitable bases may be entitled to his or her contribution upon
divorce.

HOUSEHOLD GOODS

PNDCL 111 defines household goods as goods that include jewellery, clothes, furniture and furnishings, television,
radiogram, any other electrical appliances, kitchen and laundry equipment, simple agricultural equipment, hunting
equipment, books, motor vehicles other than vehicles used wholly for commercial purposes and household
livestock. (United Simpson & Ayitey Co. v Jeffery)

PROPERTY ACQUIRED BEFORE MARRIAGE

Under Ghanaian law, property acquired before marriage continues to belong to the spouse who owned it before
the marriage. However, if during the course of the marriage the other spouse adds substantial value to the
property, the character of the property changes and the spouse who added substantial value acquires a beneficial
interest in it.

PROPERTY ACQUIRED DURING MARRIAGE

This area of the law has undergone a considerable development since the 1950s. The attitude of the courts then
was that whatever a husband acquired with or without assistance from his wife belonged solely to the husband.
(Quartey v Martey)

Similarly, the judge in (Benstil Enchill v Benstil Enchill) expressed the view that property acquired solely by a
spouse during marriage belonged to that spouse alone. (Mensah v Bekoe)

PRINCIPLE OF SUBSTANTIAL CONTRIBUTION AND ITS APPLICATION

If there was evidence of substantial contribution by the other spouse towards the acquisition of a particular
property, the courts hold that such a spouse would have acquired a beneficial interest in the property.

This meant that the other spouse acquired a beneficial interest only if there was evidence that he or she made a
contribution. The contribution had to be towards the acquisition of a particular property. It could be in cash or kind

It did not matter if a spouse could not produce receipts showing his or her contribution so far as such contribution
could be proved by some other means.

The courts have held in several cases that the ordinary incidents of commerce should not apply to ordinary
relations between a husband and wife. The following cases illustrate how the principle of substantial contribution
was applied

(Reindorf v Reindorf) (Abebrese v Kaah)(Anang v Tagoe) (Berchie Badu v Berchie Badu) (Domfe v Adu) (Yeboa v
Yeboa) (Achiampong v Achiampong)

SHARING JOINT PROPERTY UPON DIVORCE

The SC has stated in a number of cases that the equality is equity principle should apply in the distribution of
spousal property unless the equities of a particular case will render its application unfair. The application therefore
is that the principle of equal sharing will not be applied on a blanket basis but on a case by case basis. The SC in
(Boafo v Boafo) re-iterated the principles espoused in (Mensah v Mensah) that “The principle of equality is equity
is the preferred principle to be applied in the circumstances of a particular case unless the equities of the case
would demand otherwise.

In 2011 the SC in (Mensah v Mensah) stated that the sharing of spousal property should no longer be dependent
on the substantial contribution principle and that property acquired during marriage is the joint property even if
the other spouse did not make any contribution. On the issue of sharing, the court stated that joint property should
be shared 50/50 basis unless the equities of a particular case will make the application of the equality is equity
principle unfair. The court also held that if a wife takes care of the children of the household, prepares food for the
husband, does his laundry and takes care of the household, property acquired by the husband will be shared
equally upon divorce unless it will be inequitable to do so. The court in essence declared household chores usually
performed by women to be tantamount to substantial contribution. The appeal was dismissed as being without
merit. The court also found that the evidence on record showed that the petitioner had made a substantial
contribution towards the acquisition of the assets in question. The court Per Dotse JSC however went on to make
the following pronouncement “Thus even if this court had held that the petitioner had not made any substantial
contributions to the acquisition of the matrimonial properties, it would still have come to the same conclusions that
the petitioner is entitled to equal share in the properties so acquired during the subsistence of the marriage. This is
because this court recognizes the valuable contributions made by her in the marriage like the performance of
household chores and maintenance of the congenial domestic environment for the respondent to operate and
acquire properties. Besides the constitutional provisions in Article 22(3) of the 1992 Constitution, there must be
construed to achieve the desired results which the framers of the constitution intended”.

The case of (Quartson v Quartson) followed the heels of Mensah v Mensah. In this case the SC again affirmed the
principle relating to joint property but refused to apply the equality is equity principle. The court was of the view
that on the facts of the case it would be inappropriate to apply the principle. (Remember the Mensah v Mensah
case said it should be on a case by case basis).

The SC reiterated the current principles regarding marital property in the case of (Arthur v Arthur, unreported). The
court ruled as follows “in view of the fact that the respondent purchased a house for the petitioner and contributed
to the purchase of a house for the petitioner’s mother, he should be entitled to the matrimonial home where he
currently resides and hair dressing salon in the house. The court rules that the petitioner be given half share of the
storey building and the equipment and appliances in the second salon”.

At the SC the court referred to its decision in Mensah v Mensah and reiterated that it is no longer essential for a
spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired
during the subsistence of the marriage. The court went further to explain that certain properties could be excluded
and would therefore not be subject to sharing. Thus, property acquired by gift, for e.g. should be excluded from the
concept of marital property. The court also alluded to the fact that other exceptions may need to be carved out of
the broad definition given to marital property. On the issue of sharing it again referred to Article 22(3) (a) and (b), a
number of foreign cases and the UDHR, Article 16(1). It then stated that there is a presumption in Ghanaian in
favour of the sharing of marital property on an equal basis in all appropriate cases between spouses after divorce.
The implication is clear that there are special circumstances justifying a departure for equal sharing; the court
should share the marital property in such proportions as may be fair.

But then the SC in the case of (Fynn v Fynn & Osei) departed from its own decisions in Mensah v Mensah,
Quartson v Quartson and Arthur v Arthur by stating that spouses can acquire individual property during the
existence of a marriage. In Fynn v Fynn, the SC stated that “we do not think this courts thinking on the status of
property acquired during the existence of any marriage is shrouded in any confusion. But the decided cases
envisage situations where within the union parties may still acquire property in their individual capacities as indeed
is their guaranteed fundamental right as clearly enshrined under Article 18 of the Constitution, in which case they
would also have the legal capacity to validly dispose of same by way of sale, for e.g. as happened in the case”.

The above statement seems to contradict the decisions in the cases of Mensah v Mensah, Quartson v Quartson and
Arthur v Arthur that property acquired during the existence of a marriage is joint property. Clearly the decision in
Mensah v Mensah establishes that property acquired during marriage is joint property while the decision in Fynn v
Fynn establishes that spouses can acquire individual property during marriage. The question then arises as to
whether the SC intended to overrule the principle in Mensah v Mensah with the decision in Fynn v Fynn.

It is submitted that the decision in Mensah v Mensah still stands – that property acquired by either spouse is joint
property. It is hoped that the SC will have the opportunity in the foreseeable future to clear the ambiguity and
confusion that Fynn v Fynn has created. Parliament in the meantime should respectfully find it prudent to pass the
necessary legislation to clarify the position once and for all.

FACTORS TO BE CONSIDERED IN THE DETERMINATION OF WHAT IS FAIR

Several factors may be taken into consideration. These factors may include L A R S A F

a. Length of the marriage

b. Ability of each spouse to earn an income,
c. Respective contributions of the parties.
d. Standard of living enjoyed by the parties before the breakdown of the marriage
e. Age of each party to the marriage
f. Financial resources which each of the parties has or is likely to have in the foreseeable future

Some of these factors were outlined in (Obeng v Obeng). The court reiterated that what is just and equitable may
be determined by considering the factors

THE LAW REGARDING PROPERTY SETTLEMENT

Section 20 of the MCA has conferred on the courts the power to order either party to a marriage to pay to the
other party a sum of money or convey to the other party moveable property as settlement of property rights or in
lieu thereof or as part of financial provision that the court thinks just and equitable. This settlement may be
ordered in addition to what a spouse receives upon the sharing of a joint property. The courts also have the power
to order payments to be made in gross or by installments. In (Ribeiro v Ribeiro) Sections 20 and 26 of the MCA
came up for discussion and the principles relating to settlement of property were clearly reiterated. (Oparebea v
Mensah) (Aikins v Aikins)(Berchie-Badu v Berchie-Badu)

A court cannot suo moto, make orders in favour of a party when the party has not pleaded them either in a
petition, a cross-petition or even through a witness statement. (Amponsah v Nyamaah)

The court has the power to order transfer of property to the wife not because it belonged to the wife or that she
was part owner or that she contributed in any way to its acquisition but as part of a package of financial provision
which the court considered the wife to be entitled to. The transfer is not for the purpose of giving the wife
residential accommodation in the matrimonial home or in any home at all, neither is it contingent upon any title or
claim by the wife.

The court must not be pushed in every case to work out awards with mathematical precision. It will be dangerous
to place such a burden on any court. A court should be able to make an award using its best endeavours. The
award, if it is made partly in immovable property, that property need not be a residential property; it may be a
farm, a building plot, a ware house or a factory. Section 20(1) does not impose any limitation

The court has the discretion to make the award wholly in money or partly in money or partly in non-money terms
that is partly moveable and partly immovable. It is a complete misconception to maintain that a conveyance
ordered under Section 20 would be caught by the Act and cease to have effect if the wife remarried or on the
death of either herself or the husband.

The MCA also empowers the courts to do the following

● If a marriage has been dissolved or annulled, the court if satisfied that one of the parties holds title to movable
or immovable property, part or all of which rightfully belongs to the other spouse, the court has the power to
order transfer or conveyance of the interest to the party entitled to it on terms that the court thinks just and
equitable, Section 21(1).(Mrs Theresa Owuo v Francis Owuo)
● Where the court orders transfer or conveyance of movable or immovable property and the party ordered to do
so is unwilling or unable to do so, the court may order the registrar to execute the appropriate transfer or
conveyance, Section 21(2).
● The court may suo moto or on application make an order concerning a child of the household which it thinks
reasonable and for the benefit of the child, Section 22(2).
● Where the court has reason to believe that a party ordered to make payment or payments may be unwilling or
unlikely to pay, the court may order that party to give reasonable security for any payments ordered, Section
23.
● At any time after the commencement of proceedings, the court may require either of the parties to pay to the
other party the sum or sums of money that is or are reasonable to enable the party to maintain or defend the
suit, Section 24. (Erskine v Erskine)
● The court has the power to restrain either party to a marriage from leaving the jurisdiction until the court is
satisfied that the party has made adequate provision to satisfy an award that the court made or may make,
Section 25(1)(a).
● The court has the power to restrain a person from removing a child of the household from the jurisdiction,
Section 25(1)(b)
● The court has the power to restrain a party to a marriage from imposing a restraint on the personal liberty of,
or from harming or interfering with the other party to the marriage or a child of the household for as long as it
thinks necessary, Section 25(1)(c).
● The court has the power to also order a person to return a child to the jurisdiction, Section 25(2).
● Section 26 seeks to protect property that could become the subject of settlement while a suit is pending. The
fact that the husband had several houses does not mean that he could take the liberty to dispose of all except
three out of which the court could make a choice. That will be giving the husband the right to limit the
freedom of choice of the court. It is tantamount, in a way, to yielding the choice to the husband. It would seem
that as soon as a petition for divorce is filed, the husband should not dispose of his properties without
reference to the court if he is to escape the charge of attempting to defeat orders for financial provision or
property settlement under Section 26(1). (Ribiero v Ribiero)
● The court may from time to time rescind or vary an order in respect of maintenance pending suit and financial
provision or the care, custody and support of a child as it thinks fit, Section 27(1).
● An order of financial provision shall not be made if the divorce or nullity decree contains express waiver of
financial provision or where money ordered to be paid or property ordered to be settled has been settled or
the decree does not allow an application for financial provision in the future, Section 27(2).
● An order for care, custody or support of a child shall automatically terminate when the child reaches the age of
21 unless the order provides otherwise with a view to making reasonable provision for the further education
of the child or for the care, custody or support of the child who is so incapacitated that he/she cannot be
expected to care for herself or himself, Section 29. (Benjamin Mensah v Margaret Mensah)

THE DOCTRINE OF PRESUMPTION OF ADVANCEMENT AND ITS APPLICATION TO GHANAIAN FAMILY

LAW

The presumption of advancement arises where a person who purchases property has an equitable obligation to
support the person to whom the property is conveyed.

This presumption of advancement is applicable to Ghanaian family law. When a husband buys property or business
and registers it in the name of the wife or child, a presumption arises that he has given the property or business to
the wife or child as an outright gift. This may be explained on the principle that there is a duty on a husband and
father to provide for his wife and children. The presumption, that the property or business was given as an outright
gift is rebuttable. Thus evidence may be brought to show that the property or business was not given as a gift. An
intention to give the property to the wife or child as a gift must be clear and unequivocal from the circumstances
existing at the time the gift was made because the husband could have registered the property or the business in
the name of the wife for other reasons. The onus is on the person disputing that the property was given as a gift to
prove that the property was not a gift. The rebuttable evidence must be strong and contemporaneous. This will
include evidence of statements on the part of a father indicating that he never really intended to advance the
property to the child. The statements must have been made before or at the time the gift was made. Subsequent
declarations or acts will not be enough to discharge the burden and they will only be admissible as evidence
against the party who did or made them.

(Ramia v Ramia)(In re Sasu Twum; Sasu Twum v Sasu)

The above principles were re-iterated and applied in the unreported case of (Richards v Nkrumah)

The presumption however does not apply in cases where the property or business is registered in the name of a
stranger. Here the stranger will be taken to be holding the property or business in trust for the purchaser.

The onus here is on the person i.e. the stranger in whose name the property is registered to prove that the
property was given to him or her as a gift. If the burden is not discharged the court will hold that there is a resulting
trust in favour of the person who paid for the property or business

The presumption of advancement does not arise if a wife registers property bought with her own money in the
name of her husband. The husband will be regarded as a trustee for the wife. Here too, the presumption is
rebuttable. The onus is on the husband to adduce oral evidence showing it was a gift from the wife to him.
(Mercier v Mercier) (Heseltine v Heseltine)

NB: it may be concluded that in view of the decision in Mensah v Mensah, property acquired during marriage is
joint property, a spouse may not advance such property to his or her child without the consent of the other spouse.

CUSTODY OF CHILDREN

The law imposes a duty on the courts during divorce proceedings in respect of custody of children. (Benstill-Enchill
v Benstill-Enchill)

All matters relating to children are governed by the Children’s Act, Act 560 of 1998 and the Court’s Act 1993, Act
459. Section 22 of the MCA imposes a duty on the court, during divorce proceedings to inquire from the parties
whether there are any children of the household.
SECTION 22 OF MCA – Custody and Financial provision for Children

1. It shall be the duty of the court to inquire whether there are any children of the household.
2. The courts may suo moto or on application by a party to any proceedings under this Act, make any order
concerning any child of the household which it thinks reasonable and for the benefit of the child.
3. An order under that section may— A R P
a. Award custody of the child to any person
b. Regulate the right of access of any person to the child
c. Provide for the education and maintenance of the child out of the property or income of either or both of
the parties to the marriage

The Courts Act further empowers Family Tribunals to deal with matters relating to C A P

a. Custody of children
b. Access to and maintenance of children
c. Parentage of Children

In any application regarding the custody of a child, the paramount consideration is the welfare of the child. It is the
duty of the courts to protect a child irrespective of the wishes of the parents.

PRINCIPLES APPLIED BY THE COURTS ON ISSUES RELATING TO CUSTODY OF CHILDREN

The following principles are applied by the courts to ensure that the welfare and interest of the children remain
supreme.

The mother is usually given custody of children who are young or those who may be in need of special care.
Poverty alone is not a reason for depriving a mother of the custody of her child. Custody may be refused only if the
mother’s character has been impeached. In (Braun v Mallet) the court took into consideration the inability of the
defendant father to satisfy the court that he could offer, in the foreseeable future a home where the happiness and
mental stability of the young Thomas could be assured. The court took the view that as the natural father, the
defendant had no right, merely by virtue of fatherhood to claim custody. The court emphasized that “The natural
right of the mother of a young child to its custody and the fact that the mother of an illegitimate child had a prima
facie right to its custody in preference to the reputed father or any other person and, the fact that Thomas and the
mother needed each other. The affection of a mother for her child must be taken into consideration and poverty per
se was no reason for depriving a mother of custody when her character had in no way been impeached”. The court
added that “In the circumstances and regardless of the domicile of the parties, it will be contrary to natural justice,
equity and good conscience to deprive the plaintiff of the custody of her son”. The court then ordered the defendant
to return the boy to the plaintiff forthwith.
In (Happee v Happee) the court had this to say on the issue of custody, “There was evidence that the child of the
marriage was aged 19 and was pursuing studies at a secondary school with the possibility of continuing her
education at a university. Consequently, nothing should be done to thwart the chances of the child to pursue further
education or training. Though the petitioner was a non-Ghanaian, there was evidence that he was responsible for
the child’s behaviour and maintenance and that the behaviour of the respondent was as uncontrollable and
dreadful as to be likely to be detrimental to the wellbeing of the child. In the circumstances and in all probability, the
welfare and well-being of the child would be better served if custody was granted to the petitioner, but if at any
time, the child expressed her desire to visit her mother, she must be given every facility by her father to do so”.

(Beckley v Beckley)

The courts will look at the whole background of the infant’s life and all the circumstances of the case before making
a decision in respect of any child. The court is further mandated to order a child to be returned to the jurisdiction,
Section 25(2) of MCA.

An order for custody of child may be made even if the child is outside the jurisdiction. (Ofori v Ofori)

The custody order may be awarded to any person, regulate the right of access of any person to the child and
provide for the education and maintenance of the child out of property or income of either party or both parties to
the marriage. An order of custody may be made when the child is already out of the jurisdiction. Under Section
25(2), the court may order any person to return a child to the jurisdiction. The courts will not split children when it
will be desirable in the circumstances to keep them together. (Opoku-Owusu v Opoku-Owusu)

Where a child is deeply rooted in a foreign environment, the court will order that the parent who lives in the
foreign environment should have custody especially if there is evidence that the child will be better off in the
foreign land, (Attu v Attu).

In (Re-Dankwa) the custody of a child was given to the father even though the child was of a tender age. The court
was of the view that even though the child was snatched from the mother at the age of two, the child had stayed
with the father for so long that it will not be in her interest and welfare to be removed. Ollennu J stated as follows
“At common law, a father is the national guardian of his infant child and has a right to its custody. That legal right
of the father exists even against the mother. It is only in very special cases for example, where the father by his own
act or conduct proved himself unsuitable or where the interest and welfare of the child so require that the father
would be deprived of custody. But it has been held that other things being equal, it is proper that a child of tender
years should be with the mother”.

Section 45(1) of the Children’s Act also provides that in applications for custody, the family tribunal consider the
following
● That it is preferable for a child to be with its parents except where his rights are persistently being abused by
his parents
● The Independent views of the child
● That it is desirable to keep siblings together
● The need for continuity in the care and control of the child
● Any other matters that the family tribunal may consider relevant

No person shall unlawfully remove a child from another person who has the lawful custody of the child, Section 46.

ADOPTION

The laws of Ghana recognise two types of adoption, Customary Law Adoption and Adoption under the Children’s
Act 1998 (Act 560)

CUSTOMARY LAW ADOPTION AND REQUIREMENTS

The requirements for adoption under customary law were stated in the case of (Tanor v Akosua Koko) as follows

a. The consent of the child’s parents; The consent may be express or may be implied from prevailing
circumstances at the time the adoption took place
b. The expression of the adopter’s intent to adopt the child; The intention must be clear and publicly expressed
c. Adoption before witnesses

Other such things such as slaughtering of a sheep, the consumption of liquor, the pouring of libation and the
placing of the adopted child on a family ladder were unessential frills and an adoption otherwise could not be
invalidated by failure to perform these frills.

In (Plange v Plange) the decision was same as the Tanor Case but other things were added

a. That consent can be inferred from their express words or conduct

b. That an adopted child acquires the status of the child of a marriage and enjoys the same bundle of rights
including the rights of inheritance, duties, privileges and obligations as the natural child
c. The rights and liabilities of the natural parents of the adoptee become permanently extinguished and devolve
on the adopting parents.

These principles were reiterated in the case of (Agbeko v Kudzordzie) –look at the case for the requirements

Unborn children can be adopted but only under customary law, (Quashie v Boahema)

STATUTORY ADOPTION (ACT 560) AS AMENDED

Adoption under the Children’s Act is different from adoption under customary law in several ways. The salient
features are discussed below. Under the Children’s Act, an unborn cannot be adopted.

Sections 65 to 86 of the Children’s Act (as amended) deal with Adoption

An application may be made to the HC in whose jurisdiction the child to be adopted resides at the time of the
application. The old position was that the CC and Family Tribunal had concurrent jurisdiction with the HC, however,
Section 86ZG of The Children’ (Amendment) Act, 2016 (Act 937) now vests the HC with exclusive jurisdiction in
adoption applications.

An application to adopt may be made by the following categories of persons

● By a husband and wife jointly

● By the father or mother alone or jointly with a spouse. If the mother or the father has re-married, then a joint
application may be made
● By a single person who is 25 years and is at least 21 years older than the child
● A relative who is 21 years
● A male applicant will normally be granted an order in respect of his son

Only a minor i.e. a child under the age of 18 years may be adopted.

MAIN CONDITIONS OF ADOPTION

1. The child must have been in the care of the applicant for at least 3 consecutive months before the order is
made.
2. The adopter and adoptee must be resident in Ghana unless the adopter is living overseas and Notice has been
given to the Social Welfare Department 3 months before the order.
3. Consent must be established in adoption proceedings and they of two types namely, spousal consent and
parental consent.
If the applicant is married and the application is not a joint-application by the couple, consent must be
obtained from the other spouse. The second type of consent is consent from the parent or guardian of the
child. An adoption order shall not be made unless the court is satisfied that consent of the parent or guardian
of the prospective adoptee has been obtained. The parent or guardian should understand the effects of
adoption, that the adoption will be tantamount to a permanent deprivation of parental rights. The consent
must be freely and willingly given.

The court may dispense with the consent of a parent or a guardian in the following situations
 ● Where the parent or guardian has persistently and without just cause refused to maintain and care for the
child. The failure must be serious and there must be evidence showing that the child will not derive any
benefit from contact with the parent or guardian
● Where it is proved that the ill-treatment of the child by the parent or guardian will continue if the child
was not taken away.
● Where a parent or guardian is unreasonably withholding consent, the courts will dispense with it. The
question to ask is whether a reasonable parent will refuse to give consent when it is clear that the child
will be protected and will be given a secure and stable future by the adoptive parent. If the answer is no,
the court will hold that consent is being unreasonably withheld and dispense with it.
● Consent may be given without knowledge of the identity of the applicant
If consent is withdrawn after it has been given and the reason is that the parent did not know of the
identity of the applicant, the consent will be considered as being unreasonably withheld, (Re W 1971 2
ALL ER 49)
● Where a parent cannot be found or is incapable of giving consent, parental consent will be dispensed
with.
4. In appropriate instances, the consent of a child who is 14 years and above may be sought
5. Consent of other persons with any rights or obligations in respect of the child under an agreement, court order
or under customary law may be required by the court.

When the court is satisfied that all the above conditions have been met, the adoption order will be made.

An adoption Order is final. It extinguishes the rights, obligations and duties of the natural parent or guardian. The
rights become fully and completely vested in the adoptive parent.

If the deceased made a will before the adoption and the adoptee is excluded, the adoptee may apply to the court
for a variation of the terms of the will so that he/she can become a beneficiary if the adoptee is still a minor.

An adoptee is not entitled to inherit from his natural parents. Double inheritance is prohibited. However, the
natural parents of the adoptee may bequeath property to an adoptee.

Double Adoption is allowed. A child may be adopted more than once. The second adoption extinguishes the rights,
obligations and duties of the previous chapter. They become vested in the new adoptive parents.

The fact of adoption shall not be disclosed to an adoptee unless it is in the best interest of the adoptee and he or
she is above the age of 18.

INTERIM ORDER – SECTION 71 OF ACT 560

A court may decide to give the custody of a child to a prospective adopter on probationary basis. The order that is
made is referred to as an interim order.

The purpose of the grant of an interim order is to ensure that the child is adopted by the right person and that the
child’s safety, maintenance and upbringing are not compromised.

The probation period may not exceed two years. The probation may also be subject to such conditions that the
court may deem fit. For e.g. a probation officer may be asked to visit the child periodically to check on the
treatment and maintenance of the child by the prospective adoptive parent.

Interim orders are mandatory in applications where the applicant is not a citizen of Ghana or where one of the
applicants in a joint application is a foreign citizen.

A child in respect on whom an interim order has been made shall not be taken out of the jurisdiction except with
the consent of the court. If after two years the court is satisfied that it will be in the best interest of the child to be
adopted, a final adoption order will be made.

An adopted child can be taken out of the jurisdiction but permission must be sought from the Social Welfare
Department before an adopted child is taken out of the country permanently.

INTER COUNTRY ADOPTION

Inter-country adoption may be granted if it is in the best interest of the child. Inter-country adoption means the
adoption of a child by a person who is not a citizen of Ghana and who resides outside Ghana. This involves the
removal of the adopted child from the jurisdiction.

Non-Ghanaians may be adopted and if the child is less than 16 years he automatically becomes a citizen of Ghana.
If the child is above 16 years of age, an application must be made to the Ministry of Interior.

Money shall not exchange hands in any adoption proceedings except ordered by the court.

Contraventions of any of the provisions relating to adoption could result in criminal charges being brought against
the culprit.

PROCEDURE FOR ADOPTION

The procedure is regulated by the Adoption Rules, 2003 (CI 42). The application is by Originating Summons (Order
54 Rule 54). The applicant must complete a form obtainable from the District Court Registry or the Social Welfare
Department. The director of social welfare may join the respondents to the application.
All applicants must complete a form supported by an affidavit. The Director of Social Welfare must also complete a
form supported by an affidavit. If it is a joint application by a husband and wife, then one affidavit may be sworn to
by both of them.

The affidavit may contain information including the following

● That the applicants are Ghanaians

● That they are married under customary law or under Mohammedan Law or under the Marriages Act, CAP 127
● The place and date of the marriage should be stated
● That a photocopy of the Marriage Certificate is attached
● The ages of the applicants must be stated
● Children if any must be mentioned
● The names of the parents and the age of the child to be adopted must be stated
● The reason for the adoption i.e. that the mother or parents are destitute
● That the applicant has been interviewed, together with all the parties whose consent for the adoption of the
minor is required.
● That the parents or parent of the child have consented to the adoption and a copy of the consent is hereby
attached
● That a copy of the birth certificate of the minor is attached
● That copies of the medical reports on both the minor and the applicants are attached
● That there is no other adoption application in respect of the minor

The civil procedure rules of the district court are applicable to all adoption. Adoption proceedings are held in
camera and the persons allowed at the hearing include the category of persons stated under CI 42 Rule 2(3).

MARRIAGE OF MOHAMMEDANS

MOM is governed by the Marriage of Mohammedans Ordinance CAP 129, now part two of the Marriages Act
1884-1895.

MOM is defined by Asaf Fyzee, outlines of Mohammedan Law (4th edition) page 90, as follows: 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.

ESSENTIALS OF MARRIAGE

The essentials of Mohammedan marriage are set out as follows in Mulla Principles of Mohamedan Law: “It is
essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to
the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two
male or one male and two female witnesses who must be sane and adult Mohamedan. The proposal and
acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at
another meeting does not constitute a valid marriage. Neither writing nor any religious ceremony is essential”

According to Fyzee every Muslim of sound mind who has attained majority can enter into a contract of marriage.
Majority is attained at puberty. The presumption is that a person attains majority at 15. A marriage entered into by
a girl while she has not attained puberty is null and void. If a Muslim minor has been married during minority by a
guardian, the minor has the right on attaining majority to repudiate such marriage.

According to Fyzee, there are 7 limitations affecting the capacity of a Muslim to marry any person of the opposite
sex. The prohibitions may be on the grounds of

1. Number; A Muslim man may marry any number of wives not exceeding four but a Muslim woman can only
marry one husband. If a Muslim man marries a 5th wife, such a marriage is not void but irregular. If the woman
marries a 2nd husband, children produced are illegitimate and cannot in any way be legitimized.
2. Religion; Muslims belonging to dif. Schools may intermarry and such dif. Is immaterial (Shiite, Sunnite, Hannafi
or Shafii). Each person can still maintain his or her school.
It is stated in the Mulla Principles of Mahomedan Law that
a. A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a
Kitabia (Kitabi is a male and Kitabia is a female who believes in Christianity or Judaism) i.e. a Jewess or a
Christian but not with an idolatress or a fire worshipper. A marriage however with an idolatress or a fire
worshipper is not void but merely irregular.
b. A Mahomedan woman cannot contract a valid marriage except with a Mahomedan. She cannot contract a
valid marriage even with a Kitabi. A marriage, however, with a non-Muslim, whether he is Kitabi is
irregular not void.
3. Relationship (consanguinity or affinity); A marriage with a woman prohibited by reason of blood relationship
is void and the issue illegitimate. A man is prohibited also from marrying relations by affinity i.e. ascendants or
descendants of his wife and the wife of any ascendant or descendant. An exception is that a man may marry
the descendant of a wife with whom the marriage has not been consummated. Any such marriage is void.
4. Fosterage; a marriage forbidden by reason of fosterage is void
5. Unlawful Conjunction; a man is forbidden to have two wives at the same time who are so related to each
other by consanguinity, affinity or fosterage, that they could not have lawfully intermarried with each other if
they had been of different sexes. Thus a man cannot marry two sisters or an aunt or her niece.
6. Idda (or Iddat); According to Mulla Principles of Mahomedan Law, a marriage with a woman before the
completion of her Iddat is irregular, not void. The children of such marriage are legitimate. The issues of such
marriage are legitimate. Iddat – period of seclusion incumbent upon a woman who has just divorced or lost
the husband to abstain from marrying another husband to ascertain whether she is pregnant so as to avoid
 confusion of the parentage. If there was no consummation, there is no Iddat and she is free to marry
immediately.
7. Miscellaneous Prohibitions
a. Doctrine of equality; the husband must be equal to the woman in social status.
b. Illicit intercourse and Undue Familiarity
c. Pilgrimage; a man who has entered the sacred precincts of the Ka’ba and put on the pilgrim’s dress, may
not enter into a contract marriage while on the pilgrimage.

IRREGULAR MARRIAGE

An irregular marriage is a marriage that remains valid until it has been set aside. If the marriage is not set aside
during the life time of any of the parties, the irregularity will not affect the status of the surviving spouse.

● A marriage with a woman who has not completed her period of Iddat is irregular not void. Children of such
marriages are legitimate. Iddat is the period during which it is incumbent upon a woman whose marriage has
been dissolved by divorce or death, to remain in seclusion and to refrain from marrying another man. The
abstinence is imposed to ascertain whether she is pregnant by the husband so as to avoid confusion of
parentage.
● If a Muslim man marries a 5th wife, such a marriage is not void but irregular.
● A marriage by a Mohamedan man with an idolatress or a fire worshipper is not void but merely irregular.
● A marriage of a Mohamedan woman with a non-Muslim, whether he is Kitabi is irregular not void.

DOWER

Fyzee describes “Dower” as a sum of money or other property promised by the husband to be paid or delivered to
the wife in consideration of the marriage and even where no dower is expressly fixed or mentioned at the marriage
ceremony, the law confers the right of dower on the wife.

The learned authors of Mulla Principles of Mahomedan Law state that any amount may be settled by the husband
on his wife by way of dower, even though it may be beyond his means, and though nothing may be left to his heirs
after payment of the amount. Where a claim is made under a contract of dower, a court shall, unless it otherwise
provided by any legislative enactment, award the entire sum provided in the contract.

The amount of dower may be fixed either before or at the time or after marriage, and can be increased after
marriage. A father may make a contract of dower on behalf of his son who is a minor (a minor is one who has not
yet attained puberty i.e. 15 years).

If the amount of dower is not fixed, a court is entitled to fix a dower which is fair and just. Such a dower is called
“proper” dower. It will be fixed even if the marriage was contracted on the express condition that the wife should
not claim any dower. In determining what a dower, regard must be had to the amount of dower settled upon other
female members of her father’s family such as her father’s sisters. (Hamira Bibi v Zubaida Bibi)

The amount of dower is usually split, into two parts, one called “prompt” and the other “deferred”. The prompt
portion may be realised by the wife at any time before or after consummation. Dower which is not paid at once
may for that reason be described as deferred dower but if it is postponed until demanded by the wife, it is in law
prompt dower. But deferred dower does not become prompt merely because the wife demands it.

If the dower is not paid, the wife, and after her death her heirs, may sue for it

The wife may refuse to live with her husband and to admit him to sexual intercourse so long as prompt dower is
not paid. If the husband sues her for restitution of conjugal rights before sexual intercourse takes place,
non-payment of the dower is a complete defence to the suit and the suit will be dismissed. If the suit is brought
after sexual intercourse has taken place with her free consent, the proper decree to pass is not a decree of
dismissal but a decree of restitution conditional on payment of prompt dower.

The heirs of a deceased Mohammedan are not personally liable for the dower debt. Each heir is liable for the debt
to the extent only of a share of the debt proportionate to the share of the estate.

The dower ranks as an unsecured debt and the widow is entitled, along with other creditors of her deceased
husband, to have it satisfied on his death out of his estate.

REGISTRATION OF MOHAMMEDAN MARRIAGES

The registration of Mohammedan Marriages and Divorces are governed by Part Two of Marriages Act, 1884 – 1985
(CAP 127).

SECTION 20 – REGISTRARS

1. The DCE of each district is the registrar of Mohammedan marriages and divorces for that district
2. The DCE shall keep the Mohammedan marriage and divorces register which shall contain the entries and shall
have the counterfoil certificates attached as provided for under this part.

SECTION 21 – LICENSING OF MOHAMMEDAN PRIESTS

1. The minister of interior may grant a license to a Mohammedan priest applying for the license, who in the
opinion of the Minister, is a fit and proper person to perform the functions imposed by this part on licensed
priests
2. The minister of interior may at any time revoke or suspend that license.
SECTION 22 – LIST OF LICENSED PRIESTS

A list of Mohammedan priests who have been licensed under this part during the quarters ending 31st Day of
March, 30th Day of Sept and 31st Day of December in every year or whose licenses have been revoked or
suspended during any of those quarters shall be published in the gazette.

SECTION 23 – REGISTRATION OF MOHAMMEDAN MARRIAGES

Mohammedan marriages celebrated after the commencement of this part shall be registered in the manner
provided by Section 24.

SECTION 24 – METHOD OF REGISTRATION

1. 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 DCE for the purpose of registering the marriage
2. The marriage shall be entered in the register and in the duplicate certificate in the Form B set out in the 4th
schedule.
3. The licensed priest shall first enter in the second column of the register and of the attached certificates the
particulars specified in the first column.
4. Where the entries in the second column of the register are made in a language other than English, an English
translation made by a person duly sworn to interpret that language shall then be inserted in the third column
of the register and of the certificates.
5. The register and the certificates shall then be signed by the bridegroom, the brides’ wali, and the two
witnesses who have attended for that purpose.
6. The licensed priest shall then sign in the register and in both the marriage certificates, a certificate that the
marriage is valid according to Mohammedan law.
7. The sworn interpreter shall then sign in the register and the marriage certificates the certificate of the
correctness of the English translation.
8. The register and the certificates shall be completed by the signature of the district chief executive who shall
insert the date and place of registration.
9. The certificates shall then be detached from the register, and one shall be given to the bridegroom and the
other to the bride’s wali.
10. A Justice of the High Court, may on an ex parte application by the bridegroom or the bride’s wali, issue a
certificate signed personally by the Justice to dispense with the signature of any person, other than a licensed
priest,
a. Where the period of one week limited by subsection (1) has lapsed before the registration of a marriage
which should have been so registered, or
 b. Where it has been impossible or impracticable to obtain the attendance of a person, other than a licensed
priest, whose signature of the register is required.
11. The ex parte application shall be supported by an affidavit stating the reason for the delay or non-attendance.

In the case of (Re Registration of Marriage between Byrouthy and Akyere; Ex Parte Ali) an ex parte application
was made to register an Islamic marriage 34 years after it was celebrated and after the death of the bridegroom.
The application was refused and Koranteng-Addow J stated as follows “The essence is not the fact of the ceremony
but the registration that gives the marriage validity. Therefore, the marriage between Abena Akyere and
Mohammed Sadallah Byrouthly was invalid according to Islamic Law and it must be so declared. It cannot be
validated. To grant this application and issue a certificate would amount to validating a marriage which is invalid.

In the case of (Jabeille v Ashka) a validly solemnized Muslim marriage was declared null and void because it was
not registered within 7 days of its celebration.

(Barake v Barake)

SECTION 25 – DIVORCES TO BE REGISTERED

A Mohammedan divorce effected after the commencement of this Part shall be registered in the manner provided
by section 26.

SECTION 26 – METHOD OF REGISTRATION

1. The man, the woman’s wali, and two witnesses to the divorce having been effected, and a Mohammedan
priest licensed under section 21 shall, within one month of the divorce having been effected, attend at the
office of the district chief executive for the purpose of registering the divorce.
2. The divorce shall be entered in the register and in the duplicate certificates in the Form C set out in the Fourth
Schedule.
3. The licensed priest shall first enter in the second column of the register and of the attached certificates the
particulars specified in the first column.
4. Where the entries in the second column of the register are made in a language other than English, and English
translation made by a person duly sworn to interpret that language shall then be inserted in the third column
of the register and of the certificates.
5. The register and the certificates shall then be signed by the man, the woman’s wali, and two witnesses to the
divorce who have attended for that purpose.
6. The licensed priest shall then sign in the register and in both the divorce certificates a certificate that the
divorce is valid according to Mohammedan law.
7. The sworn interpreter shall then sign in the register and the divorce certificates the certificate of the
correctness of the English translation.
8. The register and the certificates shall be completed by the signature of the district chief executive who shall
insert the date and place of registration.
9. The certificates shall then be detached from the register, and one shall be given to the man and the other to
the woman’s wali.
10. A Justice of the High Court may, on an ex parte application by the man or woman’s wali, issue a certificate
signed personally by the Justice authorising the district chief executive to register the divorce at any time
within one month from the date of the certificate, and on the registration to dispense with the signature of a
person, other than a licensed priest
a. where a period of one month limited by subsection (1) has elapsed before the registration of a divorce
which should have been so registered, or
b. Where it has been impossible or impracticable to obtain the attendance of a person, other than a
licensed priest whose signature of the register is required.
11. The ex parte application shall be supported by an affidavit stating the reason for the delay or non-attendance.

EFFECT OF PROOF OF REGISTRATION

SECTION 27 – MARRIAGES AND DIVORCES NOT VALID UNLESS REGISTERED

1. A marriage contracted or divorce effected after the commencement of this Part by persons professing the
Mohammedan faith is not valid unless registered under this Part.
2. A marriage or divorce under this Part when the marriage or divorce is in issue, shall be proved by the
production of the register in which the marriage or divorce is entered, or of an extract from the register
certified and signed personally by the district chief executive or of the certificate of the marriage or divorce.

Cases that deal with the effect of non-registration of Mohammedan Marriage were based on Section 9 of
Mohammedan Ordinance, CAP 129. The provisions of that section were almost the same as the provision of
Section 27 of the Marriages Act. Those cases are accordingly relevant today

(Kwakye v Tuba) Haruna v Haruna)(Ramia v Ramia)

SECTION 28 – SUCCESSION BY MOHAMMEDAN LAW

On the death of a Mohammedan whose marriage has been duly registered under this Part the succession to the
property of that Mohammedan shall be regulated by Mohammedan law.

NB: it does not seem that this section would be applicable if the deceased were to die testate. It is accordingly
suggested that wherever it becomes convenient to amend the law, the word “property” should be deleted and the
words “intestate property” substituted.
SECTION 29 – SEARCHES

A district chief executive shall allow searches to be made at a reasonable time in a register in the custody of the
district chief executive and shall on request give certified copies of or extracts from entries in English in the register.

GROUNDS FOR DISSOLUTION OF A MOHAMMEDAN MARRIAGE

According to Mustapha Ibrahim of the Islamic Book Development and Translation Council of Ghana, a wife may
divorce a husband on any of the following grounds

● Where the husband has disappeared for more than 4 years

● Where the husband has failed to maintain the wife
● Where the husband is suffering from insanity, leprosy or venereal disease

A husband may divorce a wife where she is suffering from

● Insanity
● Leprosy
● Disease of the genital organs

PROCEDURE FOR THE DISSOLUTION OF MOHAMMEDAN MARRIAGE

A Muslim marriage may be dissolved in any of the following ways according to Mullah Principles of Mohammedan
Law.

a. The parties may apply to court for the marriage to be dissolved.

b. The husband may at will pronounce the word “talak” or “I divorce thee” and if the words are express and well
understood as implying divorce, the marriage comes to an end.
c. The parties may agree to bring the marriage to an end.
d. The MCA, Section 41 allows a party to a marriage other than a monogamous marriage to avail himself/herself
of the provisions of Act 367.