Brief Note on Customary Divorce

Brief Note on Customary Divorce

Discussions on the types of marriages celebrated in Ghana have in recent times given the impression that persons married under the ordinance have more advantages than their counterparts married under customary law. 

Although this assertion may be true in some very limited instances1, spousal rights under the 1992 Constitution2 and some enactments like the Matrimonial Causes Act, 1971 (Act 367), Wills Act, 1971 (Act 360)3, Criminal Offences Act, 1960 (Act 29)4 and the Intestate Succession Act, 1985 (PNDCL 111) do not discriminate against spouses under either type of marriage.

It is my opinion that when it comes to the dissolution of marriages (divorce), Act 367 actually offer more advantages to the parties to a customary marriage than it does tomonogamous marriages (ordinancemarriages).

Divorce under customary law depends on the laid down procedure of the custom of the parties. The grounds and procedure for divorce, therefore, differ from tribe to tribe. It is worth noting that a customary divorce must be registered with the parties making a statutory declaration stating that the marriage has been dissolved in accordance with customary law.

Although Act 367 was enacted generally to make provision for the dissolution of monogamous marriages, section 41(2) of the said Act makes the Act applicable to other forms of marriages including customary marriages. Unlike monogamous marriages where the sole ground for dissolution of marriageis that the marriage has broken down beyond reconciliation, sufficient justification for divorce under customary law includes the facts recognisable under the personal law of the parties to the divorce (that is grounds for divorce according to their custom) as well as any of the following:

  • wilful neglect to maintain a wife or child;
  • impotence;
  • barrenness or sterility;
  • intercourse prohibited under that personal law on account of consanguinity5, affinity6or other relationship; and
  • persistent false allegations of infidelity by one spouse against another.

Act 367 provides reliefs beyond what a party to a divorce may be entitled to under their custom, some of which may be easily breached by one party and may end up in a court of law anyway. There have been cases where family harassment has pushed parties to surrender rights (like child custody) that may have been granted him or her during the customary divorce. Some of the available reliefs under Act 367 include financial provision for  the spouse, financial provision for children, property settlement, orders on child custody, conveyance of title to property, restraining orders significant among them being an order preventing a spouse from removing children from the jurisdiction and an order preventing a spouse from harming the other, orders preserving assets etc.

A quick look at the above shows that customary law divorceunder Act 367 has a broader scope in termsof theavailable grounds for seeking divorce as well as the reliefs a party may be grantedafter the customary marriage is dissolved. Persons married under customary law should therefore not feel limited to their peculiar customs in seekingthe dissolution of their customary marriage. The process for dissolution remains the same as for ordinance marriages with the presentation of a petition for divorceat thelawcourt.

1 To some modern Christians, one disadvantage of customary marriages is that it is potentially polygamous.

2 See article 22

3 See section 13

4 See section 79(1)(a)

5 Relationship by blood or kinshipties

6 Relationship created bymarriageties

REFERENCES:

Ahwireng-Obeng Frederica, “Contemporary Principles of Family Law in Ghana”, 1stEd, 2015

Offei E. William, “Family Law in Ghana”, 4thEd, 2014

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  • comment-avatar
    Solomon Ackah 8 months

    Do you I have to go court to dissolve a customary marriage.

  • Selasi Kuwornu

    You can choose to go to court to have a customary marriage dissolved. You can also choose to dissolve it by custom. Both options are available.

    • comment-avatar
      Isaac 6 months

      Can I have your contact please?

    • comment-avatar
      Paapee 6 months

      If your partner send your drinks to your family and the marriage is registered can you go to court to dissolve the marriage??

      • Selasi Kuwornu

        If the marriage rites of your custom/ethnicity entails sending drinks to the family of the bride, then by that custom, you are validly married, and in compliance with law, properly registered as a customary marriage. Under these circumstances, dissolution in court is an available option by law. Remember that predominantly, your particular custom determines how marriage is contracted.

        • comment-avatar
          Sam 4 months

          Can one marry more wives under customary marriage and have them all certified in court?

          • Selasi Kuwornu

            1. Marriage under the ordinance (what you referred to as court certified) is between one man and one woman only.

            2. After one ordinance marriage, you cannot marry another woman even under customary law. It is invalid. You will need to dissolve the ordinance marriage first.

            3. Customary marriage is potentially polygamous. That means you are not restricted to the one man one woman rule. Your custom determines the rules.

    • comment-avatar
      Samuel 4 weeks

      I really need a lawyer can anyone be of help

  • comment-avatar
    James 7 months

    Interestingly, I went to the AMA to inquire about dissolution of customary marriage and I was told, I needed to have the marriage dissolved among the two families first before filing a petition.

    • Selasi Kuwornu

      Dissolution of a customary marriage by custom first is not a stated prerequisite for the dissolution of customary marriage in court. I find it interesting too that they told you this.

      • comment-avatar
        Paapee 6 months

        If your partner send your drinks to your family and the marriage is registered can you go to court to dissolve the marriage??

    • comment-avatar

      If one party is not willing to divorce but the other party is being persistent and insistent to do. Should this make the former overwhelmed and for which matter he decides to give the divorce, per the customary aspect, what should he send to the inlaw incase the one who wants the divorce is the woman.

      Secondly, the woman is the one who wants the divorce, what benefit will the man get out of this in case he grants it to her?

      • Selasi Kuwornu

        First part of your question: your custom determines the rules of customary divorce. Just as you sought guidance on how your customary marriage is conducted, you can seek same guidance on how customary divorce is carried out.

        Second part of your question: the reliefs available in law upon divorce is not gender specific. From the article, any relief provided in law is available to both spouses. Based on the circumstances of the case, the court determines who gets what and how unless the two parties can settle on that (this must be accepted and adopted by the court).

  • comment-avatar
    James 7 months

    If your partner present your drinks and the marriage is registered can you proceed to court for resolution??
    Or what should you do?

  • comment-avatar
    Yiadom 6 months

    If you divorce through the customary means, what documents would you need to cancel the customary registration made at KMA.

    • Selasi Kuwornu

      Please visit the assembly and inquire from them as they may have laid down procedures to enable persons comply with the law which requires registering the dissolution of customary marriages.

      • comment-avatar
        Joshua 3 months

        Pls we are married by custom which we named as engagement, after several problems between I and my wife, she decided to dissolve the marriage by bringing the schnapp and the engagement ring to my work place , she later took away the schnapp and the engagement ring due to advice from unknown person. We have a two years old girl living with my wife and her mother whom I’m taking care of. I want to go with my family to settle and dissolve the marriage but I don’t know what to do. Can her family also take me to court if they don’t like to settle the dissolution at home? Pls advise me.

        • Selasi Kuwornu

          Customary divorce and dissolution of marriage in court are both open options for you. You can proceed to have the marriage dissolved under custom.

          However, either party can bring dissolution proceedings in court. Your spouse can therefore petition the court for divorce.

  • comment-avatar
    Eric 5 months

    To divorce customarily. Is there an amount you have to pay to your wife?

    • Selasi Kuwornu

      It depends on the custom under which the customary marriage is contracted and can also be based on the agreement you may reach with your wife’s family or those who are in charge of the dissolution according to that custom.

      For example, some customs in Ghana take drinks (returning the drink used in contracting the marriage) and may demand that the husband provide for the children only.

  • comment-avatar
    Jonas 3 months

    How do you dissolve customary marriage that was not registered.

    • Selasi Kuwornu

      By custom or by dissolving in court.

      Note that registration of customary marriages provides proof of the said marriage and does not render it valid. Failure to register will therefore not necessarily invalidate the marriage.

      • comment-avatar
        Kofi Ashong 2 months

        This is interesting! Can I explore this with you further. Is the legal obligation to register the traditional marriage only to provide proof and not necessarily to recognise it in law?

        • Selasi Kuwornu

          My position stems from the following reasons:
          1. Registration happens after the marriage has already been contracted.

          2. The language used in section 2(1) of CAP 127 is “may” which is not mandatory. Despite the position of the law that “may” may sometimes be read as “shall”, this particular context remains to be interpreted by the law courts. Also, to the best of my knowledge, the Minister of Justice has not yet penalised failure to register.

          3. Under section 15 of CAP 127, failure to register does not affect a surviving spouse’s position to benefit under the intestate succession law so long as that spouse can show proof of customary marriage through other evidence (oral/documentary).

          4. Registration does not form part of the validity of a customary marriage and is a requirement after the fact of a validly contracted customary marriage.

  • comment-avatar

    Please what if u have separated for 4years and returned the drink to the family. Meanwhile the man is not taking care of the children even before the separation. Will the children be taking for the man and what is the next step

    • Selasi Kuwornu

      Separation is not a part of our laws. If you are married under customary law only and returning drinks signifies a divorce in your custom, then you are divorced. You can take legal action for maintenance (financial support) for your children.

      The court decides on matters of custody of children when one of you makes such a claim or if the court determines that it is in the best interest of the children that a custody order is made. The welfare of the children is paramount.

  • comment-avatar

    Can I get your number

  • comment-avatar
    Afua Boatemaa 2 months

    My husband and I are legally married but he now says he wants us to cancel the court marriage and stick to the traditional marriage. Is it possible to do that?

    • Selasi Kuwornu

      My understanding is that you married under custom and then did the ordinance marriage. If that is so, then your customary marriage has been converted into an ordinance marriage. If you dissolve the ordinance marriage, your marriage comes to an end by law. The customary marriage which converted to marriage under the ordinance will not remain. He will have to marry you again under custom.

  • comment-avatar
    Queenster 2 months

    I have returned the head ram(schnapps) to my husband’s family and it has been 1 and half years and we have been separated for the past 2 years. I now want to petition the court for a divorce. How long is it likely to take?

    • Selasi Kuwornu

      Many factors affect the duration of divorce proceedings.

      1. The court will first see if reconciliation is possible. You may be given time to see if you can settle your differences.

      2. If divorce is the only way out, then if the two of you are able to agree quickly on the settlement terms of your divorce, the court can adopt that agreement and dissolve it after you prove that the marriage has broken down beyond reconciliation.

      3. Different judges manage their courts differently. One judge may take consecutive days to deal with a matter. Another judge may attend to a case within a longer time frame.

      4.Then there are the usual court delays like adjournments due to several other factors.

      Giving a specific period is therefore impractical. While some have lasted some months to a year, others have lasted up to two years depending on the parties conflicting demands and the number of issues to be settled by the court.

  • comment-avatar
    Akwasi 2 months

    Please what if i marry under customary law and I marry another person under ordinance. Which of the marriages is valid and which one is invalid?

    • comment-avatar
      Nelly Wallace 2 months

      Akwasi after you marry under customary law, you cannot marry another person under ordinance. Doing so is a crime of bigamy. Your ordinance marriage is invalid. You will have to dissolve the customary marriage first before you can have a marriage under ordinance.

  • comment-avatar
    AFFOH EDWARD 2 months

    Please I have been married for 7 years now. I feel to divorce my wife cos she doesn’t support any idea I shear with her.
    Secondly, she always accuse me falsely. The marriage is under the ordinance. Please can I seek for divorce on this ground? If yes please is there any amount I will pay to her?

    • Selasi Kuwornu

      Lawyer Nelly Wallace replied:

      Affoh, if you can prove that these reasons are unreasonable behaviour and due to that you cannot stay married, then yes you can go for a divorce.
      The amount is dependent on filing fees and the legal fees you pay to your lawyer.
      You can enquire from the court’s registry about the filing fees but the legal fees is solely dependent on your lawyer.

  • comment-avatar
    Justice 2 months

    I’ve been given back my rings,marriage cert and the drinks. For the sake of emphasis, i’m an Ashanti.Do i need to go to court to file a divorce? If yes, please what’s the procedure?

    • comment-avatar
      Nelly Wallace 2 months

      Justice, if I understand you correctly, by rings and certificate you mean to say you married understand the ordinance. If that is so, then the only way of divorce is through the court.

      This is so because as earlier explained by Selasi, the traditional marriage that you presented the drinks for becomes invalid the very moment you converted it to ordinance. Therefore your custom Ashanti regarding marriage will not apply here due to the conversion.

      However, if your marriage was solely traditional, and your custom allows for divorce or dissolution by the returning of rings, certificate and drinks, then you will need not go to the court.

  • comment-avatar
    Ewoenam 2 months

    Please a friend of mine got married under the ordinance marriage and the lady left because of some misunderstanding ,without them divorcing now my friend impregnant another woman who is leaving with him and now the first lady wants a divorce so she file for the divorce at the court with the facts that the man has given birth with another lady.so now what will happen to my friend (the man) ? And is the case now a criminal one because he give birth with another lady?

    • Selasi Kuwornu

      Giving birth with a person other than your spouse is not a criminal offence. If you mean the offence of bigamy, your friend should have married the second lady while still married to the first lady to have committed that offence. The only thing that may happen is divorce which his spouse has already filed for.

  • comment-avatar
    Nelly Wallace 2 months

    Affoh, if you can prove that these reasons are unreasonable behaviour and due to that you cannot stay married, then yes you can go for a divorce.
    The amount is dependent on filing fees and the legal fees you pay to your lawyer.
    You can enquire from the court’s registry about the filing fees but the legal fees is solely dependent on your lawyer

  • comment-avatar
    Kwaku 2 months

    Please help with this. Is knocking (Kckcckc) a form of marriage. I introduced myself to my partner’s family that when ever they’re looking for her she can be found in my home. We have lived together for sometime now(6 years + ) and we have a baby boy who is now 2 years old. The lady is disrespectful and arrogant . I was thinking she could change for the better so I can married her but the situation keeps getting worse. I once told her I will send her to her parents and she treat me that she will never leave my family house until I rent a place for her, and give her some settlement money though I intent to take full responsibility of our 2 years old son when I send her always. What does the law says about such situation. We are neither under the customary marriage (engagement) nor the ordinance . What does the law says in this situation

  • comment-avatar
    Mark 1 month

    Can you get married to another person under marriage by ordinance who has been married under customary law but haven’t divorced.

    • Selasi Kuwornu

      No please. You cannot marry a person under ordinance who is already married under any type of marriage. The customary marriage is a valid marriage recognized under law. Unless you intend to marry such a person by custom (because customary marriage is potentially polygamous), you cannot marry him/her under ordinance.

  • comment-avatar
    mercy 1 month

    I have been married for 7years.it has been tough and now my husband want to divorce me and claim my two kids 5years and 2years respectively.what do i do?

    • Selasi Kuwornu

      Please get a lawyer to assist you deal with the issues of divorce, child custody and maintenance. These are all matters the law regulates.

  • comment-avatar
    Emefa 1 month

    Hi,
    I was married customarily in Ghana, then moved to the U.K. with my husband, for the last 20+yrs.

    He travelled back to Ghana to dissolve our marriage to my step brother! Without my consent.
    My question is. Is it possible to do so? I have petitioned for a divorce here in the U.K. but he’s told the courts that he’s already been to dissolve the marriage. Is that considered as a divorce?

    Would really appreciate your help. Thanks
    Emefa

    • Selasi Kuwornu

      Your customary marriage was converted to an ordinance marriage immediately you moved to the UK as a married couple. Customary divorce is therefore not an available option for divorce. Divorce must be by the court.

      Besides, customary divorce must comply with laid down custom and not just be any manner. From the tone of your comment, your custom does not specify a divorce to your step brother.

  • comment-avatar
    Bernice k 4 weeks

    Please as a woman is it right to return the drinks alone?

    • Selasi Kuwornu

      Right or wrong should not be a major concern. Your custom sets the rules. What does your custom say about divorce? Do find out.

  • comment-avatar
    Kwadwo Husein 4 weeks

    Pls I have problem about custody and settlement but I would prefer I talk to u privately can u give me a platform for that either email or contact number?

  • comment-avatar
    Akyaa 2 weeks

    Hello, I was married customarily and by ordinance. Do you know of any laws which state that customary marriages convert to ordinance, when both are contracted? The ordinance marriage has been dissolved by court, wondering if I have to dissolve the customary marriage as well. Your input will be appreciated, thanks.

    • Selasi Kuwornu

      Customary marriage converts to ordinance marriage when the latter is performed after a validly contracted customary marriage. That is the law. An ordinance marriage can only be dissolved by a court of competent jurisdiction. After the dissolution, the marriage ends. That settles it. The customary marriage does not remain, to be again dissolved.

      However, if by reverence or deference, you choose to dissolve by custom in addition, it adds or takes nothing away from the new status quo.

  • comment-avatar
    Stephen 5 days

    Married under ordinance and your wife is flirting around,sleeping out side of her matrimonial home can i file for divorce?
    Would i settle her

  • comment-avatar
    Kwesi 5 days

    We got married in church after the traditional one. We didn’t go to the registrar or to register our marriage prior to or after. The certificate given to us by the church stated that marriage under customary law. There is no reference to the jurisdiction of the marriage and no coat of arm on the church marriage certificate. What does this mean? Does it mean that we have to go to the marriage registry for it to become an ordinance.

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