Yaotey v Quaye – performance of some funeral rites upon man’s death and this a recognized customary marriage between both. Ollenu J marriage not only union between parties but families unless withheld unreasonably. Customary successor is appointed at family meeting from the immediate family of deceased intestate. No vested right to be appointed as such. Unless registered, Caps don’t govern succession upon death or dissolution.
Ollenu’s 4 essentials of customary marriage, voluntary agreement per Akorninga v Akawagre claim of marriage to woman because of Frafra custom upon death of husband who was his brother and order of woman to return as wife was repugnant to good conscience and equity, consent express/implied of man’s family-present drinks perform some rites at funerals (constructive), consent express/implied of woman’s family-accept drink performance of rites at funerals (constructive) and consummation of marriage by cohabitation-presumption of sexual intercourse upon living together. Evidence of acknowledgement by families as married in the absence of presentation of drinks still recognizable.
Art 35(4) Directive Principles of State Policy state and citizens to respect fundamental human rights and freedoms and dignity of humans.
S 14 Children’s Act outlawing betrothal below 18 years, provides minimum age of marriage whether polygamous or monogamous is 18 years. S 109 Act 29 forced marriage a criminal offence. Effect of betrothal is substitute provision upon death of betroth, permissive sexual intercourse and valid child not one of concubine all in the absence of formal marriage rites.
Characteristics: involve families, potentially polygamous per Graham v Graham mere promise not to marry another doesn’t change nature, some are prohibited on grounds of consanguinity, mutually exclusive with ordinance two can’t co-exist, may be converted into an ordinance marriage per Graham v Graham after the solemnization of marriage at roman church under ordinance the customary law marriage ceased to exist and was effectively converted.
Sowa v Sowa man in England woman in Gh family of man does rites and accepted by woman’s family is a valid customary marriage though no consummation, erroneous for judges to strictly insist on satisfaction of all 4. Djarbeng v Tagoe-supra, Badu v Boakye Osei-Hwere J living together without presentation of drinks as concubines with consent of woman’s family can’t be translated into valid customary marriage, the drinks informally presented to father of woman was ‘akontagyan’ and not one asking for marriage. Per Fredericka the above may not be applicable recently, per Abangana v Akologo court held custom as repugnant where trial court grants return of wife and two children of defendant with plaintiff’s wife since concubine child not recognized as man’s child.
Types: Essilfie & Anor v Quarcoo there are two forms of valid customary marriages: 1 Formal: where man sought hand of woman from family and with their consent performed necessary ceremonies, and 2 Informal: where though customary rites hadn’t been performed parties consent to live together in the eyes of the world as couple or live as such and families consents express/implied that they should do so, per Yaotey v Quaye-supra, Quaye v Kuevi man sent drinks to acknowledge pregnancy of woman held as valid customary, Asumah v Khair where new man pays expenses and drinks back to first man marrying woman through woman’s family, the first marriage is dissolved and new marriage comes into existence, upon sending drink of impregnation and sends further drink valid marriage exist, where no further drinks sent and continues living as couple and family acknowledges also valid customary marriage. Gorleku v Pobee valid customary marriage without express consent of families manifested by presentation and acceptance of drinks.
Capacity: Age-18 years none at common law, consent of parties, sex being male and female, no consanguinity-blood relation and no affinity-relation with relation of one’s spouse, not betrothed to another.
Statutory Registration: governed by Customary Marriages and Divorce Registration Act 1985 PNDCL 112 now Part 1 of Marriages Act 1884-1985 Cap 127
S 2(1,2) customary marriage contracted may be registered in accordance with Act, before amendment it was mandatory. Either party may apply at any time, unless minister of justice otherwise directs, to Registrar of Marriages in district where marriage was contracted for registration, containing particulars of parties and marriage and signed or thumb-printed by parties and their witnesses.
S 3 Application shall be accompanied by statutory declaration stating residence, names, essentials to marriage validity, supported by parents or those standing in locus parentis. S 4 Registrar shall register and notify public of registration displayed on officer’s notice board within 28 days of application.
S 5 Caveat aggrieved file objection at district court where marriage was registered and copies of grounds served on parties, DC may dismiss, order Registrar to expunge entries. S 10 objections shall be heard in chambers.
S 9 Registrar shall issue under his hand to parties certified copy of entry, S 13 production of which in any proceeding shall be admissible in evidence as sufficient proof of registration of marriage.
S 14 offence with fine less 700 units and less 3 years imprison if knowingly applies for registration of non-lawful contraction, false entry in register or alters certificate to defraud.
Registration of Customary Marriage per se merely proves the registration of the marriage but doesn’t render validity to the marriage. Adade v Dade registration of customary marriage in absence of fraud serve as conclusive evidence of marriage while validity upon non-registration depending have to be proved, spouse may benefit under intestate even in non-registration.
S 15 of PNDCL 112 Intestate Succession PNDCL 111 act applies to spouse of customary marriage registered under the Act (2) despite registration evidence of validly contracted marriage court shall make order for distribution of estate of deceased in same manner as same registered under the Act. In Re Pratt’s Caveat, Bentil v Pratt
Dissolution of engagement or knocking: family or party withdraws consent, woman gets impregnated by another, one party dies, parties agree to dissolve, man fails to conclude payment of marriage consideration within reasonable time.
Dissolution of Customary Marriage: whether under customary law (extra-judicial process)-not by words of mouth or written bill of divorce, per Daaboa Dagarti v Dornipea receipt of returned dowry by man is conclusive evidence of dissolution, in Frafra custom it is the return of calabash (daughter) per Ginburo v Kaba and that marriage may be dissolved unilaterally where one unreasonably turns down request for dissolution and repugnant for custom to say that female cant initiate divorce proceedings, Male grounds-adultery, bareness and desertion, Female grounds-cruelty, neglect and wilful refusal to maintain, impotence, desertion and extramarital association, arbitration before chief or recognized elders and upon pronouncement of divorce submission of bills of expenses incurred by either parties during marriage follow and man finally pays to wife a send-off money known in Fante as akwangyadze; or in court of law under Matrimonial Causes Act 1971 (Act 367)-though MCA applies to all monogamous marriages, S 41(2)(3) says on application by a party to a non-monogamous marriage court shall apply provisions of Act to said marriage and in application of S 2(1) to said marriage the personal law of parties shall be regarded. Court under MCA means HC or CC, DC have jurisdiction per O 32 of CI 59 to hear and determine matrimonial causes governed exclusively by customary law by filing appropriate forms and accompanied by affidavit and D who wants to be heard to file within 14 days after served, Registrar within 14 days sets down action for trial, court makes order, where family tribunal it shall be in chambers.
Factors for dissolution of CLM can be found under CL or MCA since Act applies to both mono and polygamous marriages upon application
Registration of dissolution per S 6 of PNDCL 112 recorded by registrar of district but registration doesn’t apply where dissolved under MCA. S 7 of PNDCL 112 if registered marriage is dissolved under customary law shall be notified to Registrar of district accompanied with a statutory declaration of dissolution supported by parents of spouse and registrar may record dissolution and notify public within 28 days on public notice board at office. S8 person object to registration of dissolution may at any time after publication file grounds in DC, court may dismiss or grant and order expungement of entries made.