The Utility of Marriage of Mohammedans Ordinance Under the Current Ghanaian Legal Dispensation

By: Amina Ali Issaka (Senior Associate, Legal Ink)

The present legislative framework regulating marriages and divorces in Ghana is pluralistic in nature. There is the Marriage Ordinance, 1884 (Cap 127) now Part Three of the Marriages Act 1884-1985 which caters for all monogamous marriages, customary law marriages which is governed by the Customary Marriage and Divorce Registration Act, 1985, (PNDCL 112) now Part One of the Marriages Act 1884-1985 and lastly, Marriage of Mohammedans Ordinance CAP 129, now Part Two of the Marriages Act 1884-1985(“CAP 129”) which caters for Islamic marriages in Ghana.

This paper seeks to examine the requirement of validation of Islamic marriages and divorces through registration under Cap 129, the current state of compliance with these requirements, the legal status of Islamic marriages and divorces that are non-compliant with CAP 129 and whether these requirements serve any purpose in this current day and age other than to encourage breaches of the law, which lays a foundation for the insecurity of Islamic marriages and its attendant social and legal problems. 

Recognition of Islamic Marriages under Ghanaian Law (CAP 129):

Requirement for registration^[1]:

After an Islamic marriage is celebrated in accordance with Islamic law, such a marriage would only be recognized and therefore valid under Ghanaian law as an Islamic Marriage if and only if it is registered under CAP 129. 

Mode of registration^[2]:

It is provided under CAP 129 that registration of an Islamic marriage must be done within one week of celebration of the marriage. The bridegroom, the bride’s wali or guardian, two witnesses to the marriage, and a licensed Muslim priest must go to the relevant District Assembly where the marriage was celebrated to register the marriage.

Where the marriage is not registered within the prescribed one week period, or where the attendance of any of the persons whose signature is necessary to complete the registration process cannot be procured, the High Court may extend the time for registration, and/or dispense with the signature of any of the prescribed persons, upon an ex parte application made to that Court.

It should be noted however that the signature of the licensed Muslim priest or cleric cannot be dispensed with.

Recognition of Islamic Divorces under Ghanaian Law:

Just like Islamic marriages, Islamic divorces made in compliance with Islamic Law would not be recognized in Ghana as valid unless registered under CAP I29.^[3]

The man, the woman’s wali or guardian, two witnesses to the divorce, and a licensed Muslim priest must go to the relevant District Assembly where the marriage was dissolved to register the divorce. The High Court can however on application dispense with the signature of the above prescribed persons, except that of the licensed Muslim Cleric, where the signature cannot be procured. 

The procedure for registration of the divorce is the same as that of registration of marriage save that the time within which a divorce is to be registered is prescribed as one month unless an extension of time is sought and granted by the High Court upon an ex parte application.^[4]

 Failure to register Islamic Marriage or Divorce in accordance with CAP 129:

Failure to register a marriage celebrated under the Islamic law within one week of its celebration means that marriage is null and void unless an extension of time within which to register is sought and granted by a High Court.

Section 27 of the Marriages Act 1884-1895 states as follows:

“A marriage contracted or a divorce effected after the commencement of this part by persons professing the Mohammedan faith is not valid unless registered under this Part.”

This part of the law has found pronouncement in several decided cases by the courts of Ghana where it has expressly been stated that Islamic marriage is not a marriage properly so called in the eyes of Ghanaian law and can only be validated by registration.^[5]

Compliance with CAP 129:

There has been very little research conducted into compliance of Islamic marriages with CAP 129. What is however evident from the  available outcome of  research conducted in that regard is that the overwhelming majority of Muslims have not registered their marriages and are even unaware of the requirement of registration of their Islamic marriages, let alone the legal effect of non-registration on their marriages.^[6]

According to a research conducted by Prof  Raymond A. Atuguba for the German Technical Cooperation (GTZ) on the registration of Islamic marriages in Ghana’s Plural legal system, 96.2% of people interviewed who indicated they were married under Islamic law had not registered their marriages under CAP 129.^[7]

This staggering rate of noncompliance with CAP 129 has given credence to the apt description given to CAP 129 by one writer that, “the Marriage of Mohammedans Ordinance has been honoured by its breach rather than its observance”^[8].

This high rate of noncompliance was reiterated in the memorandum of the Intestate Succession Law, 1985 (PNDCL 111), which provides as a preamble to the need for the promulgation of PNDCL 111, the fact that “The Marriage of Mohammedan’s Ordinance, Cap. 129 … is hardly ever enforced. Its registration provisions are probably not known to many Muslims, and the existence and situation of registers is even less common knowledge either to Muslims or to the legal profession…”

Various writers have attributed this high rate of noncompliance to a myriad factors, including the following:

1. Registration of an Islamic marriage under CAP 129, was the only way a Muslim could have Islamic law apply as his personal law, in matters such as inheritance to his/her property upon his death intestate. However, with the repeal of Section 10 of CAP 129^[9], which conferred this right on Muslim marriages registered under CAP 129, the practical utility of CAP 129 was all but annihilated.^[10] It created the situation where the educated few who wanted to register under CAP 129 for this very reason, saw no inducement for doing so.
   
2. Furthermore, licensed Muslim clerics are virtually nonexistent since most Muslim Clerics have not been licensed by the Registrar of Mohammedan Marriages due to the main reason of ignorance of this requirement, as well as due to the fact that licenses are granted by the Minister of Interior^[11] and not the registrar of Mohammedan marriages. Most Islamic marriages are therefore officiated by unlicensed clerics. To that extent, even parties who are aware of this requirement of licensing of Muslim Clerics might not be able to comply due to the absence of such licensed Clerics.
   
3. Also, the time of registration being one week after the celebration is too short and the cumbersome process of seeking an extension through the High Court and not District or Circuit courts which are more readily available in the various communities acts as a disincentive to registration.
   
4. The sheer number of people to journey to the registration point as well as the alternative of hiring a lawyer to make an application to dispense with the signature of these required persons makes the registration process unattractive.
   
5. To add to it, the cost of registration and the proximity as well as the preparedness of registration centres to register Islamic marriages are seriously lacking.^[12] This is because these registration centres do not stock the Marriage of Mohammedans Register and would either turn prospective registrants away or adapt Ordinance or customary marriage forms for this purpose. This is also due to the fact that the Registrar of Mohammedan marriages is designated as the District Chief Executive and not the Registrar of marriages.^[13]

Saving an Otherwise Void Islamic Marriage or Divorce?

The question that has boggled the minds of many on the application of CAP 129, has been ‘what legal relationship exists between the parties to an Islamic marriage who as a result of non-compliance with CAP 129 are held not be legally married?’ 

Thankfully in Ghana, there are somewhat inherent traits of our diverse tradition and culture incorporated into Islamic marriages. Thus, depending on the type of community the marriage is being celebrated in, a customary marriage may be performed before the actual Muslim marriage is held or vice versa. 

In such a case, the Islamic marriage that would otherwise be void for non-compliance with CAP 129 will fall away leaving behind a valid customary law marriage between the parties. This marriage would be held to be valid notwithstanding the failure to register the marriage as a customary one under the Marriages Act.^[14] This assertion has been validated by the courts who have held that an Islamic marriage which has not been registered under CAP129 is “at its very best a marriage by customary law.”^[15]

In the instance where a customary marriage or conversion of the Islamic marriage into CAP 127 marriage takes place after the Islamic marriage has been celebrated, the Islamic marriage would have been converted into a customary marriage or CAP 127 marriage and the failure to register the Islamic marriage would not affect the validity of the customary or CAP 127 marriage.

In the worst case scenario, where the marriage contracted between the parties was a purely Islamic marriage (with no customary rites having taken place), it is posited that where the marriage is voided as a result of failure to register under CAP 129, the marriage would still qualify as an informal customary marriage.^[16] Under this type of marriage though no customary rites have been performed (as in the case of a formal customary marriage) a marriage would be held to have been contracted between the parties^[17] where it meets the essential formal requirements as formulated by Justice Ollenu, to substantiate the existence of such a marriage^[18]. These requirements are agreement by parties to live together as husband and wife, consent by the families of both parties that the parties should live together as husband and wife and finally consummation by cohabitation. These are elements that are present in all Islamic marriages. It therefore follows that where these marriages are voided for noncompliance with CAP 129, they can be saved as informal customary law marriages.

The same principles can be applied to Islamic divorces where they are performed in accordance with the customs of a particular ethnic group in Ghana before or after the Islamic rites of divorce are performed. Unfortunately unlike Islamic marriages where the possibility of a conversion to a customary marriage is fairly high, Islamic divorces underpinned with customary rites are so rare as to be non-existent.

Currently, there is a habit of certain sects of Muslims in Ghana, having their marriages dissolved by their Imams and their councils and issuing certificates to that effect. It is pertinent to note that until these ‘divorces’ are registered in accordance with CAP 129, they are for all intents and purposes not valid divorces and these divorces cannot be saved by customary law when they are effected purely by observing Islamic rites of divorce..

The magnitude of the repercussions of this trend are beyond imagination as it might lead to the situation where a  wife divorced in accordance with Islamic law may still inherit the estate of her deceased husband and vice versa under the Interstate Succession Law( PNDCL 111), since the Islamic divorce would be  null and void. It might also lead to the situation where a Muslim man may unwittingly find himself with more than four wives. And even worse, it would result in the situation where a supposed divorced woman contracts an illegitimate marriage with her subsequent ‘husband’, the resultant effect being that children of this invalid marriage would be born out of wedlock.

The Way Forward:

CAP 129 as the name even suggests is an anachronistic legislation that must be brought forward into present times. Nowhere in the course of history have believers in Allah and the holy Prophet Mohammed (PBUH) ever referred to themselves as Mohammedans. The fact that CAP 129 is titled Marriage of Mohammedans Ordinance bears witness to the absence of any collaboration on the part of the lawmaker with the persons in respect of whom the law sought to apply, (Muslims), which was a common phenomenon in the colonial era when CAP 129 was promulgated.

It therefore goes without saying that CAP 129, which predates Ghana has become a colonial lodestone around the necks of Muslims in Ghana, disenfranchising Muslims of legitimate rights that have been made available to all Ghanaians. The cry of the Ghanaian Muslim is for recognition that their way of life, molded from Islamic rites and practices, in itself is legitimate and does not need further validation through a secondary secular procedure.

While some have argued for an amendment of CAP 129 with focus on the areas of the law dis-incentivizing registration, in the ultimate analysis, a more drastic measure of a complete repeal of CAP 129 may be preferred.  With the main incentive for the registration of marriages under CAP 129 taken away^[19], noncompliance will continue to be the bane of CAP 129. Any amendment to dispense with registration as a requirement of validation would also not do away with the inherent flaws evident in CAP 129 which continue to make the law unattractive. 

Furthermore, the wording of Section 27 of the Marriages Act 1884-1895, which is the section validating marriages of Muslims only upon registration, when taken literally proves to be particularly problematic for every Muslim living in Ghana. This section provides that marriages and divorces contracted by persons professing the Mohammedan faith (Muslims) shall not be valid unless registered under CAP 129. The literal meaning of this section would hold that, no matter what type of marriage is contracted by a Muslim, be it a customary marriage or one under the ordinance, same would not be valid unless registered under CAP 129. CAP 129 in essence therefore, seeks to take away the freedom of Muslims to contract marriages of their choice, a right available to all Ghanaians, for the simple reason of their faith or religion. This brings section 27 of CAP 129 in direct conflict with Article 17(2) of the 1992 Constitution which provides that “a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status” and for that matter is not likely to stand the test of constitutionality.

The requirement of registration under CAP 129 must not be made a sine qua non to the validity of either an Islamic marriage or divorce. The example of the effect of failure to register a customary marriage or divorce under the Customary Marriage and Divorce Registration Act, 1985, (PNDCL 112) now Part One of the Marriages Act 1884-1985 could be emulated so that the effect of registration of an Islamic marriage or divorce will only serve as prima facie evidence that an Islamic marriage or divorce has taken place.^[20]

In addition, licensing of Muslim clerics and places of worship can be done by the Registrar of Marriages. These licensed clerics should maintain marriage registers and issue marriage certificates at the time the marriage is contracted so as to do away with the cumbersome process of registering the marriage after the marriage has already been celebrated. The same principles should be applied to divorces which take place at registered places of worship before licensed clerics, though any amendments that must be made in this regard must provide elaborate provisions for ancillary matrimonial  matters such as custody of children, financial provision, divorce settlement and distribution of property acquired during marriage.

Finally, a new approach to the whole concept of Islamic marriages which takes into account the suggested amendments stated herein as well as creates an option for persons who register their marriages under the new law, to choose at the point of registration, to have their self-acquired property distributed in accordance with Islamic law in the event of their death intestate will go a long way in addressing the issues discussed in this paper. The option to choose to have Islamic law apply to the estate of a Muslim registered under the new law, only when the Muslim dies intestate, will correct the deficiency inherent in the repealed Section 10 of CAP 129^[21], which made it mandatory for a Muslim whose marriage was registered under CAP 129 to have the distribution of his estate regulated by CAP 129 even where the deceased Muslim made a will declaring otherwise.^[22]

Nevertheless, notwithstanding whatever choice is exercised by Ghanaian lawmakers towards CAP 129, the resounding consensus is that the Marriage by Mohammedan Ordinance has outlived its utility and is in dire need of a complete overhaul to bring it in line with modern times in the form of the promulgation of a new law governing Islamic marriages and divorces which would sound the necessary death knell to CAP 129.

Photocredit: Annie Spratt on Unsplash

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^[1] Section 23 of the Marriages Act 1884-1985.

^[2] Section 24 of the Marriages Act 1884-1985.

^[3] Section 25 of the Marriages Act 1884-1985.

^[4] Section 26 of the Marriages Act 1884-1985

^[5] SEE: Re Registration of Marriage between Byrouthy and Akyere: Exparte Ali (1980) GLR 872, Jebeille v Ashkar and Anor (1977) 1 GLR 482 and Kwakye V. Tuba and Others [1961] GLR 720-725.

^[6] SEE: Kludze, A.K.P (2015) Modern Law of Succession in Ghana; p.234; Ollennu, N.A. (1966) The Law of Testate and Intestate Succession in Ghana, p.262.

^[7] Atuguba, Raymond A. (2003) Paper Presented At A Workshop Organised By The Family Law Focal Area Of The German Technical Cooperation (GTZ) On The Registration Of Islamic Marriages In Ghana’s Plural Legal System-Challenges And Strategies For Improvement And Held At The District Assembly Hall, Hohoe In The Volta Region On The 20^th Of May 2003. Available online @ https://ladaconsult.com/doc/Moslem%20Islamic%20Marriages%20.pdf[Accessed 18th May, 2020].

SEE: Higgins, Tracy E. and Fenreich, Jeanmarie (2001) Fordham International Law Journal, Contemporary African legal Issues, Special Report. Available online @ http://www.leitnercenter.org/files/CRGHANA01.pdf [Accessed 18th May, 2020].

^[8] Daniels, W.C. Ekow, “Towards Integration Of Laws Relating To Husband And Wife In Ghana;” University of Ghana Law Journal (Vol. 11, 1965) P.37

^[9] The repealed Section 10 of CAP 129 was inadvertently reproduced as Section 28 of the Marriages Act 1884-1985. It is proposed that this inclusion was an oversight on the part of the Statute Law Review Commission and not a reenactment of the said provision since the mandate of the Commission did not confer on it the power to amend, repeal or enact statutes.

^[10] Repealed by Section 19 of Intestate Succession Law, 1985 (PNDCL 111)

^[11] Section 21 of the Marriages Act 1884-1985

^[12] SEE: Kludze, A.K.P (2015) Modern Law of Succession in Ghana; p. 229

^[13] Atuguba, Raymond A. (2003), supra

^[14] Section 1 of the Marriages Act 1884-1985 provides a marriage contracted under customary law may be registered under this Act. SEE Section 13 of the Marriages Act 1884-1985.

^[15] Kwakye V. Tuba And Others [1961] GLR 720-725

^[16] Ahwireng-Obeng, Fredericka (2015); At a Glance! Contemporary Principles of Family Law in Ghana @ page 17 and 33

^[17] Essilfie And Another V. Quarcoo [1992] 2 GLR  180-194 @headnote 1 “on the authorities there were two forms of valid marriages known to our customary law: first, the ordinary case where a man sought the hand of the woman from her family and with their consent performed the necessary ceremonies of payment of drinks, customary fees and dowry; and secondly, where although the customary marital rites had not been performed, the parties had consented to live in the eyes of the world as man and wife and their families had consented that they should do so, and the parties actually lived as man and wife in the eyes of the whole world. The consent of the family could be either actual and express or implied and constructive.”

^[18] Yaotey V. Quaye [1961] GLR 573-584.

^[19] SEE: Footnote 10.

^[20] SEE: Section 1 and 13 of the Marriages Act 1884-1985.

^[21] Section 10 of CAP 129 states “On the death of a Mohammedan whose marriage was registered under this Ordinance, the succession to his or her property shall be regulated by Mohammedan law.”

^[22] Brimah & Cosbold v Asana (1962) 1 GLR, 118, P.119-120