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DISSOLUTION OF MARRIAGE: PROBLEMS AND PROSPECTS TAKING INTO CONSIDERATION MARRIAGE ACT (CAP 127) PART 1
Written by:
Akwasi Boakye, LLB
Introduction
By virtue of colonization, English statutes on some specific subject matters were applicable in Ghana until otherwise provided for in an Act of Parliament. Therefore, the Matrimonial Causes Act of England, such as the Matrimonial Causes Acts of 1857 and 1950, had the force of law in Ghana until 1971 when the Matrimonial Causes Act, 1971 (Act 367) was promulgated.
These statutes distinguished between separation and divorce as divorce a mensa et thoro[1], and divorce a vinculo[2] respectively, which were created by the ecclesiastical courts. Even though the Matrimonial Causes Act, 1857 abolished the jurisdiction of the ecclesiastical courts over divorce petitions and vested it in the civil courts, the Act maintained divorce a mensa et thoro as a decree the court could make.[3]
In essence, the Courts of Ghana had jurisdiction to pronounce a decree for judicial separation pursuant to the English statute.[4] Divorce a mensa et thoro signifies that, though separated, the couple are still in the eyes of the law husband and wife and therefore cannot remarry.[5] Thus, it is a legal process by which parties to a marriage seek a court order to separate from each other without dissolving the marriage. This is referred to as Judicial Separation[6].
The grounds on which an order of judicial separation can be obtained are the same as the five facts that need to be proved to obtain a dissolution of marriage, namely: adultery by the respondent which the petitioner finds intolerable to live with, unreasonable behaviour, desertion for a period of at least two years, separation for two years with consent of the respondent or separation for five years.[7]
The legal effect of this step is that, it gives the court the power to make the same financial orders as it could make in a divorce and the spouses are no longer obliged to cohabit with each other.[8] In effect, once a decree for judicial separation was made, one spouse could not prove that the marriage had broken down beyond reconciliation on the fact of desertion within that time of separation. However, it did not bar the couple from seeking a divorce at a later date.
This article will however highlight on the statutory definition of marriage in Ghana, types of marriages in Ghana, how ordinance and Islamic marriages are dissolved, problems and prospects of marriages in Ghana, annulment of marriages in Ghana, what makes marriages voidable and what happens if a person opposes to a marriage in Ghana.
Issues surrounding property distribution, how and where to go for divorce of marriage and custody of children after there is a dissolution of marriage are but few of the issues that are associated with types of marriages dissolutions in Ghana and this article seeks to address them.
Statutory Definition of Marriage in Ghana
The Marriage Act (CAP 127) describes marriage as the union between a man and woman sealed and made before an authority. It continues to read Marriage under the Islamic law is usually referred to as “nikah” (meaning wedding in Arabic). This kind of marriage is made in accordance with the Islamic rules regarding marriage and only applies to couples who profess the Islamic faith. Marriage made under the Islamic rules must be registered under the Marriage Act in order to be valid.
There are three types of valid marriage recognized by the Ghanaian law:
(1) Customary marriage,
(2) Marriage under the Marriage Ordinance and
(3) Islamic marriage under the Marriage of Mohammedans Ordinance.
What is a customary marriage?
Customary marriage is the most common form of marriage in Ghana. The specific customary rites that are followed vary from group to group, although in virtually all cases customary marriage involves a gathering at which the bridegroom's family makes payment of a bride-price to the bride's family, followed by the bride being asked if she will accept the bridegroom as her husband.
What is the legally acceptable type of marriages in Ghana
There are three types of legal forms of marriage in Ghana. They are as follows;
- Customary Law Marriage
This is the traditional type of marriage which is the most popular and highly recognized in Ghana. This kind of marriage between a man and a woman involves the performance of certain local customs. There are many differences in customs depending on ethnic groups in Ghana. Under the customary marriage, every essential detail about the couple’s family is taken into consideration. An investigation is done to find out if there is anything that can be of hindrance to the families uniting. Some of the inquires made by either families includes; if the partners have any criminal records in the society, if there are any diseases, is the nature of the families quarrelsome? If man or woman is hard working or lazy, can the man manage to look after their daughter etc.
Customary marriages can either be monogamous or polygamous. The man may have as many customary wives he may want. The marriages that fall under this category are usually registered under the Customary Marriage and Divorce Registration Law, 1985 (PNDCL112). For this marriage to be legal, the below are considered; There has to be consent from the two families. Consent from bride and groom. Payment of bride price and a celebration to mark the covenant.
- Islamic Law Marriage
Marriage under the Islamic law is usually referred to as “nikah” (meaning wedding in Arabic). This kind of marriage is made in accordance with the Islamic rules regarding marriage and only applies to couples who profess the Islamic faith. Marriage made under the Islamic rules must be registered under the Marriage Act in order to be valid. The registrar of Mohammedan marriages and divorce has to be notified within a week of the marriage. An Islamic marriage can only be officiated by an Imam, a Sheikh or a Kadhi. Polygamy is allowed under the Islamic law and a man can marry up to 4 wives.
Some of the notable elements to make this type of union valid include;
- Should not be between family relations, example between cousins.
- The Mohammedan marriage registrar has to be notified.
- Marriage must hold within a week after notifying the registrar if not it is declared void.
- Union is recognized under the marriage act of Ghana which contains all the requirements in Islamic law.
A marriage certificate is to be awarded to successful marriages.
How is an Islamic marriage dissolved?
Registration of the divorce occurs in almost exactly the same fashion as the registration of the marriage. However, whereas Islamic marriages must be registered within one week in order to be valid, Islamic divorces are only valid if they are registered within one month of the date of the divorce.
- Ordinance Law Marriage
This is a marriage governed by the Marriages Act 1884 – 1985 CAP 127. The ordinance is performed by a licensed marriage officer. A marriage officer can also be a religious leader, licensed to perform marriages by the government. This marriage is the only marriage which is strictly a monogamous legal mean of marriage in Ghana and if one desires to be with another, then legal dissolution may take place first before remarrying.
Before the ordinance marriage can take place the following has to been done; Those intending to get married are required to notify the marriage registrar in the district where the marriage will take place (Filling of notice of marriage).
The registrar would then publish a notice of intend of marriage for 21 days and then issue a certificate if no objections are made against the marriage. The marriage certificate must be presented to a licensed marriage officer. The couple must then get married within three months or the certificate issued becomes null and void and a new one has to be obtained.
The marriage can either be held at the Registrar General Department with 2 witnesses from each side of the couple in attendance. The marriage can also be officiated in the church or place of choice as long as it is being officiated by a licensed marriage officer.
Problems and prospects to marriages in Ghana
Since 1971 when Act 367 was enacted to govern matrimonial causes in Ghana, judicial separation has ceased to be a relief granted by the courts of Ghana. Section 44 of Act 367 provides that all English statutes relating to matrimonial causes that had the force of law in Ghana cease to apply. This position was affirmed in the case of Knudsen v Knudsen[9].
Therefore, any agreement to separate from each other cannot be put before the court in Ghana for enforcement. In essence, a party to a marriage who unilaterally leaves his or her matrimonial home for at least two years may be guilty of desertion which can be competent fact to prove that the marriage has broken down beyond reconciliation.
It therefore leaves parties, who contracted their marriage under Part III of the Marriages Act, 1884-1985 (CAP 127), and seek to terminate their marriage in Ghana, with only one option: divorce a vinculo. Divorce a vinculo means a “dissolution of the marriage,” and the effect of this proceeding is that the parties are free to remarry after the court makes an order to dissolve the marriage.
In Ghana, any marriage contracted under Part III of CAP 127, be it under a registrar’s certificate or in a recognized place of worship by a licensed reverend minister, shall only be dissolved by an order of the Court. Until the court decrees that the marriage be dissolved and the marriage certificate be cancelled, a party to the marriage is barred from marrying another person or risk being found guilty of bigamy.
Dissolution is commenced by way of petition for divorce to the Court.[10] Either spouse may invoke the jurisdiction of the Court to dissolve the marriage, provided that either of them is a citizen or is domiciled in Ghana, or has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings.[11] However, the court shall not entertain any petition of divorce presented to it within two years from the date of the celebration of the marriage, unless under special circumstances of depravity or substantial hardship occasioning the petitioner.[12]
Marriage would be dissolved in this regard solely on the ground that the marriage has broken down beyond reconciliation.[13] Thus, there must be no reasonable possibility of reconciling the parties. To prove that a marriage has broken down beyond reconciliation, the petitioner must successfully prove adultery, unreasonable behaviour, desertion, separation for two years with consent of the respondent or separation for five years.[14]
In jurisdictions such as the UK, India and majority of the states in the United States, judicial separation affords couples an alternative to divorce. The probable policy rationale may be to enable the spouses, reconsider their positions, have a taste of ‘the single life’ and attempt in a less emotional and urgent atmosphere to place their lives and their future back together. In light of this, a call for the reconsideration of judicial separation in Ghana is worth exploring.
Irreconcilable Differences
Pursuant to Section 2(1) of the Matrimonial Causes Act:
[15]“For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts: -
(a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or
(d) that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provide such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or
(e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or
(f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.”.
These instances form the basis for a party’s petition for divorce to proceed under the MCA of Ghana. Once the divorce is established, the court may still retain powers to determine whether one party is entitled to maintenance/stipend (Section 19), who may retain full custody of a child (if the marriage bears one) (Section 22), or even who may be compelled to pay moneys to retain full possession of matrimonial property (Section 20).
[1] Divorce a mensa et thoro is Latin for Legal separation by which the married couples separate for a while where they are still married.
[2] Divorce a vinculo is the Latin for divorce from the chains of marriage. That is a total divorce that dissolves the marriage tie and releases the parties wholly from their matrimonial obligations.
[3] Matrimonial Causes Act, 1857, section 7
[4] Happee v Happee and Another [1971] 1 GLR 104
[5] Ibid at note 2, @107
[6] Mitchell v Mitchell [1983] 3 All ER 621
[7] Khali, Mankotam (2022). Navigating the weight of Marriage separation and divorce in Ghana, Your legal Options
[8] Gold, A (2014). Judicial separation – an alternative to divorce, https://www.lexology.com/library/detail.aspx?g=c0ac54fa-f2b6-4c44-aebd-9cb07fc4bb08
[9] [1976] 1 GLR 204
[10] Matrimonial Causes Act, 1971, section 1
[11] Ibid at note 7, section 31
[12] Ibid at note 7, section 9
[13] Ibid at note 7, section 1(2)
[14] Ibid at note 7, section 2
[15] Section 2(1) of the Matrimonial Causes Act