- Whether or not the Islamic marriage has been registered under the new Marriages Act1884-1985 (CAP 127).
Governed by Marriage of Mohammedans Ordinance Cap 129 now Part 2 of Marriages Act (CAP 127).
Section27 of CAP 127: Mohammedan marriage celebrated or dissolved after Act’s commencement void unless registered. Production of certificate in court is proof of marriage’s existence.
Barake v Barake[1993-94] 1 GLR 635 Per Brobbey J requirements of valid Mohammedan marriage, proposal, acceptance, in presence of two witnesses, all at same meeting, within one week after celebration couples register with registered priest and in presence of two witnesses and go and register at registry.
Re Registration of Marriage between Byrouthy and Akyere, Ex Parte Ali [1978] GLR 872 Under mohammedan marriage, validity is in registration and not the celebration, failure to do so after celebration within a week or a reasonable time renders marriage void.
- Whether or not an Islamic marriage may be dissolved.
Section 27 of CAP 127: Islamic marriages dissolution must be registered to become valid and effective.
According to Sheik Mustapha Ibrahim of Islamic Book Development and Translation Council of Ghana, in his book Islamic Law of Marriage, the grounds for dissolving Islamic marriages include:
Wife-desertion for more than 4 years, failure to maintain, suffering insanity, leprosy or venereal disease; and
Husband-insanity, leprosy, genital disease.
Parties apply to court or husband may pronounce divorce expressly.
Section 41 of the Matrimonial Causes Act (1971) ACT 367 The Act applies to all monogamous marriages, but where a marriage other than a monogamous marriage is sought to be dissolved under the Act, the court will apply the Act to the said marriage’s dissolution as if it was a monogamous marriage.
Section 31 of ACT 367 Either of parties must be a citizen, domiciled in Ghana or ordinary resident in Ghana for 3 years’ continuous period.
Section 1(2) of ACT 367 Sole ground for granting petition for divorce shall be that marriage has broken down beyond reconciliation. A party may prove that marriage has broken down beyond reconciliation by establishing any one or more of the Following six facts under:
Section 2(1)(a-f) of ACT 367, Adultery – Fact A: that respondent has committed adultery and petitioner finds it intolerable to live with same. S 43 adultery is voluntary sexual intercourse of married person with opposite sex other than spouse.
Unreasonable Behavior – Fact B: that respondent has behaved in such a way that petitioner cannot reasonably be expected to live with him; behavior is form of conduct, act or omission, not state of mind of how he is expected to conduct, etc.
Desertion – Fact C: unjustifiable withdrawal from cohabitation without consent of other spouse and with intention of remaining separated permanently, establish continuous 2 years’ desertion preceding petition. S 5(1) in determining the continuous two years, any period less 6 months living together won’t be taken into consideration in computing.
Failure to live as man and wife for two years – Fact D: that parties haven’t lived together as husband and wife for a continuous period of 2 years immediately preceding petition and respondent consents to decree grant, whether consent is unreasonably withdrawn is a question of fact on circumstances. S 6(1) duty on petitioner to obtain consent of respondent.
Not living as husband and wife for at least 5 years – Fact E: similar to fact D but respondent’s consent isn’t required and all that is required is establishment of the fact that the parties have not lived as husband and wife.
Inability to reconcile differences – Fact F: demonstrate diligent efforts made and yet parties unable to reconcile their differences. S 2(2) duty on court once divorce petition is placed before it to inquire into facts alleged by petitioner and respondent.
Section 9 of ACT 367: Petition for divorce to be presented after two years of marriage but where substantial hardship is suffered within the 2 years, court may allow application with leave having regard to interest of child and possible reconciliation.
Order 65 Rule 3(1) of CI 47 Application for leave to commence proceedings for divorce within 2 years shall be by Motion on notice and affidavit in support stating ground is substantial hardship or depravity, particulars of hardship or depravity, any children names age where and who living, attempts made at reconciliation. Attach copy of petition and exhibited, motion served personally on respondent at least 5 clear days before return date.