Customary marriage may loosely be defined as a marriage contracted in accordance with the applicable customary law of the parties to the marriage. Article 11 (3) of the 1992 Constitution of Ghana defines Customary Law as “rules of law which are by custom applicable to particular communities in Ghana.”
Customary marriage has its own essential features for its validity. It is principally set in contradistinction to the formalities required to validate a civil marriage in Ghana.
In Yaotey v. Quaye  2 GLR 573, the High Court in Ghana held at page 579 of the decision that “one peculiar characteristic of our system of marriage which distinguishes it from the systems of marriage in Europe and other places is that it is not just a union of ‘this man’ and ‘this woman’; it is a union of the family of ‘this man’ and the family of ‘this woman’.
The classical exposition of the requirements for the validity of customary marriage was set in the case of Yaotey v Quaye where the essential requirements for the validity customary marriage was set down as follows:
- Agreement by the parties to live together as husband and wife;
- Consent of the families of the man and the woman to the marriage. Such consent may be implied from conduct, e.g acknowledging the parties as man and wife, or accepting a drink from the man or his family;
This position has long been recognized in an earlier book by J.M. Sarbah titled Fanti Customary Laws, 2nd ed., 1904 at page 49 where he stated as follows:
“…when a man desires to marry a woman, he goes personally or sends someone to her parents or family for her hand. If his proposal is agreeable to the family and he receives their consent, the… token, valuing as much as he can afford, is sent to them. That is all that is necessary to constitute the marriage tie.”
This position was affirmed in the case of Djarbeng v. Tagoe [1989-90] 1 GLR 155 where it was held at page 159 as follows:
“Customary law requires the consent of the two families concerned to any marital relationship between a man and a woman. Where a man desires to marry a woman customarily he applies to the woman’s family though his own family for their consent…The family of the woman gives their consent by accepting the gifts.”
There is therefore considerable wealth of legal authority on the principle that customary marriage is a union between the two families, and not between the parties themselves.
Is the presence of parties to the marriage essential to its validity?
The issue of whether or not a party to a customary marriage needs to be present to validate the marriage, was discussed in the case of in Re-Dickson alias Appiah (Deceased); Aboagye and Another v. Quayson and Another [1989-90] 1 GLR 147 HC. The Learned Justice of the Ghana High Court, after reviewing several authorities concluded at page 148 of the judgment in these words:
“The only question to answer here is, is it necessary that the groom should be present…before the marriage is validated…From the ongoing I hold that it has never been, and it is no essential requirement that a Fanti marrying a non-Fanti woman should of necessity…be present at the marriage ceremony before his marriage to the non-Fanti would be valid.”
The authorities are clear on the point that customary marriage is essentially between two families, and not between the parties per se. This being so, the presence or otherwise of either party to the marriage ceremony is not essential to its validity provided all customary rites and procedures are complied with.
Therefore, the question of whether or not there is a customary marriage is assessed on whether the customary requirements needed to validate the marriage were followed. For example, the ceremony must be celebrated in the presence of witnesses, and there must be the presentation of the dowry or bride price which must be accepted by the bride’s family.
Section 31 of the Evidence Act, NRCD 323 (1975) states that:
(1) A marriage which has been celebrated before witnesses is presumed to be valid.
(2) Subsection (1) applies whether or not that the witnesses to the marriage are called witnesses in the action.
(3) This action applies to both monogamous and polygamous marriage.
The presence of witnesses at the ceremony who can attest that the requisite customary rites and procedures essential to validate the particular customary marriage is a key basis for assessing whether a marriage was validly contracted in accordance with an applicable customary law.
The presence or absence of a party to a customary marriage is therefore not essential to its validity provided that the essential validity requirements were followed.
Is registration of customary marriage essential to its validity?
The Marriages Act, 1884-1985 (CAP 127) is the principal enactment on marriages in Ghana. It consolidates all the laws on the various types of marriage into a single enactment.
The Act provides an option for parties to a marriage to apply for their marriage to be registered under the Act. However, this is not mandatory. In other words, the nonregistration of a customary marriage under the Act does not detract from the substantive validity of such a marriage.
Section 2(1) of CAP 127 provides that “where a marriage is contracted under customary law, either party to the marriage or both parties may apply in writing to the registrar…for the registration of the marriage in the register of marriages.
The Act states that the parties “may apply to register”. There is no issue of compulsion here. The parties are not mandated to register their marriage. Therefore, the validity of the marriage is not premised on the fact of registration; and nor does the nonregistration of the marriage detract from its substantive validity.
Section 2 (a) of PNDCL 263 states emphatically that either party may register the marriage. The use of “may” makes it no longer compulsory to register customary marriage unlike PNDCL 112 which used “shall”, making it mandatory to register customary marriage. It is worth noting that, PNDCL 112 was amended to PNDCL 263 making customary marriages in Ghana no longer compulsory to register.
Additionally, there is no limit on the timeline by which a party may register their marriage. They may choose to do so at any time after the marriage. Section 2(2) of the Marriages Act, 1884-1985 (CAP 127) states that the application for registration of the marriage may be made at any time after the marriage.
There is no provision in our current laws on customary marriage which creates a time limit within which a party or parties to a customary marriage to register their marriage. A party is at liberty to register their marriage at any time after their marriage.
Formal Requirement for the Registration of Customary Marriage in Ghana.
Sections 1, 2, 3, and 4 of the Marriages Act, 1884-1985, CAP 127 governs the formal requirement for the registration of customary marriages in Ghana.
Section 1 states that, on the commencement of this Act, a marriage contracted under customary law before or after the commencement may be registered in accordance with this Act.
Section 2 highlights how the application for the registration is done. It states that,
- Where a marriage is contracted under customary law, either party to the marriage or both parties may apply in writing to the registrar of the district in which the marriage was contracted for the registration of the marriage in the register of marriages.
- The application for the registration of the marriage may be made at any time after the marriage, but the Minister responsible for Justice may at any time prescribe the periods within which the failure to register a customary marriage contracted before or after the commencement of this Act shall be an offence.
- The form of the register shall be as set out in the First Schedule.
Section 3 requires a party or both parties to the marriage if they so wish to register their marriage, to attach a statutory declaration to their application for registration of the marriage. It states emphatically that,
- A statutory declaration shall be attached to the application for registration of the marriage stating,
- the names of the parties to the marriage,
- the places of residence of the parties at the time of the marriage, and
- that the conditions essential to the validity of the marriage in accordance with the applicable customary law have been complied with.
In view of the above, the word “shall” is used because it is mandatory to attach these statutory declarations if a party or both parties wish to register their customary marriage.
Per the laws governing customary marriages, statutory declarations should be supported, and Section 3 (2) states that,
- The statutory declaration shall be supported by
- the parents of the spouses, or
- the persons standing in the place of the parents living at the time of the application for registration.
Registrars to register customary marriages in Ghana have duties to perform as stated in Section 4 below.
- The Registrar of the district shall, on receipt of an application for the registration of a marriage, register the marriage and shall by notice in the form set out in the Second Schedule notify the public of the registration of the marriage.
- The notice shall be displayed on a public notice board at the office of the Registrar within twenty-eight days of the application for registration.
Significance of the Registration of Customary Marriage in Ghana
There is no significant effect on the Registration of customary marriage because the registration itself does not confer legitimacy on the marriage. As pointed out above, whether a party or both parties to the marriage register their customary marriage or not, the marriage is still valid, and thus, they do not need a customary marriage certificate to prove the validity of the marriage.
Customary marriage is essentially between families and not just the parties involved per se. As stated earlier, the Registration of a customary marriage does not confer legitimacy on the marriage, but rather the necessary customary rites performed validates the marriage.
This is because, our current laws backing customary marriage does not create a mandatory legal requirement for registration of a customary marriage. Though a party or parties to a marriage may register their customary marriage, they are not under any compulsion of law to do so.
In view of the foregoing, we state emphatically that, the fact that a party failed to register their customary marriage or registered it sometime later after their marriage has no relation to the substantive validity of the marriage.
Notes on the contributor.
Mr David Yaw Danquah is the founder and Managing Partner of Legalstone Solicitors, a boutique law firm in Ghana with a concentration on Corporate and Commercial, Mining and Infrastructure, Debt Recovery and Restructuring, Real Estate and Construction Law, and Commercial Arbitration.
He heads the firm’s practice areas focusing on Corporate and Commercial, Mining and Infrastructure, Debt Recovery and Restructuring, and Commercial Arbitration.
David has advised on numerous investment and mining-related transactions. He also has assisted countless international entities in establishing their operations in Ghana and, through his firms, offers support services to those entities. He has an impeccable record of providing technical savvy and exceptional client services.
David is a graduate of Kwame Nkrumah University of Science and Technology (KNUST), Kumasi, where he received his bachelor’s degree in law (LL. B) and the Ghana School of Law, where he studied and received a Post Graduate Qualifying Certificate in Law (PQCL). Furthermore, he holds a Certificate in Negotiation Mastery from Harvard University. In addition, David has an LL.M. with a Merit Degree in International Dispute Resolution from the prestigious Queen Mary University of London, United Kingdom.
David is a member of the Ghana Bar Association, Association of International Petroleum Negotiators (AIPN) and Institute of Energy Law (IEL) based in Houston, U.S.
The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your circumstances should always be sought separately before acting based on this publication.
© Legalstone Solicitors