By Rev. Peter Mac Ahlijah
Customary marriage is a valid form of union in Ghana and recognized by the Marriage Act, 1884–1985 (Cap 127) and the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112).
However, under the laws of Ghana, once a customary marriage (popularly called an engagement) is converted into an ordinance marriage (Cap 127) (commonly referred to as a church or court marriage), the customary marriage automatically ceases to exist and cannot be revived.
In fact, the law permits an ordinance marriage to be contracted independently, without first entering into a customary marriage.
However, the law does not allow one person to be married under two different marriage regimes simultaneously.
This is because a customary marriage is potentially polygamous (one man, many wives), whereas an ordinance marriage is strictly monogamous (one man, one wife).
Once the marriage is converted, the rights and obligations of the parties are governed exclusively by the Ordinance.
WHAT IS THE PROCESS FOR DIVORCE UNDER CUSTOMER MARRIAGE THEN?
A customary marriage may be dissolved according to the customs and traditions of the community or ethnic group concerned. Typically, this involves:
1. Initiation of the divorce by either spouse through family elders.
2. Return of drinks or dowry to the husband or his family, signifying the end of the marriage.
3. Registration of the divorce at the District Assembly under section 13 of PNDCL 112 to formalize the dissolution legally (this step is optional but recommended).
However, the Courts have held that registration is not essential to the validity of a customary marriage or its dissolution. (In Re Bentil v. Pratt )
WHAT ALSO IS THE PROCESS FOR DIVORCE UNDER THE MARRIAGE ORDINANCE?
Once a marriage is converted from customary to ordinance, its dissolution must follow the provisions of the Matrimonial Causes Act, 1971 (Act 367).
Under this law, only a COURT (emphasis mine) has the power to dissolve an ordinance marriage not the families.
To do so, a party must petition the court for divorce on the ground that the marriage has broken down beyond reconciliation, supported by evidence. This is the sole ground for divorce under the Act.
A petition for divorce can generally be filed only after two years of marriage, except in very exceptional cases.
This sole ground must be proven by evidence of one or more of the following: .(Section 2(1)(a)–(f) of Act 367)
1. Adultery
2. Unreasonable behaviour
3. Desertion
4. Separation with consent for at least two (2) years
5. Living apart for a continuous period of at least five (5) years
6. Any other circumstance showing the marriage has broken down beyond reconciliation.
The court, after granting divorce, may make orders for maintenance, child custody, property settlement, etc., (under sections 19–27 of Act 367).
WHAT IS THE EFFECT OF CUSTOMARY DIVORCE RITUALS ON ORDINANCE MARRIAGE ?
A customary divorce has no legal effect on a marriage celebrated under the Marriage Ordinance.
Once a customary marriage has been converted into an ordinance marriage, any attempt to dissolve it using customary methods such as returning the bride price or drinks is not recognized by law.
Only a court of competent jurisdiction can dissolve an ordinance marriage. Therefore, even if the parties perform all customary divorce rituals, they remain legally married under the Ordinance until a court grants a decree of divorce.
LEGAL EFFECT AND CONSEQUENCES
In summary, any attempt to dissolve an ordinance marriage using customary procedures has no legal validity under Ghanaian law.
So out of ignorance, many are “divorced” yet still married.
Therefore, a person who remarries after only performing customary divorce rites without obtaining a court decree may unknowingly commit bigamy, which is a criminal offence under Ghana’s Criminal Offences Act, 1960 (Act 29).
