FAMILY LAW AND PRACTICE

FAMILY LAW AND PRACTICE
Her Ladyship Justice Eudora Dadson
The Nature and Scope of Family Law
The word “family”, according to Lowe N and Douglas G, refers to the basic social unit
constituted by at least 2 people whose relationship may fall into one of 3 categories:
a) Husband and wife/ 2 persons living together in a manner similar to spouses

b) A parent living with one or more children
c) Brothers and sisters or other persons related by blood or marriage
In the Ghanaian context, family consists of a group of persons who trace their ancestry
through either a common male ancestor or a common female ancestor. Through a male
ancestor – patrilineal. Through a female ancestor – matrilineal.
Amponsah & Ors v. Budu
This case was about the distribution of the property of the deceased. The plaintiffs were the
grandchildren of the deceased (i.e. the children of the deceased’s 3 surviving daughters),
while the defendant was the paternal nephew of the deceased (i.e. his brother’s son). It
must be noted that the deceased was Guan and the Guan family system they belonged to was
a patrilineal one.
The plaintiffs argued that on the death intestate of the deceased, his self-acquired property
would devolve to his 3 surviving daughters and on the death of those daughters, the property
would devolve upon the plaintiffs. The defendant counterclaimed that the property in
question was not self-acquired but rather family property.
The Court held that in a patrilineal community, a person’s family consisted of their children,
their paternal siblings, the children of their paternal siblings, their paternal grandparents and
the descendants of the paternal uncles in the direct male line.
In this case, since the plaintiffs were the children of the deceased’s female children, they did
not fall within the patrilineal family and for that reason, they would not be entitled to the
property without the consent of the deceased’s patrilineal family.
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This case shows that there is a distinction between the immediate family and the wider
family when it comes to patrilineal and matrilineal family systems.
Professor Peter Bromley is often credited with the invention of the academic study of family
law, since he published his book in 1957.
Burton in Family Law defines family law as the law of a relationship between adults, adults
and children, and between adults, children and the State as continually influenced by social
and demographical changes.
Family law can also be defined as a body of rules of different types that define and alter
status, provide specific machinery for regulating property, protect both individuals and
groups and attempt to support the family structure of our society.
Offei in his book states that family law concerns the following matters:
a) The relationship between a husband and a wife, the form of their marriage, the
annulment or dissolution of the marriage and the legal effects of the breakdown of
their marriage.
b) The relationship between a parent and a child, the legal effects of the relationship,
adoption, guardianship and custodianship
c) Rights in property which are created and affected by membership of the same family
(i.e. husband, wife and children)
d) The legitimacy of children
Jurisdiction of the Courts in Family Law
a) District Courts
Section 47(1)(f) of the Courts Act, 1993 (Act 459) as amended by Act 620 confers
jurisdiction on District Courts in matters of divorce and other matrimonial causes or
matters and actions for the paternity and custody of children.
Section 50 of Act 459 further states that the District Courts also have the jurisdiction to hear
and determine any action that arises under the Children’s Act and shall for the purpose of
that enactment be the Family Tribunal and exercise the powers conferred on a Family
Tribunal under that Act and any other enactment.
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b) Circuit Courts
Section 43 of the Matrimonial Causes Act, 1971 defines court as used in the Act as the High
Court or the Circuit Court. Based on this definition, Section 41 which allows the “court” to
apply the provisions of the Act to monogamous marriages and marriages other than a
monogamous marriage, confers on the Circuit Court, the jurisdiction to hear divorce
petitions, nullity proceedings, applications for neglect to maintain spouse or child and
custody proceedings in respect of both monogamous and potentially polygamous marriages.
Section 42(a)(iv) of the Courts Act, 1993 (Act 459) as amended by Act 620, further confers
jurisdiction on the Circuit courts to make orders in respect of the appointment of guardians
for infants and orders for the custody of infants.
c) High Court
The High Court, pursuant to Section 15(1) of the Courts Act, 1993 (Act 459) has original
jurisdiction in all matters civil or criminal. This includes family law related matters.
Section 43 of the Matrimonial Causes Act, 1971(Act 367) defines the court as either a
Circuit Court or the High Court. In the Act, the “court” has the power to apply the provisions
of the Act in matters concerning monogamous and polygamous marriages in accordance with
the Act.
Section 18 of the Courts Act, 1993 (Act 459) also confers jurisdiction on the High Court in
matters relating to the appointment of guardians for infants, the custody and maintenance of
infants, control and administration of the estate of an infant, the education of an infant and
setting him up in an occupation or career.
The High Court has appellate jurisdiction over appeals from the District Court in civil
matters (including matters relating to family law).
d) Court of Appeal
Section 11 of the Courts Act confers jurisdiction on the Court of Appeal to hear appeals from
the High Court and the Circuit Courts in civil matters, which include matters of family law.
e) Supreme Court
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Under Section 4(1) of the Courts Act, 1993 (Act 459), appeals in civil matters from the Court
of Appeal from a judgment of the High Court exercising its original jurisdiction lie as of right
to the Supreme Court. This includes decisions relating to family law.
MARRIAGE
Marriage has 2 distinct meanings:
a) The ceremony by which a man and woman become husband and wife, or the act of
marrying and,
b) The relationship existing between a husband and his wife or the state of being
married.
It is important to note that these 2 meanings correspond with the dual aspect of marriage as
both a contract and a status.
Reasons for marriage in different societies and cultures include:
1. Procreation
2. Provision of sexual gratification
3. Care for children and their education
4. Socialization
5. Status and companionship
6. Wealth accumulation
Definition of Marriage
Under English common law, the definition of marriage is classically taken from the case of
Hyde v. Hyde by Lord Penzance: “I conceive that marriage, as understood in Christendom
may…be defined as the voluntary union for life of one man and one woman to the exclusion
of all others.”
This definition proposes 4 elements of a Christian marriage:
a) Voluntariness(voluntary union) : The marriage can be annulled if there is no true

consent from either party.
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b) Monogamy (one man and one woman to the exclusion of all others): Neither spouse
may contract another marriage as long as the original union subsists.
c) Indissolubility (for life): The concept of a divorce existed for many years before the
case of Hyde v. Hyde, and divorce by a judicial process had been made possible in
England for over 8 years prior to the decision in Hyde v. Hyde. It is therefore assumed
that Lord Penzance’s statement is interpreted to mean that unless marriage is
determined by a decree or some other act of dissolution, it must last for life.
d) Heterosexuality (man and woman): The union must be between a man and a woman.
This conflicts with the modern same-sex marriages that most countries allow today.
The definition of marriage in the Encyclopedia Britannica also states that that marriage is a
“legally sanctioned union usually between a man and a woman that is regulated by laws,
rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and
accord status to their offspring (if any).”
In Islam however, marriage is understood as a gift from God or a kind of service to God.
The Quran states that the marital bond rests on mutual love and mercy and each spouse is
described as the garment of the other.
Marriage as a Contract
The same way a contract is a legally binding agreement between parties, marriage is also a
legally binding agreement between the parties involved. All the essential elements of a
binding contract (i.e. offer, acceptance, consideration, the intention to create legal
relations, capacity) apply.
The same way a contract begins with the exchange of promises, is the same way a marriage
begins with the exchange of promises. All the vitiating factors applicable to normal contracts
are also applicable to the marriage contract. Under the marriage contract, the parties are
entitled to certain rights or have certain duties imposed on them by law.
It is important to note that even though marriage is a type of contract, it is a special type of
contract.
In the case of Adams v. Palmer, the court stated that, “When the contracting parties have
entered into the marriage…they have not so much entered into a contract as into a new
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relation, the rights, duties and obligations of which rests not upon their agreement but
upon the general law of the states, territory or common which defines and prescribes
those rights, duties and obligations, they are of law, not of contract. It was of contract
that the relation should be established but being established, the power of the parties as
to its extent or duration is at an end. Their rights under it, are determined by the will of
the sovereign as evidenced by law. They can neither be modified nor changed by any
agreement of the parties. It is a relation for life, and the parties cannot terminate at any
shorter period by virtue of any contract they may make. The reciprocal rights arising from
this relation so long as it continues are such as the law determines from time to time and
none other. And again, it is not then a contract within the meaning of the clause of the
constitution which prohibits the impairing of the obligation of contracts. It is rather a
social relation like that of parent and child, the obligations of which arise not from the
consent of concurring minds, but are the creation of the law itself.”
This explains the unique/sui generis nature of the marriage contract. Even though its creation
is by contract between the parties, its incidents are governed strictly by the law and not by
any agreement that the parties may choose to make.
Differences between the Marriage Contract and Ordinary Contracts
Marriage Contract Ordinary Contract

A marriage can be contracted only if special No special formality needs to be observed
formalities are observed (publication of for the contract to be made.
banns, ceremony in a recognized venue).
The grounds for declaring a marriage void or
voidable are quite different.
A voidable marriage cannot be declared void A voidable contract can be rescinded by
ab initio by rescission by one of the parties, one of the parties and this rescission may
it can only be set aside by a decree of render the contract void ab initio.
nullity pronounced by a court of
competent jurisdiction.
The marriage cannot be discharged by an No formal court order is required to
agreement, frustration, or a breach. It can discharge the parties of their obligations. An
only be discharged by a divorce granted by agreement, frustration or breach may
a court of competent jurisdiction or the suffice.
death of a partner.
The parties’ mutual rights and duties are The parties mutual rights and duties are
largely fixed by law and not agreement. fixed largely by agreement, not necessarily
law.
The marriage contract may affect third Unless the third party is a party to the
parties (e.g. children, surviving parents, contract or there is an express or implied
etc.) and their relations agreement to entitle the third party to any
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benefit under the contract (in accordance
with the exceptions to privity of contracts
under the law), third parties cannot be
affected by the contract.
Marriage as a Status
Marriage creates a status (i.e. the condition of belonging to a particular class of persons to
whom the law confers peculiar capacities or incapacities). And unlike an ordinary contract,
the mutual rights, obligations and duties of the parties are fixed largely by law and not their
agreement. Some of the duties may be varied by the consent of the parties (i.e. the duty to
cohabit), but these are very few terms from the many that cannot be altered.
BREACH OF PROMISE TO MARRY
This is a common law action that is a part of Ghana’s received laws. Even though it has
been abolished in England and Wales and in America, it remains actionable under Ghana law.
The action, therefore, as it exists in Ghana law is a reflection of the original common law
position. And it is rarely used.
The foundation of this action lies in the fact that a marriage contract begins with the
exchange of promises between a man and a woman. The action for breach of promise to
marry arises where a person makes a promise to marry another and refuses to perform.
To establish this action, the party must prove that there was a mutual exchange of
promises. The marriage promise may be express (verbally made) or implied. The promise
may be implied where the agreement to marry can be inferred from the behaviour of the
parties towards each other. It may also be inferred from actions like the giving and
acceptance of an engagement ring.
The promise forms the consideration for the marriage contract, allowing either party to sue
where the other refuses to uphold the promise.
The promise may be conditional, in which case there should be evidence of fulfillment of
the agreed-on condition, before an action in breach of promise to marry can lie.
Where there is a general promise of marriage, an intention to perform the contract within
a reasonable time can be imputed by the court.
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Where the breach is established, damages are presumed. The only remedy for breach of
promise to marry is damages and either the man or the woman may sue for the damages. The
court will never grant specific performance of a contract to marry.
Types of Breach of Promise to Marry
The breach of a promise to marry may be in either of 2 forms:
a) Non-performance when the time for performance arrives, or

b) An anticipatory breach before the time of performance.
A man and woman may agree to marry at a certain time or on the occurrence of a
particular event. Where the time elapses or the event occurs and one party refuses to uphold
the agreement, this is termed a non-performance breach.
However, where one party decides to withdraw from the agreement to marry before the
specified time or occurrence of the event, then that party will have committed an
anticipatory breach. It is anticipatory because the withdrawal of the party before the time
or the event makes it impossible for the marriage to occur.
An anticipatory breach may also occur where the defendant, before the time of performance,
by his own act, renders himself unable to perform the contract e.g. by marrying another
person. This is as effective a repudiation as if he had done so by withdrawing from the
promise in words.
With a non-performance breach, the party claiming the breach must show that they
requested the other party to marry them and that the request was refused. If the promise
to marry was conditional, a non-performance breach can only lie where the condition has
been satisfied and the time for performance has arrived but the other party refuses to
uphold the agreement.
With the anticipatory breach, the aggrieved party need not wait for the time of
performance to arrive.
Once the defaulting party refuses to uphold the promise, the other party has an immediate
right of action and need not wait for the contractual time for performance before suing
for breach of promise to marry.
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Frost v. Knight
In this case, the defendant had promised to marry the plaintiff after the defendant’s father
died. While his father was alive, he repudiated the marriage contract and the plaintiff sued
for damages immediately. The court held that the plaintiff could recover damages
notwithstanding that the defendant could die before his father.
It is important to note that where the agreement to marry is made in respect of a customary
marriage, and the defaulting party proceeds to marry another under customary law before
the time for performance arrives, the aggrieved party will have to wait for the time of
performance to lapse before suing for non-performance if the defaulting party still refuses to
marry her.
This is because customary marriages are potentially polygamous, allowing the defaulting
party to still marry the aggrieved party, even if they marry someone else first. This would not
be the case with a marriage under the Ordinance which is monogamous.
Timing
The courts have held that a promise to marry is a promise to marry within a reasonable
time. As such, failure to marry within a reasonable time can amount to a breach of promise
to marry.
Anning v. Kingful
In this case, the defendant had promised to marry the plaintiff within 3 months of giving her
a Bible and a ring. The plaintiff waited for 8 years but the marriage never took place. The
court held that the defendant was in breach of the promise to marry because the promise
meant that he would marry the plaintiff within a reasonable time.
“A promise to marry is a promise to marry within a reasonable time.”
Defences to Breach of Promise to Marry
1. Fraud and Misrepresentation: A defendant may not be held liable for a breach of
promise to marry where they are able to convince the court that they entered into the
contract as a result of a fraudulent misrepresentation on the part of the plaintiff. E.g.
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the plaintiff at the time of the exchange of promises misrepresented to the defendant
that they were unmarried.
2. Unchastity of the woman (Bad character): Where the plaintiff is a woman and she has
been unchaste before the making of the contract and the defendant was unaware of
this at the time of making his promise, he can rely on this as a defence. Where the
defendant chooses to rely on this defence, evidence of the plaintiff’s reputation in the
area in which she lives is admissible. This defence was relied on in the case of Bench v.
Merrick, where the defendant proved that the plaintiff had had a child 10 years ago
without his knowledge and before the promises were exchanged. This was held to be a
successful defence to the action of breach or promise to marry.
3. Infidelity on the part of the woman after the exchange of promises: If the man can
prove that after the promises were exchanged, the woman was unfaithful, he can rely
on it as a successful defence.
4. Infidelity on the part of the man in a monogamous marriage: It is important to note
that under Ghanaian law, where the promise was in respect of a customary law marriage
then this defence cannot operate. This is because of the potentially polygynous nature
of customary law marriages.
5. Insanity: A person’s insanity will hold as a defence to breach of promise to marry, only
where they can prove that the insanity has rendered them incapable of performing the
contract. A defendant may also use the plaintiff’s insanity as a defence where they can
prove that the plaintiff will be incapable of performing their marital duties due to the
insanity. Insanity cannot be accepted as a defence where the defendant only claims that
the plaintiff was insane without their knowledge at the time of exchanging promises. The
defendant should be able to prove that the insanity will render the plaintiff incapable
of performing marital duties.
6. Bodily infirmity: Where the defendant can prove that the plaintiff’s bodily infirmity
after the exchange of the promises has rendered either the defendant or the plaintiff
absolutely incapable of performing their marital duties, then this defence will lie.
7. Mutual agreement/release: Where the defendant can prove that the plaintiff agreed to
withdraw and they subsequently released each other from the promises, the plaintiff
cannot succeed in an action for breach of promise to marry.
Damages in Breach of Promise to Marry
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Where the action is upheld, damages are at large. The damages are awardable in 3 main
categories:
a) Compensatory (the various heads of damage include: mental distress, loss of

reputation, loss of any economic advantage that the marriage would have conferred,
social disgrace, injured feelings, expenses incurred in preparations towards the
wedding, pecuniary loss arising from the engagement e.g. giving up employment in
anticipation of the marriage, loss of future marriage prospects and injury to health).
These damages are awarded to restore the plaintiff to the position they would have
been in had the agreement been performed.
b) Aggravated: Proof that the Plaintiff was seduced as a result of the engagement,
aggravates damages payable. The same is true for the failure of the defendant to
disclose a venereal disease.
c) Punitive: These are usually awarded where the defendant has been shown to be a
thorough rascal in the manner in which the promise was breached or the motivation
for the breach. Fraud and malice usually form the grounds on which such damages are
awarded.
The court in the case of Donkoh v. Ankrah mentioned factors like the notoriety of the
marriage, and whether or not the plaintiff had children for the defendant, as things
that could aid the court in the determination of the amount of damages to award the
plaintiff in an action for breach of promise to marry.
If one party gave the other a gift in the hope of marriage, where the receiving party is
the one in breach, then they must return the gift to the other party. This was the
holding of the court in the case of Kwame Addo v. Adwoa Duko, where the plaintiff gave
the defendant a necklace following her agreement to marry him but later refused to do
so.
Unless the withdrawing party has good reasons for withdrawing from the contract,
then he cannot claim his gift back. Remember, it is only gifts made in contemplation of
marriage that are to be returned. Whether or not the gift was made in contemplation of
marriage is a question of fact for the court to decide.
It is also important to note that gifts made in contemplation of marriage cannot be

recovered once the marriage takes place. Even if the marriage breaks down, the gift
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cannot be recovered, because the receiving party fulfilled the bargain in contemplation of
which the gift was given.
The Ghanaian Customary Law Position on Breach of Promise to Marry
Sarbah was of the opinion that breach of promise to marry was not actionable under
customary law because, he believed that at customary law, before the exchange of promises
can be made, the consent of the woman’s family must be sought.
Without this consent, there is no “betrothal.” And even where the consent is sought and the
man refuses to marry her later or the family withdraws their consent, no damages are
incurred by the defaulting party and there is no remedy for the aggrieved party.
This position was challenged and subsequently disproved by Prof Allot, JB Danquah and case
law.
Prof Allot was of the opinion that there were decisions of the Native Courts on breach of
promise to marry under customary law where claims for compensation were made by the
aggrieved parties.
JB Danquah in his book, “Cases in Akan Law” referred to the case of Kwame Addo v. Adjoa
Duko, where the complaint was lodged by the plaintiff before the Omanhene of Akim
Abuakwa, Nana Sir Ofori-Atta. The facts revealed that the plaintiff and the defendant had
agreed under customary law to get married and the plaintiff in the hope that the marriage
would take place, had presented the defendant with a necklace. So when the defendant
refused to marry him, he lodged the complaint and the chief’s court ordered the return of
the necklace and the payment of damages.
There is the case of Appiah Achiampong v. Achiampong, where the court upheld the right of
a customary law wife to sue for breach of promise to marry where her husband had
promised to convert the marriage to one under the Ordinance and had failed to do so
within a reasonable time.
The case of Djarbeng v. Tagoe further established that breach of promise to marry actions
were not strange to customary law.
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In this case, the plaintiff and the defendant were involved in an amorous relationship before
the plaintiff’s departure to the United Kingdom for further studies. A child was born to them
soon after the defendant departed. When the defendant returned, the plaintiff sued him in
an action for breach of promise to marry. The Plaintiff produced evidence in the form of a
letter from the defendant informing the plaintiff that he had made up his mind to marry
her and an allegation that the defendant, at an earlier paternity ceremony had agreed,
even though he was not present to marry the plaintiff.
The Court held that there was these were mere statements and could not be held to
constitute a promise that would be enough to create a binding contract to marry. Further
the court attached priority to the consent of the family members of the woman to the union.
And so, since the family’s consent had not been sought, it was held that the defendant
was not in breach.
And in the case of Afrifa v. Class-Peter, the court categorically stated that breach of promise
to marry is not foreign to customary law.
Afrifa v. Class-Peter
The appellant and the respondent exchanged vows to seal their relationship in marriage. The
appellant, as a result, presented the respondent’s family with gifts of money, drinks and a
Bible. They later set up a home and cohabited together, without having performed the
marriage ceremony. The respondent abandoned her job as a teacher, waiting for the
marriage. Each date scheduled for the marriage was postponed at the instance of the
appellant and in each case, the appellant gave a plausible excuse and fixed a new future
date.
However, the appellant was having affairs with other women, and it became public
knowledge that he was the father of a child with the woman living next door. On one
occasion, the respondent found the appellant in a compromising situation with another
woman and created a scene, after which she packed her baggage from their shared home and
left. She then brought the action for breach of promise to marry against the appellant.
The court held that actions for breach of promise to marry can be found in the native court
records, meaning that the action exists at customary law.
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The court further held that gifts of a ring, and Bible are unknown in customary marriages.
They are essentially Christian symbols denoting an intention to marry in a Christian
monogamic fashion.
Further, the fact that the appellant kept postponing the date for marriage implies a
willingness on his part to marry at a future date. So, his claim that he had already
performed the Ga marriage ceremony rites could not be upheld.
Mere cohabitation of the parties is not conclusive of the issue of marriage. The court also
held that it would be prudent for a man seeking the hand of a woman from another ethnic
group to inquire of the formalities for validating the marriage of his adoption before
proceeding. The decision of the trial court was upheld.
Donkor v. Ankrah
The plaintiff was the concubine of the defendant for 3 years. In January 1997, the
defendant’s family went to the plaintiff’s family and performed the knocking ceremony.
The defendant presented the family with a bottle of schnapps and 1000 cedis and asked
for the plaintiff’s hand in marriage. They then lived together as man and wife. When the
plaintiff became pregnant 3 years later, the defendant demanded her to have an abortion.
She refused and he quickly married another woman. The plaintiff brought an action against
the defendant claiming inter alia, damages for breach of promise to marry.
The Court held that the performance of the knocking ceremony was a preparatory stage in
the marriage contract and that the acceptance of the dowry was a sign of the consent of
the plaintiff’s family to the marriage. Therefore, the defendant had breached the promise
to marry and was held liable.
Kporfor v. Sasu
The plaintiff in this case wished to marry a certain woman at customary law and approached
her father. The father told the plaintiff that his daughter was already married. Nonetheless, a
relationship developed between the plaintiff and the woman but the woman never lived with
the plaintiff as his wife. The plaintiff sued the father and daughter jointly and severally for
damages for breach of promise to marry.
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The Court held that from the evidence, the plaintiff knew or reasonably ought to have
known that the woman was at all material times married to someone else and that she
lacked capacity to contract another marriage while the first one remained undissolved.
For that reason, she was not liable in an action for breach of promise to marry.
Ama Serwaa v. Gariba Hashimu & Anor.
The parties to this case were Ghanaians who had migrated to Italy. They met there and
cohabited in Napoli as a couple. While the Plaintiff believed that she and the 2 nd Defendant
were in an amorous relationship and that marriage was imminent, the 2 nd Defendant was of a
different mind and disputed the basis of the belief of the existence of an amorous
relationship.
The facts revealed that the Plaintiff gave up her carpentry job in Udinese to move to Napoli
for a better job at the urging of the Defendant, only to find out that the job was prostitution
that the Defendant intended for her.
She did this commercial sex work for a few years and gave her earnings to the Defendant,
alleging that they hoped to get married and set up a home in Ghana and so she was
introduced to the Defendant’s parents. She also introduced the Defendant to her family.
However, they were never formally married.
In the course of the relationship, the Defendant had briefly visited Ghana and made
arrangements to acquire some properties and vehicles to be kept for the couple by the 1 st
Defendant. The Plaintiff later returned to Ghana and found that the vehicles that the
Defendant had acquired could not be accounted for and had in fact been sold by the 1 st
Defendant. She lost her travel documents and was unable to return to Italy.
The 2nd Defendant promised to help her acquire new papers and introduced the Plaintiff to
an agent. The 2nd Defendant acted as a guarantor and the Plaintiff raised a loan from Unique
Trust Financial Services on the back of a Mercedes Benz car.
The defendant and the plaintiff were in Ghana together at some point in time and they
cohabited at Tantra Hills as their house at Madina at the time was not yet ready for
occupation. Later she heard stories about how the defendant was cheating on her with other
women at the Madina house and for that reason, she insisted on moving in there. She later
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left claiming that this was due to some harassment she suffered at the hands of the
defendant and his sisters. She further alleged that she delivered a still-born child for the
defendant. The relationship subsequently broke down and the plaintiff suffered a mental
breakdown and was taken to Kumasi for treatment.
Upon recovery, she found that the defendant had married someone else.
The plaintiff made her case that in preparation for marriage to him, she gave her earnings
from prostitution to the defendant together with all her money from the secondhand sale of
shoes that she did in Ghana. She even alleged that she had began receiving tutoring from the
defendant’s mother for her eventual conversion to Islam as she was required by law to do.
The defendant resisted all the claims made by the plaintiff and denied that they had any
amorous links.
The Court held that:
1. Where a man or woman makes a promise of marriage to another and then fails to carry
it through, it is a cognizable wrong for which the court would give a remedy.
2. The position of the law is not that for a breach of promise to marry to succeed, there
must be a subsisting customary law marriage whose failure to be converted to an
ordinance marriage grounds the action. This could be the case, like in Afrifa v. Class-
Peter, but it is not the only case.
All these cases show that breach of promise to marry is not foreign to customary law.
GHANAIAN MARRIAGES
Laws Relating to Marriages in Ghana
The Marriages Act, 1884-1985 (Cap 127)
This Act consolidates the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL
112), the Marriage of Mohammedans Ordinance, 1907 (Cap 107) and the Marriage Ordinance,
1951 (Cap 127).
Under the Marriages Act, 1884-1985 (Cap 127), there are 3 forms of recognized marriage in
Ghana;
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a) Customary marriage (Part 1 of Cap 127) – potentially polygamous
b) Mohammedan marriage (Part 2 of Cap 127), - potentially polygamous and
c) Christian and other marriage (Part 3 of Cap 127) – strictly monogamous.
The legal system permits for the conversion of a potentially polygamous marriage into a
monogamous one.
CUSTOMARY LAW MARRIAGE
Ollenu J in the case of Yaotey v. Quaye defined a customary law marriage as the “union of
the man’s family and the woman’s family. It imposes rights and duties upon the two
families. The woman’s family gains the right to perform certain rites in certain eventualities
and the man’s family also gains the right to perform certain rites in certain eventualities.”
This shows that a defining feature of every customary law marriage is the involvement of
the respective families of the parties. Their involvement begins once the family of the
prospective husband asks for the hand of the prospective bride in marriage from her family.
Regardless of the different ethnic groupings in the country and their varying cultural
practices, it is important that the consent of the families to the union is secured to validate
a customary law marriage.
In the case of Afrifa v. Class Peters, the court held that it is prudent for a man seeking to
marry a woman from a different ethnic group other than his own to inquire about the
requisite formalities under that culture to validate his customary law marriage to her.
Special Characteristics of a Customary Law Marriage
1. It is potentially polygynous. The promise of the man not to marry other women does
not change the potentially polygamous nature of the marriage.
2. Some unions are prohibited on grounds of consanguinity (blood relation).
3. Customary law marriages and ordinance marriages are mutually exclusive; while one
is strictly monogamous, the other is potentially polygamous and so the two cannot
co-exist. Once a man is married under customary law, he cannot enter a valid
ordinance marriage, unless he divorces the woman he married under customary
law. The second marriage in such a case would be null and of no consequence. Also, if
the man is married to 2 or more women under customary law, if he intends to make
17
one of them his wife under the Ordinance, he must divorce the others, else the
Ordinance marriage will be void.
4. A customary law marriage can be converted to a marriage under the Ordinance. The
customary marriage will then fall away, in such a situation as was stated by the court
in the case of Graham v. Graham. The court in that case stated that after the
solemnization of a marriage under the Ordinance, the prior customary marriage ceases
to exist.
5. A person married under the Ordinance cannot enter into a customary marriage with
another person, this would be termed bigamy.
6. Traditionally, the exchange of a Bible and rings during the customary marriage
ceremony are not a requirement for the validity of the marriage. They merely evince
an intention to marry under the Ordinance and may be used as the basis for an
action in breach of promise to marry. This was held in the case of Afrifa v. Class Peter
where the court stated that rings and a Bible are “essentially Christian symbols and
in concept denote an intention to marry in a Christian monogamous fashion.”
7. The performance of a customary marriage ceremony is not a condition precedent
to the creation of a valid Ordinance marriage.
8. The preparatory stage of a customary marriage is the knocking ceremony. The
knocking ceremony on its own is not the customary marriage ceremony, it is merely
the beginning and a reinforcement of the promise to marry each other. The drinks
and other items exchanged in the knocking ceremony may form the basis of an action
for damages in breach of promise to marry.
There are 2 forms of customary law marriage; the informal and the formal marriage.
Formal Customary Marriage
This comes about where the family of the man approaches the family of the woman and
asks for the hand of the woman in marriage on behalf of their son. Where the woman agrees
to marry the man, a date is agreed on for the performance of the necessary customary
rites.
On the selected day, the rites are performed according to the requisite customs and the man
and woman become husband and wife.
Informal Customary Marriage
18
Unlike the formal customary marriage, this is where the court will imply that the parties
were married even though there was no formal ceremony conducted where drinks were
presented to ask for the hand of the woman in marriage and a ceremony performed on a date
chosen by the families of the couple.
In the case of Quaye v. Kuevi, which was as far back as 1934, the man in question
presented drinks to the family of the woman to acknowledge responsibility for the
woman’s pregnancy. And after this was done, the man and the woman began to live together
as husband and wife even though no drinks had been sent to the woman’s family asking for
the woman’s hand in marriage.
The Court held that the parties had been validly married, stating that, “When once it has
been proved therefore by proper evidence that the parties have agreed and have lived
together in the sight of the world as man and wife, that of itself is sufficient: the court
should hold that the parties are married according to native custom.”
There is also the case of Asumah v. Khair, where the man had married the woman by
performing all the necessary marriage rites, but they had never lived together as husband
and wife. The woman later developed a friendship with another man, and this new man paid
off all the marriage fees and expenses incurred in marrying the woman initially to the
husband. After this, the new man and the woman lived together and had a child. The father
of the woman later brought an action in seduction against the new man and claimed
damages.
The Court held that
1. Where a wife in a customary law marriage declines to co-habit with her husband
and another man seduces her and causes her to break off the marriage to the
initial husband, if the family of the woman obtains the consent of the husband,
and refunds to the husband all his expenses on the customary marriage, the
new man can become the lawful husband of the woman.
2. An informal customary law marriage could also arise where a man makes a woman
pregnant and he admits liability and sends drinks or presents to claim authorship of
the child, and sends additional drinks, this is a request for the hand of the woman
in marriage and a valid customary marriage may be concluded that way.
19
3. A valid customary marriage may also be concluded in the same situation where
rather than sending an additional drink, the man co-habits with the woman,
performs all the duties of a husband and the family of the woman’s acquiesces
to his performance of those duties.
Aside the scenarios mentioned in the case of Asumah v. Khair, another form of an informal
customary marriage can occur where the man and woman are acknowledged by their
respective families as husband and wife and are treated as such, even though no drinks
have been presented. This was the case in Yaotey v. Quaye and in the case of Essilfie v.
Quarcoo.
In Essilfie & Another v. Quarcoo, the mother of the deceased, in her capacity as the head of
her immediate family and her sister as customary successor jointly applied for letters of
administration to administer the deceased’s estate. The defendant who claimed to have been
the husband of the deceased caveated, and the court ordered the plaintiffs to issue a writ for
the determination of the issue. The plaintiffs claimed that the defendant was merely a
concubine to the deceased and not actually her husband.
The evidence showed that the defendant had impregnated the deceased and his family sent
drinks to the family of the deceased to acknowledge responsibility for the pregnancy.
After this was done, the deceased and the defendant lived together for 7 years in the
defendant’s house until she died in childbirth survived by her 2 children with the defendant.
Evidence was also led to show that the first plaintiff had been visiting the couple in their
house and that on the earlier death of the deceased’s father, the defendant had performed
the customs required of a son-in-law. Further evidence showed that on a form that the
deceased had filled with her employees, she had stated that she was married. Also, the
defendant had provided the shroud and the grave used to bury the deceased, at the
request of the plaintiff’s family.
1. There are 2 forms of valid customary marriages. The first is the ordinary case where
the man seeks the hand of the woman in marriage from her family and with their
consent performs the necessary ceremony of the payment of drinks, customary fees, a
dowry, etc. The second case is where although the necessary customary rights have
20
not been performed, the parties have consented to live in the eyes of the world as
man and wife and their families have consented that that they do so and the
parties actually live as man and wife in the eyes of the whole world.
2. There is no provision in PNDCL 111 that the word “spouse” should be construed to
include only those customary law marriages registered under PNDCL 112. The
registration of a customary law marriage is not a condition precedent to the
enjoyment of rights or benefits under PNDCL 111.
3. The defendant in this case had adduced evidence to prove the existence of the second
type of customary marriage and for that reason, he was better entitled to the grant of
LA.
Re Dickson alias Appah (Decd); Aboagye and Another v. Quayson
The applicants in this case claimed that they were married to the deceased who was a Fanti
under Akan customary law and they both had 4 children for the deceased. They applied to the
court to be joined as co-administratrices to the estate of the deceased on their behalf and on
their children’s behalf since the children were all minors.
The respondents were the customary successor and a child of the deceased who had already
been granted LA. They opposed the application contending that the applicants were mere
concubines because no relative of the deceased had joined them in the performance of
the alleged marriage ceremonies as Fanti custom demanded.
1. It has bever been and it is not an essential requirement that a Fanti man marrying a
non-Fanti woman should of necessity go with a relative of his family or have a relative
present at the marriage ceremony before the marriage is considered valid.
2. A man who desires to marry applies to the woman’s family for consent and takes to
them certain customary gifts. If the family gives their consent by accepting the gifts,
this concludes the marriage under customary law. It is of no consequence that the
family of the man was not present for the ceremony.
On the issue of the consent of the family of the man and woman. Sarbah in his book, “Fanti
Customary Laws” states that the local institution of marriage under customary law rests
entirely on the voluntary consent of the man and woman to live as man and wife and this
21
consent is shown by their living together as man and wife. He describes the ceremonies
that accompany the marriage as superfluous. He further states that a man and woman can
contract a valid customary marriage for themselves provided that they agree to live together
as man and wife in the presence of credible witnesses and they do live together as man and
wife.
Gorleku v. Pobee
The respondent in this case claimed to have been lawfully married to the deceased and on
that basis instituted an action against the appellants (who were the children of the deceased)
for fraudulently applying for and obtaining LA to administer the deceased’s estate without
her notice and consent as she was the surviving spouse.
The appellants argued that the respondent was merely a concubine as no customary
marriage rites had been performed between them and she merely cohabited with their
father in the same house posing as husband and wife.
1. There are 2 forms of marriage, one involving the presentation of drinks and the other
is devoid of formalities like the presentation of drinks.
2. In the case of the first type, the presentation of drinks and their acceptance by the
family constitutes the express consent of the family to the marriage.
3. The second type of marriage involves the existence of a customary law marriage
between the man and woman without the express consent of the families.
4. Both types of marriage are valid and for that reason, the respondent was entitled to
grant of LA over the appellants, as she was the wife of the deceased.
It is important to note that to prove the existence of a valid informal customary law
marriage, there must be evidence to show that the parties have lived together as man and
wife. Co-habitation for a considerable period of time, coupled with having children together,
attending joint functions, acquiring property jointly, performing customary rites in each
other’s family, etc. will help the court reach the conclusion that there was a valid customary
law marriage.
The Essentials of a Valid Customary Law Marriage
22
Ollenu J in the case of Yaotey v. Quaye introduced 4 main essentials of customary law
marriage that should apply to all customary marriages in Ghana, regardless of ethnicity.
He stated the 4 essentials as:
1. Agreement by the parties to live together as man and wife.

2. Consent of the family of the man that he should have the woman to be his wife. This
consent could be actual (the formal type of customary marriage) or constructive (the
informal type of customary marriage where the family allows the wife to perform
customary rites in the family even though no drinks have been presented, etc.)
3. Consent of the family of the woman that she should have the man to be her husband.
Consent here too may be actual or constructive as described above.
4. Consummation by co-habitation.
Yaotey v. Quaye
The deceased died intestate. While alive, he married one wife under the Ordinance but
divorced her about 21 years before he died. The plaintiff with 2 others are the children of
that marriage. And having married under the Ordinance, the plaintiff and her siblings claim
that they are the only lawful children of the deceased and succession to their father’s estate
should be governed by Section 48 of the Marriage Ordinance. The plaintiff applied for LA as
sole administratrix to administer the estate but was opposed by the defendant, who claimed
that she is the widow of the deceased under a customary law marriage that they contracted
after he divorced the mother of the plaintiff and her siblings.
1. The question of whether a relationship between a man and a woman is one of

marriage under customary law or one of concubinage is a question of law to be
determined from the facts and circumstances of the relationship.
2. Following from the existing case law and authorities at the time, the essentials of a
valis customary law marriage are:
 Agreement by the parties to live together as man and wife,
 Consent of the family of the man that he should have the woman to his wife;
that consent may be indicated by the man’s family acknowledging the woman
as wife of the man;
23
 Consent of the family of the woman that she should be joined in marriage to
the man; that consent may be indicated by the acceptance of drink from the
man or his family or merely by the family of the woman acknowledging the
man as the husband of the woman; and
 Consummation of the marriage, i.e. that the man and woman are living
together in the sight of all the world as man and wife.
3. Customary marriage is a union of the family of the man and the family of the
woman. And this union carries with it certain incidents. it confers on the family of
the man, a right to call on the wife or her family in certain eventualities to perform
certain customary rites and imposes an obligation on the wife and her family to
perform those rites and vice versa.
4. The family cannot exercise a right to demand the performance of a custom from the
man or woman except where they have consented to the marriage and therefore
recognize the man or woman as the lawful husband or wife to their child. And so
where such a demand is exercised, it is conclusive evidence that the relationship
between the man and woman is not mere concubinage, but a lawful marriage.
5. The evidence showed that on the death of the deceased, the defendant provided all
the items necessary for the bathing of the corpse and held the feet while the
corpse was being bathed, a duty reserved for widows. She further performed all
other widowhood rites except one involving her confinement to a room for 3 days
because she claimed it was against her religion. Further, during the funeral she was
provided with maintenance and mourning cloth by the family. And even after the
mourning period, she was given as a customary wife to the paternal brother of the
deceased who gave drinks to signify her acceptance as a customary wife.
6. In the deceased’s lifetime, the defendant and the deceased cohabited for a long
period of time until his death. And on the death of the aunt and father of the
deceased, the family called on the defendant to perform the burial customary rites
required of a daughter-in-law and the defendant performed the full custom.
7. All the evidence showed that the incidents of a customary marriage were being
observed in the relationship between the deceased and the defendant while alive and
even on his death. Administration jointly granted to both plaintiff and defendant.
Re Caveat by Clara Sackitey
24
Clara Sackitey filed a caveat against the issue of a Registrar’s Certificate in respect of an
ordinance marriage that was to be celebrated between the respondent and one Comfort
Chartey. The basis of her caveat was that she was customarily married to the
respondent in a ceremony celebrated between her family and the respondent’s family
presided over by the head of the larger family to which both families belong and that the
customary Adangbe ceremony was performed during which drinks were exchanged and a
customary fee was paid. She further alleged that the parties had cohabited for some time
but were currently living apart due to a quarrel.
The respondent denied that the ceremony was a valid customary marriage and maintained
that even if it were, the marriage was terminated by the subsequent separation.
1. Customary law marriage is the union of 2 families; the family of the man and the
family of the woman. And to properly constitute such a marriage, the following
essentials must be shown to exist as cited in Yaotey v. Quaye:
 Consent by the parties that they would live together as man and wife
 Consent by the family of the man that he should have the woman to his wife;
that consent may be actual i.e. by the family of the man going to the family of
the woman to formally ask for her hand or it may be constructive ie. By the
family of the man recognizing the woman as a wife of the man and admitting
her and her family to performance of customary rites for their family e.g.
funeral rites when there is bereavement in the man’s family.
 Consent of the family of the woman that she should have the man for her
husband, this consent too may be actual, i.e. where the family of the woman
accepts drinks offered by the family of the man or it may be constructive, i.e.
by acknowledging the man as the husband of the woman, and admitting him
and his family to perform customary rites for their family e.g. funeral rites on
the occasion of bereavement in the woman’s family.
 Consummation of the marriage by co-habitation.
2. The evidence of the ceremony performed followed by the subsequent cohabitation of
the parties proves that the parties were indeed married under customary law.
25
3. Under customary law, the dissolution of a marriage is always preceded by attempts
to reconcile the parties. If the attempts fail, then further steps must be taken to
dissolve the marriage. No further steps were taken in this case.
4. And since no further steps were taken to dissolve the marriage, the position is the
same as a couple married under the ordinance who are living apart based off a mutual
understanding or a mutual separation.
5. An agreement to live apart from one’s spouse does not affect the legal status of
the marriage and the parties. They remain man and wife until the marriage is
dissolved by the family. And until this is done, the respondent cannot attempt to
validly marry another woman under the Ordinance. Caveat allowed, prohibition
sustained.
The Implication of the Essentials of a Customary Law Marriage
Essential 1: Agreement by the parties to live together as husband and wife
The first essential, that is, the agreement of the parties to live together as man and wife,
implies that a valid customary marriage cannot be contracted where the parties are forced
to marry. The parties must voluntarily agree to the marriage.
Akorninga v. Akawagre
The appellant and respondent in this matter were both Frafras. The daughter of the appellant
was married under Frafra custom to the respondent’s elder brother who died when the
daughter of the appellant was pregnant.
Under Frafra custom, where a husband dies, his customary successor or any of his brothers is
allowed to take his widow as their wife, where the widow consents to it. But in this case,
after the appellant’s daughter gave birth, the elder brother of the deceased husband refused
to take the appellant’s daughter as his wife and the family of the deceased husband declined
to care for and maintain the widow and her child, and they also failed to collect their dowry
back from the appellant.
For that reason, the widow went back to her father’s house and moved to Kumasi 6 years
later, where she met a man and with the consent of her father (the appellant) got married to
him and had another child. 5 years after the birth of the new child, the respondent, who was
26
a younger brother of the deceased, claimed under Frafra customary law that the widow was
his wife and lodged a complaint before their chief for the return of the widow and the son.
The chief upheld the claim and ordered the surrender of the widow.
The respondent then brought a claim in the circuit court for the enforcement of the chief’s
decision which was successful. The appellant appealed against this decision in the present
matter.
1. The claim made by the respondent to be the husband of a woman who did not even
know him and without her consent was not only contrary to Frafra customary law but
clearly against the general law of the land as it sought to treat the woman like chattel
instead of a human being with equal rights. This claim and position was discriminatory
and contrary to justice and the dignity of the widow.
It is clear from this case that the marriage under customary law must be voluntary.
Section 14 of the Childrens Act, 1998 (Act 560) has outlawed betrothal and child
marriages by stating unequivocally that, “The minimum age of marriage, whether
monogamous or polygamous is eighteen and further that no one is allowed to force a child
to be betrothed, to be the subject of a dowry transaction or to be married.”
Section 109 of the Criminal Offences Act, 1960 (Act 29) also makes forced marriages a
criminal offence.
Essential 2 & 3: Consent of both families to the marriage
Ollenu J placed emphasis on the nature of the customary marriage being a union between 2
families and for that reason consent of both families is important. The parties cannot
therefore purport to contract a binding marriage unless the consent of their families is
obtained.
Djarbeng v. Tagoe – the consent of the woman’s family was considered as so important that
the court held that there was no breach of promise to marry because the family of the woman
had not consented to any such promise.
27
Quaye v. Kuevi – the consent of the family to the union was implied from their recognition of
the couple as husband and wife.
Asumah v. Khair – the families of the couple recognized the new man as the husband of the
wife after asking him to refund the dowry to the former husband.
Consent as Ollenu J explained may either be actual or constructive. And either form of
consent is valid in the creation of the customary marriage, informal or formal. And it is this
consent that forms the basis of the entitlement of each family to a right to demand that a
spouse perform certain duties and customary rites required of a son-in-law or daughter-in-
law.
Essential 4: Consummation by cohabitation
This dictates that the man and woman must live together and it is through this living
together that they may be presumed to have had sex to consummate the marriage.
Criticisms Against the 4 Essentials
Essentials 2 and 3 have been largely criticized on the following grounds:
a) Who can constitute the family of the husband or wife for this purpose of giving
consent? Is it the nuclear family or the extended family? What happens where the
nuclear family consents but the extended family does not? Does this mean that the
parties cannot marry?
b) What happens where the family of one spouse is far away and cannot be reached?
Essential 4 on the other hand, has been more heavily criticized. What constitutes
consummation? It is not always the case that mere cohabitation means that a marriage has
been consummated? How is consummation proved? What about couples who choose to have
children through scientific means that do not involve physical penetration that could classify
as consummation?
In the case of Sowa v. Sowa where the man was resident in England and the woman was
resident in Ghana, the court held that their marriage was valid, after the family of the man
had performed the relevant ceremony. Even though the parties were not living together
28
and had not consummated the marriage, it was still held to be a valid customary law
marriage.
This decision implies that not all 4 elements need to be present to constitute a valid
customary law marriage.
In conclusion, the most important essential for a valid customary law marriage is the
agreement between the parties themselves to live together as man and wife. This was
stated by Sarbah in his book Fanti Customary Law.
Insistence on all 4 essentials can lead to unjust and undesirable results, as in Badu v
Boakye, where the court held that the marriage was invalid because even though the family
of the woman accepted the drinks, the family of the man claimed that the drinks were
akotoagyan (drinks for nothing).
Another important thing to note is that whether or not the relationship between a man and a
woman is one of marriage or concubinage is a question of law which the courts will
determine from the facts and circumstances of the relationship. This was stated in the case of
Yaotey v. Quaye.
REGISTRATION OF CUSTOMARY LAW MARRIAGES AND DIVORCES
Due to the unwritten nature of customary law, it was difficult for persons married under
customary law to prove the existence of a marriage between them and their spouses for the
purposes of inheritance and succession. For this reason, the Customary Marriages and
Divorces Registration Act, 1985 (PNDCL 112) was enacted as a way to facilitate proof of the
existence of a customary marriage for the purposes of succession and inheritance.
Initially, PNDCL 112 made it mandatory for all customary marriages to be registered within
3 months of their celebration and allowed for all customary marriages contracted before the
enactment of the Act to be registered within 3 months of the promulgation of the Act.
However, following public outcry, this mandatory nature was changed by an amendment of
the Act, making the registration of customary law marriages optional.
Procedure for the Registration of Customary Marriage
29
Section 2 of Cap 127 states that either party to the marriage or both parties may apply in
writing to the Registrar of Marriages in the district where the marriage was contracted for
the registration of the marriage.
The application can be made at any time, but Section 2 further provides that the Minister for
Justice may prescribe a time period within which the failure to register the marriage shall be
an offence. No such date has been prescribed as yet.
The application to the Registrar must be supported by a Statutory Declaration, which

according to Section 3 must state the following:
a) The names of the parties to the marriage

b) Their places of residence at the time of the marriage
c) That the conditions essential to the validity of the marriage in accordance with the
applicable customary law have been complied with (not prohibited on grounds of
consanguinity, etc.)
d) Evidence of support of the parents/persons standing in loco parentis to the couple.
Once presented with the application and supporting statutory declaration, the Registrar shall
register the marriage and notify the public of the registration of the marriage by displaying
the notice on a public notice board at the Office of the Registrar within 28 days of the
application for registration.
Persons who object to the registration or the validity of the marriage under the applicable
customary law may, at any time, after the publication of the notice, file the grounds of their
objection in the District Court in the District in which the marriage was registered. This is
in Section 5 of Cap 127.
Copies of the grounds of objection are to be served on the parties so that they know how to
respond. On hearing the grounds, the District Court is to investigate them. The grounds of the
objection must be heard in chambers by the Court according to Section 10 of Cap 127.
Where it is satisfied that there are no legal grounds for the objection, the Court will dismiss
the objection, but where it is satisfied that there are grounds for the objection, it shall make
an order empowering the Registrar to expunge the entry in the Register.
30
It is important to note that a true copy of the entry of the registration in the Register is
merely proof that the marriage has been registered, not proof of the validity of the
marriage.
It is an offence for a person to attempt to register a marriage that they know has not been
lawfully contracted. Section 14.
The Effect of Registration of Customary Marriage
Registration of a customary marriage does not necessarily make the marriage valid, it is
merely proof of the fact that the marriage has been registered. Section 13 makes it clear
that a true copy of the entry in the Register is admissible in evidence as sufficient proof of
the registration or dissolution of the marriage.
Registration does not prove that the marriage was valid. The registrar is not mandated to
check whether the marriage was valid or not, his duty is merely to register the marriage in
accordance with the law once the parties apply for him to do so.
Further, Section 15 allows for spouses of registered customary law marriages to derive the
benefits due them under PNDCL 111. This does not mean that spouses of validly contracted
customary law marriages which have not been registered cannot benefit under PNDCL 111.
The court must provide for those spouses the same way it would provide for the spouses of
registered customary marriages.
Registration of Customary Divorces – Section 6
Where the parties to a registered customary marriage divorce, they must take steps to
register the customary divorce as well.
However, where the dissolution of the customary marriage was done under Section 41 of the
Matrimonial Causes Act, 1971 (Act 367), it need not be registered under PNDCL 112, even
though the marriage was registered under PNDCL 112 when it was contracted.
The law makes no statement on whether or not the failure to register the customary divorce
affects the validity of the divorce.
31
The procedure for the registration of a customary divorce is the same as the procedure for
the registration of the customary marriage except that in the case of the divorce both parties
are to inform the Registrar of the dissolution of the marriage (Section 7)
DISSOLUTION OF CUSTOMARY MARRIAGE
Customary law marriage can be dissolved in either of 2 ways;
a) Under customary law

b) Under Section 41 of the Matrimonial Causes Act, 1971(Act 367)
Customary Law Dissolution
The families of both the man and the woman meet on an agreed date and attempt to
reconcile the parties, or get them to settle whatever the differences may be.
If reconciliation attempts are successful, the dissolution is suspended for the parties to
continue the marriage.
If the reconciliation attempts fail, the parties will be asked to render accounts. Items and
money borrowed are returned or paid back. The parties may decide not to demand for the
return of anything.
Depending on the reason for the divorce, the dowry paid may be returned to the man’s
family. If the divorce is a result of the man’s misconduct, then the dowry will not be
returned.
The last stage is powdering/chalking. The husband is required to put powder on the shoulder
of the woman and returns her to her family, bringing the marriage to an end. The ex-husband
may also be required to send the wife off with a payment of an amount of money.
This procedure may differ from tribe to tribe, however there are a few common elements
running through;
1. Receipt of a returned dowry or some other item (e.g., a calabash in Frafra culture).
2. The parties themselves declaring and acknowledging that the marriage between
them has been dissolved
32
It is important to note that a customary marriage may be dissolved unilaterally, where the
other party unreasonably turns down a request for the dissolution of the marriage.
Ginbuuro v. Kaba
The respondent had contracted a marriage under Frafra customary law with the daughter of
the appellants. The respondent had a child with his wife, after which the marriage broke
down. The wife brought the issue before her parents and requested that they go through the
formalities for the dissolution of the marriage.
The parents agreed and contacted the parents of the respondent asking for the return of their
calabash, as custom demanded. According to Frafra custom, the return of the calabash
constitutes a dissolution of the marriage and is the preserve of the husband’s family, not
the wife’s family. And so where the request is met, the marriage is brought to a peaceful
end. But where the husband refuses to meet the demand, the wife’s family may unilaterally
consider the marriage to have come to an end.
In this case, the family of the respondent refused to return the calabash, as the father of the
respondent stated that the respondent did not accept the divorce. And so on the refusal, the
father of the wife (i.e. the first appellant) considered the marriage to have been dissolved
and gave his daughter’s hand in marriage to another man.
The respondent then sued claiming damages against the appellants for giving his lawful wife
in marriage to another man.
1. The appellants were right in regarding the marriage as having been dissolved.
2. To follow the decision of the trial court would create a situation where the female
spouse can never initiate divorce proceedings unless her husband wills it.
3. The payment of damages is a concept foreign to customary law. Under customary law,
what is recognized is the payment of expenses incurred and in return, the return of
all personal things bought for a spouse, in the appropriate circumstances. These things
may be demanded at the dissolution of a marriage in addition to the return of the
dowry. To order the return of the wife would be to treat her as chattel.
33
In addition to a unilateral dissolution under customary law, a party may petition under
Section 41 of the Matrimonial Causes Act, 1971 (Act 367) for the dissolution of the
marriage if the other party unreasonably refuses to accept the divorce. If the respondent
remains evasive and recalcitrant, the petitioner may apply for substituted service.
Even though Act 367 has strict application to only monogamous marriages, Section 41(2)
and (3) creates an exception, allowing for parties to a polygamous marriage to seek a
dissolution under Act 367, entitling them to reliefs like financial provision, custody
arrangements or other reliefs provided under their personal law.
Grounds for the Dissolution of a Customary Law Marriage
Under customary law, the following reasons may be sufficient to justify a dissolution of
the marriage:
1. Adultery (on both parts)

2. Barrenness of the woman
3. Desertion (as a result of the seduction of the wife)
4. Cruel treatment from the husband
5. Neglect or a wilful refusal of the husband to maintain the wife or children
6. Impotence of the husband
7. Desertion by the husband
Under Section 41(3) of Act 367, the following are specifically stated as justifiable
grounds for a customary law divorce without prejudice to other grounds under the
personal law of the parties:
1. Wilful neglect to maintain a wife or child

2. Impotence
3. Barrenness or sterility
4. Intercourse that is prohibited on account of consanguinity or affinity or any other
relationship, and
5. Persistent false allegations of infidelity by one spouse against the other.
It is however important to note that these reasons are to be subject to the requirements
of justice, equity and good conscience.
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MOHAMMEDAN MARRIAGE
The marriage of Mohammedans is governed by Part 2 of the Marriages Act, 1884-1985 (Cap
127).
Asaf Fyzee in his book, “Outlines of Mohammedan Law” defines a Mohammedan marriage
as, “A contract for the legalization of intercourse and the procreation of children. It is an
institution ordered for the protection of society and in order that human beings may guard
themselves from foulness and unchastity.”
Essentials of Mohammedan Marriage
According to Mulla’s Principles of Mohammedan Law, the essentials of a Mohammedan

marriage are:
1. Proposal made by or on behalf of (by the wali) one party and an acceptance of this
proposal by or on behalf of the other
2. The proposal and its acceptance must be done in the presence and hearing of 2
males or 1 male and 2 female witnesses who must be sane adult Mohammedans.
3. The proposal and its acceptance must be done at one meeting. The marriage will be
invalid if the proposal and acceptance are done at different meetings.
The Issue of Capacity
According to Fyzee, the rule among Muslims is that every Muslim of sound mind can enter into
marriage after they have attained puberty. And so even though a child may not be over the
age of 18, they may marry once they have attained puberty.
However, following the enactment of the Children’s Act, 1998 (Act 560), this position has
been changed in Ghana.
Section 14(2) of the Children’s Act clearly states that the minimum age for marriage of
whatever kind is 18 years. This takes precedence over the Mohammedan rule, making all
marriage entered into by Muslim children under 18 illegal.
Limitations on Mohammedan Marriage
According to Fyzee, the following limitations exist:
35
1. A Muslim man may marry up to 4 wives, but a Muslim woman may not marry more
than one man.
2. The different schools of the Muslim faith (Shiite, Sunni, Hannafi and Shafi) may
intermarry. And after the marriage, each spouse retains their own status and no law
compels the wife to adopt the husband’s school of faith.
3. Some marriages can be prohibited on grounds of consanguinity. A man may not marry
his mother, daughter, niece, grandmother, granddaughter, aunt, or grand aunt. Such a
marriage will be deemed void.
4. Some marriages can be prohibited on grounds of affinity. Affinity under these rules
refers to the ascendants or descendants of the man’s wife or the wife of any of the
man’s ascendants or descendants. Such marriages will be deemed void. However,
there is a special exception allowing a man to marry the descendant of a wife with
whom his initial marriage was not consummated. A man may not marry his foster
mother or foster sister or foster daughter. A man may also not marry 2 sisters at the
same time or an aunt and her niece. A man may only marry his wife’s sister after the
death or divorce of his wife.
5. Muslim women may not marry Non-Muslim men. Such marriage is considered void.
However, Muslim men may marry a Kitabia (a female believer in Christianity or
Judaism).
Contravening the limitations makes a Mohammedan marriage void.
Irregular Marriages
There are some grounds under which a Mohammedan marriage will be considered irregular,
not void.
An irregular Mohammedan marriage is a marriage that remains as though it were valid until
it has been set aside by either party to the marriage. This is similar to the concept of
voidability. The failure of a party to the marriage to set aside the marriage during their
lifetime will not affect the status of the surviving spouse of the marriage.
A marriage will be considered as irregular where it is to a woman who has not completed
her period of Iddat.
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Iddat is the period within which it is incumbent on a woman whose previous marriage has
been dissolved either by divorce or death to remain in seclusion and to refrain from marrying
another man. This period of abstinence is imposed as a way to ascertain whether or not she is
pregnant with a child of the previous husband in order to avoid confusion on the parentage of
the children.
And so where a woman who has not completed her Iddat marries a Muslim man, the marriage
will not be deemed void, but merely irregular. And until either party sets it aside, it
subsists as a valid marriage, giving rise to the regular incidents of a valid Mohammedan
marriage.
Another ground on which a marriage will be considered irregular is where a Muslim woman
marries a Christian man.
Creation of a Mohammedan Marriage
According to Fyzee, the man or someone acting in his stead and the woman or someone
acting in her stead should both agree to the marriage in the presence of 2 adult persons.
A relation of the girl will then ask her whether she authorizes him to agree to the marriage on
her behalf for the dower money that is being offered by her husband.
The Mullah (the officiating minister for the marriage ceremony) will then ask the husband
whether he agrees to the marriage on the payment of the specified dower. Where he agrees,
the mullah will read the scriptures and the marriage is complete.
The dower is defined by Fyzee as the “sum of money or other property promised by the
husband to be paid or delivered to wife in consideration of the marriage and even where no
dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of
dower on the wife.”
The dowry is the sole right of the woman.
Registration of the Mohammedan Marriage
Section 23 makes it mandatory for a Mohammedan marriage to be registered in the

manner provided in Part 2 of Cap 127.
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Section 27 of Cap 127 makes it clear that where a Mohammedan marriage or divorce is not
registered under Cap 127, it is not valid. And where the marriage or divorce is in question, it
may be proved by the production of the Register in which the marriage or divorce was
entered or an extract of it from the Registrar, certified and signed personally by the DCE or
the Marriage/Divorce Certificate.
The registration must be done within a week of the marriage.
Method of Registration
Section 24 provides that the bridegroom, the bride’s wali, 2 witnesses to the marriage and
a Mohammedan priest (the mullah) licensed under Section 21 shall, as soon as conveniently
may be and before the expiration of a week after the celebration of the marriage, register
the marriage at the office of the DCE.
The marriage is to be entered into the Register and in the duplicate certificates which are
to be signed by the bridegroom, the bride’s wali and the 2 witnesses, and the licensed
mullah, to the effect that the marriage is valid under Mohammedan law.
The register and the certificates shall be completed by the signature of the DCE who will
insert the date and place of registration.
The Certificates are then detached with one given to the bridegroom and the other to the
bride’s wali.
Registration out of Time
If the marriage is not registered within one week, the marriage will be deemed void,
unless the bridegroom or the bride’s wali makes an ex-parte application to the High Court
for an order allowing the registration after the specified one-week period. The application
must be supported with an affidavit stating the reason for the delay or the non-attendance.
In Re Marriage of Mohammedans Ordinance, Cap 129 (1951 Rev); In Re Registration of

Marriage between Byrouthy and Akyere; Ex Parte Ali
In this matter, the applicant sought an order to register a marriage alleged to have been
celebrated under Mohammedan law between his cousin and her husband, now deceased.
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According to the affidavit supporting the application, the parties had been first married under
Fanti Custom after which they solemnized the marriage in accordance with Islamic law.
The parties had failed to register the marriage due to sheer inadvertence and had one child
under the purported marriage.
1. Although there was no time limit on when the ex parte application to register the
marriage could be brought, it is apparent from the language used that time was of the
essence and that is why the period for registration is within a week.
2. For that reason, the ex-parte application to register the marriage is to be brought
within a reasonable time after the ceremony, while the marriage is still subsisting.
3. But after the marriage has been brought to an end whether by the parties’ own actions
or by the operation of death, there can be no marriage subsisting which the parties
or another person can seek to validate by way of registration. In this case, the
bridegroom was dead. His death brought the marriage to an end. During the
subsistence of the marriage it was not registered and so under law, the marriage
between the parties was invalid.
4. The marriage could not be validated by a registration done 34 years after it had been
contracted.
5. The Court further stated it is not the fact of the marriage that gives it validity but
rather the registration that gives it validity.
Jebeille & Anor v. Ashkar & Anor
The second plaintiff had contracted a Mohammedan marriage with the first defendant on 18 th
January 1976, celebrated by a licensed Mohammedan priest. However, the marriage was not
registered until 13th February 1976.
Subsequently, the plaintiffs (the bride and her wali), contending that the provisions on
registration had not been complied with instituted the action to have the marriage declared
null and void and of no effect.
The Court held that the marriage was contracted under the Mohammedan faith and should
have been registered within a week of its celebration. The interested parties, not having
39
registered the marriage within the statutory time period, could have sought to ameliorate the
position by applying ex-parte for an order to register the marriage from the High Court. But
this was not done. They went ahead to register the marriage without an order from the High
Court authorizing the DCE to make the late entry.
For this reason, the marriage was not a valid Mohammedan marriage. It was to be declared
void and the properties of the parties acquired during the subsistence of the purported
marriage would not devolve in accordance with Mohammedan law.
Succession on the Death of a Party to a Mohammedan Marriage
Prior to the enactment of PNDCL 111, the position of the law as espoused by the Court in the
case of Kwakye v. Tuba was that issues of succession are not based on a person’s religion.
It is regulated by customary law unless a statute provides otherwise. And so for
Mohammedans, unless it can be proved that the deceased party had been validly married
under Cap 129 (the Mohammedans Ordinance), then the property would not devolve in
accordance with Mohammedan law, but in accordance with customary law. The court stated,
“A marriage by a Mohammedan according to Mohammedan law is at its very best a marriage
by customary law and does not affect succession to his estate unless the said marriage is
registered under the Ordinance. There being no evidence of the registration of Kwasi Kumah’s
marriage, Mohammedan law cannot apply to him.”
The same decision was reached in the case of Hausa v. Haruna where the court declined to
grant letters of administration to the plaintiff who claimed she was entitled to the grant
under Mohammedan law because the plaintiff could not establish that she was in fact married
under Mohammedan law in accordance with Cap 129. For this reason, customary law was
applied in determining the priority of the grant.
However, following the enactment of PNDCL 111 in 1985, PNDCL 111 currently applies to the
distribution of property on the death intestate of all persons, regardless of their religion or
their custom.
Dissolution of Mohammedan Marriages
Grounds for Dissolution of a Mohammedan Marriage
1. Desertion for more than 4 years
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2. Failure to maintain the wife
3. Where either party is suffering from insanity, leprosy or a venereal disease.
Forms of Dissolution of a Mohammedan Marriage
1. The parties may mutually agree to the dissolution of the marriage (also called khula
or mubara).
2. The husband may at his will, pronounce talak
3. By a court order under Section 41(2) and (3) of the Matrimonial Causes Act, 1971
(Act 367).
Talak
A Muslim husband of sound mind may divorce his wife whenever he desires without assigning
any cause. He may either do this orally or by a written document called talaknama.
There is no particular form of words prescribed for an oral talak. All that is required is that
the words used are express or are well understood as implying a divorce. There is no proof
of intention required. The words used must not be ambiguous.
Where the talak is done in writing, the deed of the talak may be executed in the presence of
the wife’s father or of other witnesses. It should show the name of the writer (the husband)
and the person to whom it is addressed (the wife).
THE CONCEPT OF DOMICILE AND RESIDENCE
Domicile is the permanent home of a person while the residence is the place where the
person has decided to remain for some length of time.
In the case of Lord v. Colvin, the court stated that the following were the features of a
domicile or permanent home, “it must be the result of a voluntary choice. It must not be
transient and the mere fact that it may be changed on some future contingency does not
render it impermanent.”
Ordinary residence does not connote continuous physical presence but physical presence
with some degree of continuity, notwithstanding occasional temporary absence. The
physical presence is necessary, although it need not be continuous.
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According to Bromley, to qualify as residence, 2 elements must be satisfied, physical
presence in the place and an intention to stay there for a sufficiently long enough period,
to make that presence more than fleeting or transitory.
These concepts are very important, especially in marriages under the Ordinance.
Residence for instance, determines where the banns of the parties to a marriage are to be
published in a marriage under the Ordinance. Residence determines what the formal and
procedural requirements to be complied with for the validity of the marriage are.
Domicile on the other hand, can determine the capacity of the parties to marry. That is, the
essential or substantive requirements that must be met in order for an ordinance marriage to
be validly contracted between the parties.
What this means is that for a person domiciled in the UK, but resident in Ghana, they must
comply with the essential requirements for validity of a marriage in the UK, but must comply
with the formal or procedural requirements for marriage in Ghana.
The concepts of domicile and residence help to determine the applicable legal system
relating to matrimonial and inheritance matters.
It may also help in the determination of which courts have jurisdiction to deal with matters
affecting the marriage. For example, in Ghana, the courts will have only have the jurisdiction
to deal with matrimonial matters if either party or both parties have been ordinarily resident
in the country for a continuous period of 3 years, or are citizens or are domiciled in
Ghana.
Types of Residence
Residence may be either ordinary or habitual.
To determine whether a residence is ordinary or habitual, the courts consider the following:
1. Period of time: This is decided on a case-by-case basis.

2. A degree of settled intention to remain in that place for some time: The intention
required here is not necessarily concerned with being settled in the country, but
rather merely to show that the person intended to stay there a while. The animus
42
required here is not as strong as that required for domicile. The person need not prove
that they intended to stay there permanently. In the case of Watson v. Jamieson, the
court held that children who had gone to live with their father in Scotland for 2 years
were habitually resident there despite the understanding that they would live with
their mother after the 2 year period in New Zealand.
3. Voluntariness: For adults, there is an additional requirement that the place of
residence must have been voluntary.
Types of Domicile
1. Domicile of origin
2. Domicile of choice
3. Domicile of dependence
General Rules of Domicile
1. It is a settled principle that nobody shall be without a domicile, and so under

common law, at birth, each legitimate child is assigned the domicile of their father
while an illegitimate child is assigned the domicile of their mother, and for an
orphan or a foundling, the domicile of the place where they are found. This is what
is called a domicile of origin. And so, until a new domicile is acquired, the domicile of
origin will continue to prevail. Even though a person may leave their country of origin
with the intention of never returning, they do not acquire a new domicile unless they
settle in another country with the requisite intention of making that country their
permanent home.
2. A person cannot have 2 domiciles at the same time. A domicile is necessary to

establish the definite legal system by which a person’s rights and obligations may be
governed and so it is necessary that they possess only one domicile at a time on
practical grounds.
3. The fact that a domicile denotes the relationship between a person and a particular
territorial unit (country) possessing its own system of law does not necessarily
connote that the territorial unit prescribes identical rules for all classes of persons.
E.g., although 2 people may be domiciled in Ghana, one person may be governed by
Mohammedan laws while the other may be subject to Fanti customary law.
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4. There is a presumption in favour of the continuance of an existing domicile. And so
where a person alleges that there has been a change in their domicile or in the
domicile of another, then they bear the burden of proving that change. The burden
of proof of the change is slightly higher than on a preponderance of probabilities.
In Omane v. Opoku, the court held that the deceased had acquired the Ghanaian
domicile of choice since he had stayed in Ghana for a very long time, up until his
death, had acquired property in Ghana and had married a Ghanaian national.
Domicile of Origin
This is the domicile of the place where a child is born. Where the child’s parents cannot be
found, this domicile is attributed to the child, based on where the child is found.
Domicile of Dependence
This domicile is for persons who have not yet attained the age of majority, and under
common law, it was also applicable to married women.
For children, under common law, a legitimate child was to acquire the domicile of their
father while an illegitimate child or a child with no father was to take the domicile of their
mother. And so where the parent changes their domicile, the child’s domicile changes as
well, since the domicile of the child is dependent on the domicile of the parent.
However, on the attainment of majority, the child may then acquire their own domicile of
choice and the domicile of dependence falls away.
Under Section 80(3) of the Children’s Act, an adopted child under the age of 16 whose
parents are not Ghanaian will acquire the domicile of the adopter when the adoption takes
place.
Under common law, a married woman’s domicile was dependent on her husband’s. However,
this position has been modified by Section 32 of the Matrimonial Causes Act, 1971 (Act
367).
Section 32 states that for the sole purpose of determining jurisdiction under the Act, the
domicile of a woman is to be determined as if she were above the age of 21 and unmarried.
44
This means that her domicile would not follow that of her husband, when it comes to
determining jurisdiction under the MCA.
Also, even if the woman is not domiciled in Ghana, she can still seek an order of divorce
under Act 367 if she can show that she has been ordinarily resident in Ghana for at least 3
years immediately preceding the commencement of proceedings. (Section 31 of the MCA).
Domicile of Choice
When an adult person decides to voluntarily and intentionally make another place his
permanent home, he acquires that domicile as his domicile of choice.
The mere fact that a person has left his domicile of origin for another place does not make
the new place his domicile of choice unless there is evidence to show that the person
intends to make that place their permanent home. And so until the person settles in the
new place with the intention of making it their permanent home, the domicile of origin or the
old domicile of choice will still be applicable.
In the case of Simpson v. Simpson & Ross, the Court stated that “a mere statement of an
intention on the part of the petitioner without any supporting evidence of extraneous fact
cannot suffice to prove a change of domicile by choice.”
Abu Jaudeh v. Abu Jaudeh
The plaintiff was a Lebanese national who had lived in Ghana for 23 years. He and his father
had worked in Ghana and owned immovable property in Ghana. The plaintiff’s grandfather
had also lived in Ghana. The plaintiff lived in Accra and had married the defendant and
cohabited with her in Kumasi until later in 1960 when they returned to Accra. The Defendant
was of French domicile.
The plaintiff brought the action for determination as to whether he was domiciled in Ghana
so that the courts could hear his petition for divorce.
1. A person whose domicile is the object of inquiry must prove an animus manendi and
must have formed a fixed and settled purpose of making his home in the country of
45
residence. The Plaintiff’s residence in Ghana was one for convenience due to the
nature of his business in Ghana and so it was not sufficient for the court to exercise its
jurisdiction.
2. A bare assertion that the resident had applied for Ghanaian citizenship is not evidence
that they intend to make Ghana their permanent home. Such assertion must be
supported by proof of the resident renouncing their domicile of origin and showing a
further intention to acquire a Ghanaian domicile. Even though the plaintiff was
resident in Ghana, he would visit Lebanon several times, sent all his children to
school in Lebanon, obtained a Lebanese passport for his wife of French domicile and
besides the citizenship application, had made no further attempt to obtain Ghanaian
citizenship.
MARRIAGES UNDER PART THREE OF THE MARRIAGES ACT, 1884-1985 (CAP 127)
This type of marriage is essentially a marriage under the common law that has been codified
into Ghanaian law by Cap 127. One main feature of such marriage is monogamy. Unlike all
the other types of marriage in Ghana, this is the only type of marriage that is monogamous.
According to Lord Penzance in the case of Hyde v. Hyde, a marriage as understood in

Christendom, is the “voluntary union for life of a man and woman to the exclusion of all
others.”
Therefore, the following are the features of a common law marriage according to Lord
Penzance:
1. The marriage must be for life. This means that the marriage subsists until it is
dissolved or annulled by the order of a court of competent jurisdiction or by the
death of either party to it.
2. The marriage must be contracted voluntarily. In the absence of consent, the marriage
will be declared void.
3. The marriage must be to the exclusion of all others, thus cloaking it with monogamy.
And so while a valid marriage is subsisting, neither party can contract another
marriage with another party.
4. The union must be between a biological male and a biological female. The cases of
Corbette v. Corbette and Bellinger v. Bellinger are instructive on the matter. In both
cases, the court held that marriages between a biological male and a transsexual
46
female were null and void since they could not properly be consummated. In
Corbette, the court held that to determine sex for the purposes of marriage, the
court is to apply both the chromosomal, gonadal and genital tests and then
determine the sex of the parties ignoring any operative interventions.
Marriage is a special type of contract. This is because, unlike ordinary contracts, marriage
has special incidents and possesses certain unique characteristics. These are:
1. A marriage should be contracted in accordance with the mandatory provisions of Part

3 of Cap 127, else it will be considered null and void.
2. Children under 18 cannot enter into a valid marriage. Where the children are older
than 18 but younger than 21, they require the consent of the guardian or parent to
enter into a valid marriage.
3. The grounds that may make a marriage void or voidable are different from the grounds
applicable to other types of contracts.
4. The parties to a marriage contract cannot set it aside by mutual agreement. It may
only be terminated on the death of the parties or by an order granted by a court of
competent jurisdiction.
5. The rights and duties of the parties to a marriage are fixed by law, not by the
agreement of the parties.
There are 2 aspects to the validity of a marriage;
a) Formal validity (These are procedural requirements that are determined by the
place where the marriage is to be celebrated. It involves the nature of the ceremony
to be performed, how the ceremony is to be performed and the forms needed to
contract a valid marriage)
b) Essential validity (These are substantive requirements that are determined by the
domicile of the parties. It involves the agreement to marry, the capacity to marry and
the absence of any legal prohibitions. Where this is not complied with, the marriage
will be void)
Requirements of Essential Validity for a Common Law Marriage
1. The marriage should not be prohibited on grounds of consanguinity or affinity.

Consanguinity is the blood relationship between the parties, while affinity is the
47
relationship formed between the parties through the marriage of others in their
families.
Section 74(1) of Cap 127 states that a marriage between a man and the sister or
niece of the deceased wife shall be deemed lawful, but where the marriage if
celebrated in England, would be void on grounds of kindred or affinity, then it cannot
be lawfully celebrated in Ghana. Also, where the marriage is between two parties
either of which is already married under the applicable customary law to a person
other than the person with whom the marriage is celebrated, then the marriage will
be void.
2. Under Section 74(2) of Cap 127, a marriage is void where the parties knowingly and
wilfully acquiesce in its celebration in a place other than an office of the Registrar
of Marriages or a licensed place of worship (except where authorized to do so by a
Registrar’s License) or under a false name or names or without the Registrar’s
Certificate of Notice or by a person who is not a recognized minister of a religious
denomination of body or a Registrar of Marriages.
3. The parties to the marriage must have capacity to marry, i.e., they must have
attained the age of 21, or where they are above 18 and below 21 they must have the
written consent of their parents or guardians or a Justice of the High Court or the
Attorney-General (See Section 59, 60 and 61 of Cap 127). The Registrar of Marriages
will not grant a certificate for such a marriage and under Section 74(2), this would the
marriage void.
4. The parties must freely enter into the marriage with each other and must understand
the nature of the contract that they are entering into. It must be a voluntary decision
of the parties.
Failure to comply with any of these requirements makes the marriage null and void.
Formal Validity Requirements / Procedural Requirements
Under Section 41 of Cap 127, the procedural requirements mandate that a marriage
should be celebrated under the authority of:
1. A Registrar’s Certificate
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2. A Marriage Officer’s Certificate or
3. A Special License from the Principal Registrar of Marriages.
Where the marriage is not celebrated under the authority of any these, it will be
considered as void under Section 74(2) of CAP 127.
Therefore, the following circumstances would make a marriage contracted under Part 3
void:
a) Marriage in a place other than a licensed place of worship or the Office of a Registrar
of Marriages, except where authorized by a Special License
b) Marrying under a false name
c) Marrying without notice or the publication of banns except where authorized under
a special license
d) Without the Registrar’s Certificate, the Marriage Officer’s Certificate or the Special
License
e) Where the marriage is presided over by a person who is not a Registrar or a licensed
Marriage officer or a recognized minister of religion.
f) Where a caveat has been entered and has not been removed.
g) Where the marriage was not celebrated within 3 months of the last date of
publication of banns
h) Where the marriage was celebrated under an expired license issued by the Principal
Registrar of Marriages (A Special License)
Registrar’s Certificate
Where a person desires to marry under the authority of a Registrar’s Certificate, one of
the parties to the intended marriage shall sign and give a notice in a prescribed form to
the Registrar for the District in which the marriage is intended to take place.
The Registrar will then publish the notice in the Marriage Notice Book and affix a copy
to the door of his office or on a notice board outside the office until the expiry of 3
months or after the grant of the Registrar’s Certificate.
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Under Section 46, the Registrar will issue the parties with a Certificate if he is satisfied
on affidavit that the substantive requirements of the marriage have been complied with.
More particularly, the affidavit should state that:
1. One of the parties has resided in the District where the marriage is to be celebrated
for at least 15 days before the grant of the certificate.
2. That the parties to the marriage are 21 years and above and where they are below
21, they are above 18 and that the consent of their parents or guardians has been
obtained.
3. That the parties are not prohibited from marrying each other on grounds of
consanguinity or affinity.
4. None of them is already married under customary law to someone else.
The Registrar may issue the Certificate any time between 21 days - 3 months from the
date of the notice.
Section 47 provides that the marriage must take place within 3 months after the date
of the notice and that where the marriage fails to happen within the 3 months, then
the notice and all proceedings consequent on the notice are void and a fresh notice
shall be given before the parties can lawfully marry under a Registrar’s Certificate.
Marriage Officer’s Certificate – (traditional church wedding)
A marriage officer is a minister of religion who has been duly appointed by the Minister
responsible for the Interior by an Executive Instrument to be a marriage officer for the
marriage district named in the instrument.
Where persons desire to marry under the authority of a Marriage Officer’s Certificate,
each of them shall deliver a notice in the prescribed form to the Marriage Officer for
their District at least 4 days before the time required for the 1st publication of the
banns.
The publication of banns is essentially the announcement of the intention of the parties
named in the notice to marry. The person making the announcement will also call for
anyone who knows of a reason why the parties should not be joined together in marriage
to come forward and declare it.
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If both parties to the intended marriage reside in the same District for at least 15 days
to the notice and belong to the same religious denomination, a single notice may be
given and one certificate will be issued for the marriage. Also, the banns will only be
published in the place of worship of the religious denomination in that town or village.
Where separate notices are given, then separate banns are to be published in respect of
the notices.
The publication of the banns may either be done personally by the Marriage Officer or
he/she may delegate that another person do same on his behalf.
The banns must be published for 3 Sundays and must be done in the face of the
congregation in an audible manner both in English and in vernacular during an
appropriate time in the service.
After the banns have been published and no caveat has been entered or a caveat entered
has been duly removed, then the Marriage Officer may at any time within 3 months of
the last date of publication of the banns, grant to the persons a Marriage Officer’s
Certificate.
Where the Certificate is not given within 3 months of the last publication of the Banns
then the publication and all related proceedings are void and the banns must be published
all over again.
Special License – Section 55
Where a couple seeks to do away with the giving of notice of the intended marriage
between them or of the publication of banns, they may apply to have the marriage
solemnized by a Special License.
The Registrar must first be satisfied on affidavit that no lawful impediment exists to the
proposed marriage and that the necessary consents, if required, have been obtained.
Where he is so satisfied, he may dispense with the issue of notice or a certificate and
grant the parties a special license authorizing the celebration of the marriage between
the parties by a Registrar or by a recognized Minister of a religious denomination.
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Under a special license, the marriage may be celebrated in a place other than a licensed
place of worship or in a Registrar’s office if he so authorizes.
Objections to a Marriage under Part 3 of Cap 127 – Section 56, 57
An objection may be raised to the issuance of a Registrar’s Certificate or of a Marriage

Officer’s Certificate, by a person whose consent is required to the marriage or by any
person who knows of a just reason why the marriage should not take place.
This objection is done by way of a caveat entered after the notice or publication of
banns and before the issuance of the certificate. And until the caveat is removed, the
marriage officer or the Registrar shall not issue the certificate.
When the caveat is entered the Registrar or the Marriage officer shall, without delay,
refer the matter to a Justice of the High Court.
Where the Judge is satisfied that the caveat has no merit, he shall remove it without
requiring any of the parties to appear before him. But where the caveat has merit, the
Judge will summon the parties to the intended marriage and ask the caveator to show
cause why the Registrar or the Marriage Officer should not issue the Certificate.
The case will be heard and determined in a summary manner and the judge may award
compensation and costs to the party injured where it appears that the caveat was
entered on insufficient grounds. Where the action for the caveat is successful, the
Certificate shall not be issued.
Where the caveat action is unsuccessful, the Judge shall remove the caveat and the
Registrar or the Marriage Officer may issue the certificate in due course and the
marriage shall proceed as though the caveat had not been entered. The time for the
removal of the caveat shall not be computed as part of the 3 months within which the
marriage should be celebrated after the issuance of the Certificate by the Registrar or the
Marriage Officer.
After the Celebration of the Marriage
Immediately after the celebration of the marriage, the officiating minister or the Registrar of
Marriages shall enter the names of the parties onto the certificate to be signed by the
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Minister, the Parties themselves and by 2 or more witnesses. The parties will have one
certificate while the other is filed by the Registrar or is submitted to the Registrar by the
Marriage Officer to be filed within 7 days of the celebration.
Where the marriage is celebrated under a Special License, the registrar of the district in
which the marriage is to take place shall deliver to the parties a blank certificate of the
marriage in duplicate and the Minister or Registrar shall fill the certificate and give a copy
to the parties while the other copy is sent to the Registrar of the District for filing.
Section 75 states that a marriage celebrated under Part 3 is good and valid in law to all
intents and purposes.
CONVERSION OF MARRIAGE
Conversion of a marriage is simply the process of changing a polygamous or potentially

polygamous marriage into a monogamous one. This means that a Mohammedan marriage can
be converted to a monogamous one and a customary marriage can be converted to a
monogamous one. Conversion may be done through:
a) Legislation
b) Change of domicile
Conversion by Legislation
The parties must strictly comply with the provisions of the Act relating to contracting a valid
Ordinance marriage or else the conversion will fail and the parties will continue to be in a
polygamous marriage.
In Re Appiah (Decd.) Yeboah v. Appiah
A husband and wife who had been married at customary law had purported to convert their
marriage into a monogamous one under Cap 127. The evidence showed that there had been a
ceremony at the church officiated by the Minister in charge (who was a recognized Marriage
Officer), after which a Certificate had been issued.
Besides this, there was no evidence of compliance with the other formal requirements of
the Marriage Ordinance, such as the publication of banns, etc. The Court held that the
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ceremony was merely a blessing ceremony and that the mere intentions of the parties to
contract a monogamous marriage is not enough to satisfy the provisions under Cap 127.
There is a need for strict compliance with the mandatory provisions of Cap 127 that confer
this type of marriage on the parties together with certain rights.
Appomasu v. Bremawuo
The parties had been customarily married and as Roman Catholics, decided to convert their
marriage in a ceremony at their Cathedral in Kumasi so that the church would recognize
their union and allow them receive the communion. The ceremony was performed and
recorded in the church’s register.
On the death of the husband, the Court held that the marriage was not validly converted into
a monogamous one and that the ceremony was a mere blessing since the required
conditions under Cap 127 had not been met.
Graham v. Graham
The parties had been married in accordance with customary law and later went through a
marriage ceremony in the Catholic Church in Dzelukofe in Keta to convert the marriage into a
monogamous one.
Later the husband instituted an action in the Accra-Tema City Local Court for a dissolution of
the prior customary marriage and the wife applied to the court for an order directing that the
local court did not have the jurisdiction to hear and determine the matter since the marriage
was governed by provisions of the Ordinance and not only customary law.
1. The marriage before the Marriage Officer in the Catholic Church complying with the
necessary requirements for an ordinance marriage had effectively converted the
status of the parties from man and wife under customary law to man and wife
under Ordinance. This was a completely different union with different obligations,
rights and privileges different from those under customary law. It was not a mere
blessing ceremony.
2. Since they had converted their marriage to one under the Ordinance, the husband
could not claim the benefits of customary law for divorcing his wife, a statutory
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spouse. And since the marriage was not a customary law marriage, the Local Court did
not have jurisdiction over the matter.
Conversion by Domicile
Where one of the parties to a potentially polygamous marriage acquires a domicile of

choice in another country, the marriage automatically converts to a monogamous
marriage if the marriage in the new domicile can be considered as monogamous. If not,
the marriage will be invalid.
Ali v. Ali
The parties had contracted a potentially polygamous marriage in India and moved to
England. However, the wife returned to India after a short stay. The husband on the other
hand stayed and acquired a domicile of choice in England. He then applied for a divorce in an
English court.
The court held that the acquisition of English domicile had changed the marriage from
potentially polygamous to monogamous and therefore the courts had jurisdiction to
dissolve the marriage.
NB: Under Ghanaian law, a change of religion will not operate to change the nature of the
marriage from potentially polygamous to monogamous. Barake v. Barake
In essence, where a conversion is successful, the customary marriage is completely

dissolved. And in its place an Ordinance marriage exists. And so, if the Ordinance marriage
contracted is also dissolved, then there is nothing left since the customary marriage would
have ceased to exist as soon as the monogamous marriage was contracted.
If conversion is unsuccessful, the marriage remains polygamous and the husband may marry
other women under customary or Mohammedan law. If he marries another woman under the
Ordinance, such marriage will be void and of no effect.
MARRIED LIFE UNDER THE COMMON LAW AND CUSTOMARY LAW - refer to slides
NULLITY PROCEEDINGS / VOID AND VOIDABLE MARRIAGES
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A marriage is considered as valid where it complies with the relevant law and practice in all
respects. For a marriage to be valid it must comply with both the procedural and
substantive requirements for its validity, regardless of what system the marriage has been
contracted under.
Section 13(1) of the Matrimonial Causes Act, 1971 (Act 367) states that a person may present
a petition to the court for a decree of nullity annulling a marriage on the ground that it is by
law void or voidable.
Void Marriages
A void marriage is one that is so defective that the law cannot regard it as being existent. It
is a marriage that has some incurable defect and can therefore never be considered as valid,
regardless of the intentions of the parties.
In the case of De Reneville v. De Reneville, the courts described a void marriage as “one
that will be regarded by every court in which the existence of the marriage is in issue as
never having taken place and can be treated by both parties to it without the necessity of
any decree annulling it.”
The only remedy for a void marriage is where the parties re-do the entire ceremony, but in
accordance with the relevant requirements under the matrimonial regime that the parties
wish to get married under. There is no defence/cure to a void marriage.
After a spouse dies, an application can be brought to declare a marriage void for the purposes
of inheritance and succession.
A party to a void marriage may validly marry another party since the initial marriage is void.
As stated in the De Reneville case, a decree is not necessary to set aside a void marriage,
simply because the marriage is regarded to never have come into existence, and so there is
nothing to set aside.
Section 13(4) of the MCA states that nothing in that section will be construed as validating a
marriage which is by law void but with respect to which a decree of nullity has not been
granted. This affirms the point that one does not need a decree of nullity to declare a
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marriage void. The fact there is no decree of nullity does not mean that the marriage will be
considered as valid.
However, people still apply for a decree of nullity for either of 2 reasons:
a) To apply for ancillary reliefs like custody and maintenance (that they would
otherwise not get but for the formal decree of the court)
b) To prove conclusively to the world that the marriage was never valid.
What will render a marriage void?
1. Failure to comply with law and practice for that kind of marriage:
a) Failure to publish banns
b) Marrying after the 3 months period after the notice or last date of banns
c) Using a false name to get married
d) Marrying under a Marriage Officer who is not licensed for the purpose
e) Marrying in a place that is not licensed without a special license
f) Non-registration of the Mohammedan marriage
g) Where no certificates were issued after the celebration.
2. Where the parties are prohibited from marrying on grounds of consanguinity and
affinity
3. Where the parties are not male and female
4. Where the parties do not freely consent to the marriage
5. Where a party to the monogamous marriage is already validly married to another.
6. Where the parties to the marriage are below the age of 18
Voidable Marriage
A voidable marriage is one that remains valid for all purposes until it is nullified by a decree
of nullity issued by a court of competent jurisdiction.
It is only the parties to a voidable marriage that may choose to affirm or petition for the
marriage to be nullified. This is unlike a void marriage where any other party may also
attack the status of the marriage.
Also, unlike a void marriage, until a decree is issued nullifying the marriage, it remains
valid for all intents and purposes.
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Again, on the death of a spouse, no action can be brought to nullify the marriage, unlike
with a void marriage.
In the case of Re Roberts (Decd), a husband in his will, had gifted property to his wife,
ignorant of the fact that the marriage would revoke the gift made to her in the will. On the
death of the husband, the wife sought to argue that their marriage was void due to the
husband’s insanity and so she was not his wife and she could receive the property devised to
her under the will. The court held that this was irrelevant, because the insanity merely
made the marriage voidable. And as a voidable marriage, it remained valid for all intents
and purposes until a decree of nullity is issued to annul the marriage. And since no such
decree had been issued, the marriage remained valid at the time of death.
A party to a voidable marriage cannot enter another valid marriage with a third party until
the voidable marriage has been annulled.
Grounds on which a Marriage will be declared Voidable
Under common law, the following can make a marriage voidable.
1. Non-consummation (whether due to incapacity or a wilful refusal)

2. No consent to the marriage
3. Mental disorder of either party
4. Venereal disease
5. Mistake of the either party
6. Where the woman is pregnant by another man at the time of the marriage.
Section 13(2) of the MCA provides that in addition to any other grounds on which a marriage
is by law void or voidable, the following may make the marriage voidable:
1. Lack of consummation due to a wilful refusal of the Respondent to consummate

2. Unsound mind at the time of the marriage on the part of either party or that the
party was subject to recurrent attacks of insanity
3. That the Respondent was at the time of the marriage pregnant by some other person
other than the Petitioner
4. That the Respondent at the time of the marriage was suffering from an incurable
venereal disease in a communicable form.
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To be entitled to a decree of nullity on the last 3 grounds, the Petitioner must satisfy the
court that:
1. He/she was at the time of the marriage ignorant of the facts making the marriage
voidable, and
2. Proceedings were instituted within a year from the date of the marriage, and
3. Marital intercourse with the consent of the petitioner has not taken place since the
petitioner discovered the existence of the facts making the marriage voidable.
Where the period of one year has elapsed since the date of the marriage, the petitioner may
simply file a petition for divorce, once the reason can be couched under the grounds for
divorce.
Differences between a Void and Voidable Marriage
Void Marriage Voidable Marriage

The courts will regard it as never to have The courts regard it as being valid until the
existed and so the parties do not need a decree of nullity is granted by a court of
decree of nullity to annul the marriage. competent jurisdiction to annul the
marriage.
Anyone can apply for a decree of nullity to Only the parties to the marriage can
set the marriage aside. petition to have the marriage annulled.
There is no remedy or defence to a void The parties may agree to affirm the
marriage marriage even after acknowledging the
grounds that make the marriage voidable
On the death of a spouse, the other party On the death of a spouse, a decree of
or someone else can apply for a decree of nullity is useless. The marriage would be
nullity. deemed to have been valid at the time of
the death of the spouse.
A party to a void marriage may contract a A party to such a marriage would require a
valid marriage with someone else without decree of nullity to annul the marriage
a decree of nullity nullifying the void before contracting a valid marriage with
marriage. someone else.
NB: Where a decree of nullity is granted in respect of a marriage where the parties have
children together, Section 14 of the MCA states that the children will be deemed to have
the same status and rights as though the marriage had been dissolved rather than
annulled.
Meaning of Consummation
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In the case of D-E v. A-G, the court held that consummation is the achievement of full
penetration in the normal sense amounting to complete intercourse. Again the intercourse
must amount to full and complete penetration, therefore transient penetration will not
amount to consummation, as was held in the case of W v. W.
It does not matter whether or not either party is sterile or is unable to ejaculate. Neither
does it matter whether either party was sexually satisfied. And also it does not matter that
the parties used contraceptives, or used the coitus interruptus method. Once there was
penetration, which was complete, there will be consummation.
In the case of Baxter v. Baxter, the husband was not allowed by the wife to have sex with
her unless he used a contraceptive sheath because she feared childbirth. He reluctantly
complied and later sought to have the marriage annulled on grounds of failure to
consummate. The court held that the marriage had been duly consummated and that the
use of a contraceptive sheath was irrelevant to the question of consummation.
It is also important to note that if the parties have not had intercourse, the birth of a child as
a result of artificial insemination or any other form of assisted reproduction technique would
not amount to consummation.
Lack of consummation may be viewed from 2 angles:
1. The inability to have sexual intercourse

2. Wilful refusal to have sexual intercourse
Inability to have sexual intercourse
Here the party cannot have sexual intercourse due to some condition or defect that they
may have. The following must be satisfied:
1. The condition or defect that prevents the person from having sexual intercourse
must be incurable or incapable of remedy.
2. The incapacity/inability must be in existence at the date of the marriage
3. There must be no practical possibility of consummation at the date of the hearing.
In the case of S v. S, where the wife had a malformed vagina and no uterus, the court held
that this was not a defect that made the wife unable to have sexual intercourse and so
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even though she could not have children, there was consummation and so the marriage was
not voidable. Further her defect could be cured by surgery. The marriage was later dissolved
on grounds of the husband’s adultery.
If the condition causing the inability can be removed without resulting in danger to the
spouse, then the court will hold that the marriage is not voidable.
The condition or the defect must be in existence at the time of the presentation of the
petition. If it has been removed or the spouse is prepared to undergo operation to remove
the impediment, then the petition will fail. This was the position of the court in the case of
Napier v. Napier.
A petition based on a psychological inability to consummate the marriage may be successful if

the petitioner is able to establish that he or she find sexual intercourse extremely
repugnant.
In the case of Clarke v. Clarke, the wife was frigid and had an involuntary muscular spasm
that contracted her vagina on the approach of a penis. Despite the fact that the woman
had given birth via an assisted reproduction technique, the court held that the marriage had
not been consummated since there had been no complete penetration.
Wilful refusal to consummate
This happens where one the parties consistently and steadfastly refuses to have sex without
just cause.
In the case of Horton v. Horton, wilful refusal has been held to mean that there was a
“settled and definite decision come to without just excuse.”
In the case of Dickinson v. Dickinson, the court stated that, “It is not a mere temporary
unwillingness due to a passing phase or the result of coyness, a feeling of delicacy, affected
or real or a nervous ignorance which may be got rid of by patient forbearance, care and
kindness but wilful, determined and steadfast refusal to perform the obligations and to
carry out the duties which the matrimonial contract involves.
The refusal should have persisted up to the time of the presentation of the petition for the
decree of nullity.
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Refusal may also be in the form of a refusal to undergo treatment to cure a condition that
hinders consummation, where the said treatment is not dangerous.
In the case of Jodla v. Jodla, the parties were Catholics and agreed to marry first at the
registry and then in the church. They also agreed that they would only live together as man
and wife after the church wedding. The husband subsequently refused to go through with
the church wedding. The court annulled the wedding on the ground that this refusal was a
wilful refusal to consummate since he refused to comply with a condition that they had
agreed was necessary to the consummation.
A similar thing happened in the case of Kaur v. Singh, where the parties who were Sikhs had
contracted a valid marriage but agreed that they would only have sexual intercourse after
the religious ceremony that was required by their custom. The husband who had the
obligation of arranging the ceremony refused to do so and this was held to be a refusal to
consummate.
The mere loss of sexual ardour is not enough to constitute a wilful refusal
NB: Only one incidence of penetration is necessary to consummate the marriage.
Unsound Mind
This will only operate to nullify a marriage if at the time of the ceremony, either party was
unable to understand the nature of the contract he was entering into. There is a
presumption that all parties at the time of marriage are sane, and so where a party alleges
otherwise to impeach the marriage, they must lead evidence to rebut this presumption.
Mental Disorders
If at the time of the ceremony, either party though capable of consenting was suffering
whether continuously or intermittently from a mental disorder of such kind or to such
extent as to be “unfitted for marriage.”
The phrase, “unfitted for marriage” has been defined as “incapable of carrying out the
ordinary duties and obligations of marriage.” So in the case of mental disorder, it is
presumed that although the party was capable of consenting to the marriage, the general
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state of their mental health at the time of the ceremony is such that it is only right that the
marriage be annulled.
In the case of Bennett v. Bennett, the wife was not clinically ill but she suffered from a
temporary hysterical neurosis which meant that she was likely to be difficult on a short term
basis. But the court held that this was not sufficient to invalidate the marriage.
Duress
Where it can be shown that a party entered into a marriage based on duress and that real
consent is absent, then the marriage will be annulled. The absence of consent vitiates the
marriage.
Szechter v. Szechter
A Polish woman was thrown in prison. Following her arrest and incarceration, she married so
that she could leave both the prison and Poland itself. The court held that she was in poor
health and that her life was in danger if she remained in prison and so this would operate
as duress that vitiated the marriage. The court granted her a decree of nullity.
The similar cases of Hussein v. Hussein, where a woman entered into a marriage under
threat of being killed by her husband and Parojcic v. Parojcic, where a Yugoslavian
refugee was forced by her father to marry a man on her arrival in England or be sent back
to Yugoslavia, are clear examples of cases where duress operated to vitiate a marriage.
Those marriages were regarded as voidable and a decree of nullity was granted to annul
them.
Effect of an Annulment
Where a voidable marriage is annulled by a decree of nullity granted by a court of competent

jurisdiction, then such marriage becomes void.
Where there are children from that marriage, Section 14 of the MCA states such children will
be deemed to have the same status and rights as if the marriage of the parents had been
dissolved rather than annulled. The children will be treated as children of a valid marriage
and so the fact that the marriage has been declared void does not make the children
illegitimate.
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The Presumption of Death and the Dissolution of Marriage
Under Section 33(1) of the Evidence Act, where a person has not been heard of for seven
years despite diligent effort (whether or not within that period) to find him, he is presumed
to be dead. This is the presumption of death. It is a rebuttable one and evidence may led to
rebut it.
Section 15(1) of the MCA allows a married person to present a petition to the Court to have
it presumed that the other party to the marriage is dead and so the marriage should be
dissolved. Where the court is satisfied that there are reasonable grounds for the application
of the presumption, it may make a decree of presumption of death and dissolution of
marriage.
Section 15(3) further states that it is sufficient evidence where the other party to the
marriage has been continually absent for a period of 7 years or more and that the
petitioner has no reason to believe that the other party has been living within that time.
And any decree of divorce, nullity, presumption of death and dissolution of marriage, once
granted, shall take effect from the date on which the court gave judgment. This is
contained in Section 37 of the MCA. This means that the effect of a decree is prospective
only.
DISSOLUTION OF A MONOGAMOUS MARRIAGE
This is governed by the Matrimonial Causes Act, 1971 (Act 367).
A dissolution of a monogamous marriage refers to the formal termination of the status

derived from the marriage so that following the grant of a decree, both spouses have neither
the duties of a husband or a wife. Also known as divorce.
Section 1(1) of the MCA provides that either party to the marriage may present a petition for
divorce to the Court.
Under Section 31, it provides that the court will have jurisdiction in proceedings under the
MCA where either party to the marriage is either a citizen, or domiciled in Ghana or has
been ordinarily resident in Ghana for at least 3 years immediately preceding the
commencement of the proceedings.
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Therefore, a person may only initiate divorce proceedings in the Ghanaian courts where
either them or their spouse is a citizen, domiciled in Ghana or has been ordinarily resident in
the country for at least 3 years immediately preceding the commencement of proceedings.
Grounds for Divorce
It is important to note that, per Section 1(2) of the MCA, the sole ground for granting a
petition for divorce shall be that the marriage has broken down beyond reconciliation.
To show that the marriage has broken down beyond reconciliation, the petitioner in a divorce
proceeding is to satisfy the court that any one or more of the following facts exist:
1. That the Respondent has committed adultery and that the petitioner finds it
intolerable to live with the Respondent (ADULTERY)
2. That the Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent (UNREASONABLE BEHAVIOUR)
3. That the Respondent has deserted the Petitioner for a continuous period of at least
2 years immediately preceding the presentation of the petition. (DESERTION – 2
YEARS)
4. That the Parties have not lived together as husband and wife for a continuous
period of at least 2 years immediately preceding the presentation of the petition
and that the Respondent consents to the grant of a decree of divorce, provided that
this consent is not unreasonably withheld, but where the consent has been so
withheld, then the court may grant the decree of divorce despite the refusal.
(SEPARATION FOR 2 YEARS WITH THE CONSENT OF THE RESPONDENT)
5. That the Parties to the marriage have not lived as husband and wife for a continuous
period of at least 5 years immediately preceding the presentation of the petition
(SEPARATION FOR 5 YEARS)
6. That the Parties, after diligent effort have been unable to reconcile their
differences. (INABILITY TO RECONCILE THEIR DIFFERENCES).
Section 2(3) states that although the Court may find the existence of one or more of the
facts specified above, the Court shall not grant a petition of divorce unless it is satisfied on
all the evidence that the marriage has broken down beyond reconciliation.
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In cases like Ash v. Ash and Pheasant v. Pheasant, the courts have noted that it is the
burden of the petitioner to establish any of the facts and it is the burden of a Respondent in a
defended suit to show that despite this, the marriage has not broken down irretrievably.
In addition to this, it is the duty of the court under Section 2(2) and (3) of the MCA, to
inquire so far as is reasonable into the facts alleged by both the petitioner and the
respondent and then satisfy itself whether or not the marriage has broken down beyond
reconciliation.
A. Adultery of the Respondent
Section 2(1)(a) provides that one of the grounds on which a Petitioner may rely on to prove
that their marriage has broken down beyond reconciliation is that the Respondent has
committed adultery and that, the Petitioner finds it intolerable to live with the Respondent.
What this means is that the Petitioner must prove 2 things:
1. That the Respondent committed adultery

2. That the Petitioner finds it intolerable to live with the Respondent.
Bromley defines adultery as “sexual intercourse between 2 persons of whom one or both are
married but who are not married to each other.”
Section 43 of the MCA defines adultery as “the voluntary sexual intercourse of a married
person with one of the opposite sex other than his or her spouse.”
Establishing Adultery
1. The first thing to establish is that there was some degree of penetration of the
female organ by the male organ. The least degree of penetration will suffice. In the
case of Dennis v. Dennis, the court held that even though Mrs Dennis attempted to
have sexual intercourse, it would not amount to adultery because the man was
unable to effect penetration. It is important to also note that the masturbation of the
co-respondent by the wife is not adultery.
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2. The act of adultery must be voluntary. If the woman is raped or her consent was
obtained through duress or fear or force, she will not be deemed to have committed
adultery, because she did not engage in the intercourse consensually.
3. The party who alleged adultery bears the burden to prove it. And where they meet
this burden, it shifts to the respondent to displace it, either by leading evidence to
show that the adultery did not happen or even if it did, it was not consensual.
4. Previously, the position in Ghana was that the standard for proof of adultery was proof
beyond reasonable doubt. This was stated in the case of Quartey v. Quartey.
However, this position has been reviewed. The standard currently is a high degree of
probability, as was laid out in the case of Adjetey v. Adjetey. This is because even
though these are civil matters, the matter of adultery is one that is so grave and so
the proof of it ought to be clear. The standard of proof is therefore slightly higher
than a balance of probabilities.
5. Due to the nature of adultery, it is not easy to obtain direct evidence of it (catching
the parties in flagrante delicto). It may therefore be inferred from the circumstances
surrounding the case, a confession of one party or the birth of a child following the
adultery.
On the issue of circumstantial evidence, the presence of a disposition and the

opportunity may lead a court to conclude that adultery has been committed.
In the case of Adjetey v. Adjetey for example, the parties had agreed to move from
their old house to a new house on a particular day. On the day, they left the house in
separate cars. The respondent never arrived at the new house, but instead drove to
her boyfriend’s house where she spent 2 months. Her uncle subsequently took her back
to the Petitioner’s house. But she escaped once more and never returned to the
matrimonial home.
The Court held that from the circumstances, it could be inferred that the Respondent
had committed adultery.
There was also the case of Blum v. Blum, where the Respondent booked a double
room in a hotel under a false name, with a woman who was not his wife. They
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spent the night there together. The Court held that adultery could be inferred from
these circumstances.
In the case of Hume v. Hume & McAuliffe, the court inferred adultery against the
wife where there was evidence from blood tests to show that the child of the
marriage was not the child of the husband.
A confession of a party may also be sufficient to prove adultery except where the
confession is made under duress. In the case of Quartey v. Quartey, the husband
petitioned for divorce on the ground that the wife had confessed to committing
adultery. The wife led evidence to show that she denied the accusations of adultery
from her husband initially, but only confessed because her husband kept beating her
severely and so she confessed so he would stop beating her. The court held that
adultery had not been proved in this case.
Intolerability Test: The Petitioner must find it intolerable to live with the
Respondent
This test is a subjective one and not an objective one. The court must decide
whether the particular petitioner finds it intolerable to live with the Respondent.
In the case of Goodrich v. Goodrich, the court held that the 2 requirements (the
adultery, and the intolerability) were independent of each other and that whether it
was intolerable for the petitioner to be obliged to live with the Respondent was a
subjective test for the particular Petitioner.
And so, where the adultery is proved and the petitioner satisfies the court that further
cohabitation with the Respondent is intolerable then the court will have to grant the
decree.
In the case of Cleary v. Cleary, the court held that the adultery may be the reason
that the Petitioner finds it intolerable to live with the Respondent but it is not
necessary for there to be link between these 2 matters. In this case, after
committing adultery, the Respondent corresponded with other men, went out at night
consistently and did not return home. The Petitioner alleged that even though he had
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taken her back after the adultery, he could not live with her any longer because there
was no future for the marriage.
And so although it was the conduct after the adultery and not the adultery per se that
led to the divorce, the court held that he had satisfied both limbs of the requirement.
Timing
An act of adultery only remains a valid basis for divorce 6 months after it is discovered by
the potential petitioner. And so, if after the adultery, the parties continue to cohabit, then
after 6 months, the previous act of adultery cannot be relied on for the purposes of a
petition for divorce. This is contained in Section 3 of the MCA.
It is presumed that after 6 months, if they still continue to cohabit, the petitioner will be
deemed to have forgiven the Respondent and so they cannot subsequently claim to find it
intolerable to live with the Respondent.
It is important to note that the parties must live together as husband and wife for Section 3
to apply. If the wife leaves her adulterous husband and goes to her family home and returns
to nurse her husband after an accident, staying for longer than 6 months, she may still
rely on the fact of the adultery. This is because she did not return to perform the duties of a
wife, she retuned merely to care for her husband.
Section 12 of the MCA states that the person alleged to have committed adultery with the
Respondent may, but need not be made a party to the proceedings.
It is also irrelevant to mention the place where the adultery occurred.
B. Unreasonable Behaviour
A petitioner may prove that their marriage has broken down beyond reconciliation by
showing that the Respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with them.
Under English law, unreasonable behaviour has been defined as conduct that gives rise
to injury to life, limb or health OR conduct that gives rise to a reasonable
apprehension of such danger.
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Actual injury need not be established. Mere apprehension is enough provided that it
has led to the breakdown of the marriage beyond reconciliation. Therefore, threats of
personal violence are enough, an actual or presumed intention to harm is not necessary
on the part of the respondent.
In the case of Gollins v. Gollins, the court held that it does not matter whether it springs
from a desire to hurt or selfishness or sheer indifference.
The conduct that constitutes unreasonable behaviour needs to be weighty and grave
such as to make living together reasonably impossible. It must be serious and higher
than the normal wear and tear of married life.
The English courts have held that infecting one’s spouse with a venereal disease
amounts to unreasonable behaviour.
Also the wilful refusal of sexual intercourse or persistent demands for inordinate
sexual acts or malpractices may amount to unreasonable behaviour. This was explained
in the cases of Arthur v. Arthur and Sheldon v. Sheldon.
A partner’s inability to have sexual intercourse as a result of impotence does not

amount to unreasonable behaviour as was stated in the case of Dowden v. Dowden.
Insistence on coitus interruptus knowing it affects the other spouse’s health amounted
to unreasonable behaviour in the case of Knott v. Knott.
Persistent drinking and a gambling addiction amounted to unreasonable behaviour

according to H v. H. And in Stanwick v. Stanwick, nagging and insults amounted to
unreasonable behaviour.
Under section 2(1)(b) of the MCA, it is implied that to rely on this ground for the grant
of an order of divorce, the petitioner should prove 2 things:
(a) That the respondent has exhibited unreasonable behaviour
(b) As a result of the unreasonable behaviour the petitioner cannot reasonably be

expected to live with the respondent.
Nature of the test to be applied
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The Court in the case of Livingstone-Stallard v Livingstone-Stallard laid down the test as
follows:
“Would any right-thinking person come to the conclusion that this husband has behaved in
such a way that this wife cannot reasonably be expected to live with him taking into
account the whole of the circumstances and the characters and personalities of the
parties?”
The test is therefore an objective one, to be determined with regard to the personalities of
the parties and assessing the impact of the respondent’s conduct on the petitioner in light
of the whole history of the marriage and their relationship. This was discussed in the case of
Ash v. Ash.
In the case above, the husband was 56 and his wife was 24. From the very start the marriage
was unsatisfactory. The husband was always criticizing the wife over petty things like her
behaviour, her friends, her way of life, her cooking, her dancing, and was abusive to her. He
even called her names and spat on her on one occasion. He tried to kick her out of bed once
and criticized her for leaving her underclothes soaking in the sink even though he himself did
same and said that it was indicative of how she had been brought up. He made a huge fuss
when she drank sherry with their wedding photographer who had come by to deliver their
wedding portraits. One night the husband threw her out of the night when it was cold and
locked her out. He threw water on her when she tried get back inside. She suffered bruising
and was in a nervous state for weeks. The court held that applying the objective test, this
was unreasonable behavior and so she was entitled to a decree of divorce.
Examples of Unreasonable Behaviour include:
1. Sexual perversion and homosexual activities

2. Unreasonably refusing to have sexual intercourse (as in the case of Dowden v.
Dowden)
3. Excessive sexual demands
4. Persistent drunkenness
5. Insistence on coitus interruptus, knowing that it was affecting the health of the other
spouse
6. Addiction to gambling
7. Emotional dissatisfaction.
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8. Commission of criminal offences especially those of a sexual nature
9. Threats, insults, nagging, persistent dishonesty that causes embarrassment
10. Violence against the other party
11. Bullying and constant criticism
12. Financial responsibility or excessive financial restriction
Happee v. Happee
The Respondent was a Ghanaian and the Petitioner was from the Netherlands but was living
with the Respondent in Ghana. They lived happily as a couple until they separated. The
Petitioner complained that Respondent was always heaping insults on him in public and
after he had filed for divorce, the Respondent showed up at his place of work harassing him
by asking him to leave Ghana. One time, the Respondent interrupted a meeting between the
Petitioner and his lawyer and demanded that he return her marriage certificate to her and
threatened to kill the Petitioner if he did not leave the country. It took police intervention to
remove her from the scene.
It did not end there. The Respondent wrote to the Petitioner’s superiors in France wrongly
alleging that the Petitioner had stolen company property. Investigations revealed that this
was false. The Respondent further wrote to the Freemasons Lodge in Sekondi of which the
Petitioner was a member stating that he was not fit to be considered for the position of Grand
Master of the Lodge. On another occasion she smashed the windscreen of the Petitioner’s
car and was convicted of causing damage.
The Respondent on another occasion, held up the Petitioner at the airport, put him in custody
under the claim of there being an absconding warrant issued for him. After he was granted
bail, he discovered that the Petitioner was behind it and that there was no such absconding
warrant.
The Court held that this was unreasonable behaviour.
Knudsen v. Knudsen
The petitioner applied for a dissolution of her marriage on the ground that her husband had
expressed the desire that they execute a deed of separation for no apparent reason.
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The husband cross-petitioned praying for dissolution on the ground that the wife was violent,
extravagant and jealous and that the marriage had broken down beyond reconciliation. He
claimed that she had destroyed his books, furniture, projector and hunting trophies. She
even wrote letters to his employers in Kenya prompting them to ask for his resignation.
The Court of Appeal granted the cross-petition stating that unreasonable behaviour could
range over a wide variety of acts. “it may consist of one act if it is of sufficient gravity or of
a persistent course of conduct or of a series of acts of differing kinds none of which by
itself may justify a conclusion that the person seeking the divorce cannot reasonably be
expected to live with the spouse but the cumulative effect if all taken together would do
so.”
Mensah v. Mensah
Here the Petitioner alleged that there was unreasonable behaviour on the part of the
Respondent. The unreasonable behaviour was the failure of the husband to cooperate with
her in finding a solution to their childlessness even though he was aware of her anxiety to
have children. And on some occasions, he would use her barrenness to taunt and insult her.
The court held that this amounted to unreasonable behaviour as it was not reasonable to
expect a wife to live with a husband who behaved in this manner.
The court further stated that in determining whether a husband has behaved in such a way
as to make it unreasonable to expect a wife to live with him the court must consider all
the circumstances constituting such behaviour including the history of the marriage. It is
always a question of fact. And the conduct complained of must be grave and weighty and
mere trivialities will not suffice. The test is objective.
Opoku-Owusu v. Opoku-Owusu
A Ghanaian man had married a German woman and they had moved to Ghana. The wife
refused to have sexual intercourse with the man because she claimed that the husband
demanded sex too frequently. She had been pregnant 10 times in the course of 11 years, and
lived in constant fear of having another child. And because she refused to have sex with him,
he became quite jealous and did not want her to have any type of friends. He became
violent and would at times wake up at 2am, 3 am shouting at the top of his voice.
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The Court held that a willful refusal by one spouse to have sexual intercourse may entitle the
other party to leave if in all circumstances of the case, it could properly be regarded as grave
and weighty and if it had an adverse effect on the health of the other spouse. Such conduct
might also amount to a just cause for leaving though it lacked the element of the intent to
injure. However, one spouse was not bound to submit to the demands of the other if they
were unreasonable and inordinate or were likely to lead to a breakdown of health. Thus, the
spouse who suffered as a result of an unreasonable insistence on sexual intercourse would be
entitled to leave the other.
Reconciliation Provisions
Section 4 of the MCA provides that where the parties have lived together as husband and wife
for less than 6 months to attempt a reconciliation since the last incident of unreasonable
behaviour, the fact of a reconciliation attempt should be disregarded in determining
whether or not the petitioner cannot reasonably be expected to live with the respondent.
However, where they have lived together for more than 6 months since the last incident of
the unreasonable behaviour, the petitioner cannot rely on that incident as grounds for
divorce.
Ofori v Ofori
The couple was ordinarily resident in the USA, but visited Ghana on holiday and while in
Ghana, the husband petitioned for a divorce on the ground that the wife was rude and
extravagant.
The divorce proceedings begun, but the parties returned to the USA before the proceedings
were completed. On their return to the USA, they lived together as husband and wife for 3
months before the wife left the matrimonial home with the children.
The court held that the 3-month period of cohabitation did not prevent the husband from
relying on the facts of unreasonable behaviour for which he had sought the petition, since it
had not passed the 6 month statutory benchmark.
C. Desertion
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Bromley defines desertion as the “unjustifiable withdrawal from cohabitation without the
consent of the other spouse and with the intention of remaining separated permanently.”
Section 2(1)(c) of the MCA requires the petitioner to establish that the respondent has
deserted them for a continuous period of 2 years immediately preceding the presentation
of the petition.
Desertion may take 2 forms; either simple desertion, that is where the Respondent left the
Petitioner without just cause or constructive desertion where the Petitioner leaves the
Respondent but with a just cause for their departure.
Withdrawal for the purposes of desertion may result from a physical withdrawal or a
withdrawal from the state of things. But in either case, the desertion must amount to a
total repudiation of marital obligations.
It is important to note that the separation that constitutes desertion must be in existence at
the time the petition is filed, if the separation has ended at the time of the presentation of
the petition, then the petition will fail.
Elements of Desertion
1. Actual separation (de facto separation)

2. Intention to desert (Animus deserendi)
3. Lack of consent by the other spouse to the separation
4. Lack of a reasonable excuse for the separation.
Actual Separation/ De Facto Separation
This means that there has been a total and actual withdrawal from the performance of all
marital obligations, a complete cessation of cohabitation. In Naylor v. Naylor, the wife
removed her wedding ring and decided never to perform any domestic services for the
husband again while he in turn gave her no housekeeping money. They did not share any
family or communal life and the court held that the wife had deserted her husband.
And so it is not sufficient that one party has abandoned some of the obligations of
matrimony or refused to perform isolated marital duties e.g., refusing to cook for the
family or refusal to have sex. If that party still continues to perform some of the obligation of
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matrimony, then the court will hold that there has been no desertion. There must be a total
rejection of all the obligations of the marriage.
Hopes v. Hopes
The spouses slept in separate rooms, although in the same house. The wife did not do any
mending or washing of the husband’s clothes but the husband continued to have meals with
the family and shared the rest of the house with them. The court held that there was
insufficient separation of the household.
Bull v. Bull
The wife left her husband and later returned to live with him and though she refused to have
sex with him, she cooked his meals and mended his clothes occasionally. There was no
desertion on her part.
Fuller v. Fuller
The parties separated, with the wife leaving the husband for another man taking the children
with her. Subsequently the husband went to live with the wife and her new man as a lodger
after he had been diagnosed with a terminal illness and told that he had only a year to live
during which he should not be alone.
The Court held that the separation was still held to have continued because even though the
husband shared a house with the wife, he was doing this in his capacity as a lodger and not
as a husband.
Intention to Desert/ Animus Deserendi
This refers to the intention to bring the cohabitation permanently to an end. If the
intention is to bring the cohabitation to an end temporarily, then this animus will not be
deemed to exist. There is no need for an express statement from which this intention can
be ascertained. The conduct of the party is enough for the intention to be inferred.
Since the intention element is heavily dependent on the state of mind of the party who has
withdrawn, the respondent is required to have the mental capacity to form the intention.
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And so if the spouse becomes mentally insane as a result of which they have withdrawn from
their matrimonial obligations, this will not be deemed desertion.
In the case of Crowther v. Crowther, the court held that whether or not an insane person
formed the intention to desert before becoming insane will be a question of the evidence
available.
If the party is forced to live separately from the other against their will, e.g. by
imprisonment, then it is still not desertion.
The burden is on the petitioner to show that the respondent had the necessary capacity to
form the intention to permanently withdraw from cohabitation.
And so, both the factum of the desertion and the animus of the desertion must come
together. Where one exists without the other, there can be no desertion.
Lack of consent of the other spouse to the desertion
Where a spouse withdraws from the performance of their matrimonial obligations without the
consent of the other spouse, with the requisite intention to desert, this conduct may
constitute desertion.
And so where the petitioner consented to the respondent’s withdrawal, he/she cannot allege
that he/she has deserted him/her. Whether or not the consent was granted is a question of
fact which the court determines by considering all the circumstances of the case. Consent
given may be implied or express and it must be freely and voluntarily given.
Spence v. Spence
A fortnight before she left home, the wife was engaged in open preparations to depart. Her
husband was perfectly aware of her intentions, and they discussed the division of their
household goods. The husband did not make the smallest attempt to deter his wife from
going or even to delay her departure. The court held that the husband tacitly consented to
the wife’s departure.
There must in fact be an agreement to live apart; if there is no such agreement it is

irrelevant that one was glad to see the other go.
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Shaw v. Shaw; Fraser v. Fraser
Harriman v. Harriman
Buckley LJ in this case held that “Desertion does not necessarily involve that the wife desires
her husband to remain with her. She may in fact be thankful that he has gone, but he may
nevertheless have deserted her.”
And so the mere fact that the Petitioner breathes a sigh of relief when the Respondent has
gone does not mean that she has consented to his departure.
It is important to note that desertion may take place even if the parties have not
cohabited before and even if consummation has not taken place.
If one spouse deserts the other but subsequently returns with a view to ending the desertion
then the spouse will be presumed to have brought the desertion to an end. If the offer made
is genuine, then the party who refuses to accept the offer would be the party in desertion.
Want of reasonable cause
Where there is no reason for the withdrawal from cohabitation and other marital
obligations, then that spouse will be deemed to have deserted the other. And so if a spouse
has a good reason for bringing the cohabitation to an end, then that spouse will not be in
desertion.
The court in the case of Winans v. Winans held that unreasonable behaviour is just cause for
separation. In that case, the respondent kept 30 dirty cats, making the house inhabitable.
Timmings v. Timmings – being overbearing, dictatorial and violent.
Constructive Desertion
It is not always the party who leaves the house that is the deserting spouse. It is important to
note this, a spouse may be compelled to permanently bring co-habitation to an end as a
result of the conduct of the other spouse. This is what is known as constructive desertion.
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And in such cases, it is rather the spouse whose conduct compels the other to leave, that will
be considered as the deserting spouse. Similar to simple desertion, the animus and the
factum must be established to prove the existence of desertion.
Dickinson v. Dickinson
A husband brought his mistress into the matrimonial home and the wife left the home .
The court held that the husband had constructively deserted the wife.
Morse v. Morse
The husband insisted on retaining in his employment a female employee to whom he paid
attention and whose company he preferred over that of his wife. The wife left the
matrimonial home and it was held that the husband had constructively deserted her by
making it practically impossible for the wife to stay with him.
Hughes v. Hughes
The Petitioner alleged that the Respondent had treated him with cruelty and had also
deserted him.
What happened was that the Petitioner had been employed as an engineer and the
Respondent had been employed as a nursing sister in Accra. The job transferred the
Respondent to Agogo for a better paying job. The Petitioner as a result moved to his family
house where he stayed in a small room in the house. But this room was not suitable for a
family of four.
The wife would visit from time to time, since they were still in Accra and the husband would
also visit from time to time, until one day he stopped visiting.
He claimed that he stopped visiting saying that every time he did, the Respondent did not
receive him well and made some unkind remarks about his dressing and financial position.
The court held that desertion could not be proved, however there was unreasonable
behaviour on the part of the Petitioner, and so the marriage could be dissolved.
It is essential that all 4 elements of desertion are satisfied before the ground of desertion can
be proved to the court.
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Reconciliation provisions
Section 5 (1) of the MCA requires the court in calculating the 2 years, to disregard any period
less than 6 months during which the parties resumed living as man and wife.
Section 5(2) of the MCA
D. FAILURE TO LIVE AS MAN AND WIFE FOR 2 YEARS WITH THE CONSENT OF THE
RESPONDENT TO THE DIVORCE
Section 2(1)(d) allows a petitioner to prove that a marriage has broken down beyond
reconciliation by establishing that the parties have not lived together as man and wife for
continuous period of 2 years immediately preceding the presentation of the petition and
that respondent consents to the decree of divorce being granted. Where the consent is
unreasonably withheld, the court will proceed the grant the decree despite the refusal.
Where a man and his wife are living together under the same roof, there is a presumption
that they are living together as man and wife unless it can be shown that even though
they are under the same roof, they are living as separate households.
The same degree of separation required for desertion is also required here.
On the matter of consent, it is the burden of the petitioner to prove that the respondent
has given their consent to the grant of an order dissolving the marriage, but where the
consent is unreasonably withheld, then the court will go ahead and grant the order.
Addo v. Addo
The husband and the wife got married but after some years they failed to live together
as man and wife. Even though they continued to live under one roof, they were in
effect 2 households. The husband alleged that the wife had an ungovernable temper
and that she persistently nagged and that they had not had sex in a very very long
time. The wife admitted to this but refused to give consent for the decree to be
granted. The husband then petitioned the court under this provision for a decree of
divorce claiming that the wife had unreasonably withheld her consent.
The Court held that whether or not consent was being unreasonably withheld was a
question of fact in each case. The test to be adopted was an objective one; whether a
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reasonable spouse placed in the situation of the particular spouse would withhold
consent. The Court held that the respondent was unreasonably withholding consent and
for this reason, they would proceed to grant the order.
Under Section 6 of the MCA, the court will deem the consent requirement as satisfied
only after the respondent has been given the information that will enable them to
understand the consequences of their giving consent to the grant of the order.
Section 6(2) also states that the court has the power to dismiss the proceedings if they
are satisfied that the petitioner intentionally or unintentionally lied about something that
the respondent took into consideration before consenting to the divorce.
E. NOT HAVING LIVED AS HUSBAND AND WIFE FOR A CONTINUOUS PERIOD OF AT LEAST 5
YEARS IMMEDIATELY PRECEDING THE PRESENTATION OF THE PETITION
A person may prove that their marriage has broken down beyond reconciliation by
establishing that the parties have not lived together for a continuous period of at least 5
years immediately preceding the presentation of the petition.
Unlike the former provision, no consent is required.
Kotei v. Kotei
The parties were married and had children. They lived abroad for some time and
returned to Ghana. While the petitioner lived in in Kumasi, the respondent and the
children lived in Accra because they could not find suitable accommodation. The
respondent visited the petitioner only twice and on one occasion they did not stay in the
same room but in different rooms. The husband finally petitioned for a divorce on this
ground since they had been living apart for 6 years continuously. The wife however
asserted that she was willing to make the marriage work and was still in love with the
petitioner.
The court held that once any of the grounds specified in Section 2(1) of the MCA had been
proved, a decree of dissolution should be pronounced in favour of the Petitioner.
However it was wrong to contend that proof of the total breakdown of the marriage and
the possibility of reconciliation should be taken disjunctively so as to require firstly,
proof of a breakdown and secondly, proof that it was beyond reconciliation.
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Also, notwithstanding proof of one of the facts, the court had the discretion to refuse to
grant the decree on the ground that the marriage had not in fact been broken down
beyond reconciliation. And this discretion was not a discretion to grant but a discretion to
refuse to refuse a decree. Once a petitioner comes within any of the provisions of Section
2(1), the presumption is in their favour.
And so, proof of 5 years continuous separation enables the marriage to be dissolved
against the will of the spouse who has not committed any matrimonial offence and who
cannot be blamed for the breakdown of the marriage.
Reconciliation Provisions
Section 7 states that in calculating the period within which parties have not lived
together as man and wife, the court should not consider any period not exceeding 6
months or any 2 or more periods during which the parties resumed living with each
other with a view to attempt reconciliation.
F. INABILITY TO RECONCILE DIFFERENCES
The Petitioner is required to demonstrate that diligent efforts have been made and yet
the parties have been unable to reconcile their differences.
In the case of Mensah v. Mensah (briefed under unreasonable behaviour), the husband
refused to see a doctor to help his wife become pregnant. The court held that the
differences that resulted from this were such that the parties, unable to reconcile them
held that the marriage had broken down beyond reconciliation.
It is important to note that under Section 8 of the MCA, the petitioner or their counsel is
required to inform the Court of all efforts made by or on behalf of the petitioner both
before and after the commencement of proceedings to effect a reconciliation.
And if at any stage in the proceedings it appears to the judge that there is a possibility of
reconciliation, the court may adjourn proceedings for a reasonable time for attempts to
be made at reconciliation.
This right to adjourn is one that is exercised at the court’s discretion. And the court in
the exercise of that discretion may direct the parties to attempt reconciliation with
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representatives of their families or with a conciliator agreed on by the court and the
parties.
Other Important Matters
Recognition of Foreign Decrees in Ghana
Section 36 of the MCA provides that the court shall recognize as valid a valid decree of
nullity, divorce, presumption of death and dissolution of marriage, obtained by judicial
process or otherwise, which is not contrary to natural justice and which is granted by a
tribunal with a significant and substantial connection with the parties to the marriage or is in
accordance with the law of the place where both parties to the marriage were ordinarily
resident at the time of the action dissolving or annulling the marriage.
Testamentary Dispositions made to Divorced Spouse
Section 38 of the MCA stipulates that there a gift is made in favour of a spouse, the gift will
lapse where the testator divorces the spouse unless the will contains an express provision to
the contrary.
Restriction on Petition
Section 9(1) makes it clear that with the exception of where there is substantial hardship
being suffered by the petitioner or depravity on the part of the respondent, no petition of
divorce shall be presented to the court within 2 years of the marriage.
Substantial hardship will be deemed to occur where for example, one of the parties
constantly beats the other and threatens them. The courts in such a case will not wait for 2
years before deciding whether or not to grant the decree.
Depravity on the other hand, can be proved where, for example, where the husband demands
a threesome.
And so in the cases where there is substantial hardship or depravity on the part of the
respondent, the petitioner would need to seek the leave of the court in an application to
issue the petition. And in deciding whether or not to grant the leave, the court will consider
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the interests of any children in the household and the question of whether there is a
reasonable possibility of reconciliation between the parties.
Under Order 65 Rule 3 of CI47, the application for leave to commence proceedings for
divorce must be done by way of a motion on notice. And in support of this motion, the
applicant is supposed to file an affidavit stating:
a) Where the ground for the application is substantial hardship suffered by the Plaintiff
and depravity on the part of the Defendant, the particulars of the alleged hardship
or depravity.
b) Where there are living children of the household, the names and ages of the children
and where and with whom they are living.
c) Whether any attempts at reconciliation have been made and if so, what particular
attempts.
Conduct of the Petitioner as a Bar to Divorce
Section 10 of the MCA states that nothing in an enactment or a rule of law shall empower or
require the court to dismiss a petition for divorce on the ground of collusion between the
parties in connection with the presentation or prosecution of the petition or on the grounds of
any conduct of the petitioner.
Prior to this provision, under common law, a Petitioner’s conduct (their adultery) could bar
their petition for divorce either absolutely or discretionarily. The common law divided them
into absolute bars and discretionary bars.
The absolute bars were connivance, condonation and collusion.
Connivance – the petitioner consented or willfully contributed to the commission of the

adultery or promoted it in some way.
Condonation – the complete forgiveness and blotting out of the conjugal offence followed
by cohabitation with full knowledge of all the circumstances of the past offence. There must
be an intention to forgive and a reinstatement of the offending spouse to their matrimonial
position.
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Collusion – where the initiation of the suit has been in some measure determined or
procured by agreement between the petitioner and the respondent or the co-respondent.
However, now per Section 10, it matters not that the Petitioner is guilty of any of the 3 bars.
Section 10 still entitles them to file for divorce.
The Respondent is entitled to divorce without cross-petition
Section 11 of the MCA entitles the Respondent to divorce without a cross-petition. What this
means is that there is no need for the Respondent to present a separate petition seeking
divorce if the Respondent is able to allege and prove the facts necessary to give rise to a
divorce.
It is also important to note that per Section 17 of the MCA, a party to a marriage may
petition the court for a child custody order on the grounds that the other party to the
marriage has persistently behaved in an unreasonable manner towards either the
petitioner or a child of the marriage.
The Law on Bigamy
Bigamy is a criminal offence under Sections 262 to 272 of the Criminal Offences Act, 1960
(Act 29).
Under Section 263 – a person commits bigamy where they, knowing that a valid marriage
subsists between himself and some other person, marries another person in Ghana or
somewhere else. The marriage being talked about here is a monogamous marriage, not a
customary law marriage since those are potentially polygynous.
A person will not be held guilty of bigamy if at the time of the subsequent marriage, his
former wife or former husband has been continually absent from him/her for 7 years and
has not been heard of by the spouse as being alive within that time and if he informs the
party to the new marriage of this fact.
Section 265 – where a person married under the Ordinance purports to marry someone under
customary law this would amount to bigamy. Where someone married under customary law
purports to marry another person under the Ordinance, this would amount to bigamy.
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SPOUSAL PROPERTY
For the purposes of distribution, spousal property may be classified as family property,
household goods, property acquired before marriage and property acquired during the
marriage. This classification is important because of the nature of the rules on the ownership
and distribution of such properties on the dissolution of the marriage or the death of a
spouse.
It is important to note that where a spouse adds substantial value to his or her other spouse’s
family property, that spouse does not become a joint owner of the family property. On
divorce, they may on the grounds of equity, be entitled to what they contributed.
Section 21 of the MCA provides that the court has the power, where a decree of divorce or
nullity is granted in respect of a marriage, to determine whether or not a party holds title to
movable or immovable property all or part of which rightfully belongs to the other, and the
court shall transfer or convey the interest to the party entitled to it upon terms that the
court thinks just and equitable.
This means that it is within the court’s discretion to determine what share if any, a spouse
has in matrimonial property upon the dissolution of the marriage.
Household Goods
Household goods are defined under PNDCL 111 as goods that include jewellery, clothes,
furniture, furnishings, television, radiogram, and any other electrical and electronic
appliances, kitchen and laundry equipment, simple agricultural equipment, hunting
equipment, books, motor vehicles other than vehicles used wholly for commercial purposes
and household livestock.
In the case of United Simpson and Ayitey Co v. Jeffery & Another, the court held that there
is a general presumption that household items used by a married couple in the matrimonial
home belong to the couple in common…The interest of either of the spouses in such
property is indivisible and therefore not attachable to satisfy the private debts of either
spouse. Evidence however may be brought to show that a particular item belongs solely to
one of them.
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Under PNDCL 111, on the death intestate of a spouse, the household items devolve to the
surviving spouse or surviving children or both if the deceased is survived by both a spouse
and children.
Property Acquired Before Marriage
Property acquired by one party before marriage continues to belong to them even after the
marriage is dissolved or where they are dead. However, if during the subsistence of the
marriage, the other spouse adds substantial value to the property, the character of the
property changes and the spouse who added substantial value acquires a beneficial interest
in the property.
Property Acquired After Marriage
Since the 1950s, this area of law has undergone considerable development.
1. The initial position adopted by the court was that whatever a husband acquired with
or without the assistance from his wife belonged solely to the husband.
This was laid out in the case of Quartey v. Martey, where a wife attempted to claim a
portion of her deceased husband’s estate on his death intestate. Justice Ollenu is
famously noted to have said that in the absence of strong evidence to the contrary,
any property acquired by a man with the assistance, or the joint effort of the wife was
the individual property of the husband and not the joint property of the husband
and the wife.
Ollenu JSC stated, “The proceeds of this joint effort of a man and his wife and/or
children, and property which the man acquires with such proceeds are by customary
law the individual property of the man. It is not the joint property of the man and
the wife and/or the children. The right of the wife and children is a right to
maintenance and support from the husband and father.
In the subsequent case of Bentsi-Enchill v. Bentsi-Enchill, where the respondent had

bought a flat for the mother of the applicant during the subsistence of the marriage
for her to live in gratuitously, and sought to eject the applicant’s mother from the
house after the marriage had been dissolved, the court held that property purchased
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by a spouse with his own money belonged to that spouse to the exclusion of the
other in the absence of an express agreement to the contrary.
Further, in the case of Mensah v. Bekoe, the parties were married under customary
law and had moved to Britain. While there, the wife worked and earned wages which
were taken from her by the husband. Later they returned to Ghana and the marriage
broke down beyond reconciliation. In her petition for divorce, the wife claimed that
the wages she earned while in Britain that the husband took from her should be
refunded to her. The Court held that that money belonged solely to the wife and
that allowing the husband to retain that money would be to allow him to unjustly
enrich himself.
2. In the 1970s, the courts introduced the doctrine of substantial contribution which
deemed a wife to have acquired a proprietary interest in the property if she had
contributed to the acquisition of the property to a degree that exceeded the duty
of wifely assistance contemplated by customary law, and the scope of the interest
acquired was to be determined on a case-by-case basis.
It was first introduced in the case of Yeboah v. Yeboah, where court noted that there
was no positive customary law preventing the creation of joint interest by persons
who were not related by blood.
The principle required the wife to lead evidence to show that she had made a
substantial contribution. The contribution could be either in cash or in kind. It did
not matter that the wife could not produce receipts showing the contribution, so long
as the contribution could be proved by some other way, it was enough. The courts
further decided that the ordinary incidents of commerce should not apply to the
ordinary relations between a husband and his wife.
In the case of Yeboah v. Yeboah, the wife, prior to the marriage, had applied for a
house from the Housing Corporation and was allocated a plot of land for which she
deposited money. After the marriage, she had the plot of land transferred into the
name of the husband and the deposit was refunded to her by the Corporation. The
husband took out a loan from his employers to put up a house on the land, but before
he could start with the building construction, he was transferred to London where he
was later joined by his wife. The construction on the land began while they were in
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London and during the process, the wife flew to Ghana at her husband’s request to
supervise the construction with her own money. She made several structural
alterations to the building with the knowledge and the consent of the husband and
when they returned to Ghana, they moved into the house with the children.
Later, the marriage was dissolved and the husband sought to eject the wife from the
property claiming that he required the premises for his personal occupation.
The Court held that there was no positive rule of customary law that prohibited the
creation of joint interest in property between persons who are not connected by
blood and so where there is clear evidence that parties intended to hold property as
joint tenants the law would give effect to such an intention. The evidence in this
case showed that the parties did intend to jointly own the matrimonial home. And
where the matrimonial home was to be held jointly by the husband and wife, it would
be improper to treat the property as a subject of mathematical division of the
supposed value of the house. What the court could do would be to make a fair
agreement for the parties.
The Court by way of obiter, also held that if a wife contributing to the acquisition of
the matrimonial home or any other property, became a joint owner with the husband
and by the application of the doctrine of survivorship, became the sole owner in the
event of her husband predeceasing her. The rights which the family members had
hitherto claimed in the estate of the deceased husband would have to be re-examined
accordingly in order to ascertain more carefully what formed a part of the estate. And
so in those cases, the matrimonial home would not form a part of the deceased’s
estate.
In Reindorf v. Reindorf, the court held that because the 3 houses in question were
acquired solely by the wife with proceeds from her trade, the buildings were not
joint property and the husband had not acquired any beneficial interest in them.
There is also the case of Abebrese v. Kaah, where the wife contributed substantially
to the building of the matrimonial home. The husband had provided the purchase
money for the land while the wife had paid for the timber, sand and iron sheets that
were used by the labourers in the construction. She also supervised the labourers and
helped to carry water to the site. She did not keep any receipts or any accounts
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proving all this though. And when the house was completed, they were visited by a
relative of the husband and on the visit, the husband gifted the house to her and her
children for which she provided a bottle of schnapps as thanks. On the death of her
husband intestate, the customary successor purported to sell the house, claiming that
it was the sole property of the husband.
The Court held that although the wife could not state in terms of cash, how much her
contribution was, it was clearly a substantial one and that the ordinary incidents of
commerce had no application in the ordinary relations between a husband and a
wife. Her contribution far exceeded that of a wife under customary law. In addition,
there as incontrovertible evidence that the husband had gifted his interest in the
house to the wife while he was alive and so the house was completely hers.
The case of Anang v. Tagoe was also resolved using the principle of substantial
contribution. The court in that case held that, “Where a wife made contributions
towards the requirements of a matrimonial home in the belief that the contribution
was to assist in the joint acquisition of property, the court of equity would take steps
to ensure that belief materialized. That would prevent husbands from unjustly
enriching themselves at the expense of innocent wives, particularly where there was
evidence of some agreement for joint acquisition of property.”
There is also the case of Berchie Badu v. Berchie Badu, where the husband built a
house on a plot of land that belonged to his wife. On the dissolution of the marriage,
the court held that the property did not belong solely to the wife, simply because
she owned the land. The court stated clearly that the doctrine of quicquid plantatur
solo, solo cedit, did not apply to matrimonial relations, especially in the acquisition
of a matrimonial home.
In the case of Domfe v. Adu, the parties were married under customary law and
operated a joint business from which they built a house for their child, acquired 2
more houses, 7 cars, a substantial inventory for their shop and a fat balance in their
bank account. The husband dissolved the marriage and refused to give the wife any
share in the property they had acquired. The wife sought to claim an equal share of
everything, because she claimed that she had provided the starting capital for the
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business among other things, even though the business was registered in her
husband’s name.
The Court held that even though the business was registered in the name of the
husband, he held it, together with the profits from it and proceeds accruing from it in
trust for his wife and himself. And so, the wife, on the dissolution of the marriage, is
entitled to an equal share in the profits and proceeds realized therefrom.
The principle was further applied in the case of Achiampong v. Achiampong, where
the husband discouraged the wife from purchasing a house from the State Housing
Corporation because he was going to buy one himself. He further explained to her that
if they made payments to buy two buildings at the same time, it would put a strain on
their finances and so the wife should rather use her savings on the upkeep of the
house. On the completion of the construction, the house became a matrimonial home.
The wife took out a loan and used it to construct 2 more floors, a store, a garage,
terrazzo floors and a fitted kitchen.
When the marriage was dissolved, the court held that the wife had a beneficial
interest in the house in equal shares with the husband, because there was a clear
intention that the wife was to have a beneficial interest in the house which was
registered in the name of the husband.
3. The equality is equity principle was developed later by the Supreme Court to govern
the distribution of spousal property unless the equities of the particular case would
render it unfair.
This principle finds support in Article 22(3) of the 1992 Constitution which states
that, “With a view to achieving the full realization of the rights referred to in clause 2
of the this article,
(a) spouses shall have equal access to property jointly acquired during the
marriage,
(b) assets which are jointly acquired during the marriage shall be distributed
equitably between the spouses on the dissolution of the marriage.”
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In the case of Mensah v. Mensah, the court developed and applied this principle,
holding that “…the principle that property jointly acquired during the marriage
becomes joint property of the parties applies and such property should be shared
equally on divorce because the ordinary incidents of commerce have no application in
the marital relations between husband and wife who jointly acquired property during
marriage.”
The principle was further restated in the case of Boafo v. Boafo, where the Supreme
Court stated that the equality is equity principle is the preferred principle in the
sharing of joint property except where in the circumstances of a particular case, the
equities of the case demand otherwise.
The Court further stated that “The principle of equitable sharing of property jointly
acquired by a married couple would ordinarily not entail the equality principle
unless one spouse could prove separate proprietorship or agreement of a different
proportion of ownership.” In any case, an equal sharing should amount to a just and
equitable sharing and what is equitable is what the court considers as just,
reasonable and in accordance with common sense and fair play. What is equitable is
a question of fact dependent on the particular circumstances of each case.
The Court in that case also noted the rationale behind Article 22 of the Constitution,
stating that it was meant to right the imbalance that women have historically faced in
the distribution of assets acquired jointly during marriage.
The 2012 case of Mensah v. Mensah categorically held that the principle of
substantial contribution was inequitable and unconstitutional since it would be
against the provisions of Article 22 in the Constitution to deny a wife of an interest in
property jointly acquired in the course of a marriage because she could not prove a
substantial contribution. In fact, the wife, by taking care of the children and managing
the home had provided massive assistance which would be tantamount to a substantial
contribution because the man could not have the free hand to engage in economic
activity for the benefit of the household, had the woman not managed the household
on the family’s behalf.
The Supreme Court in this decision, further stated that property acquired in the
course of a marriage is joint property, even if the other spouse did not make any
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contribution to it and so such property is to be shared, considering the principle of
“Jurisprudence of Equality” in a 50/50 manner unless the equities of the particular
case would make the equal sharing unfair. The Court proposed that the equality is
equity principle should therefore not be applied wholesale but, on a case-by-case
basis.
After this case, the Supreme Court decided in Quartson v. Quartson, that the
equality is equity principle is not to be taken as a blanket ruling that affords
spouses unwarranted access to property when it is clear on the evidence that they are
not so entitled. And that the principle is to be applied on a case-by-case basis with a
view to achieving equality in the sharing of matrimonial property. And so the facts of
each case would determine to what extent this principle should apply.
In Quartson v. Quartson, the husband was a seafarer and since his job took him from
home for several years at a time, he would send sums of money for construction of the
matrimonial home when he could and the wife solely supervised the construction of
the home until it was completed. Later, when the marriage was dissolved, the wife
claimed an equal interest in the matrimonial home due to her supervision of the
process and care for the children.
The Supreme Court held that even though the wife performed supervisory tasks in
relation to the construction of the building and took over the management of the
household while her husband was away, this did not entitle her to an equal interest
in the property. And so, she would be entitled to a more equitable option since the
equities of the case demand otherwise.
The case of Arthur v. Arthur also reiterated the principle in the case of Quartson v.
Quartson. In this case, while the parties were married, they first lived in France and
the wife served as the husband’s driver since he could not drive. She would drive him
to all his rounds and also perform normal housework duties and drive the children to
school as well. And so, she could not find any other job due to her responsibility as her
husband’s driver. They later moved to Ghana and constructed their matrimonial home
at Weija and purchased a storey building also in Weija.
And when the husband retired from football, the wife operated 2 salons and a
supermarket to help in the acquisition and development of the 2 properties and the
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upkeep of the family. The wife petitioned for divorce and claimed an equal share of
the properties in Weija on the basis of her housekeeping, her role as a driver and her
supervision of the construction.
The Supreme Court held that there is a presumption that properties acquired in the
subsistence of the marriage is jointly acquired property. This is a rebuttable
presumption. Not all properties can be considered as marital property and that the
exceptions cannot be shared in accordance with the rules on the distribution of
spousal property. One example is where the property was gifted to the spouse by
someone else. Such property cannot be shared as joint property with the other spouse.
The Supreme Court further held that there is a presumption in Ghanaian law in favour
of the sharing of marital property on an equal basis in all appropriate cases between
spouses after divorce. And in this case, the equities of the case were in favour of the
equal sharing so the Supreme Court held that the properties should be shared equally.
The next case after this was Fynn v. Fynn, where the Supreme Court departed from
the position in Mensah v. Mensah by stating that not all property acquired in the
subsistence of a marriage is marital property and that spouses may acquire property
individually during the existence of the marriage and such property would be
considered as individual property and not joint property. And in this case, the property
had been acquired through a loan which had not been repaid. Therefore, the
property was not to be treated as having been jointly acquired. The court also
mentioned inheritance as one of the means through which property can be acquired
for the benefit of an individual and not to be shared as joint property.
In the recent Supreme Court case of Adjei v. Adjei, the husband as Petitioner prayed
for the dissolution of the marriage and custody of the children and the Respondent in
the cross-petition prayed for the matrimonial home and 2 out of a number of a chain
of stores to be settled in her favour, together with a lump sum by way of alimony, a
monthly maintenance for her and the children and an order that the Petitioner be
made to foot the cost of litigation.
The Supreme Court in the case of Adjei v. Adjei held that, “…any property that is
acquired during the subsistence of a marriage, be it customary or under the English
or the Mohammedan Ordinance, is presumed to have been jointly acquired by the
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couple and upon divorce, should be shared between them on the equality is equity
principle. This presumption of joint acquisition is rebuttable upon evidence to the
contrary.”
Evidence to the contrary that can rebut this presumption is where the property is a
gift, where it was acquired through a loan that has not been repaid, where it was
acquired through succession (inheritance).
Some of the things that the court considers in the determination of what is fair, just
and reasonable for the purposes of applying the equality is equity principle include,
the ability of each spouse to earn an income, the length of the marriage, the
respective contributions of the parties, the standard of living enjoyed by the
parties before the breakdown, the age of the parties, among others. This was
decided in the case of Obeng v. Obeng.
Property Settlement
Section 20 of the MCA has conferred on the courts the power to order either party to a
marriage to pay the other a sum of money or to convey to the other movable or immovable
property as settlement of property rights or in lieu thereof or as part of financial provision
that the Court thinks just and equitable.
This settlement may be added to what the spouse receives upon the sharing of joint property.
The payments may be either made in gross or in installments.
Ribeiro v. Ribeiro
The wife petitioned for divorce and asked for financial provision. Since her husband was a
wealthy man, she asked for a lump sum of money and one of his ten houses to be settled in
her favour. While the proceedings were pending, the husband conveyed one of the houses,
Haulage House to one of his concubines. The Court found out about the transfer and realized
that it was done to prevent the respondent from being ordered to transfer that house to the
petitioner.
The Supreme Court held that it was within the discretion of the Court to decide which
house to give to the wife by way of a property settlement, and so until this is done, the
husband cannot interfere with any of the properties.
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The Court has the power to order the transfer of property to the wife not because the
property belongs to her or because she contributed in any way to its acquisition. But because
it is a part of the financial provision that the court considers her to be entitled to. It is not
contingent on any claim being made by the wife or any title she may have.
When making property settlements, the courts must not be pushed to work out the awards
with mathematical precision, but rather they must use their best endeavours.
Under Section 28 of the MCA, a person will not be entitled to financial provision if they
either remarry or they die or the former spouse dies.
The Presumption of Advancement
The rule is that where a husband makes a purchase or an investment in the name of his
wife or child, it is presumed that he has given the property to his wife or child as an
outright gift.
This presumption in rebuttable, in that evidence may be adduced to show that the husband
did not intend to buy the property or make the investment as a gift but rather intended it to
be his personal property.
There must be a clear and unequivocal intention by the husband to gift the property to the
child or wife. This intention can be ascertained from the circumstances existing at the time
the gift was made.
In any case, the onus is on the person disputing that the property was given as a gift to prove
that it was not a gift, but rather something else, like a resulting trust. The evidence to rebut
this presumption must be strong and contemporaneous. It may include evidence on the part
of the father/husband indicating that he never really intended to advance the property to the
child. Any such statements must have been made at or before the time the gift was made.
Any subsequent acts or declarations will not be enough to rebut the presumption.
Ramia v Ramia
The couple in this case had been married customarily first, then under the Mohammedan’s
Ordinance and they had 5 children. The husband acquired a lease of land in the name of his
wife and put up a building which he called Ramia House also in his wife’s name.
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Subsequently the husband claiming that his wife had deserted him, brought an action to have
the wife convey the house to him on the grounds that he retained the beneficial interest in
the property while his wife only held the legal estate in trust for him.
The wife on the other hand claimed that the husband had divested himself of any beneficial
interest in the property and made an outright gift of the property to herself and her children.
She urged the court to apply the presumption of advancement in her favour.
1. Where the facts of a situation are consistent with the presumption of advancement,
then the onus is on the person seeking to displace the presumption to lead
evidence to rebut the presumption. If that person succeeds in rebutting the
presumption it will be held that there was a resulting trust in favour of that person
who had paid the money to buy the property.
2. The presumption of advancement is an equitable principle that is applicable to all
forms of marriages, provided that there is a recognized legal relationship between
the person providing the money in acquiring the property and the one in whose name
the property is being taken.
In Re Sasu-Twum (decd); Sasu-Twum v. Twum
The deceased had been survived by a wife and his 4 infant sons. He had acquired 6 houses in
his lifetime, 2 of which he had acquired in the name of his eldest son. The administrators of
the deceased’s estate applied to the court for a declaration that the 2 houses were held in
trust for the said son. The defendants on the other hand argued that since he had 3 other
children, it would be unreasonable for the father to make provision for only one child out of
the 3. There was evidence to show that when the deceased was alive, he had occupied one of
the two houses with his children and later vacated it and let it to tenants, collecting the rent
and making use of it.
The Court held that the dealings of the father in relation to the property was not sufficient
to rebut the presumption of advancement. What could rebut the presumption was evidence
that at the time that he registered the properties in the name of his son, he made some
statements which showed that he never really intended to advance those houses to only
that son. And since there was no such evidence, the presumption was not rebutted.
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Richards v. Nkrumah
The deceased had purchased a house in Kumasi as a trustee for and on behalf of his three
children. He eventually constructed a 22 room hotel on the land and years later, married the
defendant/appellant. When he died, the appellant sought to include the property as a part of
the estate of the deceased, and not as the children’s property. She argued that the dealings
of her late husband in respect of the property rebutted the presumption of advancement. Her
husband had transformed the house into a hotel with a night club and a restaurant to which
significant development was made thereon. She also claimed that she had contributed to the
development of the hotel. The respondents who were the children of the deceased argued
that the property was theirs by virtue of the presumption of advancement.
1. The position of the law is that where a father took a conveyance of land in the name
of his child, there is a presumption that he intended to part with both the legal and
the beneficial interest in the property to his child. A party who disputes this
presumption has the burden of rebutting the presumption with strong evidence which
is contemporaneous and not a subsequent declaration or act manifesting the clear
intention of the father that the child was to hold the property as a trustee.
2. The evidence led by the appellant is premised on subsequent actions of the deceased.
She did not lead any contemporaneous evidence to show that the deceased never
intended to advance the property to the respondents and so she did not effectively
rebut the presumption.
3. As a result of the advancement, the property was no longer a part of the deceased’s
self-acquired properties and so it could not be considered as part of his personal
estate which would be subject to Article 22 so that she could claim a reasonable
provision from it.
The fact that the father or husband retained the title deeds or rented out the property and
took rent for himself is not conclusive to rebut the presumption of advancement.
It is important to note that the presumption only applies between a husband and a wife or a
father and his children. Where a person buys property and registers it in the name of some
other person who is not their wife or child, that person will be taken to hold the property in
trust for the purchaser. The onus to prove that it was a gift and not a trust, is on the person
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in whose name the property is registered. This was the position of the law as held in the case
of Ussher v Darko, where the purchaser had registered the property in the name of his
concubine. She was deemed to merely hold the property in resulting trust for the purchaser.
It is important to note that the presumption does not arise when a wife makes a purchase
or investment in the name of her husband. Rather, the husband will be deemed to hold the
property on a resulting trust for the wife, unless he can show that it was bought as a gift to
him.
Mercier v. Mercier
The husband and the wife had a joint account comprising entirely of the wife’s income.
They bought a parcel of land with the money in this account and the property was conveyed
in the name of the husband. When the husband died, his successor attempted to claim the
land.
The Court held that the land, although registered in the name of the husband had been
purchased exclusively from the wife’s savings. And so the husband merely held the property
in trust for his wife. There was no evidence to prove that this was a gift to the husband and
so the land was the wife’s property.
Following from the cases of Mensah v. Mensah and Fynn v. Fynn, it can be concluded that
property that is acquired in the course of a marriage which is not subject to any of the
exceptions mentioned in Fynn v. Fynn or Adjei v. Adjei, is the joint property of the spouses
and so one spouse cannot attempt to advance the property to their child without the consent
of the other spouse.
CHILDREN | RIGHTS OF CHILDREN
Constitutional Protections
Article 28(1) of the 1992 Constitution imposes a duty on Parliament to enact laws that are
necessary to ensure that:
a) Every child has the right to the same measure of special care, assistance and
maintenance as is necessary for their development from their natural parents, except
where the parents have effectively surrendered their rights and responsibilities in
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respect of the child in accordance with law (e.g., letting someone else adopt their
child)
b) Every child whether or not born in wedlock shall be entitled to a reasonable provision
out of the estate of their parents
c) Parents undertake their natural right and obligation of care, maintenance and
upbringing of their children in cooperation with such institutions as Parliament may by
law prescribe in such manner that in all cases, the interest of the children are
paramount.
d) Children and young persons receive special protection against exposure to physical and
moral hazards, and
e) The protection and advancement of the family as the unit of society are safeguarded
in promotion of the interest of children.
These objectives have informed Parliament in the enactment of the Children’s Act, 1998 (Act
560), which is an Act to reform and consolidate the law relating to children, to provide for
the rights of the child, maintenance and adoption, to regulate child labour and
apprenticeship, for ancillary matters concerning children generally and to provide for related
matters.
Further, Article 28(2) states that every child has the right to be protected from engaging in
work that constitutes a threat to their health, education or development.
28(3) – A child shall not be subjected to torture or to other cruel, inhuman or degrading
treatment or punishment
28(4) – No child shall be deprived by any other person of medical treatment, education or
any other social or economic benefit by reason only of religious or other beliefs
28(5) – Child, for the purposes of Article 28 refers to a person under the age of 18.
Some of the International Instruments Concerning the Rights of Children
1. The United Nations Convention on the Rights of the Child (some of the guiding
principles here include non-discrimination, adherence to the interest of the child, the
right to life, survival and development and the right to participate)
2. The African Charter on the Rights and Welfare of the Child
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3. The Hague Convention on Inter-Country Adoption
4. The Universal Declaration of Human Rights
5. The International Covenant on Economic, Social and Cultural Rights (ICESCR)
Ghanaian Statutes that Provide for the Protection of Children
1. The Children’s Act, 1998 (Act 560)

2. The Children’s (Amendment) Act 2016 (Act 937)
3. The Child’s Rights Regulations, 2002 (LI 1705)
4. The Juvenile Justice Act, 2003 (Act 653)
5. The Intestate Succession Act, 1985 (PNDCL 111), among others
Classification of Rights under the CRC
1. Survival and development rights – These are the rights to resources, skills and
contributions which are necessary for the survival and full development of the child.
These include the right to adequate food, shelter, clean water, formal education,
primary healthcare, leisure, recreation, cultural activities and information about
their rights.
2. Membership rights – These rights ensure that the child is viewed as and treated as a
member of their family and their community. Examples include the right to name
and nationality, equality of children and freedom from discrimination on the
grounds of race, colour, sex, language, religion, etc. Disabled children too have
special rights to ensure that they are considered and treated as a member of their
families and communities.
3. Protection rights – These rights ensure that the child is protected from abuse from
individuals or the state. These include protection from child abuse, neglect,
exploitation and cruelty, as well as a special protection in times of war, and
protection from abuse in the criminal justice system.
4. Empowerment or participation rights – These are the rights that ensure that the child
is respected and given the opportunity to express their opinions. They include the
right to express opinions and be heard and the right to information, the freedom of
thought and conscience and the capacity for self-determination. Children have a right
to express themselves in matters affecting their social, economic, religious, cultural
and political lives. Examples include, the right to education, right to dignity, right to
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form and express opinions on matters affecting them and the right to seek, receive
and impart information and ideas.
Rights of Children in Ghana
Section 1 of the Children’s Act defines a child as a person below the age of 18. Despite the
fact that the provisions of the Children’s Act are only applicable to children, Section 54(1)
allows persons who are above the age of 18 to benefit from some of the provisions of the Act
that concern the continuance of maintenance orders. This can only apply where the child is
engaged in a course of continuing education or training after that age.
The Welfare Principle
Section 2(1) of the Act makes it clear that the best interest of the child shall be paramount
in any matter concerning the child.
Section 2(2) further states that the best interest of the child shall be the primary
consideration by a court, person, an institution or any other body concerned with a child.
Prior to the passage of the Children’s Act, the previous Courts Act mandated that the welfare
of the child should be the primary consideration of the Court in custody actions. And so this
meant that the welfare principle was applicable only in custody matters. But this is no longer
the position, by virtue of Section 2 of Act 560.
To further understand the full extent of the welfare principle, we can make recourse to
Section 1 of the UK Children’s Act, which provides a checklist of issues that should be
considered in determining what the best interests of a child are:
1. The ascertainable wishes and feelings of the child concerned (considered in light of
his age and understanding)
2. His physical, emotional and educational needs
3. The likely effect on him of any change in his circumstances
4. His age, sex, background and any other characteristics of his which the court
considers relevant
5. Any harm which he has suffered or is at risk of suffering
6. How capable each of his parents and any other person in relation to whom the court
considers the question to be relevant, is capable of meeting his needs
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7. The range of powers available to the court under the Act in the proceedings in
question.
Ghana’s Act 560 does not have this checklist or any such guidelines in its local laws. However
under the UNCRC in its Article 3(1), it states that “In all actions concerning children
whether undertaken by public or private social welfare institutions…the best interest of
the child shall be a primary consideration.”
The traditional approach at common law was parent-centred and not child-centred.
However this approach changed over time and Ghana also adopted the child-centred
approach.
The previous English Custody of Infants Act, 1873 provided that a cust ody agreement should
not be enforced if the court did not think it was for the child’s benefit to do so. There is also
the previous English Guardianship of Infants Act, 1886 which directed the court upon a
mother’s application for custody to have regard to the welfare of the infant.
Under the English common law, the case of Barnado v. McHugh was decided which held that
the wishes of a mother for custody of her illegitimate child would not be acceded to if it
would not be beneficial to the child.
There is also the case of In Re McGrath, where the court held that “The duty of the Court is
in our judgment to leave the child alone unless the Court is satisfied that it is for the welfare
of the child that some other course should be taken. The dominant matter for consideration
of the Court is the welfare of the child. But the welfare of the child is not measured by
money only nor by physical comfort only. The word welfare should be taken in the widest
sense. The moral and religious welfare of the child must be considered as well as the
physical well-being. Nor can the ties of affection be disregarded.”
The court in the case of Walker v. Walker and Harrison also stated that, “Welfare is an all-
encompassing word. It includes material welfare in the sense of adequacy of resources to
provide a pleasant home and a comfortable standard of living and in the sense of an adequacy
of care to ensure that good health and due personal pride are maintained. However, while
material consideration have their place, they are secondary matters. More important are the
stability and the security, the loving and understanding care and guidance, the warm and
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compassionate relationships, that are essential for the full development of the child’s own
character, personality and talents.
In the caser of Ward v. Laverty where the court had to make a decision on what religion
young children should be brought up in, the court held that the wishes of the child are to be
considered and if there is no other matter to be taken into account, then the wishes of the
father prevail according to the practice of the Courts. The court noted that the wishes of
the father can only prevail if they are not displaced by considerations relating to the
welfare of the children themselves. The welfare of the children is to form the paramount
consideration in these cases.
The English court in the case of J v. C also noted that the words “first and paramount” as
used to describe the position of the child’s interest connotes that a process whereby when all
the relevant facts, relationships, claims and wishes of the parents, risks, choices, and other
circumstances are taken into account and weighed, the course to be followed will be that
which is most in the interests of the child’s welfare as that term has now to be understood. It
is the first consideration because it is of first importance and it is the paramount
consideration because it rules on or determines the course to be followed. This case laid the
foundation of the modern welfare principle law on children’s rights and custody.
In the case of Re L, Lord Denning held that while the welfare of the child Is the first and
paramount consideration, the claims of justice cannot be overlooked.
The Ghanaian case of Braun v. Mallet, further held that in a custody matter, the court in
considering the welfare of the infant should look at facts from every angle and give due
weight to every relevant material.
Jurisdiction of the Courts in Matters Relating to Children
The Courts Act, Section 18 confers jurisdiction on the High Court in matters concerning
guardianship, custody, maintenance of a child, right of access to the child, control and
administration of the estate of the child, disputes between a parent and guardian, directions
for the use of money for the child’s education or for setting the child up in any occupation or
career. And in the exercise of this jurisdiction both courts are to make the welfare of the
child their primary consideration.
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Section 47 of the Courts Act also confers jurisdiction on the District Court in matters of
divorce and other matrimonial causes and actions for paternity and custody of children and
also to hear and determine charges and dispose of other matters affecting juveniles.
Section 42 of the Courts Act also confers the jurisdiction on the Circuit Court to appoint
guardians and make orders for the custody of infants.
The Matrimonial Causes Act in Section 22 empowers the Court to make any order concerning
any child of the household which it thinks reasonable and for the benefit of the child. This
order may relate to custody, right of access, education and maintenance. The Court is
defined in this Act to include the High Court and the Circuit Court.
Section 50 of the Children’s Act further confers jurisdiction on the District Court to
determine actions arising under the Children’s Act and for the purposes of the Children’s Act,
the District Court is to act as the Family Tribunal and exercise the powers of the Family
Tribunal that are conferred under the Act.
Rights of Children in Ghana under the Children’s Act, 1998 (Act 560)
1. Freedom from Discrimination: Section 3 provides that a person shall not discriminate
against a child on grounds of gender, race, age, religion, disability, health status,
custom, ethnic origin, rural or urban background, birth or other status, socio-economic
status or because the child is a refugee. This affirms Article 17(2) of the Constitution
which provides for freedom from discrimination for all persons, meaning that children
are also protected from discrimination.
2. Right to name and nationality: Section 4 provides that a person shall not deprive a
child of the right from birth to a name, the right to acquire a nationality or the right
as far as possible to know the natural parents and extended family subject to the
provisions of Act 560 relating to adoption in Sections 65-75.
Bulley-Neequaye v. Bulley-Neequaye
In this case, the defendant who was a non-Ghanaian was married to but separated
from the plaintiff who was a Ghanaian from the Ga tribe. For her personal purposes,
the defendant applied for an adoption order from the High Court and obtained one to
adopt a young girl. She gave the girl the surname, “Bulley-Neequaye.”
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The plaintiff then applied to the court applying for the adoption order to be set aside
on the ground that it was a nullity. He argued that his surname, “Bulley-Neequaye”
was peculiarly associated with a special Ga family and that it could not be given to an
adopted child when he himself did not consent to the adoption as it would make him
the putative father of the child, since the order was made in the course of his
marriage to the defendant.
a) Since it was the defendant who had solely applied for and obtained the adoption
order for her exclusive purposes, she was the only one who had the right and
privilege to decide on what name to give to the child. Moreover, the name given
was immediately traceable to the name that the defendant bore at the time she
applied for the order and she still bore that name, despite the subsequent
dissolution of the marriage.
b) The plaintiff was a complete stranger to the adoption proceedings and the
adoption order and so he had no grounds or justification to complain about an
order which in no way affected him or impinged on his rights, despite the fact
that the child bore his surname. He had no locus standi to institute the action. A
total stranger cannot apply to set aside a judgment to which he was not a party.
c) Further the adoption order exclusively limited the person applying for the order to
the defendant and so the child would not automatically be treated as a child of the
marriage with the plaintiff. The mere fact that the child bore the plaintiff’s
surname did not make the plaintiff the putative father of the child. The
defendant as the sole applicant for the adoption order was the only parent of the
child recognized by the Courts.
d) The legal position is that by custom, a wife on marriage assumed her husband’s
surname and if he was a peer, then his title and rank. She was entitled to retain
the same name even after the marriage is terminated either by death or a divorce.
A man can only bring an action to restrain the woman from using his name through
jactitation proceedings where a woman who is not his wife is holding herself out to
be his wife to the public. There is no right of property in the plaintiff’s family to
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the use of that particular name to the extent of enabling the plaintiff to prevent
another person from assuming that name.
Quarshie v. Bosso
Here the court held that a naming ceremony is an acknowledgment of fatherhood or

paternity of the husband, and it makes the presumption of paternity irrebuttable as
against a husband who has performed a naming ceremony. Such a father would be
estopped from denying the paternity of the child.
On the right of the child to a nationality, Article 6 of the Constitution is instructive.
Article 6(2) provides confers Ghanaian citizenship on persons born in or outside Ghana
once either of their parents or grandparents is or was a citizen of Ghana.
Article 6(3) further provides that where a child of not more than 7 years of age is
found in Ghana and their parents are not known, they shall be presumed to be
Ghanaian.
Article 6(4) also provides that a child of not more than 16 years whose parents are
non-Ghanaians but is adopted by a Ghanaian shall be virtue of the adoption, be a
citizen of Ghana.
3. Right of grow up with parents: Section 5 provides that a person shall not deny a child
the right to live with the parents and family and grow up in a caring and peaceful
environment unless it is proved in Court that living with the parents would either
lead to significant harm to the child or subject the child to serious abuse or not be
in the best interest of the child.
4. Right to parental care (parental duty and responsibility): Section 6(1) provides that
a parent shall not deprive a child of welfare whether the parents are married or not at
the time of the birth of a child or whether or not the parents continue to live together
or not. Section 6(2) further provides that a child has the right to life, dignity,
respect, leisure, liberty, health, education and shelter from their parents.
Section 6(3) further provides that except where the parent of the child has
surrendered their parental duties to another in accordance with the law, the rights
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and responsibilities of the parent toward the child whether imposed by law or
otherwise include the duty to:
(a) Protect the child from neglect, discrimination, violence, abuse, exposure to
physical and moral hazards and oppression
(b) Provide good guidance, care, assistance and maintenance for the child and
assurance of the child’s survival and development
(c) Ensure that in the temporary absence of a parent, the child is cared for by a
competent person and that child under 18 months of age is only cared for by a
person of 15 years and above.
Section 6(4) indicates that a parent is responsible for the registration of the birth of
the child and the names of both parents shall appear on the birth certificate except
where the father of the child is unknown to the mother.
In relation to the birth certificate, Section 18 of the Registration of Births and

Deaths Act, 2020 (Act 1027) states that where the paternity of the child is in doubt,
the putative father of the child shall not give information concerning the birth of the
child. The District Registrar is also not required to enter the name of a person as the
father of the child unless the mother and that person jointly request and in such a
case, the person claiming to be the father and the mother of the child shall sign the
register together or that person alone may make a declaration in the prescribed form.
5. The right to parental property: Section 7 provides that a person shall not deprive a
child whether or not born in wedlock of reasonable provision out of the estate of a
parent. This is in accordance with Article 28(1)(b) of the Constitution. This right is
further buttressed by the provision in Section 13 of the Wills Act which allows the
courts to vary the dispositions in a will where the testator failed to make reasonable
provision for his children under 18 inter alia.
Rhule v. Rhule
The defendant was the customary successor and the administrator of the estate of the
deceased. He submitted to a consent judgment which ordered him to share moneys
standing to the credit of the deceased with the deceased’s children. The defendant
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failed to pay the said money and after persistent demands, the plaintiff who was the
mother of the deceased’s children took out a summons to show cause why the
defendant should not be committed to prison in execution of the judgment.
The Court held that it is well-established that an executor, administrator, trustee or

any other person acting in a fiduciary capacity who is ordered by the court to pay any
money in his possession or under his control and disobeys the order can be punished by
the court by attachment and imprisonment.
The Court also stated obiter, that a customary successor is bound in law to utilize
the money in the estate towards the maintenance and education of the children of
the deceased even to the last pesewa.
In the case of Hayford v. Moses, the court held that the duty of a husband to provide
accommodation and maintenance for his wife and children devolved upon his family
or his customary successor. This responsibility can only determine upon the death of
the wife or the determination of the marriage in a lawful manner.
There is also Section 80(7) of the National Pensions Act, 2008 (Act 766), which
provides that where a member of the scheme has a child, 60% of the survivor’s benefit
shall be distributed to the child and 40% to the person nominated by the member.
There is also Section 73 of Act 766, which provides that where a deceased member
fails to nominate a surviving spouse and children as beneficiaries, the spouse and
children may apply to the court for a variation of the nomination to include them.
6. The right to education and well-being: Section 8(1) provides that no person shall
deprive a child access to education, immunization, adequate diet, clothing, shelter,
medical attention or any other thing required for his development.
Section 8(2) further provides that no person shall deny a child medical treatment by
reason of religious or other beliefs.
This conforms to the provisions in Article 28(4) of the Constitution which states that
no child shall be deprived by any other person of medical treatment, education or
any other social or economic benefit by reason only of religious or other beliefs.
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Amartey v. Sraha
The plaintiff and the defendant had been married under customary law. When the
plaintiff was pregnant a third time, the defendant stopped maintaining their two
children. The plaintiff was successfully granted a maintenance order against the
defendant in respect of the 2 children and when the third child was delivered she
obtained a consent judgment in the High Court in respect of the third child.
When the two children were in secondary school, they were sent home for the non-
payment of fees and the plaintiff sued for the recovery of her total expenditure on the
children and a review of the maintenance orders. The defendant did not deny
responsibility but resisted claiming that he did not wish for the children to receive a
secondary school education since he had another wife and 7 more children to support.
The Court held that it was the father’s duty to maintain his children, however
begotten. This liability extended until the child is 21 years of age where the child is
still engaged in a course of the education. The Court also reviewed the maintenance
order since the children had become older and the cost of living had increased by over
100 per cent.
Sirebour v. Dome
The plaintiff had been the customary wife of the defendant and had had 5 children
with him. 4 years before the action, the parties had been divorced and lived apart
thereafter, The children lived with the plaintiff and the defendant did not contribute
to their education or their maintenance. The plaintiff brought an action claiming the
amount spent on the children since the divorce and an order for future maintenance.
a) Where the parties are married under customary law and as a result of dispute are
living apart, and the children are living with their mother, this de facto custody is
sufficient basis for a claim against the father for the maintenance of the
children.
b) The obligation to maintain his children imposed by customary law on a father is

personal and so it would defeat the object of the law if a debt for past
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maintenance had to be strictly proved. The Court only needs to be satisfied that
the amounts claimed are reasonable.
Dorkenoo v. Dorkenoo – the husband was also required to maintain his children and
his wife.
Article 25 of the Constitution further provides that all persons shall have the right to
equal educational opportunities and facilities and with a view to achieving the full
realization of that right:
(a) Basic education shall be free, compulsory and available to all…
In Re O (a Minor), the court, acknowledging the importance of the right of a child to

education, granted a care order to the local authorities to require the child to live in a
children’s home where she could be escorted to school everyday. This was after
everything possible to ensure her attendance had been done, and her parents had
even been prosecuted and fined for not ensuring her attendance.
7. Right to social activity: Section 9 provides that a person shall not deprive a child of
the right to participate in sports or in positive cultural and artistic activities or any
other leisure activities.
8. Rights of disabled children: Section 10(1) provides that a person shall not treat a
child with a disability in an undignified manner. 10(2) further provides that a child
with a disability has a right to special care, education and training wherever possible
to develop maximum potential and be self-reliant.
9. Right of opinion: Section 11 provides that a person shall not deprive a child capable
of forming views of the right to express an opinion, to be listened to and to
participate in decisions which affect the child’s well-being, the opinion of the child
being given due weight in accordance with the age and maturity of the child.
10.Protection from exploitative labour: Section 12 provides that a person shall not
subject a child to exploitative labour which is prohibited under Section 87. Section 87
provides that labour is exploitative where it deprives the child of health, education
or development.
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11. Protection from torture and degrading treatment: Section 13(1) provides that a
person shall not subject a child to torture or any other cruel, inhuman or degrading
treatment or punishment including a cultural practice which dehumanizes or is
injurious to the physical and mental wellbeing of the child.
13(2) further states that the correction of a child is not justifiable if it is

unreasonable in kind or in degree according to the age, physical and mental
condition of the child. 13(3) also provides that the correction of the child is not
justifiable if the child, by reason of tender age or otherwise is incapable of
understanding the purpose of the correction.
12. The right to refuse betrothal and marriage: Section 14(1) provides that a person shall
not force a child to be betrothed, be the subject of a dowry transaction or to be
married. 14(2) pegs the minimum age of marriage of whatever kind at 18 years.
Under Section 15 of Act 650, anyone who contravenes a provision of the rights provided
for above is liable on summary conviction to a fine not exceeding 250 penalty units or to
a term of imprisonment not exceeding one year or to both.
Child abuse is defined in Section 124 as a contravention of the rights of the child which
causes physical or mental harm to the child.
Child Labour
This can be defined as the engagement of children in activities or work that may be
harmful or injurious to their health, education or development. This is classified as
exploitative labour under Section 87 of the Act. And children are prohibited from engaging in
exploitative labour under Section 12 and Section 87. This is in keeping with Article 28(2) of
the Constitution which provides that, “Every child has the right to be protected from
engaging in work that constitutes a threat to his health, education or development.”
It is important to note that not all work is prohibited for children.
It is only where the work is injurious to their health, education and development that the
work will be expressly prohibited. Also, Section 88 prohibits children from being engaged in
night work. Night work is work that is done between 8pm and 6am.
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There are some activities that Act 560 allows children to engage in, only after they have
crossed a particular age benchmark.
Section 89 provides that the minimum age for the admission of child to employment Is 15
years. Therefore, any child below the age of 15 cannot legally be engaged in employment.
There is an exception, where it comes to light work. Light work has been defined in Section
90(2) as work which is not likely to be harmful to the health or development of the child and
does not affect the child’s attendance at school or the capacity of the child to benefit from
school work. Per Section 90(1), the minimum age for the engagement of a child in light
work is 13 years.
When it comes to hazardous employment, the minimum age of employment is 18 years.

Section 91(2) defines hazardous work as work that poses a danger to the health, safety or
morals of a person. It includes:
(a) Going to sea

(b) Mining and quarrying
(c) Porterage of heavy loads
(d) Working in a manufacturing industry where chemicals are produced or used
(e) Working in places where machines are used and
(f) Working in places such as bars, hotels and places of entertainment where a person may
be exposed to immoral behaviour.
Under Section 94, a person who contravenes a provision of the laws on child labour is liable
on summary conviction to a fine not exceeding 500 penalty units or to a term of imprisonment
not exceeding 2 years or both.
Juvenile Justice
Children are treated differently under the criminal justice system under the Juvenile Justice
Act. First of all, children under the age of 12 are considered as doli incapax, they cannot be
held liable for any crime which they commit. This is provided for in Section 26 of Act 29.
But once a child passes the age of 12, they can be held liable for their crimes and they are
treated differently under the criminal justice system. The criminal courts are also under an
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obligation to consider the best interests of the juvenile (a child under 18 in conflict with the
law) in matters concerning the juvenile.
The trial process is quite different for a juvenile. It is more informal and is done summarily.
Juveniles are also not imprisoned, they are detained in correctional facilities.
Fosterage/Foster Care
Section 62(1) of the Children’s (Amendment) Act, 2016 (Act 937) states that the starting
point in a process that may lead to the fostering or adoption of a child is the child and the
guiding principle in a decision relating to the fostering or adoption of a child is the best
interest of that child.
62(2) provides that the financial and material poverty of a family shall not be justification for
placing or receiving the child in alternative care but shall be seen as a signal to provide
appropriate support to the family.
It is important to note that a person can only qualify to be a foster-parent if they are at least
21 years old and of high moral character and proven integrity or where they are a relative
of the child and at least 18 years old. And once they apply and are approved to become
foster parents, they are to provide foster care to a child in need of care and protection.
A child in need of care and protection has been defined in Section 18(1) as a child who:
(a) is an orphan or is deserted by the relatives,

(b) has been neglected or ill-treated by the person who has the care and custody of the
child,
(c) has a parent or guardian who does not exercise proper guardianship,
(d) is destitute
(e) is under the care of a parent or guardian who, by reason of abuse of substance is
unfit to have care of the child
(e)(A) is under the care of a parent or guardian who by reason of a criminal conviction
particularly in relation to child abuse is unfit to have care of the child,
(f) is wandering and does not have a home or settled place of abode or visible means
of subsistence,
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(g) is begging or receiving alms, whether or not there is a pretence of singing, playing,
performing, offering anything for sale or otherwise, or is found in a street, premises or
a place for the purpose of begging or receiving alms,
(h) accompanies a person when that person is begging or receiving alms, whether or
not there is a pretence of singing, playing, performing, offering anything for sale or
otherwise,
(i) frequents the company of a reputed thief or reputed prostitute,
(j) is residing in a house or the part of a house used by a prostitute for the purpose of
prostitution, or is otherwise living in circumstances calculated to cause, encourage or
favour the seduction or prostitution of or affect the morality of the child,
(k) is a person in relation to whom an offence has been committed or attempted under
section 314 of the Criminal Offences Act, 1960 (Act 29) on slave dealing,
(l) is found acting in a manner from which it is reasonable to suspect that the child is,
or has been, soliciting or importuning for immoral purposes,
(m)is below the age of criminal responsibility under the Criminal Offences Act, 1960 (Act
29) and is involved in an offence other than a minor criminal matter, or
(n) is otherwise exposed to moral or physical danger
There is also the Foster Care Regulations 2018, L.I. 2361 which provides further details
concerning the foster care process.
CUSTODY OF CHILDREN
Section 22 of the MCA provides that in divorce or nullity proceedings, the court is to inquire
whether there are any children of the household and where there are, the court may either
on its own initiative or on application by a party to proceedings under the Act, make an order
concerning a child of the household which it thinks reasonable and for the benefits of the
child. This order could either award custody of the child to either parent, regulate the right
of access of any person to the child, and provide for the education and maintenance of the
child out of the property or income of either or both parties to the marriage.
Under Section 23, where the Court has reason to believe that a party ordered to make
payment is unwilling or unlikely to pay, the court may order the person to give a reasonable
security for the payment ordered.
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Under Section 43 of the Children’s Act, a parent, family member or a person who is raising a
child may apply to a Family Tribunal for the custody of the child. Such persons may also
apply under Section 44 of the Children’s Act for periodic access to the child.
Matters to Consider in the Making of a Custody Order
Section 45 of Act 650 reiterates the need to consider the best interests of the child in the
making of a custody order. 45(1) further states that the family tribunal shall consider the
importance of a young child being with the mother when making an order for custody or
access. In addition to these 2 matters, 45(2) mandates the Family Tribunal to consider:
(A) The age of the child

(B) That it is preferable for a child to be with the parents except where the rights of the
child are persistently being abused by the parents
(C) The views of the child if the views have been independently given
(D) That it is desirable to keep siblings together
(E) The need for continuity in the care and control of the child, and
(F) Any other matter that the Family Tribunal may consider relevant.
Braun v. Mallet
The plaintiff was a German national and she was resident there as well. She had a child with
the defendant who was a Ghanaian national and resident in Germany at the time. The parties
were not married and so under German law, Thomas was an illegitimate child. On his birth
certificate, he was registered under his mother’s name and at all times lived with his
mother. The defendant brought an action in the German courts to legitimize Thomas, but the
court refused to grant the order, giving the plaintiff custody and the defendant a limited right
of access.
In exercise of his right of access, the defendant flew with Thomas to Ghana, on the pretext of
taking him shopping. The Plaintiff followed them to Ghana and sued for the return of her son
and for damages. The defendant returned before the case could be heard, leaving Thomas,
who could not speak English, with his brother and sister-in-law who could not speak German.
He instructed them not to allow the plaintiff to see Thomas until she withdrew the criminal
charge for kidnapping against him which was pending in the German courts.
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1. In questions of custody, it is well-settled principle that the welfare and the happiness
of the infant is the paramount consideration. And in considering matters affecting
the welfare of the infant, the court must look at the facts from every angle and give
due weight to every relevant material.
2. As a natural father of the boy, the defendant had no right, merely by virtue of
fatherhood to claim custody. There is however a natural right of the mother of a
young child to have custody of the child. In addition, the mother of an illegitimate
child had a prima facie right to the custody of the child over the reputed father or
any other person.
3. The affection of a mother for her child must be taken into account and poverty per se
is not a reason for depriving a mother of custody when her character had in no way
been impeached.
Happee v. Happee
In relation to the custody of the 19 year old child of the marriage, the court held that since
the child was 19 and was pursuing studies in a secondary school with the possibility of
continuing her education in university, nothing should be done to thwart the chances of
the child to pursue further education or training. And so even though the petitioner was not
Ghanaian, there was evidence to show that he was responsible for the child’s education and
maintenance and that the behaviour of the respondent was so uncontrollable and
dreadful as to be detrimental to the well-being of the child. And so the welfare and well-
being of the child would be better served if custody is granted to the petitioner, but if at any
time she wished to visit her mother, she must be given every facility by the father to do so.
Beckley v. Beckley
The petitioner was a Russian citizen and the respondent, her husband, was a Ghanaian. They
got married in the Soviet Union at the time when the husband was a medical student. When
they returned to Ghana, they had a son and subsequently separated.
The wife sought custody of the infant child, maintenance for his support, care and education
and maintenance for herself. She claimed that the husband had caused the separation
because of his obsession with juju and he had abducted the child and taken him to his
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mother’s house and locked the wife out of the matrimonial home. And since that time, the
wife lived with friends until she was able to secure accommodation of her own.
The husband told a different story, claiming that the separation was due to the wife’s
conduct since she had deserted him after he had taken the boy to his mother’s house when he
was afraid that the wife would try to take the child’s life. He further admitted that he
stopped maintaining the wife after she left the matrimonial home.
1. The welfare of the child should be the primary consideration of the court in
custody actions. Although a child of tender years should have been looked after by his
mother, there were circumstances which militated against granting her custody. These
circumstances included the fact that she was a stranger in Ghana and could not
establish that her place of habitation would be fit for the bringing up of an infant.
There was evidence to show that while the wife was away at work, it was likely that
the child would be cared for by an irresponsible maid. However, while the man is
away at work, it is likely that the child would be cared for by his paternal
grandmother who the court found to be a fit and proper person. And since the child
had already settled into that household, it would be injurious to his welfare to take
him out of it.
2. The fact that the husband practiced Christianity and juju at the same time would be a
factor in considering the question of custody if proved, since there was a danger that
these contradictory influences would not be beneficial to the child. The welfare of
the child included moral and religious welfare as well as physical well-being.
Further, the allegations of juju had no basis.
3. In the absence of a good reason to the contrary and subject to the welfare of the
child, the father’s right to determine what religious faith the child was to be
brought up was superior to the mother’s and the court would not interfere with it.
4. And since it was not clear from the evidence which party was responsible for the
separation, then the obligation remained with the husband to maintain the wife.
Ofori v Ofori
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The Court in this case, held that under Section 22 of the MCA, the court had power either
on its own initiative or on an application of either party to make in respect of any child
any order which it thought reasonable and for the benefits of the child. The custody order
may be awarded to any person, regulate the right of access of any person to the child and
provide for the education and maintenance of the child out of the property or the income
of either or both parties to the marriage.
Where the child is already out of jurisdiction, the court still has the power to make an order
of custody and the court under Section 25(2) of the MCA could order a person to return the
child to the jurisdiction.
In the present case, the father’s application for custody would be refused because there was
no good reason for disturbing their education and upbringing by the mother in the United
States where they were born and had lived ever since except for 2 periods. Also, the court
would not split children up when it will be desirable in the circumstances to keep them
together.
Opoku-Owusu v. Opoku-Owusu
The husband, a Ghanaian citizen, married a German woman and after the married, they lived
together in West Germany for some time. They returned to Ghana and had 4 children. After
some time she refused to have sex with the man because of his frequent demands for sex. She
had been pregnant 10 times in the period of 11 years and lived in constant fear of having
another child. She left the home and petitioned for divorce on grounds of unreasonable
behaviour.
The husband prayed for custody of 4 children and the wife prayed for custody of the only
daughter who was 10 and the youngest child aged 4.
The Court held that, in an application for custody, the paramount consideration was the
welfare of the children. In the normal course, the mother should have care and control of
very young children, particularly girls or those who for some special reason need a mother’s
care; and older boys to have the influence of their father. It is desirable to keep brothers
and sisters together and not split them up. A separation will disturb their progress and may
affect them emotionally.
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The duty of the court is to protect the children irrespective of the wishes of the parents. In
this case, the children were Ghanaians, had lived all their lives in Ghana and would not
easily fit into the German community if they were taken there by the wife. It was desirable
to keep the children together and not split them. And so, custody of all 4 children would be
granted to the husband.
Attu v. Attu
The applicant was a senior accountant and had been posted to Zambia when his wife obtained
a divorce from him in 1977. After the divorce, the eldest of their 2 children was less than 2
and the youngest was only 8 months old. The children had lived with their mother and had
no contact with their father after he had returned to Ghana a year after the divorce had
been granted.
Later in 1982, the wife applied for and obtained custody in respect of the children, but the
man was granted access to the children. In the same year, the wife remarried the British
diplomat and left Ghana with her new husband and took the children along with her. When
she brought the children to Ghana on a visit, the husband applied for custody of the children.
1. The children did not know their father and they were physically attached to the
respondent, since they had been uprooted from Ghana and implanted in Britain
with a totally different social and cultural background where they had been settled
and educated for 4 years. The father too had made no effort to contact the children
or show interest in the children on his return from Zambia.
2. There could be no permanent or immutable custody order because under the MCA
under Section 27(1) empowered the High Court to rescind or vary any custody order of
any child as it thought fit. The only precondition is that it should be made in the best
interest of the child concerned.
3. The determining principle in the grant of custody is that the welfare of the children
should be the fundamental or paramount consideration. The use of the words
primary or paramount implied that there are other factors that could be taken into
account in resolving issues of custody. And in this case were the personal
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circumstances of either parent were balanced, the primary consideration would be
whether or not the children would benefit more by staying.
4. And since the children were already more settled in Britain, compelling them to stay
with their father in Ghana who they barely knew would be traumatic for them,
unless the father could prove that he could provide them with the better of virtually
everything than their present state of living in Britain. The father had led no
evidence to show that the children would be better off with him in Ghana and so the
court would maintain the order of custody given to the mother in 1982.
In Re Dankwa
The applicant and the respondent were married under the Ordinance. The applicant had left
the matrimonial home in Kumasi to stay with her parents in Nsawam, taking with her the only
child of the marriage who was then a few months old. Two years after the applicant had
moved to her parents home, the respondent came to visit and took away the child who was
then 2 years old with him. The child remained with him since then. The applicant petitioned
for a dissolution of the marriage and the respondent cross-petitioned, but both actions were
dismissed. Immediately, she petitioned for the return of the child and her custody under an
order for habeas corpus. The child was aged 3 and a half years.
1. A parent or guardian is entitled to institute habeas corpus proceedings to regain

custody of their child from a person in wrongful possession of the child
2. At common law, the father is the natural guardian of his infant child and he has a
prima facie right to its custody, even as against its mother. This common law right
will not be interfered with except in very special circumstances, for example, where
the interest and the welfare of the child so require. Children of tender years should
normally be with their mothers.
3. The child had been snatched from her mother when she was only 2, but she has now
adapted herself to her new environment is now happy. It would not be in the best
interest of the child to subject her to another change of environment, association,
etc. And so the order for custody would be refused.
ADOPTION
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Adoption as defined in the Black’s Law Dictionary as the “creation of a parent-child
relationship by a judicial order between two parties who usually are unrelated; the
relation of a parent and child created by law between persons who are not in fact parent and
child…Adoption creates a parent-child relationship between the adopted child and the
adoptive parents with all the rights, privileges and responsibilities that attach to that
relationship though there may be agreed exceptions. There is a distinction between adoption
and fostering.”
In Ghana however, there are 2 types of adoption; customary law adoption and adoption
under the Children’s Act, 1998 (Act 560) as amended by Act 937.
Customary Law Adoption
In the case of Tanor v. Akosua Koko, the court held that the essential requirements for the
adoption of an infant into a family in accordance with customary law were:
(a) The consent of the child’s parents, and

(b) The expression of the adopter’s intention to adopt the infant before witnesses.
Also in the case of Plange v. Plange, the court held that the essential requirement for a valid
customary adoption were the expression of the adopter’s intention to adopt the infant
before witnesses and the consent of the child’s natural parents and family to the proposed
adoption – such consent to be objectively ascertained or inferred from either their express
words or conduct.
Further, the court held that the legal effect of a customary adoption is that the adopted child
acquires the status of a child of the marriage and enjoys the same bundles of rights
(including rights of inheritance) duties, privileges and obligations as the natural child. And
the rights and liabilities of the natural parents of the adoptee became permanently
extinguished and devolved on the adopting parents.
Agbeko v. Kudzordzie
The issue to be resolved by the Court was whether Esther Kudzordzie, the respondent, who
was customarily adopted by the deceased, was entitled to inherit the deceased’s estate in
accordance with PNDCL 111.
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The facts were that the deceased, who had no children of her own, approached her sister and
her sister’s husband and asked if she could adopt Esther when she was 6 months old. They
agreed to the request and the deceased provided 2 bottles of schnapps in the presence of
Esther’s parents and grandparents. Esther’s biological father confirmed that there were
other witnesses at the adoption ceremony.
Esther was brought up as the deceased’s child and Esther considered the deceased as her
mother. At Esther’s wedding, the deceased stood in as her mother and received the
traditional gifts meant for the mother of the bride even though Esther’s biological mother was
present.
On the death of the deceased, Esther performed the role of a child and bought the coffin for
the burial and provided refreshments at the funeral ceremony.
The Court held that all the requirements of a valid customary law adoption had been
complied with and so the respondent who had been lawfully adopted was entitled to
succeed her deceased mother’s estate.
Quashie and Ors v. Boahema & Another
The Court in this case held it is not only living children who can be customarily adopted,
Unborn children as well may be customarily adopted.
Adoption under the Children’s Act, 1998 (Act 560) as amended by Act 937
In Ghana, the institution in charge of adoption is the Central Adoption Authority established
under the Ministry responsible for social welfare. This institution is established under Section
86P of Act 937 and has the object and functions of:
(a) Providing for the conduct of all adoptions in the country in a manner that promotes
the wellbeing and best interest of the child, and
(b) Supporting efficient and accountable practice in the delivery of adoption services in
accordance with this Act and relevant laws on adoption including the Hague
Convention on Protection of Children and Cooperation in Respect of Intercountry
Adoption.
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The Central Adoption Authority has an Adoption Board, a Technical Committee and an
Adoption Secretariat.
Section 85(1) of Act 937 provides that a person wishing to adopt under the Act, must
apply for an adoption order from the High Court within the jurisdiction where the child
resides on the date of the application. An application order is to be accompanied by a
Social Enquiry Report.
The application to adopt may be made:
(a) Through an in-country or an inter-country process

(b) Jointly by a husband and wife
(c) By a spouse with the consent of the other spouse
(d) Solely by the mother or father of the child to be adopted or by either of them
jointly with a spouse or
(e) By a single person subject to the provisions of the Act.
Section 79 provides that a child may be adopted if that child is:
a) Less than 18 years old

b) In need of care and protection (explained above)
c) Under a care order and
d) Other options of care for the child have been explored and adoption is considered
the preferred option.
Despite this, a child may be given up for adoption to the spouse of a parent of the child or if
the relative wishes to adopt the child or if special circumstances warrant the adoption of
the child.
Section 79(3) further states that a child shall not be given up for adoption unless the child
has been declared adoptable.
Section 80 states that an adoption order shall not be made unless:
(a) The applicant or in the case of a joint application, one of the applicants:
o is not less than 25 years and not more than 55 years of age and at least 21
years older than the child, for in-country adoption.
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o Not less than 25 years and not more than 50 years of age and is at least 21
years older than the child in inter-country adoption or
o Is a relative of the child and is not less than 21 years and not more than 65
years
(b) In the case of a single applicant, the applicant is a Ghanaian or a non-Ghanaian who
habitually resides in Ghana
(c) The applicant has notified the Department of an intention to apply for an adoption
order for the child at least 3 months before the date of the order
(d) In the case of a child under the foster care of a parent, the child has been
continuously in the care and custody of the applicant for at least 2 consecutive
years immediately preceding the date of the order, and
The prospective adoptive parent has been declared eligible and suitable to adopt the
child.
Conditions for an Adoption Order
Under Section 86, it provides that before a court makes an adoption order, the court shall
satisfy itself that all pre-adoption processes to be undertaken have been complied with.
The Court is required to ensure that:
a) The consent required under the Act for the adoption order has been obtained and
that the parent or guardian of the child understands that the adoption order
permanently deprives the parent or guardian or rights and responsibilities towards
that child;
b) A written report on the wishes of the child on the adoption in the prescribed form
has been considered if the child is capable of forming an opinion
c) The child has been continuously in the care and possession of the applicant for at
least 3 consecutive months preceding the date of the order
d) If the child is at least 14 years of age, the consent of the child to the adoption in
the prescribed form has been obtained and
e) It is in the best interest of the child.
The Effect of an Adoption Order on Parental Rights
According to Section 82(1) of Act 937, when an adoption order is made:
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(a) The rights, duties, obligations, and liabilities including those under customary law of
the parents or guardian of the child or of any other person connected with the child
shall cease and
(b) The person adopting the child shall assume the parental responsibility of the child
including the custody, maintenance and education of the child as if the child were
born to that person.
Under section 82(2), where an adoption order is made jointly by a husband and wife or with
the consent of the other spouse, the husband and wife shall assume the personal
responsibilities jointly and the child shall relate to them as parents as if born naturally by
them as husband and wife.
Interim Order – Section 86A
The court may postpone the determination of an application for an adoption order and make
an interim order giving custody of the child to the applicant for a period not exceeding 3
months by way of probation and subject to terms and conditions that the court may consider
necessary including maintenance, education and supervision of the child.
The interim order is not an adoption order. And the court in the making of an interim order
may impose conditions that the child should be under the supervision of a probation officer or
a social welfare officer and that the child shall not be taken out of the country with or
without the permission of the court.
Revocation of an Adoption Order
An adoption order may be revoked under Section 86B under the following grounds:
a) Fraud
b) Misrepresentation of facts leading to the grant of the adoption order
c) Discovery of new information which if previously known would have disqualified
the adoptive parent from obtaining the adoption order
86B(2) requires the court to consider the best interest of the child when revoking an
adoption order.
Knowledge of adoption by child
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Section 86C(1) allows the adoptive parent of a child to inform the child of the fact that the
child is adopted and the child’s parentage but this disclosure shall only be made if the child is
at least 14 years of age and it is in the best interest of the child.
Only the adoptive parent of the child can disclose information on adoption to the adopted
child. A person who contravenes this commits an offence and is liable on summary conviction
to a fine of not more than 100 penalty units or to a term of imprisonment of not more than 6
months or to both.
A child previously adopted can be adopted by another adopter and the second adoption will
extinguish the rights, obligations and duties of the previous adopter and vest them in the new
adoptive parents. Section 83 of Act 937
Adoption may be done in-country or inter-country.
In-Country Adoption
The Department of Social Welfare is required to first prepare a child study report for
submission to the Central Adoption Authority which shall contain recommendations on the
adoptability of the child and the Authority shall make its considerations based on the report.
The Department will then conduct a home study on a prospective adoptive parent and
prepare and submit a Home Study Report to the Authority. The report contains
recommendations on the eligibility and suitability of the applicant to adopt a child and based
on the Home Study Report, the Authority shall determine the eligibility and suitability of a
prospective adoptive parent to adopt.
After this, the Department shall provide psycho-social services and training determined by
the Department to an adoptable child and an eligible prospective adoptive parent before
and after the child is placed for adoption.
The Technical Committee of the Authority is required to match eligible and suitable
prospective adoptive parents with an adoptable child based on both the Child Study Report
and the Home Study Report. And where the matching is made, the child is to be placed with
the prospective adoptive parent for a period of not less than one month under the
supervision of the Department.
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The Department is required to prepare a post-placement report on the compatibility of the
adoptive child with the prospective adoptive parents and members of the household. Where
the Department is satisfied that the child is adoptable by the prospective adoptive parent,
after the placement, the Department will then prepare the Social Enquiry Report on the
child and the prospective adoptive parents to support the application for an adoption order.
After the adoption order is granted by the court, the Authority shall require the adoptive
parent to deposit a certified copy of the adoption order and the new birth certificate for
the adopted child with the Authority after which the parent will be issued with a Certificate
of Conformity.
The Authority is also under an obligation to monitor an adoption every 6 months during the
first 2 years after the adoption order and once a year within the following 3 years. The
Authority is also required to provide appropriate measures to promote counselling and post-
adoption services.
Where the adopter wishes to leave the country with the child either temporarily or
permanently, they are required to give the Department at least 30 days notice in writing.
Even in another country, the competent authority in the Receiving State monitors and reports
on the child for the remaining post adoption reporting period.
Inter-Country Adoption
If a child cannot be placed in foster care or in an adoptive family in the country or cannot
in any suitable manner be cared for in the country, then the Department may investigate
an application for intercountry adoption as an alternative means of childcare.
A person shall not be considered for intercountry if that person is in a same sex relationship
or is single and is not a citizen of Ghana.
With inter-country adoption, the Technical Committee of the Authority shall match eligible
prospective adoptive with an adoptable child based on the Child Study Report and the Home
Study Report. Unless the Central Authority of the Receiving State accepts and agrees to
the matching of the prospective parent with the child, the child shall not be placed with the
prospective parent.
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And where the matching is accepted, the child shall be placed with the prospective adoptive
parent for a period of not less than 1 month under the supervision of the Department in their
country. After the one month, where the Department is satisfied, they shall prepare a post
placement report and submit it to the Authority for clearance to apply for an adoption
order from the High Court.
Where the adoption order is granted, the adoptive parent shall obtain a birth certificate for
the child and submit a copy of the birth certificate and the adoption order to the Authority.
The Authority will then issue the adoptive parent with a Certificate of Conformity after which
the parent is to apply for the necessary travel documents to facilitate the transfer of the
child to the receiving state.
The Authority shall enter into an agreement with the Central Authority of the Receiving State
to provide reports every 6 months during the first 2 years after the adoption order and once a
year during the following 3 years.
The Hague Convention
The Hague Convention of 1993 on the Protection of Children and Cooperation in Respect of
Intercountry Adoption was developed to establish safeguards which ensure that
intercountry adoptions take place in the best interests of the child and with respect for
the child’s fundamental human rights.
The Convention recognizes that growing up in a family is of primary importance and is

essential to the happiness and healthy development of the child. It also recognizes that the
process of intercountry adoption may offer the advantage of a permanent family to a child
for whom a suitable family cannot be found in their home country.
The Convention sets out proper procedures to facilitate inter-country adoption and
prohibits improper financial gain. It further establishes a system of cooperation between
countries of origin and receiving states to ensure that intercountry adoption takes place
under conditions that help to guarantee the best adoption practices and elimination of
abuses.
Principal Features of the Hague Convention
1. The best interests of the child are paramount
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The Convention contains certain rules which ensure that intercountry adoptions take
place in the best interests of the child and with respect for the child’s fundamental
human rights. For example, under the Convention, States are required to first
consider national solutions, ensure the child is adoptable, preserve any information on
the child and their birth parents, evaluate thoroughly the prospective adoptive
parents, match the child with a suitable family and impose additional safeguards
where needed.
This fundamental principle of the best interest of the child being paramount should
guide the development of an integrated national childcare and protection system.
2. The subsidiarity principle
Subsidiarity in the Convention means that the Contracting States recognize that a
child should be raised by their birth family or extended family whenever possible.
If this is not possible or practicable other forms of permanent care in the state of
origin should be considered . Only after due consideration has been given to
national solutions, should inter-country adoption be considered and then it must
only be done if it is in the best interests of the child. As a general rule, institutional
care should be considered as a last resort for a child in need of a family.
3. Safeguards to protect children from abduction, sale and trafficking
Under the Convention, States are required to establish safeguards to prevent

abduction, sale and trafficking in children for adoption by protecting birth families
from exploitation and undue pressure, ensuring that only children in need of a family
are adoptable and adopted, preventing improper financial gain and corruption,
regulating agencies and individuals involved in adoptions by accrediting them in
accordance with the Convention standards.
4. Cooperation between states and within states
The Convention envisages a system in which all contracting states work together to
ensure the protection of children. Cooperation between contracting states is
essential to ensure the effectiveness of any safeguards put in place. In practice, this
principle is implemented first through international cooperation between Central
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Authorities, second through Intra-State cooperation between authorities and
agencies regarding Convention procedures and third, through cooperation to
prevent abuses and avoidance of the Convention.
5. Automatic recognition of adoption decisions
The Hague Convention established a system of automatic recognition of adoption

made in accordance with the Convention. Every adoption, whether a simple or full
adoption which is certified to be made in accordance with the Hague Convention
procedures is recognized by operation of law in all contracting states. The Convention
gives immediate certainty to the status of the child and eliminates the need for a
procedure for recognition of orders or for re-adoption in the receiving state.
6. Competent authorities, Central Authorities and accredited bodies
Under the Convention, only competent authorities should perform Convention

functions. Competent authorities may be either Central Authorities, public
authorities including judicial or administrative authorities and accredited bodies.
The Convention provides for a system of Central Authorities in all contracting states
and imposes certain general obligations on them such as cooperation with each other
through the exchange of general information concerning inter-country adoption, the
elimination of any obstacles to the application of the Convention and a responsibility
to deter all practices contrary to the objects of the Convention. In relation to
individual adoption processes, the Central Authorities also have specific obligations.
Accredited bodies may perform some of the functions of the Central Authorities. The
accreditation process is one of the Convention’s safeguards to protect children in
adoption. Any private adoption body or agency must be accountable to a supervising
or accrediting authority. They must play an effective role in upholding the principles
of the Convention and preventing improper and illegal practices in adoption. If
accredited bodies are to be used in the adoption process, the Convention sets out
a regulatory framework of minimum standards for their operation. The Contracting
States may impose additional standards on the bodies.
DETERMINING PARENTAGE/PATERNITY
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Normally when it comes to proving who the mother is, there is no difficulty because the fact
of the birth and the identity can be established by the evidence of the doctor or other
persons present at the birth. Lord Simon said in the case of Ampthill Peerage that
motherhood is proved demonstrably by parturition; mater est quam gestation demonstrat.
For the father, there is a presumption that the mother’s husband is the father. However,
these days there are blood tests and more recently DNA testing. But before this paternity
could only be inferred from the fact that the alleged father must have had sexual intercourse
with the mother about the time the child must have been conceived. And so if the woman had
sex with two men in the relevant period, it would be impossible to prove affirmatively which
one is the father. The fact that intercourse took place can in most cases be proved only by
the evidence of the parties themselves or circumstantially from their conduct and the
opportunities which were presented to them.
Where the birth of the child happens an abnormally long time after the parties last had
intercourse then the presumption can be effectively rebutted.
In the English case of Preston-Jones v. Preston-Jones, the House of Lords agreed that
judicial notice could be taken of the fact that there is a normal period of gestation and
even though this period could be shorter or longer, the longer it deviates from the
normal, the more easily the presumption can be rebutted.
The presumption is also applicable in the case of a child born after a decree of divorce. In the
case of Knowles v. Knowles, the court held that the child could have been conceived before
or after the decree absolute. The Court held that the presumption of legitimacy operated in
favour of presuming that conception took place whilst the marriage was still subsisting
and that the husband was the father, although as he pointed out in such circumstances, the
presumption may be rebutted much more easily.
Where the child is born to an unmarried mother there is no presumption of paternity even
where the child is born to a cohabiting couple. However, the entry of a man’s name as
that of the father on the registration of the child’s birth is prima facie evidence of
paternity.
Rebutting the Presumption
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Under Section 26 of the English Family Law Reform Act, it is stated that the presumption
may be rebutted upon the balance of probabilities.
Once it was established that the spouses had intercourse at the relevant time, the husband
must show that the child is not the issue of that intercourse to rebut the presumption of
paternity.
Although now, the most common way to rebut the presumption is by the use of blood or
DNA tests, it is possible to rebut the presumption in other ways, e.g. reference to common
physical characteristics.
The Courts are reluctant to admit evidence suggesting that the child inherited some
physical characteristics from a particular man and must therefore be his child. Evidence of
race or genetic characteristics is more helpful, where it is applicable.
Section 42 of Act 650 provides that the Family Tribunal may order the alleged parent to
submit to a medical test and the Tribunal shall on the basis of the evidence before it makes
such orders it considers appropriate.
DOMESTIC VIOLENCE
The Domestic Violence Act, 2007 (Act 732) was passed to provide victims of domestic
violence with a broader set of remedies in the form of protection orders, and to also uphold
respect for human dignity and affirm Ghana’s commitments under the CEDAW and the CRC.
This is contained in the memorandum to the Bill. The long title of the Act states that the Act
is one to provide protection from domestic violence particularly for women and children
and for connected purposes.
Domestic violence is defined in Section 1 of the Act as engaging in any of the following acts in
the context of a previous or existing domestic relationship:
(a) An act under Act 29 which constitutes a threat or harm to a person

(b) Acts, threat to commit or acts likely to result in physical abuse, sexual abuse,
economic abuse, emotional, verbal or psychological abuse
(c) Harassment including sexual harassment and intimidation by inducing fear in
another person and
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(d) Behaviour or conduct that in any way harms or may harm another person,
endangers the safety, health or wellbeing of another person, undermines another
person’s privacy, integrity or security or detracts or is likely to detract from
another person’s dignity and worth as a human being.
Meaning of a Domestic Relationship
Section 2(1) defines a domestic relationship as a family relationship, a relationship akin to

a family relationship or a relationship in a domestic situation that exists or has existed
between a complainant and a respondent and includes a relationship where the complainant:
(a) Is or has been married to the respondent

(b) Lives with the respondent in a relationship in the nature of a marriage even if they
are or were not married to each other or could not or cannot be married to each
other
(c) Is engaged to the respondent, courting the respondent or is in an actual or perceived
romantic, intimate or cordial relationship not necessarily including a sexual
relationship with the respondent
(d) And the respondent are parents of a child, are expecting a child together or are
foster parents of a child
(e) And the respondent are family members related by consanguinity, affinity or
adoption or would be so related if they were married either customarily or under an
enactment or were able to be married or if they were living together as spouses
although they are not married
(f) And the respondent share or shared the same residence or are co-tenants
(g) Is a parent, an elderly blood relation or is an elderly person who is by law a relation
of the respondent
(h) Is a house help in the household of the respondent or
(i) Is in a relationship determined by the court to be a domestic relationship.
In determining whether or not a relationship is domestic, the court is to consider the

following under Section 2(2):
 The amount of time the parties spend together,

 The place where the time is ordinarily spent
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 The manner in which that time is spent and
 The duration of the relationship.
Also a person will be considered to be in a domestic relationship where they are providing
refuge to the complainant whom a respondent is seeking to attack or where the person
acts as an agent of the respondent or encourages the respondent.
Section 3 of the Act clearly prohibits domestic violence and states that it is an offence to
engage in domestic violence, punishable on summary conviction by a fine of not more than
500 penalty units or to a term of imprisonment of not more than 2 years or both. In
addition to this penalty, the court may order the offender to pay the victim compensation
that the court will determine.
It is important to note that the use of violence in a domestic setting is not justified on the
basis of consent. Section 4
A single act or a number of acts that form a pattern of behaviour may amount to domestic
violence even though some or all of the acts when viewed in isolation may appear minor or
trivial – Section 5
Section 6 - A victim or a person with information about domestic violence may file a
complaint about the domestic violence with the police. Where a child is involved, a next
friend may assist the child to file the complaint. A social worker, probation officer or health
care provider shall also file a complaint where their intervention is in the best interest of the
victim.
Where the victim cannot file the complaint personally, a member of their family may file the
complaint on behalf of the victim. Where the complainant has died, the person’s personal
representative or a member of their family may file the complaint.
The complaint must be filed with the police at the place where the offender resides or the
place where the victim resides or where the domestic violence occurred or is occurring or
where the victim is temporarily residing where they have left their usual place of abode.
Section 7 – The police are required to respond to a request by a person for assistance from
domestic violence and shall offer the protection that the circumstances of the case or the
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person who made the report requires even when the person reporting is not the victim of
the domestic violence.
On the receipt of a complaint by police, they are required to do the following:
a) Interview the parties and witnesses to the domestic violence including the children.
b) Record the complaint in detail and provide the victim with an extract of the
occurrence upon request in a language the victim understands
c) Assist the victim to obtain medical care where necessary
d) Assist the victim to a place of safety as the circumstances of the case or as the victim
requires where the victim expresses concern about safety.
e) Protect the victim to enable the victim to retrieve personal belongings where
applicable
f) Assist and advice the victim to preserve evidence and
g) Inform the victim of his or her rights and any services which may be available.
Protection Orders – 11-22
Introduced by the Domestic Violence Act, these are orders that a court can make to prevent
a person from carrying out a threat of domestic violence against the complainant or to
prevent a person or his associate or both of them from further committing acts which
constitute domestic violence against the applicant.
The order may prohibit the respondent from:
(a) Physically assaulting or using physical force against the applicant or any relation or
friend of the applicant
(b) Forcibly confining or detaining the applicant or a relation or a friend of the applicant
(c) Depriving the applicant access to adequate food, water, clothing, shelter or rest
(d) Forcing the applicant to engage in sexual contact
(e) Engaging in sexual conduct that abuses, humiliates or degrades the applicant or
otherwise violates the applicant’s sexual integrity
(f) Depriving or threatening to deprive the applicant of economic or financial resources to
which the applicant is entitled by law including household mortgage repayments or
rent payments in respect of shared accommodation and household chattels required by
the applicant as a matter of necessity.
136
(g) Contacting the applicant at work or other places frequented by the applicant
(h) Contacting the applicant by telephone or any form of communication
(i) Disposing of or threatening to dispose of movable or immovable property in which the
applicant has a material interest
(j) Destroying or damaging, or threatening to destroy or damage property in which the
applicant has a material interest
(k) Hiding or hindering the use of property in which the applicant has a material interest
(l) Threatening to abuse the applicant
(m)Harassing the applicant
(n) Entering the applicant’s residence without consent where the parties do not share
the same residence
(o) Emotionally, verbally or psychologically abusing the applicant
(p) Coming within 50 metres of the applicant or
(q) Doing an act which the court considers is not in the best interest of the applicant.
Under Section 16 a protection order shall not exceed 12 months in the first instance but
may for good cause shown, be extended, modified or rescinded by the Court on a motion by
the party to the original proceeding.
An application for a protection order may be filed in a court where the applicant or
respondent resides, carries on business or is employed, or the court in the area where the act
of domestic violence occurred or is occurring.
The application is to be made ex parte unless the Court demands that it be on notice.
Proceedings for a protection order shall be held in private in the presence of the parties,
their lawyers and any other person that the court may permit to be present. However,
where the court is of the view that the presence of the respondent is likely to have a serious
adverse effect on the victim or a witness, the court may take the steps that it considers
necessary to separate the respondent from the victim or a witness, without sacrificing the
integrity of the process.
An application for a protection order is to be heard within a period of 14 days after the
filing of the application. It is also likely that the court may request for a social or
psychological enquiry report or both to be prepared on any of the parties to the proceedings
and the report shall be prepared and submitted by a social welfare officer or a clinical
137
psychologist as appropriate. The report is to contain details of the circumstances of the
domestic violence, an assessment of the effect of the violence and any other information
considered expedient by the social welfare officer or the clinical psychologist.
The Court has the power under Section 14 to issue an interim protection order if it
considers this to be in the best interest of the applicant. To determine what is meant by
best interest, the court is enjoined to consider:
(a) Whether there is risk of harm to the applicant or a relation or friend of the applicant
if the order is not made immediately
(b) Whether it is likely the applicant will be deterred or prevented from pursuing the
application if an order is not made immediately, and
(c) Whether there is reason to believe that the respondent is deliberately evading
service of notice of the proceedings and the applicant or a person in a domestic
relationship with the respondent will be prejudiced by the delay involved in effecting
service.
The interim order is not meant to last for more than 3 months.
Occupation Order
Under Section 20, where the court in issuing a protection order considers it expedient to
issue an occupation order, the court may issue the order requiring the respondent to vacate
the matrimonial home or any other specified home. This order is to be issued only after
the consideration of a Social and a Psychological Enquiry Report prepared by a social
welfare officer and a clinical psychologist. The court, in making occupation orders is
required to consider the effect of the order or the omission of the order on the health,
education and development of the family where the parties are in a marital relationship.
A person who contravenes a protection order commits an offence and is liable on a summary
conviction to a fine of not less than 5 penalty units and not more than 500 penalty units or to
a term of imprisonment of not less than 1 month and not more than 2 years or to both.
The Domestic Violence Act and the Criminal Offences Act
Section 23 of the Act provides that the punishment for acts of domestic violence applies only
where the acts of domestic violence are misdemeanours. And so where the act of domestic
138
violence is an aggravated act (a first degree or second degree felony), then the respondent
will be punished under Act 30 for that specific criminal offence.
Section 26 of the Act further provides that the institution of a criminal charge arising from
acts of domestic violence shall be in addition to and shall not affect the rights of an
applicant to seek a protection order under this Act.
Under section 24, where there is a criminal trial in respect of domestic violence which is not
aggravated or does not require a sentence that is more than 2 years, and the complainant
expresses the desire to have the mater settled out of court, the Court shall refer the case
for settlement by an alternative dispute resolution method or where the court is of the
opinion that the case can be amicably settled, the Court may with the consent of the
complainant refer the case for settlement by an alternative dispute resolution method.
Where the court refers a case for settlement, the court shall in addition, refer the
complainant and the accused for counselling, where necessary require the accused to receive
psychiatric help or in consultation with the Department of Social Welfare appoint a probation
officer to observe and report on the subsequent conduct of the accused to the Court.
To protect victims from embarrassment and encourage them to report such cases without fear
of publication of their case, Section 25 of the Act, prevents a person from publishing a
report of the proceedings under this Act other than criminal proceedings, except with the
leave of the Court. And even with criminal proceedings, the reporter shall protect the
identity of the victim.
Civil Liability
Section 27 states that proceedings under the Domestic Violence Act shall be in addition and
shall not derogate from the right of a person to institute a civil action for damages.
INTESTATE SUCCESSION
Intestate succession refers to the manner in which the property of a person who dies without
having made a will, should be distributed after death.
Prior to the enactment of the Intestate Succession Law, 1985 (PNDCL 111), there were 4 main
systems of law that could govern the devolution of property belonging to an intestate:
139
a) Rules under Cap 127 where the deceased was married under the Ordinance
b) Rules under the Mohammedan Ordinance where the intestate was a Moslem whose
marriage was registered under Cap 129
c) Rules of customary law concerning matrilineal succession where the deceased was
married under the customary law and came from a family that practices a matrilineal
system of inheritance
d) Rules of customary law concerning patrilineal succession where the deceased was
married under the customary law and came from a family that practices a patrilineal
system of inheritance
Due to the confusion and injustice that arose under these different systems, Parliament
enacted PNDCL 111. In the Memorandum to PNDCL 111, Parliament states that the Act is
aimed at removing the anomalies in the present law relating to intestate succession and to
provide a uniform intestate succession law that will be applicable throughout the country
irrespective of the class of the intestate and the type of marriage contracted by him or her.
This law displaced the presumption that property held by an individual at the time of his
death is family property. At customary law there was little protection for the surviving
spouse, since the spouse had no right to the property of their deceased spouse, and the
children of the marriage have no more than a right to maintenance by their father’s
customary successor and a right to reside in their father’s house subject to good behaviour.
Further, the customary law conception of marriage did not regard the wife as part of the
husband’s economic unit and so the wife’s claim on the husband’s property on his death was
limited.
And for the laws under the Ordinance concerning succession, there was a need to revise them
because they were discriminatory. While a widower got more of his deceased wife’s property,
a widow did not get the same out of her deceased husband’s estate.
Mohammedan provision on intestate succession was made up of complicated rules which were
probably not known to many Muslims. And so the PNDCL 111, according to the memorandum,
was enacted to give a larger portion of the estate of the intestate to his spouse and children
than was the case previously.
Further under Article 22(1) of the Constitution, the right of inheritance of spousal property
has been elevated into a fundamental human right. 22(1) provides that a spouse shall not
140
be deprived of a reasonable provision of the estate of a spouse whether or not the spouse
died having made a will.
Also, for children, Article 28(1)(b) imposes a duty on Parliament to enact laws that ensure
that every child whether or not born in wedlock is entitled to a reasonable provision out of
the estate of his parents.
The Provisions of PNDCL 111
Section 1 states that PNDCL 111 is to govern the devolution of the estate of a person who
dies intestate. It does not apply to stool, skin or family property. This means that only the
self-acquired property of the intestate can be distributed in accordance with PNDCL 111.
It is also important to note that a person who dies leaving a will disposing of part of the
estate of that person, shall be deemed to have died intestate under PNDCL 111 in respect of
the part of the estate that is not disposed of in the will and so PNDCL 111 will apply to that
part of the deceased’s estate.
Under PNDCL 111, the household chattels of the intestate are dealt with first. Under
Section 3, where the intestate is survived by a child or spouse or both a child and spouse,
the spouse or the child or both of them is/are entitled absolutely to the household chattels.
Section 18 of PNDCL 111 defines household chattels to include, “jewellery, clothes, furniture
and furnishings, refrigerator, television, radiogram, any other electrical and electronic
appliance, kitchen and laundry equipment, simple agricultural equipment, hunting
equipment, books, motor vehicles other than vehicles used wholly for commercial purposes
and household livestock. This list is not exhaustive in its application and may include other
items found in the house that are used as household items.
After the household chattels are distributed, the next thing to consider is the houses left
behind by the intestate.
Under Section 4, where the estate includes only one house, then that house will devolve to
both the surviving spouse and child (if any) who will hold it as tenants-in-common. But if
the estate includes more than one house then the surviving spouse and children (if any) shall
determine/choose which of the houses shall devolve to them and where a house devolves to
both the children and the spouse, they are to hold it as tenants-in-common. Where there is a
141
disagreement in terms of the choice of house, and the surviving spouse or children or both of
them cannot choose which house to take, the administrator of the estate of the intestate
may apply to the High Court for the Court to make the decision.
After this, the residue of the estate is now distributed, based on who the deceased is
survived by.
Where the Intestate is survived by a Spouse, Parents and Child
Under Section 5, the residue of the estate is to be shared like this:
 3/16 – to the surviving spouse

 9/16 – to the surviving child/children
 1/8 - to the surviving parent
 1/8 – in accordance with customary law
And where there is no surviving parent, ¼ of the residue is to devolve in accordance with
customary law.
Where the Intestate is survived by a Spouse and Parents Only
Under Section 6, the residue is shared like this:
 ½ - to the surviving spouse

 ¼ - to the surviving parents
 ¼ - in accordance with customary law
And where there is no surviving parent, ½ of the residue is to devolve in accordance with
customary law.
Where the Intestate is Survived by Children and Parents only
Under Section 7, the surviving child(ren) is entitled to ¾ of the residue of the estate. The
remaining ¼ is shared like this:
 1/8 – to surviving parents

 1/8 – in accordance with customary law
142
Where there is no surviving parent the whole of the ¼ is to devolve in accordance with
customary law.
Where the Intestate is Survived by Parent only
Under Section 8, the surviving parent is entitled to ¾ of the estate and the remaining ¼
shall devolve in accordance with customary law.
Where the Intestate is Survived by Neither Spouse, Parent nor Child
Under Section 11, where the intestate is not survived by a spouse, child or parent, the estate
shall devolve entirely in accordance with customary law. And in the event that there is no
customary law applicable to the devolution of the estate of such an intestate, then the
estate shall devolve to the Republic.
Where the estate of the intestate is to devolve to the Republic, a person who was
maintained by the intestate or with whom the intestate was closely identified may apply to
the court for maintenance out of the estate of the deceased or apply for a portion or the
whole of the estate to devolve to that person and the Court may make that order in that
person’s favour.
PNDCL 111 further provides that if there is no customary law applicable to the distribution of
the estate, but there are beneficiaries, then the part meant to devolve in accordance with
customary law will be shared equally to the beneficiaries who are otherwise entitled to the
residue.
Customary Law Provisions for Succession
Under Section 10 where the rules of customary law applicable require that the property be
shared by the family of the intestate, the family of the intestate is the one to which the
intestate belonged to for the purposes of succession in accordance with the customary law
of the community to which he belonged. Where he was a member of 2 customary law
communities and so belonged to 2 families, the family for the purposes of succession will be
both families.
143
And where the intestate was not a member of a family under customary law, then the family
will be the family he was identified with at the time of his death or the families of the
parents of the intestate or failing that, to the Republic.
It is important to note that despite the distinct sharing fractions, under Section 12, where the
total value of the residue does not exceed 50,000 Ghana cedis, the entire residue is to
devolve to the surviving child or spouse of the intestate or both of them. Further, where
the intestate is survived only by a parent and the value of the estate does not exceed
50,000 Ghana cedis, the entire estate is to devolve to the surviving parent.
Provision is also made for grandchildren of intestate under Section 15 where the
grandchild was the child of a child of the intestate who predeceased the intestate. Once
that grandchild was dependent on the intestate at the time of his death, provision will be
made for the grandchild.
Section 16A prohibits a person from ejecting a surviving spouse or child from the matrimonial
home before the distribution of the estate of a deceased person whether or not the person
died testate or intestate, where:
a) The matrimonial home is the self-acquired property of the deceased

b) The matrimonial home is rented property unless the ejection is pursuant to a court
order
c) The matrimonial home is the family home of the deceased unless a period of 6
months has expired from the date of the death or
d) The matrimonial home is public property unless a period of 3 months has expired
from the date of the death.
Section 16A(2) defines matrimonial home as the house or premises occupied by the deceased
and the surviving spouse or the deceased and surviving child or all of them at the time of
death of the deceased or any other self-acquired house of the deceased occupied by the
surviving spouse or child or both at the time of the death of the deceased.
In fact, it is an offence under Section 17 to eject a surviving spouse of child from the
matrimonial home contrary to Section 16A.
Property Rights of Widows in their Deceased Husband’s Estate – E.V.O Dankwa
144
Dankwa discusses the position of the law on both testate and intestate succession in this
article. He discusses testate succession under customary law which was done through the use
of a samansiw. He discusses testate succession under the Wills Act as well and how the widow
is provided for where the testator fails to provide for her.
Dankwa also discusses the position of intestate succession under customary law, highlighting
the journey from the position in Quartey v. Martey, to the substantial contribution principle
and how this affects widows in both patrilineal and matrilineal communities. He further
discusses intestate succession under the MCA and the Mohammedans Ordinance and highlights
the problems associated with it; i.e., the fact that the provisions of the MCA are
discriminatory depending on whether the surviving spouse was a man or a woman (the man
was entitled to a larger share of his deceased wife’s estate). And under the Mohammedan
Ordinance, unless the marriage was registered, the widow could not benefit. And even the
provisions on how to benefit were quite complicated in their application.
Dankwa then discusses PNDCL 111 and how it repeals the application of intestate succession
under the MCA and under the Mohammedans Ordinance. He notes that PNDCL 111 is now to
apply to all forms of marriage and all forms of family systems once the deceased died
intestate.
He noted further that the provisions of PNDCL 111 in their application have made a further
erosion into the concept of family property because the self-acquired property which used to
be considered as family property previously was now to be shared by the widow, surviving
children, surviving parents and even in some cases, surviving grandchildren.
He however notes that the divisions of the residue under PNDCL 111 lead to a “necessary
evil,” which is the fragmentation of the estate of the deceased. And in the event where the
total value of the estate does not exceed 50,000 Ghana cedis, the residue shall devolve to the
surviving spouse or child or both of them in equal shares, to the exclusion of the customary
law family and the parents.
Dankwa argues that despite the good intentions of this provision, the constant and persistent
change in the value of the cedi as against the dollar and other foreign currencies could cause
the value of property to quickly appreciate beyond what it normally should be. And he
acknowledges that this may be the rationale for allowing the PNDC Secretary responsible for
145
Justice to vary the maximum value of the residue to which the surviving spouse and child are
entitled to absolutely.
Dankwa further suggested a review of the fine to be meted out to a person who unlawfully
deprives the beneficiaries under PNDCL 111 of or unlawfully interferes with their share
under the law from 5000 cedis to 10,000 cedis to be reviewable in keeping with inflation
and devaluation.
Dankwa also noted that at the time, PNDCL 112 had been passed which required persons to
register their customary law marriages, failing which they could not benefit under PNDCL 111.
He suggested that registration of the customary law marriage should not be made a condition
precedent to benefitting under PNDCL 111 due to the widespread illiteracy among Ghanaians.
He further suggested that widows be educated on their property rights and provided with the
required legal assistance when needed.
146

FAMILY LAW AND PRACTICE - Lecture Notes

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FAMILY LAW AND PRACTICE - Lecture Notes

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Her Ladyship Justice Eudora Dadson

The Nature and Scope of Family Law

a) Husband and wife/ 2 persons living together in a manner similar to spouses

Amponsah & Ors v. Budu

Jurisdiction of the Courts in Family Law

Marriage has 2 distinct meanings:

Reasons for marriage in different societies and cultures include:

This definition proposes 4 elements of a Christian marriage:

a) Voluntariness(voluntary union) : The marriage can be annulled if there is no true

Differences between the Marriage Contract and Ordinary Contracts

Marriage Contract Ordinary Contract

BREACH OF PROMISE TO MARRY

Types of Breach of Promise to Marry

The breach of a promise to marry may be in either of 2 forms:

a) Non-performance when the time for performance arrives, or

“A promise to marry is a promise to marry within a reasonable time.”

Defences to Breach of Promise to Marry

Damages in Breach of Promise to Marry

a) Compensatory (the various heads of damage include: mental distress, loss of

It is also important to note that gifts made in contemplation of marriage cannot be

The Ghanaian Customary Law Position on Breach of Promise to Marry

Ama Serwaa v. Gariba Hashimu & Anor.

The Court held that:

Laws Relating to Marriages in Ghana

The Marriages Act, 1884-1985 (Cap 127)

CUSTOMARY LAW MARRIAGE

Special Characteristics of a Customary Law Marriage

Formal Customary Marriage

Informal Customary Marriage

The Court held that

The Court held that:

Re Dickson alias Appah (Decd); Aboagye and Another v. Quayson

The Court held that:

The Court held that:

The Essentials of a Valid Customary Law Marriage

He stated the 4 essentials as:

1. Agreement by the parties to live together as man and wife.

The Court held that:

1. The question of whether a relationship between a man and a woman is one of

Re Caveat by Clara Sackitey

The Court held that:

The Implication of the Essentials of a Customary Law Marriage

Essential 1: Agreement by the parties to live together as husband and wife

The Court held that:

Essential 2 & 3: Consent of both families to the marriage

Essential 4: Consummation by cohabitation

Criticisms Against the 4 Essentials

Essentials 2 and 3 have been largely criticized on the following grounds:

REGISTRATION OF CUSTOMARY LAW MARRIAGES AND DIVORCES

Procedure for the Registration of Customary Marriage

The application to the Registrar must be supported by a Statutory Declaration, which

a) The names of the parties to the marriage

The Effect of Registration of Customary Marriage

Registration of Customary Divorces – Section 6

DISSOLUTION OF CUSTOMARY MARRIAGE

Customary law marriage can be dissolved in either of 2 ways;

a) Under customary law

Customary Law Dissolution

The Court held that:

Grounds for the Dissolution of a Customary Law Marriage

1. Adultery (on both parts)

1. Wilful neglect to maintain a wife or child