Abstract

This paper, is a reaction to a developing trend among sections of Ghanaians in describing marriage duly conducted under custom as an ‘Engagement’. There is the need to correct this erroneous label and to resist any attempt to conceptualize customary marriage as ‘Engagement’. As a people we are defined by our unique cultural heritage it is therefore necessary to resist any subtle attempt be it conscious or unconscious to redefine our identity. The engagement, as has been erroneously applied by many, is the first step towards a customary marriage and cannot by any stretch of imagination be the description for a marriage properly conducted at custom.

Introduction

Ghana is made up of several nations (ethnic groups) each with a distinct political, cultural and constitutional set up which is generally referred to as custom. The custom of the various ethnic groups, to a large extent, is the test of validity of things done under the custom.[1]

The 1992 constitution of the Republic of Ghana recognizes the various customs as a source of law in Ghana.[2]

Marriage is an essential part of a society and a fountain from which the family flows and by which society propagates and preserves itself. It is therefore needful that, the process of getting married will be considered as an issue of societal importance and be regulated as such by each society.
This article is focused on dispelling the notion that, a marriage contracted under a custom recognized by the laws of Ghana is an engagement and only qualifies as marriage where the customary marriage is subsequently converted to marriage under either Part two or Part three of the Marriages Act[3] of Ghana.

Marriage Laws in Ghana

Marriage is the means of forming a family unit. Its effect is to unite a man and a woman in wedlock and to bestow upon them the status of husband and wife[4], with all the rights and obligations attendant upon that status[5]. In Ghana today, three forms of marriage are recognized by law[6]. They are namely:

1. marriage according to the various types of customary law;

2. marriage according to the rites of Mohammedan law; and

3. marriage under the provisions of the Marriage Ordinance

As already stated elsewhere in this article, the focus is on customary law hence notwithstanding the types of marriages, the subsequent discussion will be limited to customary marriage.

What is Customary Marriage?

Customary marriage is a union between a man’s family and a woman’s family[7]. Notwithstanding the fact that a marriage at custom is essential a union of two families, it is also a considered a contract between the man and the woman.[8] The important thing is that, amongst almost all the ethnic groups in Ghana, marriage is not just considered a union between a man and a woman as in European legal concept, but also the establishment of a permanent relationship between the families of the parties to the marriage.

Consequently the death of one of the parties does not of itself determine the marriage.

Like a marriage contracted under the Marriages Act[9], a person desiring to contract a marriage under custom must satisfy the basic requirements of that custom in order to contract a valid marriage. These basic requirements have been referred to by some judicial decisions[10] as the essentials of a valid customary marriage amidst fierce criticism.[11]

What are the essentials of a valid customary marriage?

Under customary law, there is no universal form of marriage. The formalities vary from tribe to tribe. Even in one tribe there may be more than one type of valid marriage. The marriage may be very simple and informal or it may be highly ceremonial like the Ga six cloth marriage[12].

From the authorities, to meet the standard of a valid marriage under custom, the following conditions must be satisfied.

(a) Consent by the two parties to live together as husband and wife;

(b) consent thereto by the family of the man. Such consent may be either actual or constructive;

(c) consent thereto by the family of the woman which also may be either actual or constructive;

(d) consummation of the marriage by cohabitation[13]

In must however be noted that, these essentials have not always applied in all a cases. There have been instances where marriage has been presumed despite the absence of Somme of the essentials.[14]

Customary marriage rite or celebration

A marriage under custom follows a set of laid down procedures. These procedures may be referred to as the marriage rite. As mentioned already, the rites vary according to the custom the marriage is to be contracted under. Notwithstanding the variations in the rites, one thing is very certain and cuts across almost all the major customs in Ghana which is that, a marriage under custom begins with ‘the knocking’[15].

The knocking can be described as the curtain raiser. It is at this stage that, the prospective husband and some elders of his family, approach the family of the woman he intends to marry, to inform the family of their son’s intention. The declaration of intention is backed by the presentation of drinks, cola or cow and money to the woman’s family. The form of the knocking depends on the custom.[16]

Where the woman and her family accept the drinks or cola so presented, the woman is from that time considered engaged and a date is set for the marriage ceremony. The knocking is so fundamental to marriages under custom that, there is a name for it in almost all the major customs. Amongst the Ahanta it is called ‘Abisa’, the Akuapem call it ‘Opon akyi bo’ amongst the Anlo it is called ‘Vofofo’, amongst the Anum it is called ‘Tuntum nt?’ the Ga call it ‘Agbo simo da’ and amongst the Ashanti it is called ‘kokooko’.[17]

After the knocking, the next stage is the marriage ceremony itself. At this ceremony the woman is given to the man after the man has complied with the requirements of the custom and presented the items agreed upon during the knocking. This ceremony is usually held in the woman’s house in the presences of family and friends of both the woman and the man. After the ceremony, the woman, depending on the custom, is sent to the man’s house.

What is an Engagement?

Engagement is an English word which is capable of bearing several meanings. The meaning one may assign to the word may depend on the context in which it is used. For instance in a work place setting it may mean employment, in military setting it may mean to attack or fight. Similarly in a romantic relationship setting, engagement may mean a promise to marry or an agreement to get married.

For the purpose of this paper, engagement is defined as “having formally agreed to marry”[18]. From the operational definition adopted, it is clear that an engagement in the context of marriage or relationships means nothing more than a mere declaration of intention to marry or agreement to marry which may be backed by some positive acts aimed at actualizing the intention.

The agreement to marry, in some parts of the world may be backed by the man giving the lady a ring normally called engagement ring or any other item to that effect. Sometimes this is done in private and just among the parties or in public. This agreement, in some jurisdictions, does not create any legally binding contract which may give a cause of action in the event where one party refuses to be married or marry as promised unless there was some form of consideration.[19]

Is Customary marriage an Engagement?

From the above discussion, it is quite clear that a duly conducted marriage under custom cannot be likened or described as an engagement. The two are very distinct. Whereas customary marriage confers rights and obligations such as right to inheritance and to share in marital property, engagement confers no right whatsoever save a cause of action in breach of promise to marry.[20]

At best, engagement can be likened to ‘the knocking’ rite under customary marriage. Marriage under custom is a complete and a legally recognized marriage and must be seen and treated as such.

Are rights conferred by marriage under marriages Act different from Custom?

Generally speaking the rights and obligations that follow a marriage may be derived from the nature or form of the marriage. In the view of the writer, the main rights that marriage may confer on the parties include; right to have sex with one another, share in the enjoyment of marital property and the restriction on multiple marriage etc.

A marriage contracted under the marriages Act especially part three, is monogamous. This means that neither party to the marriage can marry another person while the marriage subsist. This right of ‘exclusivity’ is one reason why many opt for such marriages but in truth, it is only the right to marry which has been curtailed not the right to have multiple sex partners. One may say to have sex outside the marriage is adultery and may found divorce.

Yes this is conceded but, the situation is same under customary marriage. Under custom, a partner who has sexual intercourse outside the marriage may open herself or himself to divorce notwithstanding that, it is potentially polygamous. It may appear that, this right is not really a guarantee against extra-marital affairs and hence does not make marriage under custom any less important.

In the early years of our development as a country, the position of the law was that a child born out of wedlock was an illegitimate child and could not inherit property of a deceased parent.[21] This position of law is no longer applicable and children born out of marriages are also entitled to shares in the estate of their parents.

Another reason people marry under part three of Marriages Act is the thinking that, it provides security for inheritance or share of property in the event of death or dissolution of marriage. This fear, has been resolved by the Constitution[22] and PNDC law 111.

Article 22 of the Constitution provides as follows;

“22.(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.

(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.

(3) With a view to achieving the full realisation of the rights referred to in clause (2) of this article

(a) spouses shall have equal access to property jointly acquired during marriage;

(b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.”

PNDC Law 111 provides in its sections 3 and 4 as follows;

“Section 3—Devolution of Household Chattels.

Where the intestate is survived by a spouse or child or both, the spouse or child or both of them, as the case may be, shall be entitled absolutely to the household chattels of the intestate.

Section 4—Spouse or Child or both to be entitled to one House.

Notwithstanding the provisions of this Law:—

(a) where the estate includes only one house the surviving spouse or child or both of them, as the case may be, shall be entitled to that house and where it devolves to both spouse and child, they shall hold it as tenants-in-common;

(b) where the estate includes more than one house, the surviving spouse or child or both of them, as the case may be, shall determine which of those houses shall devolve to such spouse or child or both of them and where it devolves to both spouse and child they shall hold such house as tenants-in-common”

From the provisions of these laws, a spouse whether in the event of divorce or death, is assured of a reasonable share of the property acquired during the marriage[23]. Even where a spouse dies deposing off all her estate in a will, the law allows a reasonable provision to be made out of the estate for the surviving spouse[24]. Where the person dies without a will, the family of the deceased has no control or right to arrogate the properties of the marriage to itself. In such an instance, PNDC Law 111 steps to do justice.[25]

This represents a sharp departure from the previously held positions that a woman and children were not entitled to any share in the estate or property of the man.[26]

It must be noted that, the laws are referenced above do not make marriage under part three a condition precedent to enjoying the benefits provided by the law. All one needs to establish is the fact of the marriage.

It is therefore submitted that, the property rights of spouses is same no matter the form of marriage contracted and equally protected. Similarly children of the marriage have same rights regardless of the form of marriage.

It is instructive to also mention that, a person married under custom, cannot subsequently contract a marriage with another person under the marriages Act. If the person intends to marry under the Act (Ordinance) the person was either to marry the existing valid wife or husband, or must determine the existing valid customary marriage lawfully[27].

Save the polygamous nature of customary marriage, it has almost all if not all the incidents of other marriages. And the law affords such marriages the same and equal protection.

It is submitted that under our existing matrimonial jurisprudence, a person is assured reasonable protection from the injustices of years ago regardless of the form of marriage.

Conclusion

Marriage is sacred institution established by God[28] and all societies have established and upheld procedures to enable persons wishing to be married, do so peacefully and happily. Each step in this regard is important and must be regarded and accorded the necessary respect.

In Ghana, our laws allow persons married under custom, to convert such a marriage to one under either part two or three of the marriages Act. In old times, this was necessary because, the law accorded certain rights to only persons married under part two or three of the Act. But with the introduction of PNDC Law 111[29], all persons regardless of the form of marriage they contract have the same rights under the law[30].

The description of customary marriage as ‘Engagement’ is rather unfortunate and an unconscious which shall reduce the place and standing of such marriages to mere agreements to marry but not a marriage.

As explained, engagement for whatever it is worth can be equated to the Knocking at custom. This is so because both do not create marriage but rather give an indication that, the parties desire to marry on a later date.
Customary marriage is marriage for all intends and purposes and recognized as such by the law. The mere fact that the law affords an opportunity to convert does not diminish its validity as marriage in any way or form.

The list of items required for the marriage which is given to you during the knocking, is not an engagement list rather a marriage list. Once you successfully go through a marriage under custom, you are married and not engaged.

*Barrister-at-law (Ghana), LLB (Ghana), BA (Ghana)

[1] This is applicable to the extent that the custom in question does not violate a statutory law or contradicts national aspirations see the case of AKORNINGA v. AKAWAGRE [1987-88] 2 GLR 562-572.

[2] Article 11(2)(3) of 1992 Constitution

[3] 1884-1985 CAP. 127

[4] In Ghana same sex marriage is illegal and prohibited under custom.

[5] Kuenyehia Akua, Women and Family Law in Ghana: An Appraisal of Property Rights of Married Women* [1986-90] Vol. Xvii UGLJ 72—99

[6] Marriages Act, 1884-1985 Cap. 127

[7] Yaotey v. Quaye (1961) 2 G.L.R 573

[8] Kofi v. Agbotse (1959) G.L.R 305

[9] 1884-1985 CAP. 127

[10] Asumah v. Khair [1959] G.L.R. 353; Yaotey v. Quaye (1961) 2 G.L.R 573

[11] Adinkrah Kofi Oti, Essentials of a Customary Marriage: A New Approach [1980] Vol. Xii RGL 40—52

[12] Kuenyehia Akua, Women and Family Law in Ghana: An Appraisal of Property Rights of Married Women* [1986-90] Vol. Xvii UGLJ 72—99

[13] Asumah v. Khair [1959] G.L.R. 353, Re Caveat By Clara Sackitey: Re Marriage Ordinance, CAP 127 [1962] 1 GLR 180–183 and Yaotey v. Quaye [1961] G.L.R

[14] Asumah v. Khair [1959] G.L.R. 353, Quaye v. Kuevi [1934] D.Ct 31-37

[15] Offei William E., Family Law in Ghana (4th ed) p. 33-56

[16] ibid

[17] For more detailed information on the knocking read Offei’s book referenced above.

[18] Cambridge International Dictionary of English.

[19] In England this cause of action has been abolished but in Ghana, it is still a valid cause of action.

[20] Mariam Obeng Mintah vrs. Francis Ampanyin Civil Appeal No. J4/18/2013 Judgment of Supreme Court of Ghana delivered on 25th March 2015.

[21] Coleman v. Shang [1959] GLR 390-409

[22] Article 22 of the 1992 constitution of Ghana

[23] Boafo v. Boafo [ 2005-2006] SCGLR 70; Mensah v. Mensah [2012] SCGLR

[24] Article 22 of 1992 Constitution; section 13 of Wills Act,1971 (360)

[25] Abdul Rahman v. Baba Ladi Civil Appeal No J4/36/2013 Supreme Court decision delivered on 29th July, 2013

[26] Quartey v. Martey [1959] G.L.R. 377; Abebrese v. Kaah [1976] 2 G.L.R. 46.

[27] Coleman v. Shang [1959] GLR 390-409;

[28] This is the personal belief of the writer you may disagree.

[29] Intestate Succession Law, 1985 (PNDCL 111)

[30] It must be noted that the only exception here is that customary marriage is potentially polygamous so a man may marry additional wives.