Family Law & Practice (Selfie)

FAMILY LAW & PRACTICE (Selfie)
FAMILY LAW & PRACTICE NOTES

(Compiled by EBENEZER ADDAI OSEI)
GENERAL INFORMATION
This document was compiled by EBENEZER ADDAI OSEI aka “Selfie”. I take full
responsibility for all errors and mistakes which are contained in this document. Again, the
user undertakes to make amendments and additions where necessary.
This document cannot be said to contain all that is needed for the Law of Interpretation
course. The User must supplement this document with the notes given by the Lecturer as
well as recent decisions of the Courts.
This document is made purposely to aid understanding of Family Law & Practice and to
simplify matters for students.
All the best.
EBENEZER ADDAI OSEI
BL Candidate 2023,
Ghana School of Law (Main Campus, Accra)
ebenezeraddaiosei@gmail.com
023 883 5922

APPRECIATION
I wish to thank Mrs Frederica Ahwireng-Obeng, a lecturer at the Ghana School of Law who
taught me Family Law and Practice at Part two of my Professional Law Course Programme
for the 2022/2023 academic year.
Again, I wish to thank the following friends:
a. Emmanuel Boamah
b. Nana Kwesi Essuman Pocco
c. Mbowura Joshua
d. Oliver Fobi
e. Godson Bonney
I really appreciate your efforts in shaping my understanding of the Course. To all others
whose names have not been mentioned, thank you.
TOPIC 1: BREACH OF PROMISE TO MARRY
We begin on the premise that a marriage contract begins with the exchange of promises
between a man and a woman. Hence, an action for breach of promise to marry arises
where a person makes a promise to marry another and refuses to perform.
The law is that a breach of promise to marry is actionable. See:
1. Afrifa v Class Peter [1975] 1 GLR 359.

2. Ama Serwaa v Gariba Hashimu and Issaka Hashimu [2021] 172 GMJ 96 SC.
This position of the law is the same for all the types of marriages in Ghana except
mohammedan marriages. Thus, it is doubtful whether an action for breach of promise to
marry can be maintained under mohammedan marriage.
Prof Offei argues that an action cannot lie for breach of promise to marry under
mohammedan law. He relies on Fyzee and Mulla Principles of Mohammedan Law. At page
17 of his book, he captures it as follows:
“In his book, Outlines of Muhammadan Law, A.A Fyzee discusses breach of promise as
follows:
According to Muhammadan Law, unless the contract of marriage is completed, no

rights and obligations arise, and therefore a suit for damages for breach of promise
to marry is strictly impossible. The only relief that can be asked for, if an
engagement… is broken, is the return of ornaments, clothes and money.
The same subject is referred to in Mulla Principles of Mahomedan Law as follows:
In a suit by a Mohammedan for damages for breach of promise to marry, the plaintiff
is not entitled to damages peculiar to an action for breach of promise of marriage
under the English law, but a return merely of presents of money, ornaments, clothes
and other things.”
With profound respect to the Author, these views cannot hold under the current Ghanaian
law. It will be discriminatory to say an action can lie for breach of promise to marry under
customary law as well as ordinance marriage but same does not apply to mohammedan
marriages. This is so where all these forms of marriages are recognized by the Marriages
Act 1884-1985 (Cap 127). None of these marriages is superior to the other.
Again, to say an action does not lie under mohammedan law will be a failure to recognize
the enforceability of a valid contract between the parties. This contract is a preliminary
contract which subsists before the actual marriage contract is contracted. It is a breach of
this preliminary contract which the law provides a remedy in this instance. It will cause a
great injustice to an innocent party who practices the Mohammedan faith not to enforce
such contracts. This will be unconscionable. The nature of this contract will mean that
females practicing the mohammedan faith will be susceptible to being treated as chattels
to the extent that they cannot have any remedy for a breach of a promise or agreement
to marry. The decisions of the courts in Ghana on actions for breach of promise to marry
shows one line of thought. And it is that, they have moved from treating women as
chattels.
There is authority for an action for breach of promise to marry under customary law. See:
1. Amoah v. Boakye Gyan, Civil Appeal No. H1/42/2012.

2. Donkoh v Ankrah [2003-2005] 2 GLR 125.
There is also authority for an action for breach of promise to marry under the ordinance
marriage. See:
1. Aning v Kingful [1980] GLR 404.

2. Appiah @ Acheampong v Acheampong [1967] GLR 34.
ELEMENTS TO PROVE IN AN ACTION FOR BREACH OF PROMISE TO MARRY
To be successful in an action for breach of promise to marry, the plaintiff must establish
the following:
1. There must be an agreement. Thus, there must be mutual exchange of promises

(mutuality). See: Cock v Richards.
The agreement which includes the making of promises must be backed by
consideration.
The agreement must be made seriously. An example is where the man goes to the
family of the woman to perform the knocking ceremony; where the man gives the
woman a ring. Thus, a mere promise to marry will not be sufficient. See: Djarbeng
v Tagoe [1989-90] 1 GLR 155.
The agreement may be express or implied. It is express where one party orally
promises to marry the other person and that person accepts. See: Cock v Baker.
It is implied where there are no words spoken as such but there can be an
implication or inference from the conduct of the parties that they will get married.
The promise may be conditional. Here, the condition prescribed must be performed
before an action can lie.
Where there is a general promise to marry, an intention to perform the contract
within a reasonable time is imputed by the court. See:
2. Harrison v Cage (1888) 5 Mod 411.
2. There must be a breach. A breach occurs where a party to the agreement refuses
to perform or indicates an intention not to perform the agreed act (in this case
marriage).
The breach may be through conduct (implied) or express. See: Gough v Farr
It may be anticipatory or actual breach.
Actual breach occurs where there is non-performance when the time is due or there
is an occurrence of a specific event based on which the promise was made.
With anticipatory breach, the defendant makes it clear that he or she is not going
to execute the promise or agreement on the agreed date although the date is not
yet due, or the specific event has not occurred. Here, there must be a clear intention
not to perform the agreement or promise on the said date. See: Frost v Knight
[1872] L.R. 7 Exch 111.
Anticipatory breach may also present itself in a case where before the time of
performance, the defendant by his own act renders himself or herself unable to
perform the contract. For instance, a man marrying another woman under the
ordinance; or a woman getting married to another man.
Where there is an anticipatory breach, the innocent party has the right to sue
immediately and does not need to wait for the occurrence of the event or the due
date. See: Frost v Knight [1872] L.R. 7 Exch 111.
DEFENCES TO AN ACTION FOR BREACH OF PROMISE TO MARRY

a. Fraudulent misrepresentation. Here, the defendant must prove that he or she was
induced to make the promise by a fraudulent misrepresentation. Thus, fraud must
be proved. An example is where at the time the promise was made, the other party
was already married (under the ordinance; or in case of a customary marriage, the
woman was already married)
On how to prove fraud, see: Derry v Peek (1889) LR 14 App.Cas. 337.
b. Bodily infirmity. Generally, bodily infirmity is not a defence. However, if the
defendant can establish that after the promise was made, the bodily infirmity has
rendered the plaintiff incapable of performing his or her marital duties, then the
defence will be successful. This means that the infirmity must be serious and not
trivial.
c. Insanity. Generally, insanity is not a defence in an action for breach of promise to
marry. The exception is where it can be established that as a result of the insanity,
either or one of the parties cannot perform his or her marital duties.
d. Infidelity or unfaithfulness. The nature of marriage is such that one party may
expect chastity from the other party. As such, where it is established that at the
time of making the promise to marry, one party was unfaithful, it may serve as a
good defence to an action for breach of promise to marry. See:
1. Young v Murphy
2. Bench v Merrick (1844) 174 ER 893
3. Lewis v Tapman (1900) 90 Md 2 94,45 A 459
However, attention must be drawn to the fact that this defence is not likely to apply
in the case of customary marriage which is potentially polygamous. It means that it
is only the infidelity of the woman which will operate as a defence under customary
law marriages.
e. Mutual agreement or discharge by agreement. Here, the parties must decide to
withdraw from the agreement to marry. See:
1. Schnaar v Jansen (1924} 4 NLR 218 (Saf)

2. Barret v Vander Muelen (1836) 264 KY 441
f. Bad character. Where the Plaintiff is a woman, the fact of her having been
unchaste, whether before or after the making of the contract, constitutes a good
defence, provided in the case of previous unchastity, that the Defendant was not
aware of it at the time of his promise. If this defence is set up, evidence of the
Plaintiff’s reputation in the area in which she lives is admissible. Same is applicable
to a woman: she can break off an engagement with a man if on inquiry of bad
character, and proof of the charges made against him constitute a good defence
to an action by the man for damages.
REMEDIES AVAILABLE FOR BREACH OF PROMISE TO MARRY
The only remedy available under this action is damages. Specific performance cannot be
granted by the court in actions concerning breach of promise to marry. The reasons for
this are many which includes that the constitution provides for freedom of association; no
one can be forced to enter into a marriage contract against his or her wishes.
The categories of damages are: Compensatory, aggravated, and punitive damages.
Compensatory damages look at the following: mental distress; loss of reputation; loss of
economic advantage that the marriage would have conferred; social disgrace; expenses
incurred in preparation of the wedding; injury to health; loss of future prospects of
marriage; loss of opportunity for contracting another marriage because of engagement to
the defendant. These are awarded to put the plaintiff in a position that he or she would
have been in had the agreement been performed. See: Hadley v Baxendale [1843-60] All
ER Rep 461.
Aggravated damages may be awarded where it is proved that the plaintiff was seduced as
a result of the engagement; or the failure of the defendant to disclose a venereal disease.
It may be awarded for the improper conduct of the defendant before the breach.
Punitive damages are not awarded often unless the defendant has shown himself to be a
thorough rascal either by his motivation of the engagement, or in the manner in which it
was broken. It is awarded mainly on grounds of fraud and malice. See:
1. Drobnich v Bach (1924) 159 Minn 258.

2. Trammel v Vaughan
3. Finkelstein v Barret (1896) 17 Miss 564.
Factors taken into consideration by the court in awarding the damages are:
a. The notoriety of the marriage.

b. Whether or not the plaintiff had children for the defendant.
c. Injury to the plaintiff’s feelings.
See:
1. Donkoh v Ankrah [2003-2005] 2 GLR 125

2. Aning v Kingful [1980] GLR 404
GIFTS GIVEN IN CONTEMPLATION OF A MARRIAGE
The question of whether a gift was given in contemplation of a marriage is a question of

fact to be decided on case-by-case basis.
Gifts that are given in contemplation of marriage are returnable if the marriage does not
take place. Here, “in contemplation of marriage” means that the gift was given on a
condition. It therefore stands to reason that once the marriage has been fulfilled the gifts
will not be returnable. It does not matter if the marriage subsequently breaks down. See:
Kwame Addo v Adwoa Duku.
The law is that where a gift is given in contemplation of a marriage, it is returnable in case
the marriage does not take place. This law applies only where the party who received the
gift was the one in breach of the agreement to marry. See:
1. Jacobs v Davis
2. Cohen v Sellar
PROPERTIES ACQUIRED DURING CONCUBINAGE RELATIONSHIP
The law is that properties acquired during concubinage in the name of one party is held in
a constructive trust on behalf of both parties. There should be contribution by both
parties. And such properties must be shared if there is a breach of promise to marry. See:
1. Mariam Mintah v Francis Ampenyin Civil Appeal No. J4/18/2013 Date 25th March
2015.
NB: The sharing of such properties shall not be in accordance with Article 22 of the 1992
Constitution. For that provision only applies to distribution of properties jointly acquired
during marriage. See: Mariam Mintah v Francis Ampenyin Civil Appeal No. J4/18/2013 Date
25th March 2015.
LEGISLATIVE PROVISION
The law is that where a person in whom a cause of action for breach of promise to marry
is vested dies, the action cannot be pursed for the benefit of his estate on his or her death.
This is because an action for breach of promise to marry is an action in personam. See:
Section 22 & 24 of the Civil Liability Act, 1963 (Act 176).
ARGUMENTS ON WHETHER OR NOT AN ACTION FOR BREACH OF PROMISE TO MARRY

LIES UNDER CUSTOMARY LAW
The present writer states that this argument has been settled. The current position of the
law is that an action for breach of promise to marry can lie under customary law. See:
1. Donkoh v Ankrah [2003-2005] 2 GLR 125

3. Kwame Addo v Adwoa Duku
As such it is pointless to consider the earlier arguments made on whether an action can lie
under customary law or not.
TOPIC 2: CUSTOMARY LAW MARRIAGES
Customary law marriage is 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. See:
1. Yaotey v Quaye [1961] GLR 573.

2. Re Caveat by Clara Sackitey: Re Marriage Ordinance, CAP 127 [1962] 1 GLR 180.
Customary law marriages are accepted and recognized by the courts as well as the laws of
the country. See:
1. Graham v Graham [1965] GLR 407.

3. Part One of Marriages Act (Cap 127).
NB: The customs and traditions of each tribe is different in Ghana. On this basis, the law is
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. See: Afrifa v Class Peter [1975] 1 GLR 359.
CHARACTERISTICS OF CUSTOMARY LAW MARRIAGE
a. It is potentially polygamous. See: Graham v Graham [1965] GLR 407.

This right accrues only to the man and does not accrue to the woman.
There is no cap on the number of women that a man can have as customary wives.
See: Aning v Kingful [1980] GLR 404.
The man’s promise not to marry any other woman does not change the
polygamous nature of the marriage.
b. Some customary law marriages are prohibited on grounds of consanguinity or
affinity. Again, same sex marriages are not recognized under customary law.
c. Customary law marriages and ordinance marriages are mutually exclusive. In
Acheampong v Acheampong [1967] GLR 34 Amissah J. A. observed that:
“The incidents of a marriage under the Ordinance are quite different from
those in a customary marriage.”
Customary marriage is potentially polygamous whilst ordinance marriage is

monogamous. Due to this, the two marriages cannot co-exist. What this means is
that once a man is married under customary law, he cannot enter into a valid
ordinance marriage with another woman unless the customary marriage is
dissolved. If the man proceeds to marry the other woman under ordinance, that
marriage is null and void.
Also, if the man is married to two or more women under customary law but intends
to make one of them his wife under the Ordinance, he must divorce the others else
the Ordinance marriage will be void.
d. A customary law marriage may be converted to an ordinance marriage. When this
happens, the customary law marriage falls away. Thus, the ordinance marriage
alone will be recognized and not the customary law marriage. See: Graham v
Graham [1965] GLR 407.
e. The first stage of the customary law marriage is the knocking ceremony. See:
Donkoh v Ankrah [2003-2005] 2 GLR 125.
NB: There is no law which makes knocking ceremony compulsory. Thus, the failure
to perform the knocking ceremony does not affect the validity of a customary law
marriage.
Again, the knocking ceremony is not a marriage ceremony. It is merely the
beginning and reinforcement of the promise to marry each other, and this may
form the basis of an action for breach of promise to marry. See: Donkoh v Ankrah
[2003-2005] 2 GLR 125.
f. The existence of a customary law marriage is not a condition precedent for the
creation of an ordinance marriage.
g. The exchange of a Bible and rings are unknown to customary law marriages. Such
an act is not a requirement for the validity of the marriage. Such acts only show an
intention to marry under the ordinance and may form a basis of an action for breach
of promise to marry. See:
1. Afrifa v Class Peter [1975] 1 GLR 359.
h. A spouse married under customary law can sue the other spouse in contract or in
tort. This includes suing the other for breach of promise to marry under the
ordinance. See:
1. Acheampong v Acheampong [1967] GLR 34.
i. Illegitimacy is strictly unknown under customary law marriages as it is known to
marriages under ordinance. Under customary marriages, one of the things that
must be done to legalise the right of children to their father's property is for the
father to acknowledge paternity of the children. However, there is an exception to
this principle. It is that when a man, regularly married under the Marriage
Ordinance (a statute that enjoins the principle and practice of “one man—one
wife”), begets children by another woman whom he subsequently takes to wife by
customary marriage, even if that subsequent marriage satisfied all the pre-
requisites of customary law, that union will neither be accepted nor recognised as
a valid marriage. It will be considered as absolutely no marriage at all, and the
children born to that woman will be categorised and regarded as illegitimate. See:
1. Graham v Graham [1965] GLR 407.
2. Ibrahim v Amalibini [1978] GLR 368.
NB: Notwithstanding the illegitimacy of children argument, the law is that
illegitimacy of children is not recognized in Ghana. That every child, whether or not
born in wedlock, shall be entitled to reasonable provision out of the estate of its
parents. See: Article 28(1)(b) of the 1992 Constitution.
j. Customary law marriages do not necessarily require documentary evidence as

proof of marriage. Marriages by customary law do not require any certificate to
show for them. A person wishing to contract a customary law marriage does not
apply for a certificate from a registrar for the purposes of that intended customary
marriage. One essential is publicity, an advertisement to the whole world that both
parties thereto have agreed to live and have been living together as husband and
wife. See: Graham v Graham [1965] GLR 407.
k. Customary law marriage involves the family groups of the parties. See: Yaotey v
Quaye [1961] GLR 573.
TYPES OF CUSTOMARY LAW MARRIAGES
There are two types of customary law marriages. They are:
a. Formal customary law marriages and

b. Informal customary law marriages.
See: Gorleku v Pobee [2012] 42 GMJ.
FORMAL CUSTOMARY LAW MARRIAGES
This is where the family of the man approaches the family of the woman and asks for her
hand 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 agreed date,
the rites are performed in accordance with the requisite customs and traditions.
Thereafter, the man and woman become husband and wife. See: Essilfie & Another v
Quarcoo [1992] 2 GLR 180.
INFORMAL CUSTOMARY LAW MARRIAGES
Informal customary law marriages are created by virtue of implication or inference from
the circumstances of each case. Thus, there is no formal ceremony performed to seal the
marriage. Informal marriages may be created in six ways.
One, where a man impregnates a woman and sends drinks to acknowledge authorship of
the pregnancy, a rebuttable presumption is created that there is an informal marriage
where the parties start living as a husband and wife. See: Quaye v Kuevi (1834) D. Ct. '31-
'37, 69.
Two, a man impregnates a woman and sends drinks to acknowledge authorship of the
pregnancy. If he subsequently sends another drink to the family of the woman which are
accepted, it may be presumed that the man was asking for the girl’s hand in marriage by
the presentation of the second drinks. See: Asumah v Khair [1959] 1 GLR 353.
Three, a married woman is seduced by a third party. If the paramour pays or refunds to the
husband of the woman all the expenses incurred to the husband through the woman’s
family, the paramour becomes the husband of the woman. In this instance, the initial
husband falls away and the paramour steps into his shoes. See: Asumah v Khair [1959] 1
GLR 353.
Four, where there is acknowledgment by the family of the parties that they are husband
and wife. Here, there is no formal ceremony to seal the marriage. In Yaotey v Quaye [1961]
GLR 573, the Court observed at page 579 as follows:
“Since the family cannot exercise a right to demand the performance of the custom
from the man or woman except where they, the family, have given consent to the
marriage, and consequently recognise the man as the lawful husband to their
daughter, and the woman as the lawful wife of their son, it necessarily follows that
such demand by a family upon a man or woman to perform custom, is conclusive
evidence that the relationship between that man and that woman from whom the
demand is made, is one of lawful marriage, and not one of concubinage.”
Five, where the parties live together as husband and wife for a considerable period. Here,
there is a presumption of an informal marriage. See:
1. Essilfie & Another v Quarcoo [1992] 2 GLR 180.

2. Re Dickson @ Appiah, Aboagye & Another v Quaison & Another [1989-90] 1 GLR
147.
3. Gorleku v Pobee & Another [2012] 42 GMJ; contrast Badu v Boakye (judgment per
in curiam).
Six, a man impregnates the woman and sends drink to acknowledge authorship of the
pregnancy or admits liability. Instead of sending another drink, the man co-habits with the
woman and performs all the duties of a husband. If the woman’s family acquiesces to his
performance of those duties, there is a presumption of marriage between the man and
the woman. See:
1. Asumah v Khair [1959] 1 GLR 353.

NB: Read Dr Oti Adinkrah’s article where he states that family consent is a mere ratification
of the agreement between a man and a woman to live together as a husband and wife.
Therefore, the absence of it should not affect the validity of the marriage.
Furthermore, family consent is merely desirable but not a sine qua non to the creation of
a customary law marriage. Sarbah in “Fanti Customary Laws” at page 41 states that:
“When there has been marriage in fact, the validity thereof is presumed and when the
caprice, avarice or ambition of a parent has not been excited to force on a marriage,
it will be found by careful study of the people and examination of the local marriage
institution that marriage entirely rests on the voluntary consent of man and woman
to live together as man and wife; which intention, desire, consent or agreement is
further evidenced by their living together as husband and wife. All other ceremonies
and expenses attending marriage are superfluous.”
The courts have concluded that form cannot be put on substance. Put differently,
substance is important than the form. It implies that, if form is put before the substance it
may lead to undesirable consequences as happened in Badu v Boakye. Read: Gorleku v
Pobee & Another [2012] 42 GMJ.
CUSTOMARY LAW MARRIAGE DISTINGUISHED FROM CONCUBINAGE
According to the Black Law Dictionary, 9th edition,
“Concubinage means the relationship of a man and woman who cohabit without the
benefit of marriage.”
It is important to distinguish informal customary law marriage from concubinage. The

question of whether a relationship between a man and a woman is one of marriage under
customary law or concubinage is a question of law to be determined from the facts and
circumstances of the relationship. See: Yaotey v Quaye [1961] GLR 573.
The factors relied upon by the courts in establishing that a man and a woman lived as
husband and wife but not as concubines are:
a. Cohabitation over a long period of time with or without children.

b. Acquiring properties together.
c. Attending functions together.

d. Introducing each other as husband and wife.
e. Performing customary rites in each other’s family.
ESSENTIALS OF A VALID CUSTOMARY LAW MARRIAGE
In Re Caveat by Clara Sackitey: Re Marriage Ordinance, CAP 127 [1962] 1 GLR 180, Ollenu J
stated as follows:
“To constitute such marriage the following essentials must be shown to exist:
a. consent by the two parties that they would live together as man and wife;
b. 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 formally to ask for her hand, or it may be constructive, i.e. by the
family of the man recognising 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;
c. 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
accept drinks offered by the family of the man, or it may be constructive, i.e.
by acknowledging the man as husband of the woman, and admitting him and
his family to perform customary rites for their family, e.g. funeral rites on
occasion of bereavement in the woman's family, and
d. consummation of the marriage by cohabitation.”
See also: Yaotey v Quaye [1961] GLR 573.
IMPLICATION OF THE ESSENTIALS OF A CUSTOMARY LAW MARRIAGE
a. Agreement by the parties to live together as husband and wife.

This implies that the parties must voluntarily agree to the marriage. A valid customary law
marriage cannot be contracted where the parties are forced to marry. Thus, no one can be
forced to marry against his or her wishes under customary law. See:
1. Akorninga v Akawagre [1987-88] 2 GLR 562.

2. Ibrahim v Amalibini [1978] GLR 368.
3. Kombat v Lambim [1989-90] 1 GLR 324.

Sarbah in Fanti Customary Law acknowledges this essential when he states that:
“[M]arriage entirely rests on the voluntary consent of a man and woman to live
together as man and wife; which intention, desire, consent, or agreement is further
evidenced by their living together as man and wife.”
The agreement may be express or implied. It is express where the parties to the customary
law marriage overtly agree by words to be married to each other at custom. It is implied
where although there is no express agreement, there is an inference from the conduct of
the parties to live together as husband and wife.
Whether express or implied, there must be a demonstrable and clear intent on the part of
each of the parties to be married under custom or to act as though they were legally
married under custom. In other words, the parties must be ad idem based on an objective
assessment of their words, conduct, and surrounding circumstances.
Betrothal and child marriages are outlawed in Ghana. Section 14 of the Children’s Act, 1998
(Act 560) provides that:
1. “A person shall not force a child

a. to be betrothed,
b. to be the subject of a dowry transaction, or
c. to be married.
2. The minimum age of marriage of whatever kind is eighteen years.”
A person who breaches section 14 of Act 560 commits an offence and is liable on summary
conviction to a fine not exceeding two hundred and fifty (250) penalty units or to a term
of imprisonment not exceeding one year or to both the fine and the imprisonment. See:
Section 15 of Act 560.
Section 109 of the Criminal Offences Act, 1960 (Act 29) also provides that:
“A person who by duress causes another person to marry against that other person’s
will, commits a misdemeanour.”
b. Consent of both families to the marriage

Consent by the families can either be actual or constructive. The form each takes have
been explained above. See:
1. Re Caveat by Clara Sackitey: Re Marriage Ordinance, CAP 127 [1962] 1 GLR 180.
Most of the cases decided by the courts placed emphasis on the need for this requirement
to be satisfied. See:
1. Djarbeng v Tagoe [1989-90] 1 GLR 151.

2. Quaye v Kuevi (1834) D. Ct. '31-'37, 69.
Notwithstanding that, the courts have established an exception to this requirement. The
exception is that where the family improperly refused to give such consent or where the
family of the woman resides in a distant place such as consent cannot be obtained, the
agreement to marry must be made in the presence of credible and respectable witnesses
or in the presence of the chief or headman of the place followed by the parties living as
husband and wife. See: Djarbeng v Tagoe [1989-90] 1 GLR 151.
c. Consummation by cohabitation
Ollenu J did not provide the meaning of what this element means. That notwithstanding,
it has been interpreted to mean that the man and the woman must live together. It is
through living together that it can be presumed that they have had sexual intercourse to
consummate the marriage. This interpretation is based on the evidence Ollenu J.
considered in Clara Sakitey’s case. He stated that:
“The caveatrix gave evidence, again not refuted, that she began to cohabit with the
respondent from the day of the ceremony, and that she went from Kpone Bawaleshie
where she worked as a teacher each week to Teshie, where the respondent then
worked, also as a teacher, to spend the week-end with him.”
Mere cohabitation is not conclusive of the fact of marriage. See: Afrifa v Class Peter [1975]
1 GLR 359.
CRITICISMS OF THE ESSENTIALS
a. Agreement by the parties to live together as husband and wife

This requirement is accepted by everyone and has been evidenced in all the cases decided
on customary law marriages. There is no critique on this essential.
b. Consent of both families to the marriage

This requirement has been criticized on many grounds.
One, who can constitute the family of the husband or wife for the 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?
Two, what happens where the family of one spouse is far away and cannot be reached?
This question has been answered by the case of Djarbeng v Tagoe [1989-90] 1 GLR 151.
Three, Ollenu J posited that all the essentials are applicable to all tribes in Ghana. However,
the expression ‘drinks must be presented’ is not clear since some tribes resort to beads,
cowries, cloth, jewellery, etc in place of drinks. Hence the learned judge ought to have
gone further to cover all other things applicable to other tribes. Also, he did not mention
the type of drinks. The quantity of drinks was also not mentioned.
c. Consummation by cohabitation
This requirement appears to be difficult to understand because Ollenu J. failed to explain
what it means in Re Caveat by Clara Sackitey: Re Marriage Ordinance, CAP 127 [1962] 1 GLR
180 and Yaotey v Quaye [1961] GLR 573.
The question remains, what constitutes consummation? For it is not always the case that
mere cohabitation means that a marriage has been consummated.
How is consummation proved? Whether this means the same thing as sexual intercourse
or procreation? What about couples who choose to have children through scientific means
that do not involve physical penetration? Could that be classified as consummation?
In Sowa v Sowa [1961] 1 All ER 687, a man who resided in England married a woman
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
and had not consummated the marriage, it was still held to be a valid customary law
marriage.
This implies that it is not all the four (4) elements that must be present to constitute a valid
customary law marriage.
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 four (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). See also: Owusu v. Nyarko.
MARRIAGES PROHIBITED UNDER CUSTOMARY LAW
a. Same sex marriage

b. Consanguinity
c. Affinity
d. Polyandry
e. Marriage before the completion of mourning of a deceased husband or wife.
f. Forced marriages.
g. Underage
TOPIC 3: REGISTRATION OF CUSTOMARY LAW MARRIAGES AND DIVORCES
It is governed by Customary Marriages and Divorces Registration Act, 1985 (PNDCL 112) as
amended by the Customary Marriage and Divorce Registration (Amendment) Law, 1991
(PNDCL 267). However, this law has been re-enacted as Part one of the Marriages Act,
1884-1985 (Cap 127).
a. REGISTRATION OF CUSTOMARY LAW MARRIAGES

Customary law knows no writing. See: Brown v Quarshiga. This made it difficult for the
existence of customary law marriages to be proved. For after all, one did not need a
document to show the existence of a customary law marriage. See: Graham v Graham
[1965] GLR 407.
Due to this, Parliament passed PNDCL 112 to facilitate proof of the existence of a customary
marriage for the purposes of succession and inheritance.
Initially, it was mandatory for the registration of customary law marriages within three (3)
months of their celebration. Customary law marriages contracted before the coming into
force of the Act were to be registered within three (3) months after it commenced.
The starting point is that a customary law marriage need not be registered. This means
that it is not mandatory but only permissive to register customary law marriages under
Part one of the Marriages Act 1884-1985. See:
1. Section 1 of Cap 127.

2. Neequaye (Decd), In Re; Arma and Another v Anna [1991] 1 GLR 496.
A summary of the procedure to register a customary law marriage is as follows:
There must be a written application to the Registrar of the District in which the marriage
was contracted. This may be made by either or both of the parties. The application may be
made at any time. See: Section 2 of Cap 127.
A statutory declaration must be attached to the application. It shall contain inter alia the
names of the parties; place of residence at the time of the marriage; whether the marriage
is valid in accordance with customary law, etc. The statutory declaration must also be
supported by the parents or persons standing in such place at the time of the application.
See: Section 3 of Cap 127.
The Registrar shall register the marriage on receipt of the application. He shall also issue a
notice of the marriage to the public within 28 days. See: Section 4 of Cap 127.
Any person who intends to object to the registration may file the grounds of the objection
in the District Court in which the marriage was registered. The couple must be served. The
court may either dismiss or uphold the objection. Where it is upheld, the court shall order
the Registrar to expunge the entry made in the register. See: Section 5 of Cap 127.
The objections are heard in chambers. See: Section 10 of Cap 127.
NB: The court has no jurisdiction to declare the marriage null and void when hearing the
objection. The court’s mandate is merely to cause the marriage to be expunged from the
register if legal grounds are established. See: Winnifred Iddrissu v Luckman Iddrissu
[1/6/00] C.A NO162/99.
NB: At the hearing of the objection, the Court is mandated to hear the husband and wife
on one part and the person raising the objection on the other. Additionally, at the hearing,
the party objecting should clearly explain the reasons for the objection. See: Winnifred
Iddrissu v Luckman Iddrissu [1/6/00] C.A NO162/99.
NB: The objection to registration of a marriage celebrated at customary law does not
invalidate the marriage itself though this may be grounds for divorce or nullity of the
marriage.
NB: There is no time limit within which an objection should be raised. It may be raised at
any time.
The Registrar shall issue to the parties a certified true copy of the entry on the payment of
the prescribed fee. See: Section 9 of Cap 127.
In any proceedings, a true copy of the entry in the register certified and personally signed
by the Registrar is admissible in evidence as sufficient proof of the registration of the
marriage. See: Section 13 of Cap 127.
NB: The effect of section 13 is that the law exists to prove the existence of a customary law
marriage. The law does not prove the validity of a customary law marriage. Put differently,
the registration of a customary law marriage does not necessarily make the marriage valid.
It is merely proof of the fact that the marriage has been registered. This is because 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.
APPLICATION OF INTESTATE SUCCESSION ACT, 1985 (PNDCL 111) UPON REGISTRATION OF

THE MARRIAGE
PNDCL 111 applies to a spouse of a customary law marriage registered under Cap 127. See:
Section 15 (1) of Cap 127.
PNDCL 111 also applies to a spouse of a customary law marriage which is not registered
under Cap 127. However, the court must be satisfied by oral or documentary evidence that
the marriage was validly contracted between the spouse and the deceased. See: Section
15 (2) of Cap 127.
The registration of a customary law marriage is not a condition precedent for a spouse to
benefit under PNDCL 111. Put differently, PNDCL 111 applies to a spouse regardless of
whether the customary law marriage has been registered. However, the unregistered
customary marriage must be proved. See:

2. Adade v Dade & Another [1991] 1 GLR 267.
3. Neequaye (Decd), In Re; Arma and Another v Anna [1991] 1 GLR 496.
4. In Re Pratts Caveat; Bentil v Pratt [1989-90] 2 GLR 476.
b. REGISTRATION OF CUSTOMARY LAW DIVORCES

Registration of the dissolution takes place after the customary law dissolution of a
marriage has taken place.
It must be noted that the law makes no provision on whether the failure to register the
customary divorce affects the validity of the divorce. That notwithstanding, it is submitted
that the failure to register a customary law divorce should not affect the validity of the
dissolution.
Where a customary law marriage has been registered, it is mandatory to register its
dissolution once it is dissolved. This is not permissible but mandatory. See: Section 6(1) of
Cap 127.
However, where the marriage is dissolved under section 41 of the Matrimonial Causes Act,
1971 (Act 367), it must not be registered under Cap 127. See: Section 6(2) of Cap 127.
A summary of the procedure is as follows:
Where the marriage is dissolved in accordance with the applicable customary law, the
parties shall notify the Registrar of the dissolution. See: Section 7(1) of Cap 127.
The notice shall be accompanied by a statutory declaration which shall state that the
marriage has been dissolved in accordance with the applicable customary law. The
statutory declaration shall also be supported by the parents or persons standing in as
parents at the time of the application. See: Section 7(2) & (3) of Cap 127.
On receipt, the Registrar may record the dissolution in the register. He may issue a notice
notifying the public of such registration. The notice shall be displayed on the public notice
board within 28 days of the receipt of the notification. See: Section 7 (4) & (5) of Cap 127.
Any person who intends to object to the registration or validity of the dissolution may file
the grounds of the objection in the District Court in which the dissolution was registered.
The affected parties must be served. The court may either dismiss or uphold the objection.
Where it is upheld, the court shall order the Registrar to expunge the entry made in the
register. See: Section 8 of Cap 127.
The objections are heard in chambers. See: Section 10 of Cap 127.
The Registrar shall issue to the parties a certified true copy of the entry on the payment of
the prescribed fee. See: Section 9 of Cap 127.
In any proceedings, a true copy of the entry in the register certified and personally signed
by the Registrar is admissible in evidence as sufficient proof of the dissolution of the
marriage. See: Section 13 of Cap 127.
MISCELLANEOUS
Section 13 of Cap 127 supports the assertion that registration merely shows that a marriage
or divorce has been registered.
The validity of a divorce is determined by a court. See: Danquah v Danquah [1979] GLR 371.
The validity of a marriage is also determined by a court. Evidence of registration alone will
not lead a court to conclude that there is or was a valid marriage. The court will in addition
to the entry, require evidence such as celebration of a marriage before witnesses, living
together and having children together to conclude that there was a valid marriage. In
other words, registration is not essential to the validity of a customary marriage.
A customary marriage which is registered can be declared null and void by a court and a
customary marriage which is not registered can be declared valid by a court. In Re Pratt’s
Caveat; Bentil v Pratt [1989-90] 2 GLR 476 the court observed as follows:
“That the Customary Marriage and Divorce (Registration) Act, 1985 (PNDCL 112) did
not provide either expressly or by necessary implication, that a customary marriage
not registered in accordance with its provisions was null and void or of no effect.
Registration was therefore not essential to the validity of a customary law marriage
and non-registration therefore did not invalidate the marriage.”
OFFENCES RELATING TO THE REGISTRATION OF CUSTOMARY LAW MARRIAGES AND

DIVORCE
Section 14 of Cap 127 provides that:
“A person who
a. applies to the Registrar for the registration of a customary law marriage or

dissolution which that person knows has not been lawfully contracted or
dissolved under the applicable customary law,
b. [deleted]
c. knowingly makes a false entry in the register or a certified copy of an entry, or
d. with intent to defraud alters an entry in the register or certified copy of an
entry,
commits an offence and is liable on summary conviction to a fine not exceeding seven
hundred and fifty (750) penalty units or to a term of imprisonment not exceeding
three years or to both the fine and the imprisonment.”
CRITICISMS OF PNDCL 112 ON REGISTRATION OF CUSTOMARY LAW MARRIAGES
One, that it is a waste of time and expenses. This is because one must adduce evidence to
establish the validity of the marriage. The effect of registration is that it merely shows the
existence of the marriage but not its validity. See: Section 13 of Cap 127. The expenses
include lawyer’s fees. Hence, it is a put off.
Two, since the statutory declaration requires the place, date, etc of the marriage, it implies
that it does not cover informal customary law marriages.
Three, since registration is done after the marriage takes place, where there is an objection
which is founded, the entry of the marriage is expunged. However, there is a likelihood
that the marriage may still subsist.
TOPIC 4: PROCEDURE & GROUNDS FOR DISSOLUTION OF CUSTOMARY LAW

MARRIAGES
PROCEDURE FOR THE DISSOLUTION OF CUSTOMARY LAW MARRIAGES
Customary law marriages can be dissolved. The ways are:
a. Under Customary law or

b. Under section 41 of the Matrimonial Causes Act, 1971 (Act 367).
A. DISSOLUTION UNDER CUSTOMARY LAW

The dissolution of a marriage celebrated under customary law is performed in accordance
with the rites and customs of the ethnic group by which the marriage was celebrated in
the first place.
Each tribe has its own procedure. However, the following are common amongst all of
them. It means that the procedure may vary from tribe to tribe.
The procedure for dissolving marriages under customary law is as follows:
First, there must be a complaint lodged by either of the parties.
Second, 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. See: Re
Caveat by Clara Sackitey: Re Marriage Ordinance, Cap 127 [1962] 1 GLR 180.
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
monies borrowed are returned or paid back. The parties may decide not to demand for the
return of anything.
Third, 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. See: Ginbuuro v Kaba [1971] 2 GLR 416.
The last stage is powdering/chalking. The husband is required to put powder on the
shoulder of the woman and return 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.
See also:
1. Attah v Annan [1975] 1 GLR 366.

2. Ruth Arthur v John Hector and Naomi Owusu [31/7/2003] Civil Appeal No. 62/2002.
3. Mavis Osei Owusu v Robert Osei Owusu [2019] DLHC 11512.
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.
NB: The writing of a letter to terminate a customary law marriage is absolutely repugnant
to native custom and totally ineffective. See: Attah v Annan [1975] 1 GLR 366.
NB: The law is that a customary marriage may be dissolved unilaterally. This is where the
other party unreasonably turns down a request for the dissolution of the marriage. See:
Ginbuuro v Kaba [1971] 2 GLR 416.
B. DISSOLUTION UNDER MATRIMONIAL CAUSES ACT, 1971 (ACT 367)

In addition to unilateral dissolution under customary law, a party may petition the court
for the dissolution of the marriage where the other party unreasonably refuses to accept
the divorce. Where the respondent is evasive and recalcitrant, the petitioner may apply for
substituted service. See:
1. Section 41 of the Matrimonial Causes Act, 1971 (Act 367).

2. Mensah v Berkoe [1975] 2 GLR 347.
3. Sandra Agyepong v Emmanuel Brantuo Kyere [2011] 35 GMJ 134.
Notwithstanding the application of Act 367 to only monogamous marriages, there is an
exception which allows parties to a polygamous marriage to seek dissolution under the
Act. It therefore entitles them to reliefs such as financial provision, custody arrangements
or other reliefs provided by their personal law. See:
1. Section 41(2) & (3) of Act 367.

2. Amoah v Apau alias Amoah [1977] 2 GLR 159.
The procedure for the dissolution of a customary law marriage under the Matrimonial
Causes Act is the same as the procedure for the dissolution of a monogamous marriage
under Order 65 of CI 47.
GROUNDS FOR THE DISSOLUTION OF A CUSTOMARY LAW MARRIAGE
A. CUSTOMARY LAW
The grounds for the dissolution of marriage under customary law varies and may be
peculiar to a particular group of people. That notwithstanding, under customary law, the
following reasons may be sufficient to justify a dissolution of the marriage.
On the part of the husband,
1. Bareness.
2. Infidelity.
3. Adultery.
4. Flirting with other men.
5. Nagging.
6. Quick tempered.
7. Stealing.
8. Disrespect and arrogance towards the husband and his parents.
On the part of the wife,
1. Neglect of the man and children.

2. Where the man is impotent.
3. Desertion.
4. Misconduct.
5. Ill treatment.
6. Drunkenness.
7. Sexual excesses.
8. Being called a prostitute by the husband.

9. Persistent beatings.
NB: Dissolution of customary law marriages can be made at the District Court. See: Section
47(1)(f) of the Courts Act, 1993 (Act 459).
B. MATRIMONIAL CAUSES ACT, 1971 (ACT 367)

The following are the 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.
NB: These reasons are to be subject to the requirements of justice, equity, and good
conscience. See: Section 41(3) of Act 367.
It has been held that a customary law marriage can be dissolved under Act 367 on grounds
that it has broken down beyond reconciliation. See: Bernafo v Nico-Annan.
NB: Court under section 41 of MCA refers to the High Court or Circuit Court. See: Section
43 of Act 367.
TOPIC 5: MAINTENANCE, ENTICEMENT, AND SEDUCTION UNDER CUSTOMARY LAW.
A. MAINTENANCE.
Hitherto, the position of the law was that it was the sole responsibility of a man to maintain
the wife and children. See:
1. Quartey v Martey [1959] GLR 377.

If a husband died, the wife was entitled to maintenance during the funeral and mourning
period. If no one within the deceased husband’s family married her, she was sent off.
The current position of the law is that it is the duty of both spouses to maintain each other
as well as the children. It is no longer the sole responsibility of the husband. See: Section
16(1) of the Matrimonial Causes Act, 1971 (Act 367).
Section 16(1) of Act 367 provides that:
“Either party to a marriage may petition the Court for an order for maintenance on
the ground that the other party to the marriage has willfully neglected to provide, or
to make a proper contribution towards, reasonable maintenance for the petitioner or
a child of the household.”
The maintenance of the man by the woman is subject to certain conditions. This means
that there must be evidence that the wife has deliberately and steadfastly refused to
maintain the husband. The court must be satisfied that it is reasonable to expect the wife
to maintain or to contribute towards the maintenance of the husband.
If the husband is the applicant, the court shall consider the following first:
a. The impairment of the husband’s earning capacity.

b. The resources of the husband.
c. The resources and earning capacity of the wife and
d. Any other circumstances relating to the financial position of the parties.
See: Section 16 (2) of Act 367.
NB: Maintenance award pending suit or financial provision pending suit may be ordered
by the Court in appropriate cases. The court takes into consideration the standard of living
of the parties and their circumstances. See:
1. Section 19 of Act 367.

2. Arthur v Arthur No J4/19/2013 dated 26th July.
A spouse is under an obligation to maintain a child or the children of the household unless
the child is not their natural or adopted child. However, a spouse shall maintain such child
if he or she has assumed responsibility for that child’s maintenance. See: Section 16(3) of
Act 367.
“A respondent shall not be deemed to have willfully neglected a child of the household
where that child is not the natural or adopted child of the respondent unless the Court
is satisfied in all the circumstances that it is reasonable to expect the respondent to
provide or contribute towards maintenance for that child of the household, and for
the purpose of so satisfying itself, the Court shall consider
a. whether the respondent had assumed any responsibility for the child’s
maintenance, and if so, the extent, duration, and basis of that assumed
responsibility; and
b. whether a person other than the respondent is responsible for the
maintenance of the child, and if so, the extent to which that party is
maintaining, or might be able to maintain, the child; and
c. any other circumstances relating to the relationship between the respondent
and the child.”
The law is that during the pendency of a suit, the court may require either party to the
marriage to pay to the other party the sum or sums of money that is reasonable to enable
that party to maintain or defend the suit. See:

2. Erskine v Erskine [1984-86] 1 GLR 249.
B. ENTICEMENT.
Under customary law, a wife is expected to take care of the household, do the laundry,
clean the house, do the cooking, and keep the husband company. She is also expected to
be faithful to the husband and bear children for him. These duties are referred to as
consortium.
The husband in turn is expected to maintain the wife and children. This is however subject
to the Matrimonial Causes Act as discussed.
Enticement arises when a third party induces a wife to withdraw her services from the
husband. It is a violation of the husband’s legal right to the wife’s consortium. The husband
may sue the third party for damages. This right only accrues to the husband but not the
wife. The action for enticement is mainly for the husband to have his wife back.
Enticement is a common law tort, and it is unknown to customary law. However, the courts
have the discretion to adopt and apply such principles of the common law, or customary
law or both as will do substantial justice between the parties having regard to equity and
good conscience. See: Section 54 of the Courts Act, 1993 (Act 459).
In the case of enticement, the common law principles are applicable.
NB: In an enticement action, the burden of proof lies solely on the husband. If he fails to
discharge the burden, the action must fail.
To be successful in an action for enticement, the petitioner (husband) must prove that:
a. The respondent (third party) procured, persuaded, or induced his wife to leave him
and
b. The wife withdrew her services from the husband.
If the wife withdraws her services as a result of some other reason other than persuasion
from the respondent, the action will fail. See: Mate v Amanor [1973] 1 GLR 469.
NB: In an enticement action, proof of sexual intercourse is not necessary.
NB: Where the court cannot compel the wife to perform her duties as a wife after the
enticement action, the husband may petition for the dissolution of the marriage. This is
where the action for enticement fails or where after the action, the wife refuses to
perform her duties as a wife.
C. SEDUCTION.
Seduction involves sexual and immoral activity between a married woman and another
man. It is the same as adultery. Under customary law, the touching of a woman’s waist
beads for example may amount to seduction amongst certain tribes. This is the right
available to the husband of the wife seduced. See: Asante v Wiredu [1976] 1 GLR 100.
Seduction may be proved in several ways:
One, it may be established through confession. The confession must have been given
voluntarily and freely. See: Avugi v Abugri [1987-88] GLR 98.
Two, the wife may be caught in the act of sexual intercourse with another man.
Three, circumstantial evidence may also be used to establish seduction as when a wife
gives birth to another man’s child.
The husband of a seduced woman may choose one of these two options. He may either
claim
a. Ayefare or
b. A dissolution of the marriage.
NB: The husband cannot claim both remedies at the same time.
Ayefare is the compensation paid to a husband by a seducer for the pacification of the
husband’s injured feelings, honour, and pride. The marriage continues as usual after the
payment of the ayefare.
The quantum of ayefare is not fixed. It will depend on factors such as the social standing
of the husband in the community and the wife’s character.
NB: Asante v Wiredu [1976] 1 GLR 100 establishes that the husband can claim for damages
or adultery fee. He must elect which of them he wants to claim from the seducer.
If the husband opts for dissolution of the marriage, the seducer must refund the dowry,
the head drink or tsirnsa and all the marriage expenses to the husband. See: Asumah v
Khair [1959] 1 GLR 353.
TOPIC 6: THE CONCEPT OF DOMICILE AND RESIDENCE
Domicile refers to the permanent home of a person. Residence refers to the place where
a person has decided to remain for a considerable length of time.
CHARACTERISTICS
One, every individual has a domicile in a place where there is one system of law. in the
United States of America for example, a citizen may be domiciled in a particular State and
not USA. This is because each State has its own system of law.
Two, the concept of domicile and resistance helps the courts to decide on the legal system
applicable to an individual in matrimonial and inheritance matters.
Three, the concept helps with the determination of issues relating to the jurisdiction of
Courts. In Ghana, the courts have jurisdiction to deal with matrimonial issues if the
petitioner is a citizen of Ghana, domiciled in Ghana or has been ordinarily resident in Ghana
for a period of more than three years immediately preceding the presentation of the
divorce petition. See: Section 31 of the Matrimonial Causes Act
Four, the domicile of a person determines the essential/substantive requirements such as

capacity of the parties which must be complied with for an Ordinance marriage to be valid.
And this is called the lex domicile.
Thus, a person domiciled in England and wishing to celebrate a marriage in Ghana must
comply with the essential validity requirements pertaining to England and the formal
validity requirements pertaining to Ghana.
TYPES OF DOMICILES
There are three types of domicile. They are:
a. Domicile of origin.
b. Domicile of choice.
c. Domicile of dependence.
Domicile of origin refers to the domicile of the place where a child is born. This domicile is
attributed to a child if the parents cannot be found.
Domicile of Dependence is the domicile of the parents of a child. A chid acquires the
domicile of the father upon birth. If there is no father, the child acquires the domicile of
the mother.
If the parents change their domicile, the child’s domicile changes because a child’s domicile
depends on the parent’s domicile. When the child attains the age of maturity, he may
acquire a domicile of choice and the domicile of origin or dependence falls away.
An adopted child under the age of sixteen (16) whose parents are not Ghanaians acquires
the domicile of the adopter when an adoption takes place. See: Section 80(3) of the
Children’s Act, 1998 (Act 560).
NB: The place of domicile must have one system of law.
NB: A person can have only one domicile at a given time.
NB: Domicile and Nationality are two different concepts. Thus, a person may be a national
of Ghana but domiciled in South Africa.
A person may have more than one nationality. Thus, A may be a national of both Ghana
and South Africa. And this is called dual nationality.
BURDEN OF PROOF OF CHANGE OF DOMICILE
The courts will always presume that a person’s domicile of origin or dependence has not
changed until the presumption is rebutted. Consequently, the person who claims that a
domicile of choice has been taken and that the domicile of origin/dependence is no longer
in existence has to prove that fact.
The standard of proof is slightly higher than a balance of probabilities. There must be
ample evidence to show that a person has voluntarily and intentionally acquired a domicile
of choice else the courts will hold that the domicile of origin/dependence still exists and
that the system of law of that domicile should apply.
Mere proclamation is not enough. Thus, if A is imprisoned in South Africa for thirty (30)
years, one cannot argue that A’s domicile changed because A did not voluntarily and
intentionally choose to stay there.
In the Estates of Fuld (No 3) [1965] 3 All ER 776, the court held that Mr Fuld’s domicile of
origin never changed. Mr Fuld’s domicile of dependence was Germany because his parents
were domiciled in Germany when he was born. He went to school in the United Kingdom
and subsequently became a Canadian national. He returned to England and lived there for
sixteen years.
While living in England, Mr Fuld visited Germany several times and built a house there. Mr
Fuld obtained his divorce in Germany and died there.
The issue was whether he acquired a domicile of choice and what system of law should
govern his estate.
The court held that the evidence was not enough to establish that Mr Fuld gave up his
domicile of origin/dependence which was Germany and acquired an English domicile of
choice. The system of law applicable therefore was the German system of law.
The acquisition of property in the new place, marriage to a national of the new place and
the acquisition of the nationality of the new place are all factors that will lead a court to
conclude that a new domicile has been acquired. In Omane and Another v Opoku and
Another [1972] 1 GLR 295, the court held that the deceased had acquired a domicile of
choice in Ghana because:
a. He had acquired property in Ghana.

b. He had married a Ghanaian national and
c. He lived in Ghana for a long time.
In Abu-Jaudeh v Abu-Jaudeh [1972] GLR 444, the Petitioner, a Lebanese national, lived in
Ghana for twenty-three (23) years and had property in Ghana but the courts ruled that he
was not domiciled in Ghana. The reasons given by the court amongst others were:
a. That the Petitioner while resident in Ghana visited Lebanon several times.
b. He sent his children to school in Lebanon.
c. He obtained a Lebanese passport for his wife who had a French domicile.
d. He made no attempt at obtaining a Ghanaian nationality.
And so for one to be deemed to have acquired a domicile of choice, there must be a strong
evidence that that person has cut ties with the country which is his domicile of
origin/dependence.
TOPIC 7: ORDINANCE MARRIAGE/ MARRIAGES UNDER PART THREE OF THE MARRIAGES

ACT, 1884-1985 (CAP 127).
This type of marriage is a marriage under the common law. It has however been codified
by Cap 127. Cap 127 was enacted in 1884 by the British Colonist to introduce the Christian
monogamous form of marriage known under the English Common Law into the then Gold
Coast. It is available to both Christians and non-Christians.
One main feature of this marriage is monogamy. This, unlike all other forms of marriages
in Ghana, is the only type of marriage which is monogamous. See: Graham v Graham [1965]
GLR 407.
Definition
In Hyde v Hyde Woodmansee [1866] LP 1 P & d 130, Lord Penzance defined this marriage
as:
“The voluntary union for life of one man and one woman to the exclusion of all
others.”
The elements to be proved are that:
a. 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 the marriage.
b. The marriage must be contracted voluntarily. The absence of consent makes the
marriage null and void.
c. The marriage must be to the exclusion of all others. This requirement makes the
marriage monogamous. Thus, whilst this marriage subsists, none of the parties can
contract another marriage with another party either under customary law or
ordinance. See:
1. Section 74(1) of Cap 127.
3. Section 77(2)(b) of Cap 127.
d. The union must be between a man and a woman. The law is that the marriage must
be between a biological man and a biological woman. Thus, a marriage between a
biological male and a transsexual female is null and void since there cannot be any
proper consummation. See: Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467.
The law is that to determine sex for the purposes of marriage, the court applies
both the chromosomal, gonadal, and genital tests. The court ignores any operative
intervention or artificial intervention to change the sex of a person. See: Corbette
v Corbette [1970] 2 WLR 1306.
CHARACTERISTICS OF MARRIAGES UNDER PART THREE OF CAP 127.
a. The marriage must be contracted in accordance with the mandatory provisions of

Part 3 of Cap 127. Non-compliance will make the marriage void.
b. A child below 18 years cannot enter into a valid marriage. Where the child is 18 years
but below 21 years, the consent of the parent or guardian is required to enter into
a valid marriage. See:
1. Section 14 of Children’s Act, 1998 (Act 560).
2. Section 59, 60 and 61 of Cap 127.
However, a widow or a widower does not need this consent. See: Section 59 of Cap
127.
c. The grounds that will make a marriage void or voidable are different from the
grounds applicable to other types of contracts.
d. The parties to this marriage cannot set it aside by mutual agreement. It may only
be terminated on the death of a party or by an order of a court of competent
jurisdiction.
e. The rights and duties of the parties to the marriage are fixed by law and not by
agreement between the parties.
f. The marriage may affect a third party. Where a third party causes the death of a
spouse, that person may be ordered to pay compensation to the other spouse.
Republic v High Court; Ex Parte Komla Adams [2012] 1 SCGLR 111.
VALIDITY OF A MARRIAGE UNDER PART 3 OF CAP 127.
For there to be a valid ordinance marriage, two requirements must be met. These are:
a. Mandatory substantive requirements and

b. Mandatory procedural requirements.

NB: The failure to comply with these essential requirements may render a marriage null
and void.
MANDATORY SUBSTANTIVE REQUIREMENTS.
This is also called the essential validity. It is governed by the lex domicile. Parties intending
to marry under the ordinance must comply with the substantive requirements of their
respective domiciles.
This looks at issues such as capacity, valid agreement to marry, etc. Specifically,
One, the marriage should not be prohibited on grounds of consanguinity or affinity.

Consanguinity is the blood relationship between the parties whilst affinity is the
relationship formed between the parties through the marriage of others in their families.
Section 74 (1) of Cap 127 provides that:
“A marriage may be lawfully celebrated under this Part between a man and the sister
or niece of the deceased wife, but a marriage is not valid,
a. which if celebrated in England, would be void on the ground of kindred or

affinity, or
b. where either of the parties, at the time of the celebration of the marriage, is
married under the applicable customary law to a person other than the person
with whom the marriage is celebrated.”
Two, the parties to the marriage must have the capacity to marry. The parties must be at
the age of 21 years. Where any of them is above 18 years but below 21 years, that party
requires the written consent of the parents or guardian or a Justice of the High Court or
the Attorney General. See:
1. Section 59, 60 and 61 of Cap 127.

2. Section 14 of Children’s Act, 1998 (Act 560).
The Registrar of Marriages will not grant a certificate for such marriage making the
marriage void.
Three, the parties must enter into the agreement voluntarily. Thus, the parties must enter
into the agreement freely with each other and must understand the nature of the contract
they are entering into. See: Hyde v Hyde Woodmansee [1866] LP 1 P & d 130.
Four, none of the parties should be already married to a different person. See: Section
74(1) of Cap 127.
MANDATORY PROCEDURAL REQUIREMENTS.
This is also called formal validity. It is determined by the lex loci celebrationis. Thus, the
procedural requirements of the place where the marriage is to be celebrated.
The marriage must be solemnised or celebrated under the authority of a
a. Registrar’s certificate
b. Marriage officers’ certificate, or
c. Special license from the Registrar.
See: Section 41 of Cap 127.
NB: This section allows a couple to choose one of the procedures to follow to contract a
valid monogamous marriage. If a couple is desirous of having a church ceremony, a
Marriage Officers’ certificate is applied for. If a couple chooses to celebrate at the office
of a marriage registrar, a Registrar’s certificate is applied for. Absence of any of these will
make the marriage null and void. See:
1. Carr v Carr [1963] 2 GLR 331.

2. Apomasu v Bremawuo and Another [1980] GLR 278.
NB: The special license is not a certificate. After obtaining the special license, the couple
must still obtain either a Registrar’s certificate or Marriage Officer’s certificate.
A marriage ceremony conducted without a Registrar’s certificate or a Marriage Officer’s

certificate is void.
a. 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 of the District in which the marriage is intended to take place. See: Section 42 of
Cap 127.
NB: Where the person giving the notice is an illiterate, there must be a jurat on the face of
the notice. See: Section 43 of Cap 127.
NB: The forms are free of charge and the Registrar shall supply them to persons applying
for same. See: Section 44 of Cap 127.
On receipt of the notice, the Registrar shall enter the particulars in the marriage notice
book and publish the notice. Publication is done by causing a copy to be affixed on the
outer door of the office or on a notice board outside the office and to be kept exposed
there until the grant of the certificate or until three (3) months have elapsed. See: Section
45(1) of Cap 127.
The Registrar shall 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:
a. 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.
b. That the parties to the marriage are twenty-one (21) years and above and
where they are below twenty-one (21), they are above eighteen (18) and that
the consent of their parents or guardians has been obtained.
c. That the parties are not prohibited from marrying each other on grounds of
consanguinity or affinity.
d. None of them is already married under customary law to another person
other than the one with whom the marriage is proposed to be contracted.
The certificate may be issued at any time after the expiration of twenty-one (21) days and
before the expiration of three (3) months from the date of the notice and on payment of
the prescribed fee. Thus, the Registrar may issue the Certificate any time between 21 days
and three (3) months from the date of the notice. See: Section 46 of Cap 127.
The Registrar’s Certificate authorizes the Registrar to perform the marriage ceremony.
Where the marriage does not take place within three (3) months after the date of the
notice, 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. See:
Section 47 of Cap 127.
b. Marriage Officer’s Certificate
A marriage officer is a minister of religion who has been duly appointed by the Minister of
Interior by an Executive Instrument to be a marriage officer for the marriage district
named in the instrument. See: Section 38(1) of Cap 127.
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 first publication of the banns. See:
Section 48(1) of Cap 127.
The publication of banns is 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.
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. See: Section
48(2) of Cap 127.
Where separate notices are given, then separate banns are to be published in respect of
the notices. See: Section 49(2) of Cap 127.
The publication of the banns may either be done personally by the Marriage Officer or an
authorized person in writing to do same on his behalf. See: Section 49(1) of Cap 127.
The banns must be published for three (3) consecutive 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. See: Section 50(1) & (2) of Cap 127.
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 three (3) months
of the last date of publication of the banns, grant to the persons a Marriage Officer’s
Certificate. See: Section 53 of Cap 127.
This Certificate authorizes a Minister of a recognized church of religion to solemnise the

marriage between the parties.
Where the marriage is not solemnized, or the Certificate is not given within three (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. See: Section 54 of
Cap 127.
c. Special License
Where an intended 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:
a. no lawful impediment exists to the proposed marriage and

b. the necessary consents, if required, have been obtained.
Where he is 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. See: Section

55(1) of Cap 127.
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. See: Section 55(2) of Cap 127.
OBJECTIONS TO A MARRIAGE UNDER PART THREE OF CAP 127
An objection may be raised to the issuance of a Registrar’s Certificate or of a Marriage

Officer’s Certificate, by
a. a person whose consent is required to the marriage or

b. by any person who knows of a just reason why the marriage should not take place.
See: Section 56(1) of Cap 127.
A spouse lawfully married under custom, or Part III may also caveat an intended marriage
under Part III with another person. He or she may fall under ground b of Section 56(1) of
Cap 127. See: Re Caveat by Clara Sackitey: Re Marriage Ordinance, CAP 127 [1962] 1 GLR 180.
This objection is done by way of a caveat entered after the notice or publication of banns
and before the issuance of the certificate. A caveat is a legal objection to a marriage stating
reasons why a marriage should be disallowed. The procedure for caveating depends on
the form of solemnization of the marriage.
i. Where the marriage is to be solemnized under the Registrar’s certificate

Section 56(1)(a) of Cap 127 provides the process for caveating where the marriage is to be
solemnized under the authority of a Registrar’s certificate.
The law is that a caveat may be entered at any time before the issue of the certificate by:
i. writing the word “Forbidden” opposite to the entry of the notice in the marriage
notice book, and
ii. appending to the notice the name and place of abode of that person, and the
grounds on or by reason of which that person claims to forbid the marriage.
NB: Any caveat not entered in the prescribed form is null and void. See: Re Pratt’s Caveat;
Bentil v Pratt [1989-90] 2 GLR 476.
In Re Pratt’s Caveat; Bentil v Pratt [1989-90] 2 GLR 476, the Court noted as follows:
“Section 24 of the Marriage Ordinance, Cap. 127 prescribed distinct methods for
caveating a marriage to be solemnized under the authority of a registrar’s certificate
as opposed to one to be solemnized under the authority of a marriage officer’s
certificate. In the instant case since the applicant intended to have his marriage
solemnized under the authority of a registrar’s certificate, the respondent ought, in
strict compliance with section 24(1) of Cap 127, to have written the word ‘Forbidden’
opposite to the entry of the notice in the Marriage Notice Book and supplied all the
other particulars laid down in this provision before the issue of the certificate. As the
respondent did not do this, her caveat was invalid and was not properly before the
court.”
ii. Where the marriage is to be solemnized under the Marriage officer’s certificate
Section 56(1)(b) of Cap 127 details the process for caveating where the marriage is to be
solemnized under the authority of a marriage officer’s certificate.
Where the marriage is to be solemnized under the authority of marriage officer’s

certificates, or one certificate, after publication of banns,
i. by giving notice in writing to the person publishing the banns to forbid the marriage
and
ii. by appending the name and place of abode of that person to the notice, and
iii. by specifying in the notice, the grounds on or by reason of which that person claims
to forbid the marriage.
The person publishing the banns, if not the marriage officer, shall forward the notice
without delay to the marriage officer, and shall, unless the notice of the intending marriage
had been returned to the marriage officer, record on the notice of intended marriage the
fact and date of the receipt of the notice forbidding the marriage.
The law is that until the caveat is removed, the Marriage Officer or the Registrar shall not
issue the certificate. See: Section 56(2) of Cap 127.
Post Caveat
When the caveat is entered the Registrar or the Marriage officer shall, without delay, refer
the matter to a Justice of the High Court. See: Section 57(1) of Cap 127.
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. See: Section 57(2) of Cap 127.
However, 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. See: Section 57(3) of Cap 127.
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. See: Section 57(4) of Cap 127.
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. See: Section 58(1) of Cap 127.
The time for the removal of the caveat shall not be computed as part of the three (3)
months within which the marriage should be celebrated after the issuance of the
Certificate by the Registrar or the Marriage Officer. See: Section 58(2) of Cap 127.
Actual Procedure for Removing a Caveat.
Where the Justice declares that the certificate ought to issue, the Justice shall remove the
caveat.
Section 58(1)(a) provides that in the case of a Registrar’s certificate, the Justice shall
remove the caveat by:
cancelling the word “Forbidden” in the marriage notice book in ink and writing in
the marriage notice book immediately below that entry and cancellation, the words
“Cancelled this ............................................................ day of…………….20

…………by order of the High Court at ..............,” and signing the book accordingly.
By section 58(1)(b) of Cap 127 in the case of a Marriage officer’s certificate, the Justice shall
remove the caveat by:
a declaration personally signed by the marriage officer that the intended marriage
is proper and may be solemnized in due course, a certified copy of which
declaration shall be forwarded by the registrar of the High Court to the marriage
officer by whom the caveat was referred.
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
Minister, the Parties themselves and by two (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.
The law is that a marriage celebrated under Part 3 is good and valid in law to all intents and
purposes. See: Section 75 of Cap 127.
CIRCUMSTANCES THAT VOID A MARRIAGE UNDER PART 3 OF CAP 127
Any of the following will make the marriage void. They are:
a. where the parties knowingly and wilfully acquiesce in its celebration in a place
other than the office of a Registrar of marriages, or a licensed place of worship,
except where authorised by the Registrar’s licence, or
b. where the parties marry under a false name or names, or
c. where the parties marry without the Registrar’s certificate of notice, or the
Marriage Officer’s certificate, or one certificate when sufficient or licence duly
issued, or
d. by a person who is not a recognised minister of a religious denomination or body,
or a registrar of marriages.
See: Section 74(2) of Cap 127
e. if banns were not published.

f. If a caveat was entered but not removed. See: Section 56(2) of Cap 127.
g. If the marriage was not celebrated within three (3) months of the date on which
notice was given by the Registrar of marriages. See: Section 47 of Cap 127.
h. If the marriage was not celebrated within three (3) months of the last publication
of the banns. See: Section 54 of Cap 127.
i. If the marriage was celebrated under an expired special licence issued by the
Principal Registrar of marriages. See: Section 55 of Cap 127.
MISCELLANEOUS
A. Constitution of Marriage Districts

The President of Ghana is under a duty to divide the Republic into districts by executive
instrument published in the Gazette. The President may by another executive instrument
published in the Gazette alter the marriage districts by alteration of the boundaries of the
district or by union or sub-division of the districts, or by creation of new districts. See:
Section 35 of Cap 127.
B. Appointment of Registrar of Marriages

The Minister of interior may appoint a fit and proper person to be the Registrar of
marriages for each marriage district and revoke the appointment. See: Section 36(1)(a) of
Cap 127.
The Minister may appoint a deputy Registrar or Registrars of marriage for a district. See:
Section 36 (1)(b) of Cap 127.
He may also appoint a deputy Registrar or Registrars of marriage for a particular district.
On this basis, it is submitted that, it is not all the districts that may have a deputy
Registrar(s). Indeed, for a marriage district to have a deputy Registrar rests on the sole
decision of the minister.
A deputy Registrar has the same powers as a Registrar of marriages within the district or
place. See: Section 36(3) of Cap 127.
C. Offices of Registrars
A Registrar shall have an office at a place in the District as the Minister for interior may
determine. See: Section 37(1) of Cap 127.
The office of the Principal Registrar shall be at the seat of government. See: Section 37(2)
of Cap 127.
D. Appointment of Marriage Officers

The Minister of Interior may by an executive instrument appoint a minister of religion to
be a marriage officer for a marriage district and may vary, suspend, or revoke the
appointment in a like manner. See: Section 38(1) of Cap 127.
An appointment takes effect on the publication in the Gazette. See: Section 38(2) of Cap
127.
NB: A minister of religion who is appointed as a marriage officer is not compellable to act
as a marriage officer with respect to a marriage which is contrary to the rules of the
denomination to which he belongs. See: Section 38(3) of Cap 127.
E. Places of Worship to be Licensed for Celebration of Marriages

Any place of worship to be used for celebrating an ordinance marriage must be licensed
by the District Chief Executive of that district. He has the power to cancel the license as
well. See: Section 40(1) of Cap 127.
Notice of the licensing or of the cancellation of the license shall be published in the
Gazette. See: Section 40(2) of Cap 127.
CELEBRATION OF MARRIAGE
F. Marriages in Licensed place of Worship.

1. “Marriages may be celebrated in a licensed place of worship by a recognised

minister of the church, denomination, or body to which the place of worship
belongs, and according to the rites or usages of marriage observed in the church,
denomination or body.
2. The marriage shall be celebrated, with the doors open between the hours of eight
o’clock in the forenoon and six o’clock in the afternoon, and in the presence of two
or more witnesses besides the officiating minister and any other persons who may
wish to attend the celebration.”
G. Minister not to celebrate marriage in certain cases.

“A minister shall not celebrate a marriage knowing of a just impediment to the

marriage, nor shall the minister celebrate a marriage until the parties deliver to the
minister
a. a registrar’s certificate, or
b. two marriage officer’s certificates in the Form I in set out in the Fifth Schedule,
one in respect of each party, or one marriage officer’s certificate in the Form J
set out in the Fifth Schedule, or
c. the Registrar’s licence.”
H. Where minister may celebrate marriage

“A minister shall not celebrate a marriage except in a building which has been duly
licensed under section 40 or in a place directed by the Registrar’s licence.”
I. Marriage in a Registrar’s office.

Section 68 of Cap 127 provides as follows:
1. “After the issue of a certificate by a Registrar under section 46 or section 58, the
parties may contract a marriage before a Registrar in the presence of two witnesses
in the Registrar’s office with the doors open, between the hours of eight o’clock in
the forenoon and four o’clock in the afternoon on a week-day which is not a public
holiday.
2. The Registrar shall directly or through an interpreter, address the parties thus:
“Do I understand you A.B. and C.D. that you come here for the purpose of
becoming husband and wife?”
3. On their answering in the affirmative the Registrar shall proceed thus:

“Know ye that by the public taking of each other as husband and wife in my
presence and in the presence of the persons now here, and by the
subsequent attestation thereof by signing your names to that effect, you
become legally married to each other, although no other rite of a civil or
religious nature shall take place, and that this marriage cannot be dissolved
during your lifetime, except by a valid judgment of divorce, and if either of
you before the death of the other, shall contract another marriage while this
remains undissolved, you will be thereby guilty of bigamy, and liable to the
punishment inflicted for that offence.”
4. Each of the parties shall then say to the other,

“I call upon all persons here present to witness that I, A. B., do take there,
C.D., to be my lawful wife (or husband).”
J. Marriage Certificate to be signed.

“The registrar shall then fill up, and the registrar and the parties and witnesses shall
sign the certificate of the marriage in duplicate, and the registrar shall fill up and sign
the counterfoil as prescribed in the case of a marriage by a minister, and shall deliver
one certificate to the parties and shall file the other in the office.”
K. Marriage Under Registrar’s license

“Where the Registrar’s licence authorises the celebration of a marriage at a place

other than a licensed place of worship, or the office of a registrar of marriages, the
registrar of the district in which the marriage is intended to take place, on the
production of the licence, shall deliver to the person producing the licence, a blank
certificate of marriage in duplicate, and the minister or registrar celebrating the
marriage shall fill up the certificate, and observe strictly all the prescribed formalities
as to marriages in a licensed place of worship, or registrar’s office.”
THE PECULIAR NATURE OF SECTION 74 OF CAP 127 ON INVALID MARRIAGES
1. “A marriage may be lawfully celebrated under this Part between a man and the
sister or niece of the deceased wife, but a marriage is not valid,
a. which if celebrated in England, would be void on the ground of kindred or
affinity, or
b. where either of the parties, at the time of the celebration of the marriage,
is married under the applicable customary law to a person other than the
person with whom the marriage is celebrated.
2. A marriage is void if both parties knowingly and wilfully acquiesce in its
celebration in a place other than the office of a registrar of marriages, or a licensed
place of worship, except where authorised by the Registrar’s licence, or under a
false name or names, or without the registrar’s certificate of notice, or the
marriage officer’s certificates, or one certificate when sufficient or licence duly
issued, or by a person who is not a recognised minister of a religious denomination

or body, or a registrar of marriages.
3. A marriage shall not after its celebration be considered invalid because a
provision of this Part other than this section has not been complied with.”
According to Mrs Frederica Ahwireng-Obeng in her book “At a Glance! The Marriages Act
and The Matrimonial Causes Act Dissected”, commenting on section 74(3) noted at pages
86-86 as follows:
“Section 74(3) makes it clear that non-compliance with only the requirements
stipulated under 74(2) will render a marriage ceremony void and that non-compliance
with other requirements mentioned under part three of the Act will not affect the
validity of a marriage.
There are however other mandatory requirements and the relevant sections must
be read in conjunction with section 74(2).
These mandatory requirements are:
Section 47- A marriage ceremony conducted under an expired certificate is void.
Section 54- Where a marriage ceremony is performed more than three months after
the last publication of banns, the ceremony is void and therefore there is no marriage.
Section 57- This section makes it mandatory for a caveat to be dealt with and removed
before a marriage ceremony can take place. The implication here is that if a marriage
ceremony takes place while a caveat is pending the ceremony will be void and no
marriage will come into existence.
Section 59- The section makes it mandatory for children between the ages of eighteen
and twenty one to obtain consent from the parents or guardian before cerebrating a
marriage under this part of the Act.
Here too if the necessary consent is not obtained and a marriage ceremony takes
place, the ceremony is void and no marriage comes into existence.
Section 74(1)- If a person goes through a marriage ceremony while still married to
another person under customary law or under the Ordinance, the marriage ceremony
under this part of the Act is void.”
The literal interpretation to be placed on section 74(3) as noted above will mean that non-
compliance with other mandatory provisions of Part 3 of Cap 127 should not nullify the
marriage. This strict construction ought to be rejected. Reading Cap 127 (Part III on
ordinance marriages) as a whole does not support the conclusion to be reached from a
literal and strict construction of Section 74(3). Indeed, there are other indicators
(provisions) from the Act itself which stipulates that non-compliance with those provisions
should nullify the marriage. Some of them have been considered by the Author above.
Accordingly, the purposive approach to interpretation of section 74(3) should be favoured.
That, reading Part 3 as a whole, the scope of section 74(3) should not be limited in the
sense as it provides. On this basis, the approach put forward by the learned author should
be adopted. That “[t]here are however other mandatory requirements and the relevant
sections must be read in conjunction with section 74(2).”
TOPIC 8: CONVERSION OF MARRIAGES
Conversion is the change of marriage from one category to another. Thus, changing a
potentially polygamous marriage to a monogamous marriage. This includes that:
a. A customary law marriage may be changed or converted to a monogamous

marriage and
b. A mohammedan marriage may be changed or converted to a monogamous
marriage.
NB: A monogamous marriage cannot be converted to a polygamous marriage.
WAYS OF CONVERSION
Conversion may be effected through
a. Change by legislation or
b. Change by domicile or
c. Change by religion.
See: Parkasho v Singh [1967] 1 AER 737.
NB: In Ghana, conversion may be effected through change by legislation or by domicile.

Change of religion does not change the character of a marriage. See: Barake v Barake
[1993-94] 1 GLR 635.
A. CHANGE BY LEGISLATION
To successfully convert a valid customary law marriage from polygamous to monogamous
through legislation, the parties must comply with the mandatory provisions of Part 3 of
the Marriages Act, Cap 127. See: Graham v Graham [1965] GLR 407.
The failure to comply with the mandatory provisions of the Act relating to the procedure
will vitiate the attempt at conversion. In that case, the parties will, to all intends and
purposes, continue to be in a potentially polygamous marriage.
A customary law marriage may also be converted to Mohammedan Marriage by complying

with the requirements under Part 2 of the Marriages Act, Cap 127. See:
1. Ramia v Ramia [1981] GLR 275.

2. In Re Byrouthy & Akyere Ex Parte Ali [1980] GLR 872.
3. Jebeile & Another v Ashkar & Another [1977] 1 GLR 458.

In instances of non-compliance with the requirements of the statute, the Courts have held
that the ceremony was merely a blessing ceremony and that the mere intention of the
parties to contract a monogamous marriage is not enough to satisfy the provisions under
Cap 127. See:
1. Setse v Setse [1959] GLR 155.

2. Carr v Carr [1963] 2 GLR 331.
3. Re Appia (Decd); Yeboah v Appiah [1975] 1 GLR 465.
4. Appomasu v Bremawuo & Another [1980] GLR 278.
NB: Blessing is not the same as conversion. Blessing occurs when parties to a polygamous
marriage go through a marriage celebration in the church and receive blessings from the
priest. With blessing, no certificates are required, banns need not be published, the place
for the blessing need not be licensed, and the officiating person need not be a recognized
minister of a recognized denomination or body. The character of the marriage does not
change. The marriage continues to be polygamous.
NB: Conversion here deals with only procedural requirements.
CHANGE BY DOMICILE
The law is that if 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 marriage in the new domicile is monogamous. See:
1. Ali v Ali [1966] 1 All ER 664.

2. Rex v The Superintendent Register of Marriages, Hammersmith Ex Parte
Miranwaruddin [1917] 1 KB 634.
3. Cheti v Cheti [1909] P. 67.
CHANGE BY RELIGION
At common law, change in religion of the parties to the marriage union coverts their
marriage to the incidents applicable to that religion. See:
1. Cheni v Cheni [1962] 3 All ER 873.

2. Attorney-General of Ceylon v Reid [1965] 1 All ER 812.
In Ghana, a change of religion does not operate to change the nature of the marriage from
potentially polygamous to a monogamous marriage. See: Barake v Barake [1993-94] 1 GLR
635.
SUCCESSFUL ATTEMPTS AT CONVERSION
When conversion takes place, the rights and privileges attached to the earlier marriage
cease to exist because the earlier marriage is extinguished by the new one. This is so
despite the mode of conversion. See: Ohochuku v Ohochuky [1960] 1 All ER 253.
UNSUCCESSFUL ATTEMPTS AT CONVERSION
Where an attempt at conversion fails, the law is that the first marriage remains valid, and
the couple preserve their status quo ante. The failure to convert successfully usually stems
from non-compliance with a requisite formality of the law. See: Setse v Setse [1959] GLR
155.
EFFECT OF CONVERSION
A successful conversion dissolves the customary law marriage. The customary law
marriage completely disappears or falls away, and its place is taken by the ordinance
marriage. In essence, the customary marriage ceases to exist. See: Graham v Graham
[1965] GLR 407.
Likewise, after the dissolution of a monogamous marriage, there is no other marriage to

be dissolved because the customary marriage would have fallen away as soon as the
monogamous marriage was contracted.
Again, if conversion is not successful, the marriage continues to be customary and

therefore potentially polygamous. The man may therefore marry other women but only
under customary law. If he marries any other woman under Cap 127, the ordinance
marriage is void.
TOPIC 9: NULLITY PROCEEDINGS
There is a difference between a valid, voidable, and void marriages.
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, regardless of what system the marriage has been contracted
under.
For void and voidable marriages, the procedure to bring such marriages to an end is a
nullity proceeding. In the case of a valid marriage, the procedure is dissolution of
marriages.
Nullity proceedings is governed by section 13 of the Matrimonial Causes Act, 1971 (Act 367).
The law is that a person may present a petition to the court for a decree of nullity for
annulling the marriage on the ground that it is by law void or voidable. See: Section 13 (1)
of Act 367.
NB: Court here means the High Court or Circuit Court. This is subject to the Chief Justice’s
power of transfer. The Chief Justice can transfer an undefended action from the High
Court or Circuit Court to a District court, and that court shall have jurisdiction. See:

VOID MARRIAGE
A void marriage is that which is so defective that the law does not recognize it as being in
existence. It is a marriage that does not comply with the substantive and procedural
requirements under Part 3 of the Marriages Act 1884-1985, Cap 127.
In De Reneville v De Reneville [1948] 1 AER 56, Lord Greene MR at page 60 of the report
observed that:
“A void marriage is 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.”
CHARACTERISTICS OF A VOID MARRIAGE

One, the law is that where a marriage is void, a decree is not needed to set it aside. See:
1. Section 13(4) of Act 367.

2. De Reneville v De Reneville [1948] 1 AER 56.
3. McFoy v United Africa Co Ltd [1961] All ER 1169.
“Nothing in this section shall be construed as validating a marriage which is by law

void but with respect to which a decree of nullity has not been granted.”
Two, there are no defences to an action to declare a marriage void. Once void, always void.
It cannot be rectified or cured. See: McFoy v United Africa Co Ltd [1961] All ER 1169.
Three, a void marriage can be challenged after the death of either of the parties. Thus, an
application can be brought after the death of a party to declare the marriage void. See:
Mrs Nana Ama Twumasi v Brenya Akosua Twumasi
Four, third parties qualify to challenge the validity of a void marriage.
Five, a party to a void marriage can marry a third party without obtaining an order from a
court.
CIRCUMSTANCES THAT MAKE A MARRIAGE VOID
Some of these circumstances have been stated under Topic 7. That notwithstanding, the
following may be added to them.
One, where either of the parties lack capacity to marry.
Two, the fact that one of the parties is already married.
Three, the fact that both parties are not respectively male and female. See: Corbett v
Corbett [1970] 2 All ER 233.
Four, a marriage between an adult and a child who is above the age of eighteen but below
twenty-one years without the consent of the parents or guardian of the child.
Five, a marria ge between two children who are above eighteen years but below twenty-
one years without the consent of their parents or guardian.
Six, where one of the parties is married under customary law before the purported
ordinance marriage. See: Arthur v John Hector Ansah Civil Appeal No 62/2002 dated 31 st
July 2003.
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. In De Reneville v De Reneville [1948]
1 AER 56, Lord Greene MR at page 60 of the report observed that:
“A voidable marriage is one that will be regarded by every court as a valid subsisting
marriage until a decree annulling it has been pronounced by a court of competent
jurisdiction.”
It is governed by section 13 of Act 367.
CHARACTERISTICS OF A VOIDABLE MARRIAGE
One, where a marriage is voidable, it is the right of one of the parties to apply to set it
aside. It is not the right of a third party except a party to the marriage.
Two, a decree of a court of competent jurisdiction is needed to set aside or nullify the
marriage. See: De Reneville v De Reneville [1948] 1 AER 56.
Three, where one of the parties to a voidable marriage passes away, the marriage becomes
valid. Thus, the surviving spouse cannot bring an action for the marriage to be declared
null and void.
Four, a voidable marriage, so far as it is in existence, none of the parties can enter into
another marriage with a third party unless it has been annulled.
Five, there may be defences available to an action to declare a marriage as void on grounds
that it is voidable.
WHEN WILL A MARRIAGE BE DECLARED VOIDABLE?
In addition to any grounds which will make a marriage void or voidable by law, a marriage
is voidable on the ground that:
a. there is lack of consummation.

b. Insanity of one of the parties at the time of the celebration of the marriage or a
party is subject to recurrent attacks of insanity.
c. the woman was pregnant for another man at the time of the celebration of the
marriage.
d. the respondent was suffering from an infectious, incurable, venereal disease in a
communicable form at the time of the celebration of the marriage.
See: Section 13(2) of Act 367.
NB: The petition may be filed at any time if there is lack of consummation. In respect of the
other grounds, there are conditions to be satisfied. They are:
a. The impediment should not have been known by the petitioner at the time of the
celebration of the marriage. Thus, the petitioner must be ignorant of the facts
making the marriage voidable.
b. The petition for annulment should be filed within twelve (12) months of the
celebration of the marriage.
c. Marital intercourse with the consent of the petitioner has not taken place since the
petitioner discovered the existence of facts making the marriage voidable.
CONSUMMATION
Consummation is the achievement of full penetration in the normal sense amounting to

complete intercourse. See: D-E v A-G [1845] Rob Ecc. 279.
The intercourse must be a full and complete penetration. Therefore, transient penetration
does not amount to consummation. See: W v W [1967] 3 All ER 178.
It does not matter whether either party is sterile or is unable to ejaculate. See: S v S [1962]
3 All ER 55.
Neither does it matter whether either party was sexually satisfied.
It does not also matter that the parties used contraceptives or used the coitus interruptus
method. See:
1. Baxter v Baxter 2 All ER 886.

2. Cackett v Cackett [1950] 1 All ER 677.
Once there was penetration, which was complete, there will be consummation.
Ejaculation per se does not amount to consummation. See: W v W [1967] 3 All ER 178.
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 does not amount to
consummation.
Consummation arises after the solemnization of a marriage. Therefore, a marriage is not

consummated by reason of the fact that the parties have had pre-marital sex. There must
be sexual intercourse after the marriage. See: Dredge v Dredge [1947] 1 All ER 29.
Lack of consummation may come in two forms. They are:
a. The inability to have sexual intercourse.

b. Wilful refusal to have sexual intercourse.
A. Inability to have sexual intercourse.

The party cannot have sexual intercourse due to some condition or defect that he or she
may have. The petitioner must establish that:
a. The condition or defect is incurable or incapable of remedy. See: S v S [1962] 3 All

ER 55; Clarke v Clarke [1943] 2 All ER 540.
b. The inability must be in existence at the date of the marriage.
c. There must be no practical possibility of consummation at the date of the hearing.
NB: If the condition causing the inability to consummate can be removed without resulting
in danger to the spouse, the court will hold that the marriage is not voidable. See: S v S
[1962] 3 All ER 55.
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. See: Napier v Napier [1951] 3 All ER 184.
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. See: L v L [1949] 1 All ER 141.
B. Wilful Refusal to Consummate

Here, a party to the marriage consistently and steadfastly refuses to have sex without just
cause.
Wilful refusal means that there is a settled and a definite decision without just cause. See:
Horton v Horton [1947] 2 All ER 871.
In Dickinson v Dickinson [1889] 62 L.T 330 the court observed as follows:
“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.”
Wilful refusal to consummate includes the following:
a. Refusal to undergo treatment to cure a condition that hinders consummation,

where the said treatment is not dangerous.
b. Consistent and steadfast refusal without just cause.
c. Refusal to perform a condition precedent to consummation which has been agreed
between the parties.
See:
1. Jodla v Jodla [1960] 1 All ER 625.
2. Kaur v Singh [1972] 1 All ER 292.
The refusal should have persisted up to the time of the presentation of the petition for the
decree of nullity.
NB: The mere loss of sexual ardour is not enough to constitute a wilful refusal.
NB: Only one incident of penetration is necessary to consummate the marriage. Once
sexual intercourse takes place the marriage becomes consummated and ceases to be
voidable.
EFFECT OF AN ORDER FOR ANNULMENT
Where a voidable marriage is annulled by a decree of nullity granted by a court of

competent jurisdiction, that marriage shall be void.
The effect of such an order on children to the annulled marriage is that the children shall
be deemed to be children of a dissolved marriage. Thus, the fact that the marriage has
been declared void does not affect the legitimacy of the children. See: Section 14 of Act
367.
Section 14 of Act 367 provides that:
“Where a decree of nullity is granted, a child of the parties to the decree shall be
deemed to have the same status and rights as if the marriage of the parents had been
dissolved rather than annulled.”
PRESUMPTION OF DEATH AND THE DISSOLUTION OF MARRIAGE
Where a person has not been heard of for seven (7) years despite diligent effort whether
within that period, to find that person, that person is presumed to be dead. There is no
presumption as to the particular time when that person died. See: Section 33 of the
Evidence Act 1975 (NRCD 323).
Here, the legal burden is on the one in whose favour the presumption operates. The
evidential burden is on the party against whom the presumption operates. For the
presumption to apply, three conditions must be satisfied. They are:
a. there are persons who would be likely to have heard from the dead person over
that period.
b. those persons have not heard from him.
c. all due inquiries have been made appropriate to the circumstances.
See: Chad v Chad.
Turning to the specific statute on marriages, the law is that a married person may present
a petition to the court to have it presumed that the other party to the marriage is dead
and to have the marriage dissolved. See: Section 15(1) of Act 367.
The court may make a decree of presumption of death and dissolution of marriage if
satisfied that reasonable grounds exist for the application of the presumption. See:
Section 15(2) of Act 367.
The fact that for a period of seven (7) years or more the other party to the marriage has
been continually absent from the petitioner and the petitioner has no reason to believe
that the other party has been living within that time shall be evidence that the other party
is dead until the contrary is proved. See:

2. Thompson v Thompson [1956] 1 All ER.
NB: This is a rebuttable presumption, and it may be displaced by evidence to the contrary.
MISCELLANEOUS PROVISIONS
A. PRESUMPTION OF MARRIAGE
The law is that a marriage which has been celebrated before witnesses is presumed to be
valid. The witnesses to the marriage need not be called as witnesses in the action. This
applies to both monogamous and polygamous marriages. See: Section 31 of NRCD 323.
For this section to apply, two conditions must be satisfied:
a. celebration of marriage and

b. the presence of witnesses.
B. LEGITIMACY OF CHILDREN
There are two principles here.
a. A child born during the marriage of a mother is presumed to be the child of the
person who is the husband of the mother at the time of the birth.
b. A child of a woman who has been married, born within 300 days [10 months] after
the end of the marriage, is presumed to be a child of that marriage.
This applies to both monogamous and polygamous marriages. See: Section 32 of NRCD
323.
The effect of these principles is that a child born at the time a marriage is in existence is
the child of the husband of that marriage. Also, where the marriage has been dissolved, a
child born within 10 months of such dissolution is the child of the husband of the dissolved
marriage. These are rebuttable presumptions and can be displaced by evidence to the
contrary by the husband.
TOPIC 10: DISSOLUTION OF ORDINANCE MARRIAGES/MARRIAGES UNDER PART 3 OF

CAP 127
Dissolution or divorce is a mode of terminating an ordinance marriage. It refers to a formal

termination of the status derived from marriage so that following the grant of a decree,
both spouses have neither the duties nor rights of a husband or wife.
Dissolution of a monogamous marriage is governed by the Matrimonial Causes Act, 1971

(Act 367).
Either party to a marriage may present a petition for divorce to the court. See: Section 1(1)
of Act 367.
NB: A petition is different from a writ of summons and a statement of claim. According to
Order 65 rule 2 of the High Court (Civil Procedure) Rules, 2004 (CI 47):
“All proceedings for divorce, nullity, presumption of death and dissolution of

marriage, maintenance orders and child custody orders under the Act, shall
commence by petition.”
See also: Nilla Serlomey v Hamed Rashid Tunder Ali Suit No. AP49/2011.
NB: The death of an original petitioner in a matrimonial action brings the action to an end.
This is because such a cause of action is a personal action and does not survive the death
of a party. See: Benjamin Amponsah Mensah vs. Margaret Ann Mensah [2014] DLSC 2844.
However, where on appeal, the issues in question are that in relation to immovable
properties, the death of a party will not terminate the action. For in such instances, the
appeal is that in rem. In Gilbert Anyetei v Sussana Anyetei CA/J4/67/2021 dated 2/3/2023,
the court noted that:
“While this appeal was pending, the husband died, but since the matters in the appeal
relate to ownership of property, that cause of action survived him so he has been
substituted in order for the case to be heard and determined.”
JURISDICTION OF THE COURT

“The Court shall have jurisdiction in proceedings under this Act where either party to
the marriage
a. is a citizen, or
b. is domiciled in Ghana, or
c. has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.”
NB: Pay attention to how citizenship may be acquired. Also pay attention to the acquisition
of domicile and the types of domiciles. Although not stated here, those principles apply.
NB: For the purpose of determining jurisdiction, the domicile of a married woman shall be
determined as if the woman was above the age of twenty-one (21) and not married. See:

2. Amponsah v Amponsah [1997-98] GLR 43.
This means that the domicile of the wife is determined independently of the husband for
purposes of section 32 of Act 367. See: Amponsah v Amponsah [1997-98] GLR 43.
NB: The law is that to determine whether the court has jurisdiction, the court considers
the status of the petitioner. Thus, if the petitioner does not come within the grounds
stated, the court will not have jurisdiction. It does not matter whether the respondent falls
within any of the grounds. See:
1. Happee v Happee [1974] 2 GLR 186.

2. Amponsah v Amponsah [1997-98] GLR 43.
Thus, the defence of the respondent merely disputes the claim but does not dictate it. The
defence, therefore, cannot be used to oust the jurisdiction of the court. See: Akati v Nartey
[1980] GLR 218.
PRESENTATION OF PETITION
The law is that generally, a petition for divorce shall not be presented within two (2) years
from the date of the marriage. See: Section 9(1) of Act 367.
However, a party may apply for the court to allow the presentation of a petition for divorce
within two (2) years from the date of the marriage. The grounds for the application are:
a. substantial hardship suffered by the petitioner or

b. depravity on the part of the respondent.
See:

2. Order 65 rule 3 of CI 47
NB: The application for leave to commence proceedings for divorce within two years from
the date of the marriage shall be made by motion on notice. See: Order 65 rule 3 of CI 47.
Substantial hardship occurs where, for example, one of the parties constantly beats the
other and threatens him or her with a knife.
Depravity describes a situation where, for example, a husband demands that the wife have
sex with a third party in his presence or demands a threesome.
Thus, to be able to file a divorce petition within two years of the marriage a party must
first apply for leave to file the petition. Where the application is granted, he or she can
proceed to file the petition.
In determining the application, the Court shall consider the interest of any child of the
household and to the question whether there is a reasonable possibility of reconciliation
between the parties. See: Section 9(3) of Act 367.
If it appears to the Court that leave was obtained by the petitioner by a misrepresentation
or concealment of the nature of the case, the Court may dismiss the petition. This is
without prejudice to any petition which may be brought after the expiration of the period
of two years from the date of that marriage on the same, or substantially the same facts
as those proved in support of the dismissed petition. See: Section 9(4) of Act 367.
NB: Section 9 does not prohibit the presentation of a petition based on matters which
occurred within two (2) years from the date of the marriage. See: Section 9(5) of Act 367.
GROUND FOR DISSOLUTION
The sole ground for dissolving a monogamous marriage is that the marriage has broken
down beyond reconciliation. This is the sole or only ground for the grant of a divorce
petition. See:

2. Gilbert Anyetei v Sussana Anyetei CA/J4/67/2021 dated 2/3/2023.
The proof of breakdown of the marriage may be done in any of the following six basis.
That
a. The respondent has committed adultery and the petitioner finds it intolerable to
live with the respondent.
b. The respondent has behaved in such a way that the petitioner cannot reasonably
be expected to live with the respondent.
c. The respondent has deserted the petitioner for a continuous period of at least two
(2) years immediately preceding the presentation of the petition.
d. The parties have not lived together as husband and wife for a continuous period of
at least two (2) years immediately preceding the presentation of the petition and
that the respondent consents to the grant of a decree of divorce, provided that
consent is not unreasonably withheld, but where consent has been so withheld,
then the court may grant the decree of divorce despite the refusal.
e. The parties to the marriage have not lived as husband and wife for a continuous
period of at least five (5) years immediately preceding the presentation.
f. The parties, after diligent effort, have been unable to reconcile their differences.
NB: Although the Court finds the existence of one or more of the facts specified above,
the Court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that
the marriage has broken down beyond reconciliation. See:

2. Adjetey v Adjetey [1973] 1 GLR 216.
The burden of proof is on the petitioner to establish any of the facts, and it is the burden
of the respondent to show that despite this, the marriage has not broken down
irretrievably. See:
1. Ash v Ash [1972] 1 All ER 582.

2. Pheasant v Pheasant [1972] 1 All ER 587.
On this basis, in a petition for divorce the Court shall inquire, so far as is reasonable, into
the facts alleged by the petitioner and the respondent. See:

2. Donkor v Donkor [1982-83] GLR 1156.
3. Darko v Darko [2011] 29 GMJ 121.
NB: The court should hear the petitioner even if the respondent has not filed an answer to
the petition. See: Danquah v Danquah [1979] GLR 371.
Failure on the part of a court to take evidence at least from the petitioner in divorce
proceedings will render a judgment void and all orders based on that judgment void. Thus,
a breach of section 2 of Act 367 renders the whole divorce proceedings void. See: Partey v
Partey Civil Appeal Suit No H1/183/2013.
And that a court ought not to appear to be in a hurry to dissolve a marriage. The law is that
the only ground on which a court would order the dissolution of a marriage is that the
marriage has broken down beyond reconciliation, particulars of which are required to be
specifically pleaded and proved by evidence adduced in court. It is therefore not sufficient
for a judge to grant a divorce just because both parties endorsed that relief on their
pleadings. See: Gilbert Anyetei v Sussana Anyetei CA/J4/67/2021 dated 2/3/2023.
Where a judgment is void, there is no time limit for setting aside that void judgment. See:
1. Partey v Partey Civil Appeal Suit No H1/183/2013.

2. Kumnipa v Ayirebi and Others [1987] 1 GLR 265.
A. ADULTERY OF THE RESPONDENT

Section 2(1)(a) of Act 367 provides that:
“For the purpose of showing that the marriage has broken down beyond
reconciliation the petitioner shall satisfy the Court of one or more of the following
facts:
(a) that the respondent has committed adultery and that by reason of the adultery
the petitioner finds it intolerable to live with the respondent.”
For a petitioner to succeed, he must establish that:
a. The respondent committed adultery and

b. The petitioner finds it intolerable to live with the respondent.
NB: Both requirements are independent of each other. See: Goodrich v Goodrich [1971] 2
All ER 1340.
Adultery
According to Bromley, adultery is the
“sexual intercourse between two persons of whom one or both are married but who
are not married to each other.”
The statutory definition of adultery is provided by Section 43 of Act 367. It provides that:
“Adultery means the voluntary sexual intercourse of a married person with one of the
opposite sex other than his or her spouse.”
To prove adultery,
a. There must be some degree of penetration of the female organ by the male organ.
The least degree of penetration will suffice. The absence of penetration does not
establish adultery. See: Dennis v Dennis [1955] 2 All ER 51.
It means that the masturbation by the wife of another man does not amount to
adultery.
b. The sexual intercourse must be with a person of the opposite sex other than his or
her spouse. And so if the spouse is a lesbian or gay, it does not amount to adultery.
c. The act of adultery must be voluntary. Thus, if the woman was raped or her consent
was obtained through duress or fear or force, she will not be deemed to have
committed adultery.
d. 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.
e. Previously, the position in Ghana was that the standard for proof of adultery was
proof beyond reasonable doubt. See: Quartey v. Quartey [1972] 1 GLR 6.
The standard currently is a high degree of probability. See: Adjetey v. Adjetey [1973]
1 GLR 216.
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.
f. Due to the nature of adultery, it is not easy to obtain direct evidence (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.
With circumstantial evidence, the presence of a disposition and the opportunity

may lead a court to conclude that adultery has been committed. See:
1. Adjetey v. Adjetey [1973] 1 GLR 216.
2. Blum v. Blum [1963] 107 Sol Jo 512.
3. Hume v. Hume & McAuliffe [1965] Times Feb 25.
g. A confession of a party may also be sufficient to prove adultery except where the
confession is made under duress. For the confession to be admissible, it must be
given voluntarily. See: Quartey v. Quartey [1972] 1 GLR 6.
Intolerability test
The test is not an objective one. It is a subjective test. The court must decide whether the
petitioner finds it intolerable to live with the Respondent.
Where the adultery is proved and the petitioner satisfies the court that further
cohabitation with the Respondent is intolerable, the court will have to grant the decree.
Adultery may be the reason that the petitioner finds it intolerable to live with the
respondent. However, it is not necessary for there to be a link between the two
requirements. See:
1. Cleary v Cleary [1974] 1 All ER 498.

2. Carr v Carr [1974] 1 All ER 1193.
Reconciliation Provision
“Where with a view to reconciliation, the parties to the marriage have lived with each
other as husband and wife for a period or periods after it became known to the
petitioner that the respondent had, since the celebration of the marriage, committed
adultery, then
a. if the length of that period or of those periods together was six months or less,
their living with each other as husband and wife during that period or those periods
shall be disregarded in determining whether for the purposes of section 2 (1) (a)
the petitioner finds it intolerable to live with the respondent; but
b. if the length of that period or of those periods together exceeded six months, the
petitioner shall not be entitled to rely on that adultery for the purposes of section
2 (1) (a).”
The effect of Section 3 is that an act of adultery only remains a valid basis for divorce within
6 months after it is discovered by the petitioner. As such, if after the adultery, the parties
continue to cohabit as husband and wife, then after 6 months, the previous act of adultery
cannot be relied on for the purposes of a petition for divorce. There is a presumption that
if they still continue to cohabit after the 6 months, the petitioner will be deemed to have
forgiven the Respondent.
NB: Section 3 only applies where the parties live together as husband and wife. So, 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.
NB: The law is that in a petition for divorce in which adultery is alleged, the person alleged
to have committed adultery with the party to the marriage may be, but need not be, made
a party to the proceedings. See: Section 12 of Act 367.
NB: It is also not relevant to mention the place where the adultery occurred.
NB: Damages are not recoverable from a respondent where the marriage is dissolved by
reason of adultery. See:
1. John v John and Another [1973] 2 GLR 434.

2. Adjetey v Adjetey [1973] 1 GLR 216. (per incuriam)
B. UNREASONABLE BEHAVIOUR
Section 2(1)(b) of Act 367 provides that:
facts:
(b) that the respondent has behaved in a way that the petitioner cannot reasonably
be expected to live with the respondent.”
For a petitioner to succeed here, he must establish that:
a. The respondent has exhibited an unreasonable behaviour.

b. As a result of the unreasonable behaviour, the petitioner cannot reasonably be
expected to live with the respondent.
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. See:
1. Gollins v Gollins [1964] AC 644.

2. Sheldon v Sheldon [1966] 2 ER 257.
3. Knott v Knott [1955] 2 All ER 305.
Unreasonable behaviour could range from a wide variety of acts. In Knudsen v Knudsen
[1976] 1 GLR 204, the Court of Appeal noted that:
“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.”
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.
It does not matter whether it springs from a desire to hurt or selfishness or sheer
indifference. See: Gollins v. Gollins [1964] A.C 644.
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 amount
to unreasonable behaviour.
The wilful refusal of sexual intercourse or persistent demands for inordinate sexual acts or
malpractices may amount to unreasonable behaviour. See:
1. Arthur v. Arthur [1964] 108 Sol Jo 317.

2. Sheldon v. Sheldon [1966] 2 All ER 257.
3. Opoku-Owusu v Opoku-Owusu [1973] 2 GLR 349.
A partner’s inability to have sexual intercourse because of impotence does not amount to
unreasonable behaviour. See: Dowden v. Dowden [1965] 3 All ER 263.
Insistence on coitus interruptus knowing it affects the other spouse’s health amounts to
unreasonable behaviour. See: Knott v. Knott [1955] 2 All ER 305.
Persistent drinking and a gambling addiction may amount to unreasonable behaviour. See:
H v. H [1964] 108 Sol Jo 544.
Nagging and insults may amount to unreasonable behaviour. See: Stanwick v. Stanwick
[1970] 3 All ER 983.
Nature of test to be applied.
In Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47, the court observed 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?”
See also: Riby-Williams v Riby-Williams [1964] GLR 538.
The test to be applied is an objective one. This is to be determined with regards to the
personalities of the parties and assessing the impact of the respondent’s conduct on the
petitioner considering the whole history of the marriage and their relationship. See:
1. Ash v Ash [1972] 1 All ER 582.

2. Ansah v Ansah [1982] GLR 1127.
Examples of Unreasonable Behaviour include:
1. Sexual perversion and homosexual activities.

2. Unreasonably refusing to have sexual intercourse. See: Dowden v. Dowden [1977]
8 Fam Law 106.
3. Excessive sexual demands.
4. Persistent drunkenness.
5. Insistence on coitus interruptus, knowing that it affects the health of the other
spouse.
6. Addiction to gambling.
7. Emotional dissatisfaction.
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.
13. Infecting one’s spouse with a venereal disease.
See:

2. Knudsen v Knudsen [1976] 1 GLR 204.
3. Mensah v Mensah [1972] 2 GLR 192.
In Opoku-Owusu v Opoku-Owusu [1973] 2 GLR 349, the court held that:
“A wilful refusal by one spouse to have sexual intercourse might entitle the party
suffering to leave if in all the 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 even though it lacked the
element of intent to injure. Whether in a given case the requirement was fulfilled was
a question of fact.”
The court further noted that:
“However, one spouse was not obliged to submit to the demands of the other if they
were unreasonable and inordinate and 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. Consequently, the husband’s
petition would be refused because on the facts, the wife was entitled to withdraw
from cohabitation and a decree would therefore be granted on the wife’s prayer.”
Reconciliation provision
“For the purposes of section 2 (1) (b), in determining whether the petitioner cannot
reasonably be expected to live with the respondent, the Court shall disregard any
period or periods not exceeding six months in the aggregate during which the parties
to the marriage lived with each other as husband and wife after the date of the
occurrence of the final incident relied on by the petitioner and proved to the Court in
support of his allegation.”
The effect of this provision is that where the parties have lived together as husband and
wife for more than 6 months since the last incident of the unreasonable behaviour, the
petitioner cannot rely on that incident as a basis for divorce. See: Ofori v Ofori [1981] GLR
745.
C. DESERTION
Section 2(1)(c) of Act 367 provides that:
facts:
(c) that the respondent has deserted the petitioner for a continuous period of at least
two years immediately preceding the presentation of the petition.”
Bromley defines desertion as the
“Unjustifiable withdrawal from cohabitation without the consent of the other spouse
and with the intention of remaining separated permanently.”
Desertion may take 2 forms:
a. Simple desertion. Here, the Respondent leaves the Petitioner without a just cause.
b. Constructive desertion. Here, 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. In either case, the desertion must amount to a total
repudiation of marital obligations.
NB: The separation that constitutes desertion must be in existence at the time the petition
is filed. The petition will fail if the separation has ended at the time of the presentation of
the petition.
The elements of desertion are:
1. Actual separation (de facto separation)

2. Intention to desert (animus deserendi)
3. Lack of consent by the other spouse
4. Lack of reasonable excuse for the separation.
5. Separation for a continuous period of more than two years.
NB: All the elements must be satisfied for desertion to be established.
DE FACTO SEPARATION
There are two types of separation. They are:

a. Physical or actual withdrawal from a place and

b. Withdrawal from a state of things.
Physical withdrawal takes place where one of the spouses physically leaves the
matrimonial home or walks away from the other spouse.
A withdrawal from state of things may be described as a situation where spouses

physically live together under one roof but are physically withdrawn from each other. They
do not live as husband and wife. They may be living under the same roof but may not be
cohabiting. They may be living as two separate units under the same roof.
That there has been a total and actual withdrawal from the performance of all marital
obligations, a complete cessation of cohabitation. See: Naylor v Naylor [1961] 2 All ER 129.
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 continues to perform some of the obligations of 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. See:
1. Hopes v Hopes [1948] 2 All ER 920.

2. Bull v Bull [1953] 2 All ER 610.
The bona fide residence in the home as a lodger will always qualify as separation. See:
Fuller v Fuller [1973] 2 All ER 920.
ANIMUS DESERENDI
This is the intention to bring the cohabitation permanently to an end. See: Kotei v Kotei
[1974] 2 GLR 172.
If the intention is to bring the cohabitation to an end temporarily, then this animus will not
be deemed to exist.
The intention may be express or implied from the conduct of a party.
Since the intention is heavily dependent on the state of mind, the respondent is required
to have the mental capacity to form the intention. Thus, if the spouse becomes mentally
insane as a result of which he or she has withdrawn from the matrimonial obligations, this
will not be deemed desertion.
Whether or not an insane person formed the intention to desert before becoming insane
is a question of fact to be determined from the evidence available. See: Crowther v
Crowther [1951] 1 All ER 1131.
There is no intention where a party is forced to live separately from the other against his
or her will. For instance, through imprisonment.
The petitioner bears the burden to show that the respondent had the necessary capacity
to form the intention to permanently withdraw from cohabitation.
LACK OF CONSENT OF THE OTHER SPOUSE
For desertion to be complete, the other spouse must not have consented to the desertion.
Where the petitioner consented to the respondent’s withdrawal, he or she cannot put
forward that the other spouse has deserted him or her. See: Hughes v Hughes
Whether there is consent is a question of fact to be determined by considering all the

circumstances of the case.
The consent given may either be express or implied. It must be given voluntarily. See:
Spence v Spence [1939] 1 All ER 52.
And so, desertion sets in once consent has been withdrawn. See: Nutley v Nutley [1970] 1
All ER 410.
There must be no agreement to live apart. If there is no such agreement, it is irrelevant

that one was merely glad to see the other go. See:
1. Shaw v Shaw [1939] 2 All ER 779.

2. Fraser v Fraser [1969] 3 All ER 654.
In Harriman v Harriman [1909] P 123, 148, Buckley LJ 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.”
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.
NB: 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 other party who refuses to accept the offer would be
the party in desertion.
WANT OF REASONABLE CAUSE
There must be no reason for the withdrawal from cohabitation and other marital
obligations.
Where a spouse has a good reason for bringing the cohabitation to an end, then that
spouse will not be in desertion. See: Opoku-Owusu v Opoku-Owusu
An unreasonable behaviour of a spouse is a just cause for separation. See:
1. Winans v Winans [1948] 2 All ER 187.

2. Timmings v Timmings [1953] 2 All ER 187.
CONSTRUCTIVE DESERTION
It is not always the party who leaves the house that is the deserting spouse. In certain
cases, 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 constructive desertion.
In such cases, it is rather the spouse whose conduct compels the other to leave that will
be considered as the deserting spouse. Like simple desertion, the animus and the factum
must be established to prove the existence of desertion.
For cases on constructive desertion, see:
1. Dickinson v Dickinson [1889] 62 L.T 330.

2. Morse v Morse [1959] Times June 2.
3. Hughes v Hughes [1973] 2 GLR 342.
4. Arku v Arku & Abraham [1965] GLR 269.
5. Barnes v Barnes [1971] 1 GLR 202.

1. “For the purposes of section 2 (1) (c), in determining whether the period for
which the respondent has deserted the petitioner has been continuous, the
Court shall disregard any period or periods not exceeding six months in the
aggregate during which the parties resumed living as man and wife.
2. For the purposes of section 2 (1) (c) the Court may treat a period of desertion
as having continued at a time when the deserting party was incapable of
continuing the necessary intention if the evidence before the Court is such
that, had that party not been so incapable, the Court would have inferred
that the desertion continued at that time.”
The effect of this provision is that in calculating the two (2) years, the court must
disregard any period less than six (6) months during which the parties resumed living as a
husband and wife.
D. FAILURE TO LIVE AS HUSBAND AND WIFE FOR 2 YEARS WITH THE CONSENT OF
THE RESPONDENT
Section 2(1)(d) of Act 367 provides that:
facts:
(d) that the parties to the marriage have not lived as husband and wife for a
continuous period of at least two years immediately preceding the presentation of
the petition and the respondent consents to the grant of a decree of divorce, provided
that the consent shall not be unreasonably withheld, and where the Court is satisfied
that it has been so withheld, the Court may grant a petition for divorce under this
paragraph 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. The petitioner
must establish all the elements of desertion in addition to the consent of the other spouse.
Mere separation is not enough. There must be proof that at least one of the parties
believed that the marriage has come to an end.
On 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. However, where the consent is
unreasonably withheld, then the court will go ahead and grant the order. See: Addo v
Addo [1973] 2 GLR 103.
Whether consent has been unreasonably withheld is a question of fact to be decided in

each case. The test to be applied is an objective test. And it is whether a reasonable spouse
placed in the situation of the particular spouse would withhold consent. See: Addo v Addo
2 GLR 103.
The Court shall be satisfied that a consent to divorce has been given by the respondent
only after the respondent has been given the information that will enable the other party
to understand the consequences of the consent. See: Section 6(1) of Act 367.
The court may dismiss the proceedings if it is satisfied that the petitioner misled the
respondent, intentionally or unintentionally, about a matter which the respondent
considered in deciding to consent to the grant of a decree. See: Section 6(2) of Act 367.
The Court will not issue an order unless it is satisfied that consent has been given. Where
the respondent is suffering from mental incapacity, the test to giving consent is the same
as that of validity of contract of the marriage. See: In estate of Park [1953] 3 All ER 1141.
“For the purposes of section 2 (1) (d) and (e), in determining whether the period for
which the parties to a marriage have not lived as husband and wife has been
continuous, the Court shall disregard any period or periods not exceeding six months
in the aggregate during which the parties resumed living as husband and wife.”
E. NOT HAVING LIVED AS HUSBAND AND WIFE FOR A CONTINUOUS PERIOD OF AT

LEAST FIVE (5) YEARS IMMEDIATELY PRECEDING THE PETITION
Section 2(1)(e) of Act 367 provides that:
facts:
(e) that the parties to the marriage have not lived as husband and wife for a
continuous period of at least five years immediately preceding the presentation of the
petition”
Here, it is immaterial that the respondent has not committed any matrimonial offence.
See: Kotei v Kotei [1974] 2 GLR 172.
See: Section 7 of Act 367 supra.
F. INABILITY TO RECONCILE DIFFERENCES

Section 2(1)(f) of Act 367 provides that:
facts:
(f) that the parties to the marriage have, after diligent effort, been unable to reconcile
their differences”
The petitioner must show that:
a. There have been diligent efforts to settle their differences and

b. They have been unable to reconcile their differences.
See: Mensah v Mensah [1972] 2 GLR 192.
On the hearing of a petition for divorce, the petitioner or his counsel shall inform the Court
of all efforts made by or on behalf of the petitioner, both before and after the
commencement of the proceedings, to effect a reconciliation. See: Section 8(1) of Act 367.
If at any stage of the proceedings for divorce it appears to the Court that there is a
reasonable possibility of reconciliation, the Court may adjourn the proceedings for a
reasonable time to enable attempts to be made to effect a reconciliation. The Court may
direct that the parties to the marriage, together with representatives of their families or
any conciliator appointed by the Court and mutually agreeable to the parties, attempt to
effect a reconciliation. See:

2. Ofori v Ofori [1981] GLR 745.
When proceedings are resumed after an adjournment, the conciliator, or if a conciliator
has not been appointed, counsel for the petitioner, shall make a report to the Court of the
result of the adjournment, and the report shall be limited to a statement that the parties
have been reconciled or have not been reconciled or that more time is needed to effect a
reconciliation. See: Section 8(3) of Act 367.
Evidence of statements or other actions of the parties or their representatives in

connection with attempts at reconciliation shall not be admissible in Court in the divorce
proceedings. See: Section 8(4) of Act 367.
MISCELLANEOUS
A. RECOGNITION OF FOREIGN DECREES IN GHANA

“The Court shall recognise as valid a decree of divorce, nullity, or presumption of

death and dissolution of marriage, obtained by judicial process or otherwise, which is
not contrary to natural justice, and which
a. has been granted by a tribunal which had a significant and substantial

connection with the parties to the marriage; or
b. 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.”
c.
B. DECREE TO BE FINAL
“Every decree of divorce, nullity and presumption of death and dissolution of marriage
under this Act shall take effect from the date on which the court gave judgment.”
C. PRIVACY OF PROCEEDINGS
The courts are to hold proceedings in camera where it is satisfied that it will be in the
interest of the husband and wife or the children. For Section 39 of Act 367 provides that:
“The Court may direct that proceedings under this Act be heard in private and may
exclude all persons except officers of the Court, the parties and their witnesses and
lawyers where the Court is satisfied that the interests of the parties or the children of the
household so require.”
D. BEQUEST TO DIVORCED SPOUSE TO BE INVALID

“A gift to or an appointment in favour of one spouse in the will of the other shall be
invalidated if the marriage has been terminated under this Act by divorce or
annulment, unless the will contains an express provision to the contrary.”
The effect is that any gift made to a spouse in the Will of the other spouse will lapse where
the marriage is dissolved or annulled under Act 367. This will not apply where the Will
expressly employs words to the effect that notwithstanding the divorce or annulment, the
disposition should be valid.
E. PETITIONER’S CONDUCT NO BAR TO DIVORCE

Hitherto, under the common law, a petitioner’s conduct could bar their petition for divorce
absolutely or discretionary.
However, this position does not apply in Ghana. Section 10 of Act 367 provides that:
“Without prejudice to a provision of this Act which empowers or requires the Court
to dismiss a petition for divorce, nothing in an enactment or a rule of law shall be
taken as empowering or requiring the Court to dismiss a petition on the ground of
collusion between the parties in connection with the presentation or prosecution of
the petition or on the ground of any conduct on the part of the petitioner.”
F. RESPONDENT ENTITLED TO DIVORCE WITHOUT CROSS-PETITION

The law is that a respondent need not present a cross-petition before he or she will be
entitled to divorce. Thus, a respondent may be entitled to a decree of divorce in an action
notwithstanding that he or she did not file a cross-petition. Section 11 of Act 367 provides
that:
“If in the proceedings for divorce the respondent alleges against the petitioner and
proves the facts required by sections 1 (2) and 2 (1), the Court may in those proceedings
give to the respondent the relief to which the respondent would have been entitled if
the respondent had presented a separate petition seeking that relief.”
G. A SPOUSE’S UNREASONABLE BEHAVIOUR TOWARDS A CHILD

The law is that either party to a marriage may petition the Court for a child custody order
on the ground that the other party to the marriage has persistently behaved in an
unreasonable manner towards either the petitioner or a child of the household. See:
H. BIGAMY
A person who commits bigamy commits a misdemeanour. See: Section 262 of Act 29.
A person commits bigamy who, knowing that a marriage subsists between that person
and another person, goes through the ceremony of marriage, whether in Ghana or
elsewhere, with any other person. See: Section 263(1) of Act 29.
However, a person shall not be convicted of bigamy or for an offence relating to marriage
to a person previously married under section 264
a. if at the time of the subsequent marriage the former wife or the former husband
has been continually absent from that person for seven years, and has not been
heard of by that person as being alive within that time, and
b. if before the subsequent marriage that person informs the other party to the
marriage of the facts of the case so far as they are known to that person.
On proof by the accused person of the continued absence and information, the prosecutor
has the onus to prove that the former wife or husband has been so heard of. See: Section
263(3) of Act 29.
A person who, being unmarried, goes through the ceremony of marriage, whether in
Ghana or elsewhere, with another person whom that person knows to be married to
another person commits a misdemeanour, whether the other party to the ceremony does
or does not have the guilty knowledge as to be convicted of bigamy. See: Section 264 of
Act 29.
A person shall not be convicted of bigamy or of an offence under section 264, if the
marriage in respect of which the act was committed, and the former marriage, were both
contracts under customary law. See: Section 265(1) of Act 29
A person may be convicted of bigamy or of an offence under section 264 if, having
contracted a monogamous marriage that person marries or purports to marry any other
person under customary law, or if, being married to a person by customary law, goes
through a monogamous ceremony of marriage with any other person. See: Section 265(2)
of Act 29.
A person who, whether in Ghana or elsewhere, goes through the ceremony of marriage,
or a ceremony which that person represents to be a ceremony of marriage knowing that
the marriage is void and that the other person believes it to be valid, commits a
misdemeanour. See: Section 266 of Act 29.
A person who personates any other person in marriage, or marries under a false name or
description, with intent to deceive the other party to the marriage, commits a
misdemeanour. See: Section 267 of Act 29.
A person who is not duly qualified so to do who performs or witnesses as a marriage officer
the ceremony of marriage or knowing that any of the matters required by law for the
validity of a marriage has not happened or been performed, so that the marriage is void or
unlawful, commits a misdemeanour. See: Section 268 of Act 29.
A person who in a declaration, certification, licence, document, or statement required by

law to be made or issued for the purpose of a marriage, declares, enters, certifies or states
a material matter which that person knows to be false, commits a misdemeanour. See:
A person who endeavours to prevent a marriage by pretence
a. that the consent of that person is required by law, or

b. that a person whose consent is so required does not consent, or
c. that there is a legal impediment to performing the marriage,
commits a misdemeanour, if that person does so knowing that the pretence is false or
without having reason to believe that it is true. See: Section 270 of Act 29.
A person who, being under a duty to fill up the certificate of a marriage performed by that
person, or the counterfoil of it, or to transmit the certificate to the Registrar of Marriages,
wilfully fails to perform that duty, commits a criminal offence and is liable to a fine not
exceeding twenty-five penalty units. See: Section 271 of Act 29.
TOPIC 11: MOHAMMEDAN MARRIAGES
Mohammedan marriage 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.

2. There must be an acceptance of this proposal by or on behalf of the other.
3. The proposal and its acceptance must be done in the presence and hearing of two
(2) males or one (1) male and two (2) female witnesses who must be sane adult
Mohammedans.
4. 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.
See also: Barake v Barake [1993-94] 1 GLR 635.
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.
This position has been altered by the Children’s Act, 1998 (Act 560). Section 14(2) of Act
560 provides that:
“The minimum age of marriage of whatever kind is eighteen years.”
This, being a statutory provision, takes precedence over the Mohammedan rule. This
makes all marriages entered into by Muslim children under the age 18 illegal and void.
CHARACTERISTICS/LIMITATIONS OF A MOHAMMEDAN MARRIAGE
According to Fyzee, the following limitations exist:
1. A Muslim man may marry up to 4 wives, but a Muslim woman cannot marry more
than one man.
2. The different schools of the Muslim faith (Shiite, Sunnite, Hannafi, and Shafii) 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. A child of void marriage shall be deemed
as legitimate under section 14 of the Matrimonial Causes Act, 1971 (Act 367).
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 two (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
irregular. However, Muslim men may marry a Kitabia (a female believer in
Christianity or Judaism).
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 was 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.
One, a marriage will be considered as irregular where it is to a woman who has not
completed her period of Iddat.
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 to ascertain whether she is
pregnant with a child of the previous husband to avoid confusion on the parentage of the
children.
When marriage is dissolved by divorce, the period, if the woman is subject to

menstruation, is three courses; if she is not, it is three lunar months.
If the woman is pregnant at the time, the period terminates upon delivery or four months,
10 days, which ever period is longer.
When the marriage is dissolved by death, the duration of the Iddat is four months, 10 days.
Where the marriage is dissolved by death, the period is observed even if the marriage was
not consummated; whereas if dissolved by divorce, the woman is bound to observe the
Iddat only if the marriage was consummated.
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. Children of such marriage are legitimate.
Two, a marriage will be considered irregular is where a Muslim woman marries a Christian
man or a person who is not a Muslim.
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 two (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 completed.
The dower is defined by Fyzee as:
“The sum of money or other property promised by the husband to be paid or

delivered to the 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.
See: Ghulam Kubi v Mohammad Shafi A.I.R (1940) Peshawar.
REGISTRATION OF THE MOHAMMEDAN MARRIAGE
It is mandatory for a Mohammedan marriage to be registered in the manner provided in

Part 2 of Cap 127. See: Section 23 of Cap 127.
The law is that where a Mohammedan marriage or divorce is not registered under Cap 127,
it is not valid. See: Section 27(1) of Cap 127.
Where the marriage or divorce is in question, it may be proved by the production of
a. the Register in which the marriage or divorce was entered or

b. an extract of it from the Registrar, certified and signed personally by the District
Chief Executive or
c. the Marriage/Divorce Certificate.
The registration must be done within a week of the marriage. Else, the marriage will be
void. See:

3. Jebeille & Anor v. Ashkar & Anor [1977] 1 GLR 458.
4. Ramia v Ramia
PROCEDURE FOR REGISTRATION OF MOHAMMEDAN MARRIAGES
The law makes it mandatory for a Mohammedan marriage celebrated after the
commencement of Part II to be registered. See: Section 23 of Cap 127.
The essence is not the fact of the ceremony but the registration that gives the marriage
validity. See: In Re Marriage of Mohammedans Ordinance, Cap 129 (1951 Rev); In Re
Registration of Marriage between Byrouthy and Akyere; Ex Parte Ali [1980] GLR 872.
The marriage shall be registered within a week after its celebration at the office of the
district chief executive. In attendance shall be the bridegroom, bride’s wali, two witnesses
and the licensed Mohammedan priest. See: Section 24(1) of Cap 127.
The marriage is entered in the register and in duplicate certificates. Section 24(2) of Cap
127.
The licensed priest first makes entries in the register and duplicate certificates of
particulars. See: Section 24(3) of Cap 127.
Where the entry is not in the English Language, a duly sworn interpreter of that language
translates it into English and inserts that in the register. See: Section 24(4) of Cap 127.
The bridegroom, bride’s wali and the two witnesses sign the register and the certificates.
The licensed priest also signs the certificates and the register and certifies that the
marriage is valid according to Mohammedan Law. See: Section 24(6) of Cap 127.
The interpreter signs the certificates and register and certifies the correctness of the
English translation. See: Section 24(7) of Cap 127.
The certificates and register are signed by the DCE, the date and place of marriage, and
this completes the registration. See: Section 24(8) of Cap 127.
The certificates are then detached from the register and given to the bridegroom and the
bride’s wali. See: Section 24 (9) of Cap 127.
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. See: Section 24(10) of
Cap 127.
The application must be supported with an affidavit stating the reason for the delay or the
non-attendance. See: Section 24(11) of Cap 127.
From the provisions, time is of the essence and that the application must be brought within
one week. The law is that although there is no time limit on when an ex parte application
to register marriage could be brought, it must be brought within a reasonable time after
the ceremony- at any rate that the marriage was subsisting. See: In Re Marriage of
Mohammedans Ordinance, Cap 129 (1951 Rev); In Re Registration of Marriage between
Byrouthy and Akyere; Ex Parte Ali [1980] GLR 872.
The law is that registration of the marriage will be unsuccessful where the registration is
to be effected after the marriage has been brought to an end either by death or by the
actions of the parties. See: In Re Marriage of Mohammedans Ordinance, Cap 129 (1951
Rev); In Re Registration of Marriage between Byrouthy and Akyere; Ex Parte Ali [1980] GLR
872.
Where the marriage is not registered within one week after its celebration, any purported
registration without resorting to an ex parte application to the High Court is void. See:
Jebeille & Anor v. Ashkar & Anor [1977] 1 GLR 458.
SUCCESSION ON THE DEATH OF A PARTY TO A MOHAMMEDAN MARRIAGE
Hitherto, the law was that issues of succession were not based on one’s religion. It was
regulated by customary law unless a statute provided otherwise. Thus, for
mohammedan’s, unless it was established that a deceased party had been validly married
under Cap 129 (the Mohammedans Ordinance), then the property would not devolve in
accordance with mohammedan law but with customary law. In Kwakye v Tuba, the court
observed as follows:
“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.”
See also:
1. Section 10 of the Marriage of Mohammedans Ordinance (Cap 129).

2. section 28 of Marriages Act (Cap 127).
3. Hausa v Haruna [1963] 2 GLR 212.
NB: Section 10 of Cap 129 was re-enacted as section 28 of Cap 127.
However, the enactment of PNDCL 111 has altered this position. Section 19(b) of PNDCL 111
has repealed section 10 of Cap 129 and by extension section 28 of Cap 127.
Currently, PNDCL 111 applies to the distribution of property on the death intestate of all
persons, regardless of their religion or their custom. PNDCL 111 does not apply to a stool,
Skin, or family property. see: Section 1(2) of PNDCL 111.
DISSOLUTION OF MOHAMMEDAN MARRIAGES
A. GROUNDS FOR DISSOLUTION

The grounds for dissolution are:
a. Desertion for more than 4 years. Thus, where the husband has disappeared for
more than 4 years.
b. Failure to maintain the wife.
c. Where either party is suffering from insanity, leprosy, or a venereal disease.
B. FORMS OF DISSOLUTION
The dissolution may take one of these forms.
a. By a court order under section 41 of the Matrimonial Causes Act, 1971 (Act 367).
b. By mutual agreement between the parties. This is also called khula or mubara.
c. The husband may at his will pronounce talak.
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).
PROCEDURE FOR THE REGISTRATION OF MOHAMMEDAN DIVORCES
The law makes it mandatory for a Mohammedan divorce to be registered. See:

The divorce shall be registered within a month of the divorce having been effected at the
office of the district chief executive. In attendance shall be the man, woman’s wali, two
witnesses to the divorce having been effected and the licensed Mohammedan priest. See:
The divorce is entered in the register and in duplicate certificates. See: Section 26(2) of Cap
127.
The licensed priest first makes entries in the register and duplicate certificates of
particulars. See: Section 26(3) of Cap 127.
Where the entry is not in the English Language, a duly sworn interpreter of that language
translates it into English and inserts that in the register. See: Section 26(4) of Cap 127.
The man, woman’s’ wali and the two witnesses sign the register and the certificates. See:
The licensed priest also signs the certificates and the register and certifies that the divorce
is valid according to Mohammedan Law. See: Section 26(6) of Cap 127.
The interpreter signs the certificates and register and certifies the correctness of the
English translation. See: Section 26(7) of Cap 127.
The certificates and register are signed by the DCE and this completes the registration.
The certificates are then detached from the register and given to the man and the
woman’s wali. See: Section 26(9) of Cap 127.
MISCELLANEOUS
A. REGISTRARS
The District Chief Executive of each district is the Registrar of Mohammedan marriages
and divorces for that district. See: Section 20(1) of Cap 127.
He shall keep the Mohammedan marriage and divorce register which shall contain the
entries and shall have the counterfoil certificates attached. See: Section 20(2) of Cap 127.
B. LICENSE TO PRIEST
The Minister of Interior may grant a license to a Mohammedan priest applying for same,
who in the Minister’s opinion is a fit and proper person to perform the functions imposed
on them by Cap 127. See: Section 21(1) of Cap 127.
It therefore means that it is not any Mohammedan priest who can officiate a
Mohammedan marriage.
The Minister may at any time revoke or suspend that license. See: Section 21(2) of Cap 127.
The list of licensed priests is gazetted quarterly. See: Section 22 of Cap 127.
PROBLEMS IN PRACTICE
1. The use of the word “Mohammedan”

The law is an offspring of the Ordinance of 1907 with very little modifications. Currently,
Moslems object to the use of the word “Mohammedan” to refer to people professing the
Islamic faith. They are of the view that it is an inappropriate way and they would have
preferred the use of the word “Islamic” or “Moslem” Marriages.
2. Cap on the number of wives a man can have.

The Registration of a Mohammedan marriage under the Act also converts the marriage
into an Islamic one, with a controlled form of polygamy. Under Mohammedan Law,
scholars have propounded that the number of wives a man can have is limited to 4 and a
marriage to another is irregular. At customary law, there is no cap on the number of wives.
Therefore, the law impliedly limits the number of wives that a Moslem man is entitled to
marry under his personal law/customary law to four. This may not be beneficial to a
Moslem man desirous of marrying more than one 4 wives.
3. Non-existence of the registers.

Section 20(2) of Cap 127 makes provision for the marriage and divorce register kept by the
District Chief of Executive of each district.
On the contrary, research has shown that currently, most District Assemblies do not
possess such registers.
4. Mandatory requirement of registration.

Section 27 voids any Mohammedan marriage that is not registered under section 24. The
dramatic effect is that parties cannot claim rights and privileges conferred by a
Mohammedan Marriage and any acts consequent upon the marriage are equally void.
The law is harsh in its legal implications for non-compliance. Like the marriage under
customary law, registration should be permissive, and oral or written evidence should be
admitted to prove the existence of this marriage when it is in issue before the court.
5. Insistence on the signature of the licensed priest.

Section 24(10) grants relief to parties where the one-week period for registration after
celebration of marriage has lapsed. The court is empowered to grant a certificate to
dispense with the signature of everyone except the licensed priest. Whilst we admit that
this law is beneficial to the parties to enable them to ameliorate their position for non-
compliance, the law insists that the signature of the licensed priest be obtained,
nonetheless. A problem surfaces where it is impossible or impracticable to obtain the
signature of the licensed priest by reason of his unfortunate demise. How would the law
be implemented then?
6. Overburdening of the courts to validate a Mohammedan marriage.

The relief available to parties to a Mohammedan marriage to dispense with signatures
except that of the licensed priest, is pursued in the High Court only. The High Court is
extremely busy and deserving of sympathy. Due to the unduly short period for
registration, many affected persons are likely to invoke section 24(10) and this would place
a strain on the administration of the High Court.
7. Imams officiating the marriage rather than licensed priests.

In majority of Islamic marriages, the officiating Minister is the Imam of the Mosque where
the marriage is celebrated. Hardly would you find a licensed priest presiding over the
ceremony. Further, there is evidence to the effect that the certificates of marriage are
even signed by the Imams and not the licensed priests.
8. Impracticality of one week time-limit.

Moslems have spoken dispassionately on the one-week duration within which a marriage
must be registered. It has been described as largely impracticable and unrealistic. The
contention is that one week is too short a notice for a person to have their marriage
registered after its celebration.
9. The law is followed in its disregard than its obedience.

As a result of lack of public sensitization on the effects of this law, a considerable number
of Moslems do not subscribe to the provisions of the law. The resultant effect is most
Islamic marriages and/or divorces are not registered.
10. Issuance of certificates by some other institution other than the DCE.
Research has proven that even where the marriages are registered, the certificates are
produced by the Ghana Muslim Mission and not under the authority of the DCE. This is a
flagrant disregard for the law.
TOPIC 12: PROPERTY RIGHTS OF SPOUSES
A spouse refers to a husband or a wife. And spousal rights refer to the rights acquired by
the wife or a husband in the course of the marriage.
The discussion here shall in no way cover and apply to concubinage relationships. See:
Marian Obeng Mintah v Francis Ampenyin [2015] DLSC 3044; [2016] 95 GMJ 1
DEFINITION OF SPOUSAL/ MARITAL PROPERTY
Marital property is property acquired by the spouses during the marriage, irrespective of
whether the other spouse has made a contribution to its acquisition. See:
1. Arthur v Arthur [2013-2014] 2 SCGLR 543.

2. Tony Lithur v Nana Oye Lithur [2021] DLSC 10157.
To understand the scope of what amounts to marital property, the following types of
property must be distinguished from each other. They are:
a. Family property.
b. Household goods.
c. Property acquired before marriage and
d. Property acquired during marriage.
A. FAMILY PROPERTY
Generally, where a spouse builds property on family land, the property becomes a family
property. it does not belong to that spouse. For the law is that where a member builds
with his own resources on family land which is undeveloped and unpossessed i.e. a vacant
family land, the member gains a usufructuary interest in the land which he can maintain
against the whole world and which he can alienate.
However, where the member builds on family land which has already been developed and
possessed for example by adding a few rooms to a family building, the member only
acquires a lifetime interest in the property to which after his death, the property becomes
fully a family property, and the person cannot attempt to alienate the property or will it to
someone else after his death. Here, the member acquires license to make use of the
property.
B. HOUSEHOLD GOODS
Section 18 of the Intestate Succession Act, 1985 (PNDCL 111) provides that:
“household chattels includes jewellery, clothes, furniture and furnishings, refrigerator,

television, radiogram, 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.”
There is a presumption that household chattels belong to the couple in common. This is a
rebuttable presumption. See: United Simpson and Ayitey v Jeffery [1962] 1 GLR 279.
The law is that household goods cannot be attached in execution of a judgment debt
which is private to a spouse. See: United Simpson and Ayitey v Jeffery [1962] 1 GLR 279.
In United Simpson and Ayitey v Jeffery [1962] 1 GLR 279, the court held that:
“There is a general presumption of law that household items used by a married couple in
the matrimonial home belong to the couple in common but are under the direct control
of the housewife who requires them for the proper administration and efficient
management of the household. 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 may however be brought to show that a particular item belongs solely to one of
them.”
C. PROPERTY ACQUIRED BEFORE MARRIAGE

Generally, property acquired before marriage belongs to the spouse who owned the
property before the marriage. However, where there is evidence that the other spouse
after the marriage, added substantial value to the property, that spouse would be deemed
to have acquired a beneficial interest in the property.
NB: The addition must be substantial. Therefore, if one spouse plants rose bushes around
the other spouse’s property, he/she would not have acquired a beneficial interest in the
property.
D. PROPERTY ACQUIRED DURING MARRIAGE

i. The 1950’s
The customary law principle was that any property acquired by a husband with or without
assistance from the wife belonged solely to the husband. This was applicable in the
absence of a strong evidence to the contrary. That the right of the wife and the children
was a right to maintenance and support from the husband and the father. See: Quartey v
Martey [1959] GLR 377.
The effect of this was that upon the death of a husband, the wife was sent on her merry
way to her family empty handed unless the deceased’s brother was willing to take her as
a wife depending on the husband’s tribe.
This principle was unfair and was against equity and good conscience. See: Quartson v
Quartson [2010-2012] 2 GLR 481.
In Quartson v Quartson [2010-2012] 2 GLR 481, the Court noted that:
“The principle laid down in Quartey v Martey, supra cannot be allowed to stand in this
twenty-first century world. Times have changed and society has evolved since 1959. The
world has woken up to the fact that women play an all-important role in the development
of society and this role cannot be whittled away by the inability or difficulty to quantify in
financial terms their contribution in the creation of a healthy stable family environment.”
The law then recognized the right of both spouses to individually acquire property during
marriage. Thus, the husband or the wife could acquire an individual property during the
marriage. See:
1. Mensah v Berkoe [1975] 2 GLR 347.

2. Benstil Enchil v Benstil Enchil [1976] 2 GLR 303.
3. Clerk v Clerk [1981] GLR 583.
ii. The Shift to Substantial Contribution.

Here, the courts moved away from the customary law principle in Quartey v Martey supra
to the principle of substantial contribution.
The law was that if there was evidence of substantial contribution by the other spouse
towards the acquisition of a particular property, the courts would hold that such a spouse
had acquired a beneficial interest in the property. Thus, a property will be a marital
property where the other spouse establishes that he or she made a substantial
contribution towards the acquisition of the property. See:
1. Reindorf v Reindorf [1974] 2 GLR 36.

2. Abebrese v Kaah [1976] 2 GLR 46.
3. Anang v Tagoe [1975] 2 GLR 347.
4. Yeboa v Yeboa [1974] 2 GLR 114.
5. Achiampong v Achiampong [1982-83] GLR 104.
NB: The contribution could be in cash or in kind. See: Abebrese v Kaah [1976] 2 GLR 46.
It did not matter if a spouse could not produce receipts showing his or her contribution so
far as the contribution could be proved by some other means.
That the ordinary incidents of commerce do not apply to ordinary relations between a
husband and a wife. See:
1. Rimmer v Rimmer [1952] 1 QB 63.

2. Abebrese v Kaah [1976] 2 GLR 46.
3. Anang v Tagoe [1975] 2 GLR 347.
4. Mrs Theresa Owuo v Francis Owuo [2017] DLSC 2490.
The effect of the law was that if the property was registered in the name of one spouse
and there was evidence that the other spouse made a substantial contribution, the spouse
in whose name the property was registered, would be holding it in trust for both spouses.
See: Domfe v Adu [1984-86] 1 GLR 653.
NB: The doctrine of quid quid plantatur solo solo cedit does not apply to matrimonial
relations and in the acquisition of marital properties. See: Berchie Badu v Berchie Badu
[1987-88] 2 GLR 260.
That even in the absence of substantial contribution, an agreement between the spouses
that a property was being acquired for their joint benefit, it operated as a clog on the
property. That property becomes the joint property of the spouses. See: Achiampong v
Achiampong [1982-83] GLR 104.
iii. The Demise of the Substantial Contribution in favour of a Constitutional

Presumption.
The courts have shifted from the principle of substantial contribution. That the principle
of substantial contribution is unconstitutional. See: Mensah v Mensah [2012] 1 SCGLR 391.
The current position of the law is that properties acquired during marriage are presumed
to be joint properties of the spouses. As such, one spouse cannot dispose of the property
without the consent of the other spouse. This is a rebuttable presumption which can be
displaced by evidence to the contrary. See:
1. Mensah v Mensah [2012] 1 SCGLR 391.

2. Quartson v Quartson [2012] SCGLR 1107.
4. Fynn v Fynn and Osei [2013-2014] 1 SCGLR 727.
5. Adjei v Adjei C/A No 34/06/2021 dated 21st April 2021.
Thus, if a wife takes care of the children of the household, provides emotional support,
prepares food for the husband, does his laundry, takes care of the household, and
supervising the home such that the other partner has a free hand to engage in economic
activities, properties acquired by the husband will be shared equally upon divorce unless it
will be inequitable to do so. See:

The effect is that household chores usually performed by women amounts to contribution.
The law no longer requires a spouse to prove direct pecuniary contribution in the form of
paying part of the purchase price of the property from her own money or buying part of
the building materials in the case of a house. See:
1. Gloria Odartey Lamptey v Nii Odartey Lamptey [2021] DLCA 10792

2. Benjamin Awuku Martinson v Sarah Martinson [2022] DLCA 11500
NB: It is not every wife to a marriage who diligently performs her marital role. It is therefore
necessary for a contribution to be demonstrated by her for the presumption to apply. See:
Adjei v Adjei C/A No 34/06/2021 dated 21st April 2021.
In effect, for the presumption to apply in favour of a spouse, two conditions or basic facts
must be satisfied. That
a. The properties were acquired during the subsistence of the marriage and
b. The spouse (husband/wife) made a contribution.
NB: A spouse can transfer his or her interest in the joint property to the other spouse.
Where the property in question is an immovable property, the document of transfer must
comply with the requirements of the Land Act, 2020. Thus, non-compliance with section
34 and 35 of Act 1036 will not transfer any interest in the property to the other spouse.
See: Nana Yaa Konadu v Alhaji Abdul Rasheed [2020] JELR 92043 (SC).
How is the presumption in favour of joint property rebutted?
NB: The presumption of joint property during marriage does not preclude a spouse from
acquiring a property for himself or herself. For the law is that every person has the right to
own property either alone or in association with others. See:
1. Article 18(1) of the 1992 Constitution.

The presumption is rebutted where there is evidence to the effect that the property was
acquired by a gift or through succession (either testate or intestate) See: Arthur v Arthur
[2013-2014] 2 SCGLR 543.
The presumption is also rebutted where a spouse takes an individual loan to develop his
self-acquired property during the subsistence of a marriage. The property so acquired shall
not be considered a joint property acquired until the loan has been fully paid while the
marriage subsists. The rationale for this is that the property will stand the risk of being lost
upon failure to liquidate the full loan. See: Adjei v Adjei C/A No 34/06/2021 dated 21 st April
2021.
Where the presumption is rebutted, the property will be considered as the individual or
self-acquired property of that spouse. He or she may dispose of that property without the
consent of the other spouse. See: Fynn v Fynn and Osei [2013-2014] 1 SCGLR 727.
Additional Authorities:
1. Linda Akoto v Bright K Manu C/A No J4/30/21 DATED 26th January 2022.
2. Kofi Amofa Kusi v Afia Amankwa Adarkwa C/A No J4/73/21 dated 4th May 2022.
That the circumstances under which the presumption shall be rebutted are not closed. And
there might be other instances which can be carved outside the broad definition of marital
property. See: Adjei v Adjei C/A No 34/06/2021 dated 21st April 2021.
STATUTORY PROVISION ON JOINT ACQUISITION OF PROPERTIES
Section 38 of the Land Act, 2020 (Act 1036) provides that:
“(3) In a conveyance for valuable consideration of an interest in land that is jointly

acquired during the marriage, the spouses shall be deemed to be parties to the
conveyance, unless a contrary intention is expressed in the conveyance.
(4) Where contrary to subsection (3) a conveyance is made to only one spouse that
spouse shall be presumed to be holding the land or interest in the land in trust for the
spouses unless a contrary intention is expressed in the conveyance.”
Section 47 of Act 1036 provides restrictions on the transferability of land by a spouse. It

provides that:
“Except as provided in subsections (3) and (4) of section 38, in the absence of a
written agreement to the contrary by the spouses in a marriage, a spouse shall not, in
respect of land, right or interest in land acquired for valuable consideration during
marriage,
(a) sell, exchange, transfer, mortgage or lease the land, right or interest in the land,
(b) enter into a contract for the sale, exchange, transfer, mortgage or lease of the
land, right or interest in the land,
(c) give away the land, right or interest in the land inter vivos, or
(d) enter into any other transaction in relation to the land, right or interest in the land
without the written consent of the other spouse, which consent shall not be
unreasonably withheld.”
Section 97(4) & (5) of Act 1036 on application for registration of land is relevant. It provides
that:
“(4) An application for registration of land or an interest in land jointly acquired for
valuable consideration during marriage shall state the spouses in the marriage as the
applicants unless a contrary intention is expressed in the conveyance.
(5) Where only one of the spouses is stated as the applicant, the spouse shall be
presumed to have applied on behalf of that spouse and the other spouse unless a
contrary intention is expressed in the conveyance.”
Section 125(6) & (7) of Act 1036 on Land Certificate provides that:
“(6) Where a certificate in respect of land or an interest in land is acquired for valuable
consideration during marriage, the certificate shall bear the names of the spouses in
the marriage.
(7) Where only one spouse is stated in the certificate as the proprietor of land or an
interest in land referred to in subsection (6), that spouse shall be presumed to be
holding the land or interest in land on behalf of that spouse and in trust for the other
spouse.”
DISTRIBUTION OF JOINTLY ACQUIRED PROPERTY
The starting point is Article 22 of the 1992 Constitution. It provides that:
1. “A spouse shall not be deprived of a reasonable provision out of the estate of a

spouse whether or not the spouse died having made a will.
2. Parliament shall, as soon as practicable after the coming into force of this
Constitution, enact legislation regulating the property rights of spouses.
3. With a view to achieving the full realisation of the rights referred to in clause (2)
of this article –
a. spouses shall have equal access to property jointly acquired during
marriage;
b. assets which are jointly acquired during marriage shall be distributed
equitably between the spouses upon dissolution of the marriage.”
NB: There is a difference in application of Article 22(1) and Article 22(3). See: Akua Marfoa
v Margaret Akosua Agyeiwaa [2016] DLSC 5612.
That properties acquired during marriage must be shared or distributed equitably upon
dissolution of the marriage. That the maxim equality is equity is the preferred principle to
be applied in the sharing of joint property unless in the circumstances of a particular case,
the equities demand otherwise. See: Boafo v Boafo [2005-2006] SCGLR 705.
The equality is equity principle is to the effect that prima facie, the properties shall be
shared equally. However, where the special circumstance of a particular case demands
otherwise, the properties will not be shared equally. See:

NB: Where some of the properties are subject to liabilities in the form of loans outstanding
to be paid on them, asking one spouse to pay off the loans on properties given to the other
spouse while at the same time bearing the loans outstanding on the properties given to
him, would likely tilt the balance against that spouse having to bear all the liabilities alone.
See: Gilbert Anyetei v Sussana Anyetei CA/J4/67/2021 dated 2/3/2023.
NB: An application can be filled under Article 22(3) of the 1992 Constitution only upon the
dissolution of the marriage. That the provisions of Article 22(3) only become effective upon
the dissolution of the marriage when the distribution of the properties is being considered.
See: Tony Lithur v Nana Oye Lithur [2021] DLSC 10157.
WHETHER THE PROPERTIES OF A COMPANY COME WITHIN JOINT PROPERTIES TO BE

SHARED ON DISSOLUTION OF MARRIAGE
If a company was established in the course of a marriage and it is proved that the spouse
whose name does not appear as a shareholder nevertheless contributed to its
establishment, in such situation, it is the shares which would be assets jointly acquired
during the marriage that may be shared between the parties and not the properties of the
company. Once the shares are distributed, both spouses would then indirectly thereby
gain proportionate interests in the properties of the company. See: Gilbert Anyetei v
Sussana Anyetei CA/J4/67/2021 dated 2/3/2023.
FACTORS CONSIDERED WHEN SPOUSAL PROPERTY IS SHARED EQUITABLY
Several factors are taken into consideration. These include:
a. The ability of each spouse to earn an income.

b. The length of the marriage.
c. The respective contribution by the parties.
d. The standard of living enjoyed by the parties before the breakdown of the
marriage.
e. The age of each party to the marriage.
f. Other financial resources which each of the parties has or is likely to have in the
foreseeable future.
g. The conduct of the parties during the marriage.
See:
1. Obeng v Obeng [2013] 63 GMJ 158.

POWER OF THE COURTS TO DEAL WITH PROPERTIES OUTSIDE GHANA
The issue about our courts jurisdiction over immovable property abroad is a subject that
has not been specifically legislated on by Parliament. And it touches on private
international law, also referred to as Conflict of Laws. The principles that our courts are
required to apply in this area of our law are as dictated by section 54(2) of the Courts Act,
1993 (Act 459).
The general rule is that a court cannot make an order affecting properties which are
situated abroad. See: The British South African Co v The Companhia De Mozambique
[1893] AC 602.
This is the rationale behind section 33 of the Matrimonial Causes Act. Section 33 provides
that:
“In addition to any other jurisdiction conferred by this Act the Court shall have
jurisdiction, where a party who may be ordered to make financial provision has assets
in Ghana, to order that party to make financial provisions not exceeding the value of
those assets.”
This means that the court is denied jurisdiction to make an order for financial provision
that will attach to assets of a party that are situated abroad.
As a general rule, a court has no jurisdiction to adjudicate claims for declaration of title,
possession, and damages for trespass in respect of immovable property abroad except
where the claim is based on contract between the parties, on fraud or on rights accruing
in Equity against a defendant who is subject to the jurisdiction of the court. See:
1. Deschamps v Miller [1908] 1 Ch 856.

2. Pattni v Ali [2007] 2 AC 85.
3. Eng Liat Kiang v Eng Bak HernLiat Kiang [1995] 3 LRC 398.
4. Hamed v Stevens [2013] EWCA Civ 911.
5. Akoto v Akoto [2011] 1 SCGLR 533.
Such a case should not be premised on a claim of right that is inconsistent with and
disputes the root of title or possession of the defendant but must assume the validity of
the defendant’s title and only seek relief against the defendant personally. Where the
claim of the plaintiff involves disputation as to the rightful acquisition of the property by
the defendant in accordance with the laws of the foreign country, then a common law
court ought not to assume jurisdiction.
EXECUTION OF JUDGMENTS AFFECTING PROPERTIES OUTSIDE GHANA

Most countries have a legislation that permits the reciprocal enforcement of foreign
judgments. Ghana’s legislation is contained in Part V (sections 81-99) of Act 459. Section
81(1) provides as follows:
“Where the President is satisfied that, in the event of the benefits conferred by this
Sub-Part being extended to judgments given in the superior courts of any country,
substantial reciprocity of treatment will be assured in respect of the enforcement in
that country of judgments given in the Superior Court of Judicature of Ghana, the
President may by legislative instrument order -
(a) that this Sub-Part shall extend to that country; and
(b) that such courts of that country as are specified in the order shall be the superior
courts of that country for the purposes of this Sub-Part.”
Pursuant to the above provision, the President of Ghana made the FOREIGN JUDGMENTS
AND MAINTENANCE ORDERS (RECIPROCAL ENFORCEMENT) INSTRUMENT, 1993 (LI
1575). The LI lists a number of countries that Ghana has recognised for the mutual
enforcement of foreign judgments. See: Gilbert Anyetei v Sussana Anyetei CA/J4/67/2021
dated 2/3/2023.
NB: The courts have power to give judgment where it has not been shown to us that the
Courts of the foreign state would disregard reasoned judgment of Superior Courts of
Ghana in a case where both parties were accorded a hearing on the merits after they both
voluntarily submitted to the jurisdiction of the Ghanaian Court and the application of
Ghanaian Law for the resolution of their dispute. See: Gilbert Anyetei v Sussana Anyetei
CA/J4/67/2021 dated 2/3/2023.
PROPERTY SETTLEMENT (ALIMONY)
This settlement may be made in addition to what a spouse may receive upon the sharing
of a jointly acquired property. Accordingly, Mrs Frederica Ahwireng-Obeng argues that the
decisions in Mensah v Mensah, Quartson v Quartson, Fynn v Fynn, Adjei v Adjei should have
no impact on section 20 of the Matrimonial Causes Act, (Act 367).
That while those decisions are based on contribution, alimony under section 20 is more
concerned with the needs of the party making the claim than the contributions of the
parties. See:
1. Oparebea v Mensah [1993-94] 1 GLR 61.

2. Partey v Partey Civil Appeal Suit No H1/183/2013.
The Court may order either party to the marriage to
a. pay to the other party a sum of money or

b. convey to the other party 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. See: Section 20 (1) of Act 367.
NB: The court exercises discretion under section 20. This includes the discretion to decide
which property to be given to the other spouse. And that there is no limitation imposed
on which of the properties to be settled on the other spouse. See: Ribeiro v Ribeiro [1989-
90] 2 GLR 109.
In exercising discretion under section 20, the overriding consideration is that the order
should be just and equitable. See:
1. Berchie-Badu v Berchie-Badu [1987-88] GLR 78.

2. Obuobi v Obuobi C.A No 32.2002.
NB: The award under section 20 may be wholly in money or partly in money and partly in
non-money that is partly movable and partly immovable. See: Ribeiro v Ribeiro [1989-90]
2 GLR 109.
Payments and conveyances may be ordered to be made in gross or by instalments. See:

Section 20 (2) of Act 367.
Gross or lump sum payment has the advantage of enabling the payee to invest it and use
the income to live on. In some cases, it will enable the wife to meet any liabilities as
expenses already reasonably incurred in maintaining herself and any children to the
marriage. It will also help remove bitterness so often associated with periodical payments.
See: Aikins v Aikins [1979] GLR 223.
NB: The court cannot suo motu make orders in favour of a party when the party has not
pleaded them either in the petition or cross-petition. See:
1. Nana Ama Amponsah v Franklyn Amoah Nyamaah Civil Appeal No. J4/2008 dated
11th February 2009.
2. Timitimi v Amabebe [1953] 14 WACA 374.
3. Gihoc Refrigeration and Household Products Ltd v Hanna Asi [2005-2006] SCGLR
4. Dam v J.K Andoh [1962] 2 GLR 200.
In Dam v J.K Andoh [1962] 2 GLR 200, the court noted that:
“A court must not substitute a case proprio motu, nor accept a case contrary to or
inconsistent with that which the party himself puts forward whether he be the
plaintiff or defendant.”
When a decree of divorce or nullity is granted, if the Court is satisfied that either party to
the marriage holds title to property (movable or immovable) part or all of which rightfully
belongs to the other, the Court shall order transfer or conveyance of the interest to the
party entitled to it on the terms that the Court thinks just and equitable. See:
1. Section 21 (1) of Act 367.

2. Mrs Theresa Owuo v Francis Owuo [2017] DLSC 2490.
Where the party ordered to make the conveyance or transfer is either unable or unwilling
to do so, the court may order the Registrar to execute the transfer or conveyance. See:
CUSTODY AND FINANCIAL PROVISION FOR CHILDREN
In any proceedings under the Matrimonial Causes Act, the court shall inquire whether
there are any children of the household. See: Section 22 (1) of Act 367.
The court suo motu or on application by a party may make an order concerning a child of
the household which is reasonable and for the benefit of the child. See:
1. Section 22 (2) of Act 367.

Notwithstanding the above, the order may
a. award custody of the child to any person.

b. regulate the right of access of any person to the child.
c. provide for the education and maintenance of the child out of the property or
income of either or both of the parties to the marriage.
NB: Where the Court has reason to believe that a party ordered to make a payment or
payments may be unwilling or unlikely to pay, the Court may order that party to give
reasonable security for any payment or payments ordered. See: Section 23 of Act 367.
The law is that during the pendency of a suit, the court may require either party to the
marriage to pay to the other party the sum or sums of money that is reasonable to enable
that party to maintain or defend the suit. See: Section 24 of Act 367.
RESTRAINING ORDERS
The Court may by order restrain
a. either party to the marriage from leaving the jurisdiction until the Court is satisfied
that that party has made adequate provision to satisfy an award the Court has
made or may make in the proceedings.
b. a person from removing a child of the household from the jurisdiction.
c. a party to the marriage from imposing a restraint on the personal liberty of, or from
harming or interfering with, the other party to the marriage or a child of the
household, for as long as it thinks necessary.
The Court may order a person to return a child of the household to the jurisdiction. See:
The Court may by order restrain either party to the marriage, or any other person, from
permitting the disposition of the assets or property of either party to the marriage. See:

2. Ribeiro v Ribeiro [1989-90] 2 GLR 109.
The Court may rescind a disposition of the assets or property that has been made with the
intention of defeating the financial provision or property settlement of the other party.
This does not apply to a disposition for value to a purchaser in good faith. See:

NB: The object of section 26 is to protect property that could become the subject of
settlement while the suit is pending. And that as soon as a petition for divorce is filled, the
husband (or a party) should not dispose of his properties without reference to the court if
he is to escape the charge of attempting to defeat the orders for financial provision or
property settlement under section 26(1). See:

2. Samuel Aninkora v Beatrice Yaa Aninkora CA/No. 64/2001 dated 25 th July 2002.
The Court may make an order concerning the property or assets of either party to the
marriage or of a child of the household that is appropriate to preserve or maintain that
asset or property while the suit is pending before the Court. See: Section 26 (2) of Act 367.
MODIFICATION OF FINANCIAL PROVISION, CUSTODY AND SUPPORT
The Court may from time to time rescind or vary an order in respect of maintenance
pending suit and financial provision, or the care, custody, and support of a child as it thinks
fit. See: Section 27(1) of Act 367.
An order of financial provision for a party to the marriage shall not be made subsequent
to a decree of divorce or nullity in any case in which
a. the decree contains an express waiver of financial provision or

b. the decree provides for a money or property settlement in lieu of financial provision
and that settlement has been executed; or
c. the decree does not grant liberty to apply for financial provision in the future.
CESSATION OF COURT ORDERS
A party to the marriage is not entitled to financial provision in respect of any period after
the remarriage of that party. See: Section 28(1) of Act 367.
The death of a party for whose benefit an order for financial provision has been made, or
the death of the party adversely affected by the order, shall automatically terminate the
order. Thus, the death of either party to the order made automatically terminates the
order. See: Section 28 (2) of Act 367.
The above is without prejudice to the right of a party ordered to make financial provision
to apply to the court under Section 27 (1) at any time to rescind or vary the order for
sufficient cause. See: Section 28(3) of Act 367.
NB: A conveyance ordered under section 20 would not cease to have an effect if the wife
remarried or on the death of either herself or the husband. Equally, a substantial lump sum
payment made will not be caught by section 28(2) if the wife dies after receiving payment.
See: Ribeiro v Ribeiro [1989-90] 2 GLR 109.
Thus, if a lump sum is paid or a house is conveyed, the demise of one of the parties to that
order will not affect the payment or the conveyance. See: Benjamin Amponsah Mensah
(Substituted by Benard Mensah and Barbara Mensah) v Margarette Mensah [2014] DLSC
2844.
An order for care, custody, or support of a child shall automatically terminate when the
child reaches the age of twenty-one (21) years. However, the order may provide otherwise
with a view to making reasonable provision for the further education of the child, or for
the care, custody, and support of the child who is so incapacitated that the child cannot
be expected to care for himself. See:

NB: Failure to comply with an order of the Court to make financial provision under this Act
for a spouse or child shall, in addition to any other effect it might have, be deemed to
commence a period of desertion by the party to the marriage who has failed to comply
with the order. See: Section 30 of Act 367.
See: Obeng v Obeng [2013] 63 GMJ 158. READ!

THE PRESUMPTION OF ADVANCEMENT AS AGAINST THE PRESUMPTION OF JOINT

PROPERTY
The presumption of advancement has been adequately dealt with under trusts. See:
Chapter 10 on Trusts in my conveyancing notes.
The presumption of advancement in respect of a husband and a wife is moribund in view

of the radical evolution of the law on property rights of spouses. The presumption is dead
so far as it applies to married couples. Currently, the law is that once property is acquired
by a couple during the subsistence of their marriage, there is a presumption that the
property was jointly acquired and therefore jointly owned, irrespective of the spouse in
whose name it was acquired. See: Nana Yaa Konadu v Alhaji Abdul Rasheed [2020] JELR
92043 (SC).
Notwithstanding this, the presumption of advancement applies where a husband

purchases a property in the name of the child. See:
1. In Re Sasu-Twum (Decd): Sasu-Twum v Twum (1976) 1 GLR 23.

2. Richards (Juliana) v Nkrumah [2013-2014] 2 SCGLR 1577
For the presumption of advancement to apply where a wife purchases a property in the
name of a child, it must be established that the wife stands in loco parentis to the child.
See:
1. Bennet v Bennet (1879) 10 Ch. D 474

2. Ward v Snelling (1994).
Where a property is registered in the name of a stranger, the stranger will be holding the
property in resulting trust for the purchaser except the stranger proves that the property
was given to him as a gift. See: In Re Koranteng (decd); Addo v Koranteng & Others
The burden of rebutting the presumption of advancement in favour of a child is on the

party disputing the advancement. See: Diana Minnow a.k.a Diana Abena Amoakoah v
Daniel Antwi Yeboah and Others [2021] DLCA 10817
The presumption of advancement is rebutted by evidence that the person who advanced
the purchase money did not intend to forgo the beneficial interest. This intention must
exist before or at the time of purchasing the property and not thereafter. Thus, a person
rebutting the presumption must prove that his acts and declarations made before the
conveyance or made contemporaneously at the time of the conveyance was to the effect
that he did not intend to create an advancement. See:
1. Shephard and Another v Cartwright and Another [1954] 3 AER 649

2. Oppong v Oppong [1992] 1 GLR 83
3. Ussher v Darko [1977] 1 GLR 476.
4. Kwantreng v Amassah (1962) 1 GLR 241
5. Ramia v Ramia (1981) GLR 275
NB: The subsequent acts of the person who intends to rebut the presumption of
advancement are only admissible against him and not in his favour or for the purpose of
rebutting the presumption.
NB: Where the presumption of advancement is rebutted, the person in whose name the
property is purchased (i.e the child or wife) becomes the trustee on a resulting trust for
the father or husband who provided the purchase money.
TOPIC 13: CUSTODY OF CHILDREN
All matters relating to children are governed by the Children’s Act, 1998 (Act 560) and the
Courts Act, 1993 (Act 459).
In any proceedings under Act 367 (divorce, nullity proceedings, etc), the court must always
inquire from the parties whether there are children of the household. See: Section 22 of
Act 367.
The court suo motu or on application by a party make an order concerning a child of the
household which is reasonable and for the benefit of the child. See:

Notwithstanding the above, the order may
d. award custody of the child to any person.

e. regulate the right of access of any person to the child.
f. provide for the education and maintenance of the child out of the property or
income of either or both of the parties to the marriage.
The Courts Act further empowers Family Tribunals to deal with matters relating to:
a. Custody of children
b. Parentage of children
c. Access to and maintenance of children.
NB: In any application regarding the custody of a child, the paramount consideration is the
welfare of the child. And that the court looks at the facts from every angle and give due
weight to every relevant material. See:

2. Braun v Mallet [1975] GLR 81.
4. Gray v Gray [1971] GLR 422.
It is the duty of the Courts to protect a child irrespective of the wishes of the parents.
Therefore, the courts are mandated to give custody of a child even to a stranger.
PRINCIPLES GOVERNING CUSTODY OF CHILDREN
To give effect to the welfare principle, the following principles are applied to issues on
custody of children.
The mother is usually given custody of children who are young and those who may be in
need of special care. See:
1. Re-Dankwa [1961] 1 GLR 352.

In Re-Dankwa [1961] 1 GLR 352, Ollenu J stated that:
“At common law a father is the natural guardian of his infant child and has a right to
its custody: see Halsbury's Laws of England (3rd ed.) Vol. 21, pages 191-2, para. 425.
That legal right of the father exists even against the mother: see Halsbury, op. cit. page
192 and the cases there cited. It is only in very special cases, for example, where the
father by his own act or conduct proved himself unsuitable, or where the interest and
welfare of the child so require, that the father would be deprived of custody. As to the
principle which the courts apply in these matters see Halsbury, op. cit. Vol. 21, page
194, para, 429. But it has been held that other things being equal, it is proper that a
child of tender years should be with the mother: Re A and B (infants)1; B v. B.2.”
Poverty alone is not a reason for depriving a mother of custody of the child. Custody may
be refused only if the mother’s character has been impeached. See:
1. Braun v Mallet [1975] GLR 81.

3. Beckley v Beckley [1974] 1 GLR 393.
In Braun v Mallet [1975] GLR 81, the court observed that:
“The natural right of the mother of a young child to its custody and the fact that the
mother of an illegitimate child had a prima facie right to its custody in preference
either to the reputed father or any other person, and the fact that Thomas and the
mother needed each other. The affection of a mother for her child must be taken into
account, and poverty per se was no reason for depriving a mother custody when her
character had in no way been impeached.”
NB: The courts will look at the whole background of the infant’s life and all the
circumstances of the case before making a decision in respect of any child. See: Beckley v
Beckley [1974] 1 GLR 393.
The Court may order a person to return a child of the household to the jurisdiction. See:
An order for custody may be made even if the child is out of the jurisdiction. See: Ofori v
Ofori [1981] GLR 145.
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 income of either or both parties to the marriage.
The courts will not split children where in the circumstances it will be desirable to keep
them together. See: Opoku-Owusu v Opoku-Owusu [1973] 2 GLR 349.
Where a child is deeply rooted in a foreign environment, the court will order the parent
who lives in the foreign environment to have custody especially if there is evidence that
the child will be better off in the foreign land. See: Attu v Attu [1984-86] GLR 144.
The courts would prefer to give custody to the parent whose authority or control the
children are used to even if the child was stolen by the father from the mother. See: Re
Danquah [1961] 1 GLR 352.
The Courts are reluctant to grant custody of a child to a parent who stays outside the
environment where the child is having his or her education. This is so where the custody
will seriously disturb his progress. See: Gray v Gray [1971] 1 GLR 422.
Section 45 of the Childrens Act, 1998 (Act 560) provides that:
1. “A family tribunal shall consider the best interest of the child and the importance
of a young child being with the mother when making an order for custody or
access.
2. In addition to subsection (1), a family tribunal shall 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.”
MAINTENANCE OF CHILDREN
After the issue of custody of a child, the court is obliged to consider the issue of
maintenance of the child.
It is the duty of parents to maintain their children. It includes the duty to provide health,
education, and reasonable shelter for their children. See:
1. Section 6(3)(b) of the Children’s Act, 1998 (Act 560).

2. Section 47 of the Children’s Act, 1998 (Act 560).
For it is a criminal offence for a parent to fail to provide for the necessaries of health and
life for the child. See:
1. Section 79 of the Criminal Offences Act, 1960 (Act 29).

2. R v Senior (1898) 19 Cox C.C. 219.
3. R v MacDonald [1904] St Rep Q 151.
In awarding maintenance of children, the court considers the following factors:
a. The income of the parents.

b. The general financial responsibilities of the parents.
c. The cost of living in the area where the child is resident and
d. Any other matters that the court may deem fit.
A tribunal may award maintenance to the mother of a child whether she is married to the
father or not.
The maintenance expenses shall include expenses during pregnancy, delivery, death of a
child, for a period of nine (9) months after delivery and payment of a reasonable sum for
the continued education of the mother if she herself is a child.
The Family Tribunal has the power to order the attachment of the property to a person
who is liable for the payment of maintenance or an order for the payment of arrears.
The Tribunal has the power to appoint another person to have custody of a child and as
such receive and administer maintenance for the child.
A maintenance order expires when a child attains the age of eighteen (18) or dies before
that age. See: Section 53(1) of Act 560.
A maintenance order shall lapse before the child attains the age of eighteen years if before
that age the child is gainfully employed. See: Section 53(2) of Act 560.
A maintenance order may continue after the attainment of 18 years if the child is engaged
in a course of continuing education or training. See: Section 54(1) of Act 560.
Any person who has custody of a child or a young person may apply for a variation of a
maintenance order.
An action may be brought to enforce a maintenance order, thirty (30) days after the order
has been made.
The above are subject to the provisions of the Matrimonial Causes Act and that no action
may be brought for a maintenance order if an application is already pending in matrimonial
proceedings. See: Section 58 of Act 560.
The Tribunal is mandated to consider any other matters that it may deem relevant.
No person shall unlawfully remove a child from another person who has the lawful custody
of the child.
TOPIC 14: ADOPTION
According to the Black’s Law Dictionary, 9th Edition, adoption is defined as:
“The creation of a parent-child relationship by judicial order between two parties who
usually are unrelated; the relation of parent and child created by law between persons
who are not in fact parent and child. - This relationship is brought about only after a
determination that the child is an orphan or has been abandoned, or that the parents'
parental rights have been terminated by court order. 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. Adoption is distinguishable from legitimation and from
fosterage.”
In English law adoption refers to the process by which a child’s legal parentage is entirely
and irrevocably transferred from one set of adults, usually the birth parents, and vested in
other adults, namely the adoptive parents. Adoption is the only means by which parents
can lose their parental responsibility for their child whilst a minor. Adoption under English
law can only be effected through a court process, and the jurisdiction is entirely statutory.
This is because at common law parental rights and duties were held to be inalienable.
There are two types of adoption in Ghana. They are:
a. Customary law adoption and

b. Adoption under the Children’s Act, 1998 (Act 560) and the Children's Amendment
Act, 2016 (Act 937).
A. CUSTOMARY LAW ADOPTION

This was very common in the olden days before the Children’s Act and its amendment
came into force. With the introduction of the legislation and the requirements outlined
therein, it is no longer possible for a valid customary law adoption to take place.
However, customary law adoptions which took place before the enactment of those
legislations will be declared valid if all the requirements were complied with.
The requirements of a customary law adoption were:

a. Consent of the parents of the person to be adopted by the prospective adoptive

parent.
The consent may be express or may be implied from the prevailing circumstances
at the time the adoption took place.
b. The intention to adopt must be clearly and publicly expressed by the adopter in the
presence of witnesses.
See:
1. Tanor and another v Akosua Koko [1974] 1 GLR 451.

2. Plange v Plange [1977] 1 GLR 312.
3. Agbeko v Kudzordzie, October 2013
NB: Under customary law adoption, the consent of the adopter’s family is irrelevant. See:
Plange v Plange [1977] 1 GLR 312.
Where a valid adoption takes place, the child acquires the status of a child of the marriage.
The child enjoys all the rights fo a biological child including the right to inherit. And the
rights and liabilities of the natural parents become extinguished. See: Plange v Plange
[1977] 1 GLR 312.
NB: Under customary law, an unborn child could be adopted. See: Quashie and Others v
Boahema and Another [1987-88] GLR 59.
Currently, adoption of an unborn child cannot be legal in view of the provisions of Act 560
and Act 937.
B. ADOPTION THROUGH LEGISLATION

The Children's Amendment Act, 2016 (Act 937) established the Central Adoption Authority
(“the Authority”) to take charge of the administration of all adoptions in Ghana. The
functions of the Authority include the conduct of adoptions in the country in a manner
which promotes the wellbeing and best interest of a child.
The Authority has the duty of ensuring that the delivery of adoption services is in
accordance with the provisions of Act 937, Act 560 and the Hague Convention on the
Protection of Children and Co-operation in respect of Inter-Country Adoption.
The Authority is assisted in the performance of its functions by an Adoption Board, which
is the governing body of the Authority, a Technical Committee, and an Adoption
Secretariat. The Authority works hand in hand with the Ministry of Social Welfare (“the
Department”).
The Authority is mandated to accredit an adoption Agency to provide adoption services in

the country. The functions of an Adoption Agency include assisting the Department in the
performance of its functions such as the preparation of Child Study Report, Home Study
Report, Pre-adoption Counselling, training of prospective adoptive parents and
preparation of adoptable children for placement.
The starting point of any adoption process is what is in the best interest of the child. And
not the fact that a person has expressed an interest in the adoption of a particular child.
See: Section 62 of Act 937.
WHO MAY BE ADOPTED?
A child who has been abandoned or relinquished and has been declared adoptable by the
Authority may be adopted. The child must be below the age of eighteen (18) years.
ABANDONED CHILD
An abandoned child is a child who falls under any of the following categories:
a. A child who is left with an unknown person and the stranger does not return.
b. A child who is left with a health facility without the parent or guardian or relative
visiting.
c. A child who is left in a public place alone or in a questionable place that suggests
neglect.
d. A child who is left in a residential care facility for at least one year without a visit
from parent, guardian or relative and they cannot be traced, and notice has been
given to the family to show interest in the child and no response has been obtained.
Anyone who believes that a child has been abandoned is under a duty to inform the
nearest police station.
It is incumbent upon the Department to take all the necessary steps to reach the parents
of an abandoned child before deciding on the adoptability of the child.
RELINQUISHED CHILD
A relinquished child is a child who has been given up voluntarily for adoption by the
parents, guardian or relative. When this happens, the rights and obligations in respect of
the child are surrendered to the State.
A parent or guardian who relinquishes a child should receive a psycho-social guidance to

ensure that the parent or guardian understands the implications of relinquishment- that
he or she is giving up all social and personal ties to the child and that the child maybe placed
for in-country adoption or inter-country adoption.
The person relinquishing the child is required to sign a Relinquishment Form indicating that
the child is being voluntarily relinquished.
The parent or guardian will also obtain a Care Order from the High Court permitting the
Department to take custody of the child.
NB: A guardian can only relinquish a child where the child is an orphan or where the parent
is incapable of giving consent.
A parent/guardian has a right to reverse the decision to relinquish before an adoption

order is made.
Where it is established that a child has been abandoned or relinquished to the State, a
social worker authorized by the Department will place the child with a family member or a
fit person after the child has medically screened. The child will be declared adoptable after
approximately six (6) months if the family cannot be found.
NB: Consent must be obtained before an adoption order is made. Thus, consent of the
child in appropriate cases, consent of the parent or guardian and consent of a spouse if
the application for adoption is not joint.
A. SPOUSAL CONSENT.
If the applicant is married and the application is not a joint application by the couple,
consent must be obtained from the other spouse. An adoption order will not be made by
the High Court if spousal consent is not obtained.
B. PARENTAL/GUARDIAN CONSENT
The consent of both parents must be obtained. If one parent cannot be found, consent
must be obtained from the family of that parent.
An adoption order will not be made unless the court is satisfied that consent of the parent
or guardian of the prospective adoptee has been obtained.
The parents or guardian should understand the effect of adoption. That the adoption will
be tantamount to a permanent deprivation of parental rights.
The express consent of any person who the court believes has any rights or obligations
under an agreement, court order or under customary law in respect of the child should
also be obtained.
NB: Consent must be freely and willingly given.
Where consent is obtained through duress or fraud or misrepresentation, the consent so

obtained will be construed as lack of consent.
C. CONSENT OF A CHILD
Where the child is fourteen (14) years and above, his or her written consent must be
obtained.
POWER OF THE COURT TO DISPENSE WITH CONSENT
The court has the power to dispense with consent where the parent or guardian has
persistently and without just cause refused to maintain and care for the child. The failure
must be serious and there must be evidence that the child will not derive any benefit from
contact with the parent or guardian.
Parental consent may again be dispensed with if it is proved that the ill treatment of the
child by the parent or guardian will continue if the child was not taken away.
Where a parent or guardian is unreasonably withholding consent, the court may dispense
with it.
The question to ask is whether a reasonable parent will refuse to give consent when it is
clear that the child will be protected and will be given a secure and stable future by the
adoptive parent. If the answer is no, the court will hold that consent is being unreasonably
withheld and dispense with it.
Consent may be given without the knowledge of the identity of the applicant. If consent
is withdrawn after it has been given and the reason for the withdrawal is that the parent
did not know of the identity of the applicant, the consent will be considered as being
unreasonably withheld. See: Re W [1971] 2 All ER 49.
WHO QUALIFIES TO ADOPT
An application to adopt may be made by the following categories of persons to the

Department:
a. A husband and wife jointly.

b. The father or mother alone or jointly with a spouse.
c. A single person who is twenty-five (25) years and is at least twenty-one (21) years
older than the child.
d. An applicant who is not fifty (50) years and above.
e. Where a relative is the applicant, he should not be less than twenty-one (21) years
and more than sixty-five (65) years.
f. A male applicant will normally be granted an order in respect of his son.
g. The applicant, except in inter-country adoption, must be a Ghanaian or habitually
resident in Ghana.
h. The applicant must have been declared medically fit and must not have been
convicted of a child related offence.
i. The applicant must also have a sustainable means of livelihood and subscribe to the
basic rights of children.
j. The applicant must have notified the Department of his intention to adopt a child
at least three months before the adoption order is made.
k. The applicant must have been declared suitable and eligible to adopt by the Central
Authority.
PROCEDURE FOR IN-COUNTRY ADOPTION
In-country adoption occurs where the adoptive parent resides in Ghana or is habitually
resident in Ghana.
A prospective adoptive parent submits an application through a licensed agency or the

Department of Social Welfare to the Central Authority.
The application must be accompanied by the following:
a. applicant’s medical report

b. birth certificate
c. income statement
d. commitment forms
e. two-character references
f. pictures of the applicant and family members
g. copy of National Identification Document
h. audio visuals of the applicant
i. consent of the parent of the child if the prospective adoptive parent is a relative
and
j. spousal consent unless the application is jointly made by both parties.
Upon receipt of the application with the supporting documents, the Authority will cause a
Home Study Report to be prepared by an Adoption Agency based on whether the
applicant is parental material and whether other family members are willing to accept the
prospective adoptive child. The report will also include information on the religious
inclination of the adoptive parent.
The prospective adoptive parent is given training on bonding, prevention of child right
abuse or violations and child participation in family activities.
The Authority will then decide on the eligibility and suitability of the applicant to adopt a
child.
The Authority shall prepare a Child Study Report to determine the needs and adoptability
of a child.
After the Home Study Report and the Child Study Report have been prepared, the
Technical Committee of the Authority will, based on the Reports, match an applicant who
is found to be eligible and suitable with an adoptable child for a period not less than one
month under the supervision of the Department.
If they are found to be incompatible, the child will be withdrawn and another child will be
matched with the prospective adoptive parent.
If they are found to be compatible the child will stay with the adoptive parent for two more
months.
After the Department is satisfied that a child is adoptable by the prospective adoptive
parent after they have been matched, a Social Enquiry Report shall be prepared.
The Social Enquiry Report is used by the Department to support an application to the High
Court for an Adoption Order.
The High Court will issue an Adoption Order when it is satisfied that the following
conditions are been met:
a. That spousal consent has been obtained.

b. That a written consent has been obtained from the parent of the child or the
guardian of the child if the family of the child cannot be found.
c. That the parent or guardian understands the effect of adoption.
d. That a written report on the wishes of the child on the adoption has been prepared
if the child is capable of forming an opinion.
e. That the child has continuously been in the care of the applicant for at least three
consecutive months preceding the date of the adoptive order.
f. That a written consent has been obtained from the child if the child is fourteen
years old.
g. That adoption is in the best interest of the child.
AN INTERIM ADOPTION ORDER
It is a temporary order issued by the High Court allowing an adoptive parent to have
custody of a prospective adoptive child for a period not exceeding three months before a
final order is made, on conditions that the court may deem fit.
SUMMARY OF PROCEDURE FOR IN-COUNTRY ADOPTION
In summary, the procedure is as follows:
a. Applicant must be qualified.

b. Applicant applies to Authority with necessary documents.
c. Preparation of Home Study Report.
d. Preparation of Child Study Report.
e. Matching of child and prospective adopter.

f. Social enquiry report.
g. An order of the High Court.
a. Interim
b. Final
DISCLOSURE OF FACT OF ADOPTION TO AN ADOPTEE
Knowledge of adoption may be disclosed by the adoptive parent to the child only when
the child is fourteen (14) years old, and adoption is in his or her best interest.
The Department is mandated to monitor the family every six (6) months for two (2) years
to ensure that indeed the adoption is in the best interest of the child.
A stranger who discloses the fact of adoption to an adoptee commits a criminal offence.
INTER-COUNTRY ADOPTION
Section 124 of Act 560 as amended by Act 937 provides that:
"Inter-country adoption means adoption of a child by a person who is not ordinarily

resident in the country and who intends to reside in the home country of that person
with the child after the grant of the adoption order."
Inter-country adoption takes place where by a Judicial Order, a child’s legal parentage is
entirely transferred from the biological parents and vested in adoptive parents who reside
in a Country or State other than that of the child.
The country of the prospective adoptive child is called “the Country of Origin” and the
country of the prospective adoptive parent is called “the Receiving Country.”
The procedure for inter-country adoption is provided by Act 560 and Act 937.
NB: A child who has been found to be adoptable will be placed for inter-country adoption
only where attempts at placing the child for in-country adoption has been unsuccessful.
The Department is further encouraged to place siblings together for adoption.
QUALIFICATIONS FOR INTER-COUNTRY ADOPTION

All the qualifications applicable to applicants in in-country adoptions are applicable to

applicants in inter-country adoptions.
Furthermore, applicants must be twenty-five (25) years old and above and at least twenty-
one (21) years older than the child and should not be more than fifty (50) years.
The applicant must qualify to adopt in his own country.
The country must be signatory to the 1993 Hague Convention or a country which has
signed a bilateral agreement with Ghana.
PROCEDURE FOR INTER-COUNTRY ADOPTION
First, the applicant must obtain a Home Study Report and a Letter of Approval from the
Central Authority in his or her country.
The Central Authority in Ghana will determine the eligibility of an applicant based on the
Home Study Report and the Letter of Approval from the Central Authority of the
applicant’s country.
The prospective adoptive parent will then be matched with the child in Ghana for a period
not less than one month under the supervision of the Department.
If the applicant and the child are found to be compatible, the child will continue to live with
the applicant for two more months.
If they are not compactible, another child will be placed with the applicant.
The Department will thereafter prepare a Post Placement Report to enable the applicant
to apply for an Adoption Order.
Pre-adoption placement may be waived where the child is certified by a Senior Medical
Officer to be in need of specialized medical care outside the country.
A court may grant an interim order and the child may be taken out of the jurisdiction to
the receiving country during this period and will withdraw the child if the interim adoption
is found not to be in the best interest of the child.
After the High Court has issued a Final Adoption Order, the Authority will then issue a
Certificate of Conformity to the adoptive parent to enable him or her apply for a new birth
certificate for the child.
The Authority is required to enter into an agreement with the Central Authority of the
Receiving Country to provide reports to the Authority every six (6) months for two (2)
years and once every year for three (3) years.
RESTRICTIONS ON INTER-COUNTRY ADOPTIONS IN GHANA
A person in same sex marriage does not qualify to adopt a child from Ghana.
A single person who is not a citizen of Ghana does not qualify to adopt a child from Ghana.
An adopted child cannot be taken out of the country without clearance from the Director.
REVOCABILITY OF AN ADOPTION ORDER
An adoption order may be revoked on grounds of fraud or misrepresentation.
Again, an adoption order may be revoked upon the discovery of new facts which, if known,
would have disqualified the adopter.
EFFECTS OF AN ADOPTION ORDER
An adoption order is final. It extinguishes the rights, obligations, and duties of the natural
parent/guardian. The rights become fully and completely vested in the adoptive parents.
The child acquires the status of a child of the marriage.
The child enjoys all the rights of a biological child.
The child also acquires the right to inherit.
WHAT HAPPENS WHEN AN ADOPTIVE PARENT DIES INTESTATE
Where the deceased made a Will before the adoption and the adoptee is excluded, the
adoptee may apply to the court for variation of the terms of the Will so that he or she can
become a beneficiary if the adoptee is still a minor. See:
1. Section 13 of the Wills Act

2. Article 28 of the 1992 Constitution.

An adoptee is not entitled to inherit from his natural parents. Double inheritance is
prohibited. However, the natural parents may bequeath property to an adoptee.
DOUBLE ADOPTION
A child may be adopted more than once. The second adoption extinguishes the rights,
obligations, and duties of the previous adopter. They become vested in the new adoptive
parents.
NB: The second adoption should also follow the procedure outlined under Act 937.
ADOPTION OF NON-CITIZENS
Non-citizens may be adopted. Where the child is less than sixteen (16) years, he
automatically becomes a citizen of Ghana.
If the child is above sixteen (16) years of age, an application must be made to the Ministry
of Interior for Ghanaian citizenship.
ADOPTION AND MONEY
Money shall not exchange hands in any adoption proceedings except ordered by the
Court.
THE HAGUE CONVENTION OF MAY 1993 ON PROTECTION OF CHILDREN AND CO-

OPERATION IN RESPECT OF INTER COUNTRY ADOPTION (1993 HAGUE CONVENTION)
Inter-country adoption offers a permanent home to a child for whom a suitable home
cannot be found in his or her country of origin.
As the phenomenon of inter-country adoption became popular and the numbers of such
adoptions increased, it became imperative for proper legislation to be developed to
ensure the protection, well being and safety of children in inter-country adoptions.
The Hague Convention was developed to establish the necessary safeguards for ensuring
that all inter-country adoptions are in the best interest of the child to be adopted, and that
the child’s fundamental human rights are also taken into consideration.
The Hague Convention is an agreement aimed at safeguarding, especially, the well-being

of children in inter-country adoptions. The objectives of the Convention may be
summarized as follows:
1. The Convention is aimed at protecting children who are adopted and taken out of
their original country to a foreign country.
2. The Convention protects children against abduction, sale and trafficking of children
and illegal adoptions.
3. Countries which are parties to the Convention cannot allow private adoptions in
their respective countries.
4. The Convention sets out clear procedures for inter-country adoption. These
procedures, inter alia, prohibit financial gain.
5. The Convention further establishes a system of co-operation between authorities
in Countries of Origin and Receiving Countries. This co-operation ensures that inter-
country adoptions take place under conditions which help to guarantee the best
adoption practices and the elimination of abuse.
6. The Convention requires both the State of Origin and the Receiving State to share
the duties and benefits of regulating inter-country adoptions.
7. The Convention further sets out the functions to be performed by the State of
Origin and the Receiving State.
8. Furthermore, the Convention has developed certain rules to be complied with by
the states involved in inter-country adoption.
9. States are required to ensure that a child is adoptable and that all attempts at
placing the child in his or her country of origin have been futile before inter-country
adoption is considered.
10. The Convention requires the child to be adopted and the prospective adoptive
parent to be matched to ensure compatibility. In compliance with this requirement,
Act 937 requires a child who has been declared adoptable to be placed with the
prospective adoptive parent for one month and thereafter for two more months
before a decision is taken that the adoption process can continue.
11. It is mandatory for the prospective adoptive parents to be evaluated thoroughly.
For instance, a Study Report consisting of a Formal Letter of Approval from the
Central Authority of the Receiving Country must be prepared on the prospective

adoptive parents and submitted to the Country of Origin of the child to be adopted.
12. The Convention further requires States to establish safeguards to prevent
abduction and sale and trafficking of children.
13. Families are required to be protected against exploitation and undue pressure to
prevent improper financial gains and corruption.
14. Furthermore, all contracting States are required to set up Central Authorities,
responsible for all adoptions in their various States. The Central Authorities and
accredited bodies and public authorities mandated to perform the functions of the
Central Authority in the various States are required to work together.
15. The Convention provides for the immediate recognition of the status of a child as
adopted without the need for a procedure for recognition in the Receiving State.
16. The functions stipulated under the Convention are to be performed only by
competent authorities like the Central Authorities, public authorities such as
Judicial or Administrative authorities and accredited bodies.
17. The Central Authorities in the various countries are required by the Convention to
enter into agreements requiring the Receiving State to provide reports on the
child’s welfare after the adoption procedures have been completed and the child
has been taken out of the country.
18. As a further precaution, an interim adoption order is issued to ensure that the
adoption is in the best interest of a child before a final adoption order is issued.
19. The adoptive parent is required to apply for a new birth certificate after the final
Adoption Order has been issued.
20. Finally, all countries which are signatories to the Convention are required to enact
laws which reflect the provisions of the Convention in their respective countries.
Consequently, Ghana enacted the Children’s Amendment Act, (Act 937).
TOPIC 15: RIGHTS OF CHILDREN
CONSTITUTIONAL PROTECTIONS
The 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 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.
See: Article 28(1) of the 1992 Constitution
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.
The Constitution further provides that every child has the right to be protected from
engaging in work that constitutes a threat to their health, education or development. See:
Article 28(2) of the 1992 Constitution
A child shall not be subjected to torture or to other cruel, inhuman or degrading treatment
or punishment. See: Article 28(3) of the 1992 Constitution
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. See: Article 28
of the 1992 Constitution
NB: Child, for the purposes of Article 28 refers to a person under the age of 18. See: Article
28 of the 1992 Constitution
THE HISTORICAL INTRODUCTION OF CHILDREN’S RIGHT
After the 2nd world war and the passage of the Universal Declaration of Human Rights
(UDHR), it was widely acknowledged that children’s human rights were theoretically no
different than adults.
This is the perception that underpins the United Nations Convention on the Rights of the
Child (UNCRC).
UNCRC was the first instrument to incorporate the complete range of international human
rights including civil, cultural, economic, political and social rights as well as aspects of
humanitarian law.
The UNCRC therefore contains the inalienable civil and political rights but also the second-
generation rights contained in the International Covenant on Economic, Social and Cultural
Rights (ISCESCR).
UNCRC is a long list of children’s rights which constitutes a painstaking attempt to define
children’s needs and aspirations and to commit ratifying States of their accomplishment.
It departs from the earlier international documents which primarily aimed to address
children’s immaturity and need for care.
SOME INTERNATIONAL INSTRUMENTS CONCERNING THE RIGHTS OF CHILDREN
a. 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)
b. The African Charter on the Rights and Welfare of the Child
c. The Hague Convention on Inter-Country Adoption
d. The Universal Declaration of Human Rights
e. The International Covenant on Economic, Social and Cultural Rights (ICESCR)
GHANAIAN STATUTES THAT PROVIDE FOR THE PROTECTION OF CHILDREN
a. The Children’s Act, 1998 (Act 560)

b. The Children’s (Amendment) Act 2016 (Act 937)
c. The Child’s Rights Regulations, 2002 (LI 1705)
d. The Juvenile Justice Act, 2003 (Act 653)
e. The Intestate Succession Act, 1985 (PNDCL 111), among others
CLASSIFICATION OF RIGHTS UNDER THE CONVENTION ON THE RIGHTS OF THE CHILD

(CRC)
a. 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.
They include the right to adequate food, shelter, clean water, formal education, primary
healthcare, leisure, recreation, cultural activities and information about their rights.
b. 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.
c. 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.
d. 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 form
and express opinions on matters affecting them and the right to seek, receive and impart
information and ideas.
RIGHTS OF CHILDREN IN GHANA
The Children’s Act defines a child as a person below the age of 18. See: Section 1 of the
Children’s Act 1998 (Act 560)
Despite the fact that the provisions of the Children’s Act are only applicable to children,
the Act 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. And This can only apply
where the child is engaged in a course of continuing education or training after that age.
See: Section 54(1) of Act 560
THE WELFARE PRINCIPLE
The Act makes it clear that the best interest of the child shall be paramount in any matter
concerning the child. See: Section 2(1) of Act 560
It 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. See: Section 2(2) of
Act 560
NB: 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.
NB: 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:
a. The ascertainable wishes and feelings of the child concerned (considered in light
of his age and understanding)
b. His physical, emotional and educational needs
c. The likely effect on him of any change in his circumstances
d. His age, sex, background and any other characteristics of his which the court
considers relevant
e. Any harm which he has suffered or is at risk of suffering
f. 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
g. The range of powers available to the court under the Act in the proceedings in
question.
NB: Ghana’s Act 560 does not have this checklist or any such guidelines in its local laws.
However, Article 3(1) of the UNCRC 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 custody 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 there was judicial decision to the effect 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. See: Barnado v McHugh
There was also judicial decision to the effect the duty of the Court is 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 and what amounts to welfare of the child is not measured by money only
nor by physical comfort only but rather, the word welfare ought to be taken in the widest
sense such that moral and religious welfare of the child must be considered as well as the
physical well-being; nor can the ties of affect be disregarded. See:
1. In Re McGrath (Infants)
2. Walker v Walker & Harrison
3. Ward v Laverty
The English court in 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.
See: J v C
NB: The J v C case laid the foundation of the modern welfare principle law on children’s
rights and custody.
NB: It has been held by Lord Denning that while the welfare of the child is the first and
paramount consideration, the claims of justice cannot be overlooked! See: In Re L (Infants)
This principle has also been applied in Ghana where the court held per Azu Crabbe CJ 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. See: Braun v Mallet
JURISDICTION OF THE COURTS IN MATTERS RELATING TO CHILDREN
The Courts Act 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, the court is to make the welfare of the child their
primary consideration! See: Section 18 of Act 459
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. See: Section 47 of
Act 459
The Courts Act again confers the jurisdiction on the Circuit Court to appoint guardians and
make orders for the custody of infants. See: Section 42 of Act 459
The Matrimonial Causes Act 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. See: Section 22 of Act 367
The Court is defined in this Act to include the High Court and the Circuit Court.
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. See: Section 50 of Act 560
RIGHTS OF CHILDREN IN GHANA UNDER THE CHILDREN’S ACT, 1998 (ACT 560)
a. Freedom from Discrimination.

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. See: Section 3 of Act 560
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.
b. Right to name and nationality.

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. See:
1. Section 4 of Act 560
2. Bulley-Neequaye v Bulley-Neequaye
3. Quarshie v Bosso
NB: On the right of the child to a nationality, Article 6 of the Constitution is instructive.
It confers Ghanaian citizenship on persons born in or outside Ghana once either of their
parents or grandparents is or was a citizen of Ghana. See: Article 6(2) of the Constitution
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. See: Article 6(3) of the Constitution
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. See: Article 6(4) of the
Constitution
c. Right of grow up with parents

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. See: Section 5 provides of Act 560
d. Right to parental care (parental duty and responsibility)

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.
A child has the right to life, dignity, respect, leisure, liberty, health, education and shelter
from their parents. See: Section 6(2) of Act 560
Except where the parent of the child has surrendered their parental duties to another in
accordance with the law, the rights 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.
Each 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. See: Section 6(4) of Act 560
In relation to the birth certificate 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. See: Section 18 of the Registration
of Births and Deaths Act, 2020 (Act 1027)
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.
e. The right to parental property

A person shall not deprive a child whether or not born in wedlock of reasonable provision
out of the estate of a parent. See: Section 7 of Act 560
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.
NB: Thus, a customary successor is bound in law to utilize the money in the estate towards
the maintenance and education of the children even to the last pesewa! See:
1. Rhule v Rhule
2. Hayford v Moses
NB: The National Pensions Act, 2008 (Act 766) 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. See: Section 80(7) of the National Pensions Act,
2008 (Act 766)
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. See: Section 73(3) of Act 766
f. The right to education and well-being

No person shall deprive a child access to education, immunization, adequate diet, clothing,
shelter, medical attention or any other thing required for his development. See: Section
8(1) of Act 560
No person shall deny a child medical treatment by reason of religious or other beliefs. See:
Section 8(2) of Act 560
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. See:
1. Amartey v Sraha
2. Sirebour v Dome
3. Dorkenoo v Dorkenoo
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, basic education shall be free, compulsory and available to all.
See: In Re O (a Minor)
g. Right to social activity

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. See: Section 9 of Act 560
h. Rights of disabled children:

A person shall not treat a child with a disability in an undignified manner. See: Section 10(1)
of Act 560
A child with a disability has a right to special care, education and training wherever possible
to develop maximum potential and be self-reliant. See: Section 10(2) of Act 560
i. Right of opinion
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. See: Section 11 of Act 560
j. Protection from exploitative labour

A person shall not subject a child to exploitative labour which is prohibited under Section
87. See: Section 12 of Act 560
Labour is exploitative where it deprives the child of health, education or development. See:
Section 87 of Act 560
k. Protection from torture and degrading treatment

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. See: Section 13(1) of Act 560
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. See: Section 13(2) of Act 560
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. See: Section 13(3)
of Act 560
l. The right to refuse betrothal and marriage

A person shall not force a child to be betrothed, be the subject of a dowry transaction or
to be married. See: Section 14(1) of Act 560
The minimum age of marriage of whatever kind is at18 years. See: Section 14(2) of Act
560
NB: 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. See: Section 15 of Act 560
District Assembly to protect children
A District Assembly shall protect the welfare and promote the rights of children within its
area of authority and shall ensure that within the district, governmental agencies liaise
with each other in matters concerning children.
The Social Welfare and Community Development Department of a District Assembly shall
investigate cases of contravention of children’s rights. See: Section 16 of Act 560
Persons to report child abuse and protection cases
A person shall report the matter to the Department if that person has information on
child abuse, a child in need of care and protection. See: Section 17 of Act 560
NB: Child abuse has defined as a contravention of the rights of the child which causes
physical or mental harm to the child! See: Section 124 of Act 560
Meaning of care and protection
A child is in need of care and protection if the child is an orphan or is deserted by the
relatives; has been neglected or ill-treated by the person who has the care and custody of
the child; has a parent or guardian who does not exercise proper guardianship; is destitute;
is under the care of a parent or guardian who, by reason of criminal or drunken habits, is
unfit to have the care of the child; is wandering and does not have a home or settled place
of abode or visible means of subsistence; 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;
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;
frequents the company of a reputed thief or reputed prostitute; 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; 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; 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, is below the
age of criminal responsibility under the Act 29 and is involved in an offence other than a
minor criminal matter; or is otherwise exposed to moral or physical danger.
A child shall not be considered to come within the scope of paragraphs (i) and (j) of
subsection (1) if the only reputed prostitute that the child associates with is the mother
and if it is proved that she exercises proper guardianship and care to protect the child from
corrupt influences. See: Section 18 of Act 560
Investigation by Department
If the Department has reasonable grounds to suspect child abuse or a need for care and
protection, it shall direct a probation officer or social welfare officer accompanied by the
police to enter and search the premises where the child is kept to investigate
The Department shall direct the probation officer or the social welfare officer to refer the
matter to a Child Panel established under section 27 of this Act if the child is not in
immediate need of care and protection.
If after investigation it is determined that the child has been abused or is in need of
immediate care and protection the Department shall direct a probation officer or social
welfare officer accompanied by the police to remove the child to a place of safety for a
period of not more than seven days.
The Department shall determine a temporary place of safety for child which may be with
a fit person; or at the home of a parent, guardian approved relative.
The child shall be brought before a Family Tribunal by the probation officer or social
welfare officer before the expiry of the seven-day period for an order to be made.
Until the Family Tribunal determines the order, the Family Tribunal may commit the child
to an approved residential home or to the care of a probation officer, social welfare officer
or other fit person.
A Family Tribunal shall not designate the manager of an institution as a fit person to whom
the care of a child can be entrusted unless the institution is one which the Minister
responsible for Social Welfare has approved by notice published in the Gazette or the
institution is assigned that function by or under an Act of Parliament. See: Section 19 of Act
560
Care order of Family Tribunal
A Family Tribunal may issue order to the Department on an application by a probation

officer or social welfare officer under section 19(4).
The care order shall remove the child from a situation where he is suffering or likely to
suffer significant harm and shall transfer the parental rights to the Department.
The Department shall take custody of the child.
The Department shall determine the most suitable place for the child, which may be with
a fit person; or at the home of a parent, guardian or approved relative.
The Department shall notify the regional office of the order within seven days of the order.
The Foster Care Placement Committee in each region shall determine the appropriate
placement for the child by confirming or varying the decision of the District Office.
The regional office shall make a report on each placement to the Head Office every three
months
The maximum duration of a care order shall be three years or until the child attains
eighteen years which ever is earliest and the Family Tribunal may make an interim order or
may vary the order.
The Family Tribunal may make a further order that the parent, guardian or other person
responsible for the child shall pay for the cost of maintaining the child.
A Family Tribunal shall not designate the manager of an institution as an approved fit
person to whom the care of a child can be entrusted unless the institution is one which the
Minister responsible for Social Welfare has approved by notice published in the Gazette or
the institution is assigned that function by or under an Act of Parliament. See: Section 20
of Act 560
Supervision order of Family Tribunal
A Family Tribunal may issue a supervision order to the Department on an application by a

probation officer or social welfare officer under section 19(4).
The supervision order shall be aimed at preventing any significant harm being caused to a
child whilst he remains at his family home in the custody of his parent, guardian or relative.
The supervision order shall place a child under the supervision of the probation officer or
social welfare officer while he remains in the custody of his parent, guardian or relative.
The maximum duration for a supervision order shall be one year or until the child attains
eighteen years. See: Section 21 of Act 560
Duties of probation officer and social worker
The duties of a probation officer or social welfare officer with respect to a care or
supervision order are to advise and help the child and his family;
take reasonable steps to ensure that the child is not subjected to harm; and hold regular
reviews to plan for the future of the child. See: Section 22 of Act 560
Home visits
A probation officer or social welfare officer shall be permitted by a parent, guardian or

relative of the child to visit the child at the family home. See: Section 23 of Act 560
Discharge of orders
A care or supervision order may be discharged in the best interest of the child by the family
tribunal on the application of the child, a probation officer, a social welfare officer, or a
parent, guardian or relative of the child. See: Section 25 of Act 560
Care order and adoption
A child under a care order whose parent, guardian or relative does not show an interest in
the welfare of the child within a period stipulated by a family tribunal may be put up for
adoption. See: Section 26 of Act 560
Establishment of child panels
The District Assembly shall, as it considers necessary, establish a number of child panels in
each district. See: Section 27 of Act 560
Functions of child panels
A child panel shall have non-judicial functions prescribed under this Act to mediate in
criminal and civil matters which concern a child. See: Section 28 of Act 560
Meetings of the child panel
A child panel shall meet at least once in every three months or as often as may be
necessary.
The quorum at a meeting of a child panel is four and in the absence of the chairman the
panel shall be chaired by a member elected by the members present from their number.
A person with a significant interest in a matter before a child panel may be invited to attend
and participate in its deliberations.
A child panel shall permit a child to express an opinion and participate in a decision which
affects the child’s well-being commensurate with the level of understanding of the child
concerned. See: Section 30 of Act 560
Child panel in civil matters
A child panel may mediate in a civil matter concerned with the rights of the child and
parental duties. See: Section 31 of Act 560
Child panel in criminal matters
A child panel shall assist in victim-offender mediation in minor criminal matters involving a
child where the circumstances of the offence are not aggravated.
A child panel shall seek to facilitate reconciliation between the child and a person offended
by the action of the child.
A child appearing before a child panel shall be cautioned as to the implications of the child’s
action and that similar behaviour may subject the child to the juvenile justice system.
A child panel may decide to impose a community guidance order on a child with the
consent of the parties concerned in the matter.
A community guidance order means placing the child under the guidance and supervision
of a person of good standing in the local community for a period not exceeding six months
for purposes of reform.
A child panel may in the course of mediation propose an apology or restitution to the
offended person. See: Section 32 of Act 560
Family tribunals
There shall be family tribunals which shall exercise the jurisdiction provided under section
35 and any other provisions of this Act.
A reference to a family tribunal in this Act shall be construed to mean a District Court
established Act 459. See: Section 33 of Act 560
Composition of family tribunal
A family tribunal shall be duly constituted by a panel consisting of the chairman and not
less than two and not more than four other members including a social welfare officer
appointed by the Chief Justice on the recommendation of the Director of Social Welfare.
See: Section 34 of Act 560
Jurisdiction of family tribunal
A family tribunal shall have jurisdiction in matters concerning parentage, custody, access
and maintenance of children and shall exercise any other powers as are conferred on it by
this Act or under any other enactment. See: Section 35 of Act 560
Family tribunal sittings
A family tribunal shall sit either in a different building or room from that in which sittings
of the other Courts are held, or on different days from those on which sittings of the other
Courts are held and a person shall not be present at a sitting of a family tribunal except
members and officers of the family tribunal; parties to the case before the family tribunal,
their counsel, witnesses and any other persons directly concerned in the case; the parent
or guardian of the child before the family tribunal; probation and social welfare officers,
and any other person whom the family tribunal authorises to be present.
The chairman of a family tribunal shall arrange for its sitting as often as possible to dispose
of cases expeditiously. See: Section 36 of Act 560
Procedure at family tribunal
The proceedings at a family tribunal shall be as informal as possible and shall be by enquiry
and not by adversarial procedures. See: Section 37 of Act 560
Rights of the child at family tribunal
A child shall have a right to legal representation at a family tribunal.

A child shall have a right to give an account and express an opinion at a family tribunal.
A child’s right to privacy shall be respected throughout the proceedings at a family
tribunal.
The right of appeal shall be explained to the child, guardian and parents. See: Section 38
of Act 560
Prohibition of publication of information on child
A person shall not publish information that may lead to the identification of a child in a
matter before a family tribunal except with the permission of the family tribunal.
A person who contravenes this commits an offence and is liable on summary conviction to
a fine not exceeding two hundred and fifty penalty units or to a term of imprisonment not
exceeding one year or to both the fine and the imprisonment. See: Section 39 of Act 560
Application for Parentage
The following persons may apply to a Family Tribunal for an order to confirm the parentage
of a child: the child; the parent of a child; the guardian of a child; a probation officer; a
social welfare officer; or any other interested person.
NB: The application to the Family Tribunal may be made before the child is born; or within
three years after the death of the father or mother of a child; or before a child is 18 years
of age with special leave of the family tribunal; before a child is 18 years of age or after the
child has attained that age with special leave of the Family Tribunal.
A child who has attained the age of majority may apply to the family tribunal for
confirmation of parentage without special leave of the family tribunal. See: Section 40 of
Act 560
Evidence of parentage
A family tribunal shall consider the following as evidence of parentage: the name of the
parent entered in the register of birth; performance of customary ceremony by the father
of the child; refusal by the parent to submit to a medical test; public acknowledgment of
parentage, and any other matter that the family tribunal may consider relevant. See:
Medical test
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 make the appropriate order. See:
Custody
A parent, family member or a person who is raising a child may apply to a family tribunal
for custody of the child. See: Section 43 of Act 560
Access
A parent, family member or a person who has been caring for a child may apply to a family
tribunal for periodic access to the child. See: Section 44 of Act 560
Considerations for custody or access
A family tribunal must consider the best interest of the child and the importance of a young
child being with the mother when making an order for custody or access.
In addition, a family tribunal shall consider the age of the child; 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; the views of the child if the views have been independently given;
that it is desirable to keep siblings together; the need for continuity in the care and control
of the child, and any other matter that the family tribunal may consider relevant. See:
Unlawful child removal
No person shall unlawfully remove a child from another person who has the lawful custody
of the child. See: Section 46 of Act 560
Duty to maintain a child
A parent or any other person who is legally liable to maintain a child or contribute towards
the maintenance of the child is under a duty to supply the necessaries of health, life,
education and reasonable shelter for the child. See: Section 47 of Act 560
Application for maintenance order
The following persons who have custody of a child may apply to a family tribunal for a
maintenance order for the child: a parent of the child; the guardian of the child, or any
other person.
The following persons may apply to a family tribunal for a maintenance order: the child by
the next friend; a probation officer; a social welfare officer, or CHRAJ.
The order for maintenance may be made against a person who is liable to maintain the
child or contribute towards the maintenance of the child. See: Section 48 of Act 560
Considerations for maintenance orders
When making a maintenance order, a family tribunal shall consider,

(a) the income and wealth of both parents of the child or of the person legally liable
to maintain the child,
(b) an impairment of the earning capacity of the person with a duty to maintain the
child,
(c) the financial responsibility of that person with respect to the maintenance of
other children,
(d) the cost of living in the area where the child is resident,
(e) the rights of the child under this Act, and
(f) any other matter which the family tribunal considers relevant.
Request for social enquiry report
A family tribunal may request that a probation officer or social welfare officer prepare a
social enquiry report on the issue of maintenance before it for consideration.
The family tribunal shall in making an order consider the social enquiry report prepared by
the probation officer or social welfare officer. See: Section 50 of Act 560
Form of maintenance order
A family tribunal may award maintenance to the mother of a child whether married to the
father or not where the father has been identified, and the maintenance shall include
(a) the medical expenses for the duration of her pregnancy, delivery or death of the
child,
(b) a periodic allowance for the maintenance of the mother during her period of
pregnancy and for a further period of 9 months after the delivery of the child, and
(c) the payment of a reasonable sum of money to be determined by the family
tribunal for the continued education of the mother if she is a child herself.
The family tribunal may order a periodic payment or lump sum payment for the
maintenance of a child and the earnings or property of the person liable may be attached.
The attachment order is applicable in a case of failure to pay maintenance.
When considering an application for maintenance, a family tribunal may make a
maintenance order which it considers reasonable for a child in the household.
A family tribunal may make an order for arrears of maintenance against a person liable to
pay the maintenance.
Persons entitled to maintenance order
A person who has custody of a child who is the subject of a maintenance order is entitled
to receive and administer the maintenance order of the family tribunal.
If the parent, guardian or the person who has custody of the child ceases to be a fit person,
the family tribunal of the area where the child is resident may appoint another person to
have custody of the child and administer the maintenance order and that person shall act
as if originally appointed by the family tribunal. See: Section 52 of Act 560
Duration of order
A maintenance order issued by a family tribunal shall expire when the child attains the age
of 18 years or dies before that age.
A maintenance order shall lapse before the child attains the age of 18 years if before that
age the child is gainfully employed. See: Section 53 of Act 560
Continuation of maintenance orders in certain cases
A family tribunal may continue a maintenance order after a child has attained 18 years if
the child is engaged in a course of continuing education or training after that age.
An application hereunder may be brought by a parent of the child, a person who has the
custody of the young person or the young person concerned. See: Section 54 of Act 560
Variation or discharge of orders
A family tribunal may if satisfied vary or discharge a maintenance order on the application
of a parent, the person who has the custody of the child or young person or any other
person legally liable to maintain the child. See: Section 55 of Act 560
Enforcement of order
An action may be brought by a person to enforce a maintenance order 30 days after the
order is made or due. See: Section 56 of Act 560
Non-custodial parent to have access to child
A non-custodial parent in respect of whom an application is made to a family tribunal for

an order of parentage, custody, access or maintenance under this Part shall have access
to the child who is the subject of the order. See: Section 57 of Act 560
Duplicity of maintenance applications
The provisions of the Children Act are subject to the Matrimonial Causes Act and an action
shall not be brought for a maintenance order if an application for maintenance is pending
in matrimonial proceedings. See: Section 58 of Act 560
Offences under this Part
A person who unlawfully removes a child contrary to section 46 from another person who
has lawful custody of the child, or fails contrary to section 47 to supply the necessaries of
health, life, education, and reasonable shelter for a child when legally liable to do so, or
brings an action for a maintenance order under this Part while an application for
maintenance is pending in matrimonial proceedings, commits an offence and is liable on
summary conviction to a fine not exceeding one hundred penalty units or to a term of
imprisonment not exceeding six months or to both the fine and imprisonment. See:
Fosterage
With respect to the general principles of fosterage, the law states that 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!
NB: The financial and material poverty of a family shall not be a justification for placing or
receiving a child in alternative care, but shall be seen a signal to provide appropriate
support to the family. See: Section 62(2) of Act 560
NB: 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. See: Section 64 of Act
560
A child in need of care and protection has been defined supra as provided for by Section
18.
There is also the Foster Care Regulations 2018, L.I. 2361 which provides further details
concerning the foster care process.
The application to foster a child may be made to the social welfare department through a
social welfare officer, a probation officer or the person in charge of a residential in the
manner prescribed. See: Section 65 of Act 560
A foster-parent is a person who is not the parent of a child but is willing to undertake the
care and maintenance of the child.
NB: A foster-parent is a person who is not the parent of a child but is willing to undertake
the care and maintenance of 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 in the Act.
Thus, by the Act, children are prohibited from engaging in exploitative labour and as
mentioned supra, labour is exploitative of a child if it deprives the child of its health,
education or development. See: Section 12 & Section 87 of Act 560.
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.”
NB: 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. See:
There are some activities that Act 560 allows children to engage in, only after they have
crossed a particular age benchmark.
The minimum age for the admission of a child to employment is 15 years. See: Section 89
of Act 560
Therefore, any child below the age of 15 cannot legally be engaged in employment.
NB: There is an exception, where it comes to light work. Light work has been defined 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. See: Section 90(2) of Act 560
The minimum age for the engagement of a child in light work is 13 years. See: Section 90(1)
of Act 560
When it comes to hazardous employment, the minimum age of employment is 18 years.
Hazardous work is defined as work that poses a danger to the health, safety or morals of
a person. See: Section 91(2) of Act 560
It includes going to sea; mining and quarrying; porterage of heavy loads; working in a
manufacturing industry where chemicals are produced or used; working in places where
machines are used and working in places such as bars, hotels and places of entertainment
where a person may be exposed to immoral behaviour. See: Section 91(3) of Act 560
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. See: Section 94 of Act 560.
Juvenile Justice
Criminal liability is based on an assumption that all persons are of full age and capacity.
This assumption however does not hold true when it comes infants.
First of all, children under the age of 12 are considered as doli incapax, and cannot be held
liable for any crime which they commit. See: Section 26 of Act 29
A juvenile is a person under 18 years who is in conflict with the law. See: Section 1 the
Juvenile Justice Act 2003 (Act 653)
Act 653 sets up a juvenile justice system which prescribes a different treatment for a
juvenile. The law protects the rights of juveniles, ensuring an appropriate response to the
juvenile offender. The law also provides a different treatment for the young offender who
is a young person who has attained 18 years but is below 21 years.
NB: It is important to take note that in dealing with juveniles, the law demands that the
best interest of the Juvenile should always be paramount and must be the primary
consideration of the juvenile court or any institution or body concerned with the juvenile.
NB: The Juvenile has a right to privacy during arrest, investigation of an offence, at the trial
of the offence and at any other stage of the cause or matter in respect of a juvenile as
such, a person in the course of arrest, investigation or trial of an offence connected with a
juvenile, or at any other stage of the cause or matter must not release any information for
publication that may lead to the identification of the juvenile. And a person who actually
releases information that leads to the identification of the juvenile commits an offence and
is liable on summary conviction to a fine or to a term of imprisonment or to both the fine
and the imprisonment! See: Section 3 of Act 653
NB: Generally, it is only a juvenile court which has jurisdiction to hear a charge against or
dispose of a matter which affects a person who appears to the Court to be a juvenile. See:
Section 49 of the Courts (Amendment) Act 2002 (Act 620)
A Juvenile Court is composed of the Magistrate of the District Court as the presiding
person and two other persons one of whom shall be a Social Welfare Officer and the other,
a person of not less than 25 years both of whom shall be appointed by the Chief Justice on
the recommendation of the Director of Social Welfare See: Section 49(2) of the Courts
(Amendment) Act 2002 (Act 620)
Thus, where a case involving a juvenile is brought before a court of summary jurisdiction
other than the juvenile court, and the court is satisfied that the accused is a juvenile and a
juvenile court has been constituted for the place, district or area concerned, that Court
shall decline jurisdiction and make an order transferring the charge or matter to the
juvenile court. See: Section 17(1) of Act 653
However, where a charge is made jointly against a juvenile and a person who has attained
the 18 years, such a charge shall be heard by a court of summary jurisdiction other than a
juvenile court! See: Section 17(3) of Act 653
Also, where a charge is made against a juvenile for an offence which if committed by an
adult would be punishable by death, such charge shall be heard by a Court of summary
jurisdiction other than a juvenile court! See: Section 17(4) of Act 653
Where a juvenile appears before a court of summary jurisdiction other than a juvenile court
on a charge made jointly against the juvenile and a person who has attained 18 years or the
juvenile appeared before the court on a charge for an offence if committed by an adult
would be punishable by death and the juvenile is convicted by the court of summary
conviction, for the purpose of sentencing, that court shall remit the juvenile to the Juvenile
court for sentencing. See: Section 18(1) & (2) of Act 653
Where a person, whether charged with an offence or not, is brought before a court
otherwise than for the purpose of giving evidence and it appears to the court that the
person is a juvenile, the court shall make inquiry as to the age of that person. See: Section
19(1) of Act 653
What can be used to prove the age of the juvenile include;
a. birth certificate
b. baptismal certificate
c. A certificate signed by a medical officer as to the age of a person below eighteen
years of age is evidence of that age before a court
If the court makes an order streaming from the fact that the accused was considered a
juvenile and it turns out by subsequent proof that the accused was not a juvenile i.e. his
age was not correctly stated to the court, the order shall not be invalidated as the age
presumed or declared by the court to be the age of the juvenile shall be deemed to be the
true age of the juvenile! See: Section 19(3) of Act 653
NB: A juvenile court shall sit either in a different building or room from that in which sittings
of other Courts are held or on different days from those on which sittings of other Courts
are held! See: Section 16(1) of Act 653
As the trial involving juveniles is not to be public, a person shall not be present at any sitting
of a juvenile court, except members and officers of the Court, parties to the case before
the Court, their lawyers and witnesses, and any other persons directly concerned in the
case, and any other persons that the Court may specially authorise to be present. See:
The proceedings in a juvenile court shall be informal and a police officer in the Court shall
not be in uniform! See: Section 16(3) of Act 653
NB: Where a juvenile is charged with an offence, the juvenile court shall order a social
enquiry report to be submitted to the Court which shall be taken into account in the
making of an order.
The social enquiry report shall be prepared by a probation officer who shall visit the home
of the juvenile!
The social enquiry report shall include particulars on the background of the juvenile, the
present circumstances of the juvenile, the conditions under which the offence was
committed and recommendations for sentence.
The social enquiry report may include a recommendation that the matter before the
juvenile court be referred to a child panel established under the Children’s Act, 1998 (Act
560) but the referral shall only be in respect of a minor offence.
The court shall ensure that the contents of the report are made known to the juvenile and
a copy shall be made available to the juvenile or the legal representative of the juvenile
The court may request an oral report from the probation officer in addition to the social
enquiry report.
If the Court does not follow the recommendations given in the report, written reasons
shall be given as to why the recommendations have not been complied with. See: Section
24 of Act 653
After the consideration of the social enquiry report, the juvenile court shall decide whether
the juvenile charged with an offence should be diverted from the criminal justice system
with or without conditions (This is called diversion) but diversion shall not be permitted
for a serious offence. See: Section 25 of Act 653
After the juvenile has convicted a juvenile, and is to sentence said juvenile, it is important
to note that the court doesn’t sentence the juvenile to imprisonment but rather to a
detention! See: Section 32 of Act 653
NB: A conviction or sentence imposed by a juvenile court on a juvenile is appealable to the
High Court. See: Section 21(1) of Act 459 as amended by Act 620
In lieu of a detention, the court can make a probation order. Probation is an order made
by a court after convicting a juvenile and imposing conditions on him in lieu of detention
or custodial sentence and releasing the offender into the community! A probation order is
made by a juvenile court for an offender to serve under the supervision of a probation
officer. A juvenile court may amend a probation order as it considers fit in the best interest
of the juvenile. See: Section 31 of Act 653
Where a juvenile or a young person is convicted of an offence for which the juvenile court
has power to impose a sentence of detention or imprisonment for one month or more
without the option of a fine and it appears to the Court that it is in the best interest of
the juvenile or young offender, the Court may make an order for the detention of
the juvenile or young offender at a Centre See: Section 43(1) of Act 653
The juvenile or young offender ordered to be detained can appeal against the order. See:
Establishment of Junior, Senior Correctional Centers and Remand Homes

The Minister responsible for Social Welfare may establish junior correctional centers
where juveniles may be detained!
The Minister responsible for Interior may establish senior correctional centers where
young offenders and juvenile offenders as determined by the Court may be detained
A junior center formerly called an industrial school is a place where a juvenile may be
detained.
A senior center formerly called a Borstal institution is a place where young offenders
and juvenile offenders as determined by the Court may be detained. See: Section 39 of Act
653
Power to order detention in Center and Right of Appeal

Where a juvenile or a young person is convicted of an offence for which the juvenile court
has power to impose a sentence of detention or imprisonment for one month or more
without the option of a fine and it appears to the Court that it is in the best interest of
the juvenile or young offender, the Court may make an order for the detention of
the juvenile or young offender at a Centre
1. Section 43(1) of Act 653
The juvenile or young offender ordered to be detained can appeal against the order. See:
Contents of the detention order

The juvenile court shall state the reasons for the imposition of a detention order on
the juvenile or young offender on the detention order.
A detention order shall specify the age of the juvenileor young offender and shall provide
the religious persuasion of the young offender.
The age specified in the order shall, until the contrary is proved, be presumed to be the
true age of the juvenile or young offender and a detention order shall not be invalidated
by a subsequent proof that the age of the juvenile or young offender has not been
correctly specified in the order.
A detention order shall also specify
a. the center to which the juvenile or young offender is being sent, and
b. the person responsible for conveying the juvenile or young offender to the center.
If for a reason the juvenile or young offender cannot be received into the center specified
in the order, another center may be specified by an endorsement or further endorsement
on the order by the Court. See: Section 44 of Act 653
Duration of Detention
Where a juvenile or young offender is ordered to be sent to a center, the detention order
shall be the authority for the detention and the period shall not exceed
a. 3 months for a juvenile offender under 16 years,
b. 6 months for a juvenile offender of or above 16 years but under 18 years
c. 24 months for a young offender of or above the age of 18 years, or
d. 3 years for a serious offence.
NB: A juvenile offender under 18 years shall be detained in a junior correctional center
A young offender above 18 years shall be detained in a senior correctional center.
NB: A juvenile offender under 15 years who has been convicted of a serious offence
shall be detained in a senior correctional center!
NB: Before a detention order is made, the Court shall satisfy itself that a suitable place is
available for the juvenile offender or young offender at a center.
NB: Where a juvenile or young offender is remanded in custody prior to the order of
detention, the period spent on remand shall be taken into consideration when making the
detention order!
NB: A juvenile or young offender shall not be detained in an adult prison.
NB: Serious offences include murder; rape; defilement; indecent assault involving
unlawful harm; robbery with aggravated circumstances; drug offences; and offences
related to firearms. See: Section 46 of Act 653
Contributions by parents of juveniles

Where a juvenile court makes an order for the detention of an offender in a centre, the
Court may further order that the parent, guardian or any other person responsible for the
offender shall pay to the Department of Social Welfare a contribution towards the cost of
maintaining the offender in the centre during the period of detention that the Court thinks
reasonable after due enquiry and having regard to the means of the parent, guardian or
other person. See: Section 58 of Act 653
TOPIC 16: DOMESTIC VIOLENCE
Domestic Violence is governed by the Domestic Violence Act, 2007 (Act 732). The Act was
enacted in May 2007 with the aim of providing protection to women and children. Men
and adults are protected by the Act.
The starting point is that a person in a domestic relationship shall not engage in domestic
violence. See: Section 3(1) of Act 732.
And a person who commits domestic violence commits an offence and is liable on
summary conviction to a fine of not more than five hundred penalty units or a prison term
of not more than 2 years or both. See: Section 3(2) of Act 732.
In addition to the imposition of the fine or prison term, the offender may also be caused
to pay compensation to the victim as the court may determine. See: Section 3(3) of Act
732.
Where there is a complaint between two persons who are not cohabiting, none of them
shall enter the residence of the other without that persons consent or permission. See:
Domestic violence must occur within the context of a domestic relationship. And that may
be a previous relationship or existing domestic relationship. The emphasis is that of a
domestic relationship and does not cater for any other relationship which does not come
within the meaning of the Act. See: Section 2 of Act 732.
“A domestic relationship means 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 not 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 respondent are parents of a child, are expecting a child together or are foster
parents of a child.
e. and 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 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 the respondent is a house help of the household, the court shall
have regard to:
a. the amount of time the persons spend together.

b. the place where that time is ordinarily spent.
c. the manner in which that time is spent and
d. the duration of the relationship.
Also, a person is in a domestic relationship where that person is
a. providing refuge to a complainant whom a respondent seeks to attack or

b. acting as an agent of the respondent or encourages the respondent.
WHAT AMOUNTS TO DOMESTIC VIOLENCE
Domestic violence means engaging in the following within the context of a previous or
existing domestic relationship:
a. an act which constitutes a threat or harm to a person under Act 29.

b. specific acts, threats to commit, or acts likely to result in

i. physical abuse, namely physical assault, or use of physical force
against another person.
ii. sexual abuse, namely the forceful engagement of another person in
a sexual contact.
iii. economic abuse, namely the deprivation or threatened deprivation
of economic or financial resources which a person is entitled to by
law, the disposition or threatened disposition of movable or
immovable property in which another person has a material interest
and hiding or hindering the use of property or damaging or
destroying property in which another person has a material interest;
and
iv. emotional, verbal or psychological abuse namely any conduct that
makes another person feel constantly unhappy, miserable,
humiliated, ridiculed, afraid, jittery or depressed or to feel
inadequate or worthless.
c. harassment including sexual harassment and intimidation by inducing fear in
another person and
d. behaviour or conduct that in any way
i. harms or may harm another person,
ii. endangers the safety, health or well-being of another person,
iii. undermines another person’s privacy, integrity or security, or
iv. detracts or is likely to detract from another person’s dignity and worth as a
human being.
NB: Physical abuse includes the forcible confinement or detention of another person and
the deprivation of another person of access to adequate food, water, clothing, shelter,
rest, or subjecting another person to torture or other cruel, inhuman or degrading
treatment or punishment.
Sexual abuse includes sexual conduct that abuses, humiliates or degrades the other
person or otherwise violates another person’s sexual integrity or a sexual contact by a
person aware of being infected with human immunodeficiency virus (HIV) or any other
sexually transmitted disease with another person without that other person being given
prior information of the infection. See: Section 1 of Act 732.
“harassment” means sexual contact without the consent of the person with whom the
contact is made, repeatedly making unwanted sexual advances, repeatedly following,
pursuing, or accosting a person or making persistent, unwelcome communication with a
person and includes:
a. watching, loitering outside or near a building where the harassed person resides,
works, carries on business, studies or happens to be.
b. repeatedly making telephone calls or inducing a third person to make telephone
calls to the harassed person, whether or not conversation ensues.
c. repeatedly sending, delivering or causing the delivery of letters, telegrams,
packages, facsimiles, electronic mail or other objects or messages to the harassed
person’s residence, school or workplace; or
d. engaging in any other menacing behaviour. See: Section 42 of Act 732.
“abuse” means conduct that harms or may cause imminent harm to the safety, health or
well-being of the complainant. See: Section 42 of Act 732.
NB: The use of violence in the domestic setting is not justified on the basis of consent. Put
differently consent is not a defence under this Act. For the law has been that one cannot
consent to bodily harm. See:

2. Comfort & Another v The Republic [1974] 2 GLR 1.
A single act may amount to domestic violence. Equally, 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. See: Section 5 of Act 732.
COMPLAINTS
Any of the following persons can file a complaint of domestic violence:
a. a victim of the domestic violence

b. a person with information about domestic violence
c. a child assisted by a next friend.
d. a social worker, probation officer or health care provider intervening in the interest
of the victim.
e. a member of the victim’s family where the victim unable for whatever reason to file
a complaint personally.
f. the personal representative of or a member of a deceased victim.
The complaint shall be filed with the Police at a place where
a. the offender resides.

b. the victim resides.
c. the domestic violence occurred or is occurring.
d. the victim is residing temporarily, where the victim has left his usual place of abode.
ROLE OF THE POLICE IN RESPECT OF DOMESTIC VIOLENCE
A. POLICE ASSISTANCE
The law is that a police officer shall 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
person who made the report requires, even when the person reporting is not the victim of
the domestic violence. See: Section 7 of Act 732.
B. RECEIPT OF COMPLAINT AND MEDICAL ASSISTANCE

When a police officer receives a complaint, the officer shall
a. interview the parties and witnesses to the domestic violence including 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 treatment 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 advise the victim to preserve evidence, and
g. inform the victim of his or her rights and any services which may be available.
Police assistance to a victim to obtain medical treatment consists of issuing a medical form
to the victim and where necessary sending the victim to a medical facility. See: Section 8(2)
of Act 732.
A victim who is assisted by the police to obtain medical treatment is entitled to free
medical treatment from the State. See: Section 8(3) of Act 732.
In case of emergency or a life-threatening situation a victim may receive free medical

treatment pending a complaint to the police and the issuance of a report. See: Section 8(4)
of Act 732.
C. POWER OF ARREST
A police officer may arrest a person for an offence of domestic violence with a warrant or
without a warrant. See: Section 9(1) of Act 732.
A police officer may arrest a person for an offence of domestic violence without a warrant
where:
a. an act of domestic violence is committed in the presence of the police officer.

b. the police officer is obstructed by the person in the execution of police duties, or
c. the person has escaped or attempts to escape from lawful custody.
Here, any or all the instances above must have occurred in the presence of the Police
officer. See: Section 9(2) of Act 732.
A police officer may also arrest a person without a warrant on reasonable suspicion that
that person
a. has committed an offence of domestic violence, or

b. is about to commit an offence of domestic violence and there is no other way to
prevent the commission of the offence.
c. the person has contravened or is contravening a protection order.
See: Section 9(3) & (4) of Act 732.
THE ROLE OF ANY OTHER PERSON IN RESPECT OF DOMESTIC VIOLENCE

A person with information about domestic violence has the duty to report to the Police.
Additionally, any other person may exercise the right to arrest a person causing domestic
violence without warrant. However, there are limitations to the exercise of that right. And
one is that the act of domestic violence must be committed in his presence. See: Section
10(1) of Act 732.
A person other than a police officer may arrest without warrant, another person where
the person has reasonable suspicion that the other person has committed an offence of
domestic violence. See: Section 10(2) of Act 732.
And that where an ordinary person effects such an arrest, he shall within a reasonable time
hand over the person arrested to the police. See: Section 10(3) of Act 732.
THE ROLE OF THE COURTS IN RESPECT OF DOMESTIC VIOLENCE
A. JURISDICTION OF COURTS
A court with original jurisdiction may hear and determine a matter of domestic violence
under the Act. See: Section 11(1) of Act 732.
Court means High Court, Circuit Court, or District Court. See: Section 42 of the Act
B. APPLICATION FOR PROTECTION ORDER

The court in exercising its jurisdiction may issue a protection order. See: Section 11(2) of
Act 732.
An applicant may apply to a court for a protection order to prevent
a. the respondent.
b. a person associated with the respondent, or
c. both a respondent and a person associated with the respondent,
from carrying out a threat of domestic violence against the applicant or to prevent the
respondent, an associated respondent or both from further committing acts which
constitute domestic violence against the applicant. See: Section 12(1) of Act 732.
The application shall be ex parte unless the Court orders it to be on notice. See: Section
12(3) of Act 732.
The application may be filed in a court situated where
a. the applicant resides, carries on business or is employed.

b. the respondent resides, carries on business or is employed, or
c. the act of domestic violence occurred or is occurring.
NB: A court before which criminal proceedings in relation to domestic violence is pending
may suo motu, considering the circumstances of the case, or on an application by the
victim issue a protection order in respect of the victim. See: Section 12(4) of Act 732.
The proceedings shall be private in the presence of the parties, their lawyers and any other
person permitted by the Court to be present. And notwithstanding this, 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 necessary steps to separate the
respondent from the victim or the witness, without sacrificing the integrity of the
proceedings. See: Section 13(1) & (2) of Act 732.
The ex parte application must be heard within 14 days after its filing. However, this does
not apply where the application is made on notice pursuant to the order of the court. See:
The Court may request a social or psychological enquiry report or on any of the parties to
the proceedings and the report shall be prepared and submitted to the Court by a social
welfare officer or a clinical psychologist as appropriate. See: Section 13(4) of Act 732.
The report shall 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. See: Section 13(5) of Act 732.
C. Powers of the court in making a protection order

The protection order made by the court can either be an interim protection order or a final
protection order.
Interim Protection Order

When one applies ex parte for a protection order, the court shall issue an interim
protection order if it considers the order to be the best interest of the applicant. See:
An interim protection order shall last for a period not more than 3 months. see: Section
14(3) of Act 732.
In considering whether it is best to issue an interim protection order, the court shall
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 that 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. See: Section 14(2) of Act 732.
Where at the time of making the order, the respondent is not already before the court, the
court shall summon the respondent to appear within 3 months to show cause why the
interim order should not be made final. See: Section 14(4) of Act 732.
And where the respondent fails to appear without reasonable cause, the order shall be
made final. See: Section 14(5) of Act 732.
Where an application is made on notice to the Court for a protection order and the Court
is of the opinion that
a. the respondent has committed, is committing, or is likely to commit an act of

domestic violence, and
b. the applicant may suffer significant harm if a protection order is not issued,
the Court may issue an interim protection order pending the consideration of the order
applied for. See: Section 14(6) of Act 732.
Final Protection Order

The Court may issue a protection order to prohibit a respondent from committing or
threatening to commit an act of domestic violence personally or otherwise against an
applicant or a relation or a friend of the applicant. See: Section 15(1) of Act 732.
The order may restrain the respondent from doing any of the following:
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 friend of the applicant
c. depriving the applicant access to adequate food, water, clothing shelter or rest.
d. forcing the applicant to engage in a sexual contact.
e. engaging in a 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
i. 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
ii. household chattels required by the applicant as a matter of necessity.
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 fifty metres of the applicant or
q. doing an act which the Court considers is not in the best interest of the applicant.
A final protection order issued by a court shall not exceed twelve months in the first
instance. However, for good cause shown, it may be extended, modified or rescinded by
the Court on a motion by a party to the original proceeding. See: Section 16 of Act 732.
NB: A court may extend a protection order to a person specified in the order other than
the applicant if the Court is satisfied that
a. the respondent is engaging in or has engaged in behaviour which would amount to

domestic violence against the person specified in the order, referred to as the
specified person, if the specified person were or had been in a domestic
relationship with the respondent.
b. the respondent’s behaviour towards the specified person is due, in whole or in part
to the applicant’s relationship with the specified person or
c. the extension of the protection order is necessary for the protection of the
specified person.
The protection order can be extended to protect other persons. And that other person
shall be referred to as a specified person. The court must be satisfied that
a. the respondent is engaging in or has engaged in behaviour which would amount to

domestic violence against the specified person, if the specified person were or had
been in a domestic relationship with the respondent.
b. the respondent’s behaviour towards the specified person is due, in whole or in part
to the applicant’s relationship with the specified person or
c. the extension of the protection order is necessary for the protection of the
specified person. See: Section 19 of Act 732.
A person who contravenes a protection order commits an offence and is liable to a
summary conviction to a fine of not less than five penalty units and not more than five
hundred penalty units or to a term of imprisonment of not less than one month and not
more than two years or to both. See: Section 22(1) of Act 732.
And a subsequent breach of a protection order, a person is liable o a fine of not less than
two hundred and fifty penalty units and not more than one thousand penalty units or to a
term of imprisonment of not more than three years or to both. See: Section 22(2) of Act
732.
Effect or Conditions of a Protection Order.
A protection order may
a. bind the respondent to be of good behaviour.

b. direct the respondent to seek counselling or other rehabilitative service.
c. direct the respondent to relocate and continue to pay any rent, mortgage payment
and maintenance to the applicant.
d. require the respondent to relinquish property to the applicant and pay the
applicant for damage caused to the property of the applicant, and
e. require the respondent to pay for medical expenses incurred by the victim as a
result of the domestic violence.
However, this is subject to section 14 of Act 732 on the power of the court to make an
interim order. See: Section 17 (1) of Act 732.
The court may also make any other order that it is necessary for the health, safety and
welfare of the applicant having regard to the recommendation in a social and
psychological enquiry report. See: Section 17(2) of Act 732.
NB: The court may not refuse to issue a protection order or impose any other condition
solely on the grounds that other legal remedies are available to the applicant. See: Section
17(3) of Act 732.
D. REFERENCE TO FAMILY TRIBUNAL IN CASE A CHILD IS RELATED

Where there is a need for special protection for a child, the Court may refer matters
concerned with the temporary custody of a child in a situation of domestic violence to a
Family Tribunal. See: Section 18(1) of Act 732.
Any matter connected with domestic violence in which a child is the perpetrator shall be
referred to a juvenile court. See: Section 18 (2) of Act 732/
E. OCCUPATION ORDER
Here, the court has the power to eject the respondent and allow the applicant to solely
occupy the house or matrimonial home.
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. See: Section 20(1) of Act 732.
The order shall be issued only after the consideration of a social and a psychological
enquiry report prepared by a social welfare officer and a clinical psychologist. See: Section
20(2) of Act 732.
The effect of the order or omission of the order on the health, education and development
of the family where the applicant and the respondent are in a marital relationship must be
considered. See: Section 20(3) of Act 732.
NB: A landlord shall not evict an applicant solely on the basis that the applicant is not a
party to a lease where the court gives exclusive occupation of residence which is the
subject of the lease to the applicant. See: Section 20(4) of Act 732.
The landlord shall provide details of the lease to the applicant on request. See: Section
20(5) of Act 732.
F. POWER TO DISCHARGE A PROTECTION ORDER

The court may discharge a protection order already issued. And this may be on an
application on notice by an applicant or a respondent to the order. See: Section 21(1) of
Act 732.
The Court may discharge the order even if the order is for the benefit of a specified person
on the order other than the applicant, or against an associated respondent. See: Section
21(2) of Act 732.
If an order is discharged, it shall cease to have effect for the benefit of a specified person
or associated respondent as if either of them had applied for or been granted a discharge
of the order. See: Section 21(3) of Act 732.
Where an order is for the benefit of a specified person or against an associated person,
either of them may apply for it to be discharged in so far as it applies to them. See: Section
21(4) of Act 732.
A person may apply for the discharge of an interim order in which case the Court shall fix
a hearing date as soon as practicable but not later than thirty days after the filing of the
application unless there are special circumstances. See: Section 21(5) of Act 732.
G. POWER OF THE COURT TO PROMOTE RECONCILIATION

This is notwithstanding the breach of a protection order. And so, if in a criminal trial
concerning domestic violence which is not aggravated or does not require a sentence that
is more than 2 years,
a. the complainant expresses the desire to have the matter settled out of court, the
Court shall refer the case for settlement by an alternative dispute resolution
method, or
b. 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. Section 24(1) of Act 732.
Thus, it may be made by the court Suo motu but with the consent of the complainant or
on application of a complainant in a criminal trial.
Where a case is referred for settlement, the Court shall in addition
a. refer the complainant and the accused for counselling.

b. where necessary, require the accused to receive psychiatric help, or
c. 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. See:
Where the probation officer reports that the accused has engaged in any act of domestic
violence after the settlement, the accused shall be brought before the Court and
prosecuted. That prosecution shall be under section 22 of Act 732. See: Section 24(3) of
Act 732.
MISCELLANEOUS
A. RELATIONSHIP BETWEEN ACT 732, ACT 29 AND ACT 30.

The punishment provided for in section 3 (2) of Act 732 applies only to offences which
under the Criminal Offences Act, 1960 (Act 29) are misdemeanours. It shall not apply to
any offence that is aggravated or the punishment for which under the Criminal and Other
Offences (Procedure) Act, 1960 (Act 30) is more than three years imprisonment and in any
other case the provisions of Act 30 in relation to punishment for the specific offence shall
apply. See: Section 23 of Act 732.
The effect of this provision is that before imposing the punishment, an inquiry must be
made from Act 29 to find out if the offence is a misdemeanour. If it is so, then section 3(2)
of Act 732 shall determine the punishment.
However, if the offence is aggravated or a different punishment regime is provided for by

Act 29 or Act 30, then that should apply.
B. PUBLICATION OF PROCEEDINGS
A person shall not publish a report of the proceedings under the Act other than criminal
proceedings except with the leave of the court. See: Section 25(1) of Act 732.
With the publication of criminal proceedings, there are limitations to it. That in such a
report, the reporter shall protect the identity of the victim. See: Section 25(2) of Act 732.
It is a criminal offence to contravene any of the above. And a person who is liable on
summary conviction shall suffer a fine of not more than 250 penalty units or a term of
imprisonment of not more than 12 months or to both. See: Section 25(3) of Act 732.
C. INSTITUTION OF CRIMINAL CHARGES AND OTHER PROCEEDINGS UNDER THE ACT

The law is 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. See: Section 26 of Act 732.
Proceedings under Act 732 shall be in addition and shall not derogate from the right of a
person to institute a civil action for damages. See: Section 27 of Act 732.
The rules of court or rules of procedure of each specific court applies to an action brought
under Act 732. See: Section 28 of Act 732.
D. THE VICTIMS OF DOMESTIC VIOLENCE SUPPORT FUND

This is established by section 29 of the Act. And the fund is managed by the Victims of
Domestic Violence Management Board (“the Board”). See: Section 32(1) of Act 732.
The monies of the fund shall be applied:
a. towards the basic material support of victims of domestic violence,

b. for training the families of victims of domestic violence,
c. for any matter connected with the rescue, rehabilitation, and reintegration of
victims of domestic violence,
d. towards the construction of reception shelters for victims of domestic violence in
regions and districts, and
e. for training and capacity building of persons connected with the provision of
shelter, rehabilitation and reintegration. See: Section 31 of Act 732.
The sources of money for the Fund shall include:
a. voluntary contributions from individuals, organisations and the private sector

b. moneys approved by Parliament for payment into the Fund, and
c. moneys from any other source approved by the Minister responsible for Finance.
NB: Monies for the Fund shall be paid into a bank account opened for that purpose by the
Board. See: Section 32(2) of Act 732.
E. THE VICTIMS OF DOMESTIC VIOLENCE MANAGEMENT BOARD (“THE BOARD”)

The Board is established pursuant to section 35 of the Act. It is composed of
a. the chairperson who is the Minister responsible for Women and Children’s Affairs,
or the representative of that Minister
b. one representative of the Attorney-General not below the level of Principal State
Attorney
c. one representative of the Ministry for Local Government not below the rank of a
Deputy Director
d. one representative of the Ministry for Health not below the rank of Deputy Director
e. one representative of the Ministry for Education not below the rank of a Deputy
Director
f. one representative from the Police Service not below the rank of Assistant
Superintendent
g. one representative from the Department of Social Welfare not below the rank of a
Deputy Director
h. two representatives of civil society organisations, and

i. four persons nominated by the President.
The Chief Director of the Ministry or its representative shall be the secretary to the Board.
The members of the Management Board other than the Minister and the Director of Social
Welfare shall be nominated by the institutions concerned. See: Section 36(3) of Act 732.
The members of the Management Board shall be appointed by authority of the President.
Members of the Management Board shall be paid allowances approved by the Minister in
consultation with the Minister responsible for Finance. See: Section 39 of Act 732.
FUNCTIONS OF THE BOARD
The Management Board shall
a. make recommendations for a national plan of action against domestic violence and
monitor and report on the progress of the plan through the Minister.
b. advise the Minister on policy matters under the Act.
c. propose and promote strategies to prevent and combat domestic violence.
d. liaise with Government agencies and organisations to promote the rehabilitation
and reintegration of victims of domestic violence.
e. prepare guidelines for disbursement from the Fund.
f. manage the Fund.
g. conduct research on international and regional developments, and into standards
for dealing with matters of domestic violence, and
h. deal with any matter concerned with domestic violence.
DUTIES OF THE BOARD
One, to keep books of account for the Fund and proper records in relation thereto in the
form approved by the Auditor General. See: Section 33(1) of Act 732.
Two, to submit the accounts to the Auditor General within 3 months after the end of every
financial year. See: Section 33(2) of Act 732.
The Auditor General shall audit them within 3 months of receipt of the accounts and
forward a copy of the report to the Minister. See: Section 33(3) of Act 732.
NB: The financial year of the Fund is the same as the financial year of the Government. See:
The Minister shall within one month after receipt of the audit report submit an annual
report to Parliament, covering the activities and operations of the Fund for the year to
which the report relates. See: Section 34(1) of Act 732.
The annual report shall include the audited accounts of the Fund and the Auditor-General’s
report on the account of the Fund, and other information that the Minister may consider
necessary. See: Section 34(2) of Act 732.
MEETINGS OF THE BOARD
The Board shall meet at least once every three months. see: Section 38(1) of Act 732.
The quorum for such meetings shall be five members. See: Section 38(2) of Act 732.
The chairperson or his representative shall convene and preside at meetings of the Board
and in the absence of the chairperson a member of the Management Board elected by the
members present from among their number shall preside. See: Section 38(3) of Act 732.
Matters before the Board shall be decided by a majority of the members present and
voting. However, in the event of equality of votes, the person presiding shall have a casting
vote. See: Section 38(4) of Act 732.
The Management Board may co-opt a person to attend its meeting, but that person may
not vote on a matter for decision by the Board. See: Section 38(5) of Act 732.
The Board has the power to determine its own procedure for meetings. See: Section 38(9)
of Act 732.
SECRETARIAT OF THE BOARD
The Board shall have a secretariat. See: Section 40(1) of Act 732.
The secretariat of the Board shall be located at the Ministry, which shall provide the
facilities and personnel for the performance of the functions of the Board. See: Section
40(2) of Act 732.
TOPIC 17: RECONCILIATION
Question: Is it true that the Matrimonial Causes Act, 1971 (Act 367) promotes reconciliation
between spouses more than a dissolution of marriage?
Reconciliation may be defined as the restoration of amicable relation between parties

after a dispute.
Though the Matrimonial Causes Act, 1971 (Act 367) was promulgated to deal, inter alia with
the dissolution of marriage, it is inundated with several sections dealing, directly and
indirectly, expressly and impliedly, with the promotion of reconciliation between spouses.
The rationale underlying this phenomenon may be explained in two ways:
One, that marriage is sacred. It is a covenant with God and therefore must be respected,
protected, and preserved.
Two, marriage is not a private matter between a man and a woman. It is a major social
structure which forms the core of families and protects social stability and future
generations. Therefore, in Mensah v Mensah, the court noted that:
“One of the objectives of the MCA should be to buttress rather than undermine the
stability of marriage as a central social institution.”
The Act therefore contains several sections aimed at exploring all possible avenues of
reconciliation before a marriage is dissolved. The various sections replete with
reconciliation provisions are discussed below:
One, at the onset of almost all marriages, there is likely to be difficulties and tiny squabbles.
It usually takes some time for couple to become accustomed to each other and to the new
marital environment. Consequently, section 9 of the Act affords spouses time and
opportunity to try and settle their differences before resorting to a dissolution. The section
compels couples to learn to endure the normal wear and tear of married life.
The section restricts the presentation of a petition for divorce within two (2) years of
marriage unless the petitioner can establish substantial hardship or depravity on the part
of the respondent. A further restriction is that leave must be sought before such a petition
is filled. Where a court is of the view that substantial hardship and or depravity on the part
of the respondent have not been established, the court is mandated to refuse leave. This
may encourage the parties to attempt a reconciliation. The section further requires the
court in considering such petition, to have regard to whether there is a reasonable
possibility of reconciliation between the parties. Where there is a possibility of
reconciliation, leave to file a petition will not be granted.
Two, Section 1 provides that the sole ground for granting a petition for divorce shall be
that the marriage has broken down beyond reconciliation. This means that a marriage can
be dissolved only on one ground. The purpose is to prevent spouses from going to court
asking for divorce on flimsy and irrelevant grounds.
Three, Section 2(2) requires a judge to conduct an inquiry to satisfy himself that indeed the
marriage has broken down beyond reconciliation. Section 2(3) provides that a court shall
not grant a petition for divorce unless it is satisfied on all the evidence that the marriage
has broken down beyond reconciliation. In Partey v Partey C/A Suit No H1/183/2013, the
court reiterated that the failure on the part of a court to inquire will render a divorce
decree null and void. It is also incumbent upon a court to inquire whether there are any
children of the marriage and consider whether there could be a reconciliation in the
interest of the children.
Four, section 2 provides that for the purpose of showing that a marriage has broken down
beyond reconciliation, the petitioner should satisfy the court of one or more of six marital
offences. The Act purposely limits the number of marital offences which a petitioner may
rely on to prove that the marriage has broken down beyond reconciliation. The list
undoubtedly is intended to prevent spouses from attempting to rely on irrelevant and
minor offences to petition for a dissolution of marriage.
Five, Section 2(1)(a) provides that a petitioner may rely on the fact that the respondent has
committed adultery and the petitioner finds it intolerable to live with the respondent.
Where a petitioner fails the intolerability test, the petition will fail. Furthermore, adultery
requires a higher standard of proof. The court in Adjetey v Adjetey stated that the standard
of proof in adultery cases is higher than the balance of probabilities even though adultery
is a civil offence. The higher standard of proof and the need for a petitioner to pass the
intolerability test is also a means of compelling spouses to attempt a reconciliation instead

of a dissolution. The reliance on adultery as a marital offence is also subject to
reconciliation provisions. Thus, where a petitioner after learning of the offence of adultery
continues to live with the respondent as husband and wife for more than six (6) months,
the petitioner would be deemed to have reconciled with the respondent. Therefore, the
petitioner cannot rely on the adultery for a dissolution of the marriage. This is another
method that the Matrimonial Causes Act indirectly uses to promote reconciliation.
Six, section 2(1)(b) allows a petitioner to rely on the fact that the respondent has behaved
in a way that the petitioner cannot reasonably be expected to live with the respondent, to
petition for divorce. The objective test is applied here so that if a reasonable man would
not find a particular conduct unreasonable, the petition will fail, and the marriage would
be saved instead of dissolved. Under this section too, the Act applies the reconciliation
provisions to promote reconciliation. Therefore, where a petitioner lives with the
respondent for more than six (6) months as husband and wife after the last incident of
unreasonable behaviour, the petitioner cannot rely on the last incident of unreasonable
behaviour.
Seven, Section 2(1)(c) allows a petitioner to rely on the fact that the respondent has
deserted the petitioner for a continuous period of at least two years immediately
preceding the presentation of the petition. This provision indirectly promotes
reconciliation by demanding that the separation must be two years and that it must be
continuous. Thus, where there is a break in the two-year chain, a petitioner cannot rely on
desertion. The reconciliation provisions tie in with the continuous two-year requirement.
Therefore, where a spouse disappears for fourteen (14) months, return and lives with the
other spouse for more than six (6) months, he/she cannot rely on desertion because they
will be deemed to have reconciled.
Eight, Section 2(1)(d) allows a petitioner to file a petition for divorce where the parties
have lived apart for a continuous period of at least two years immediately preceding the
presentation of the petition. Thus, where the parties have reconciled immediately
preceding the presentation of the petition, the petition will fail. To further promote
reconciliation, the sub-section requires the petitioner to obtain the consent from the
respondent to attach to the petition. This is yet another opportunity afforded by the Act
to spouses to attempt a reconciliation. Additionally, the reconciliation provisions also

apply to this marital offence.
Nine, another attempt at promotion of reconciliation by the Act is section 2(1)(e). This
allows a petitioner to base a petition on the fact that the petitioner and the respondent
have not lived as husband and wife for a continuous period of at least five years
immediately preceding the presentation of the petition. Here too, there must be evidence
that there has been no break in the five-year requirement. The reconciliation provisions
apply so that for more than six months, the petitioner cannot rely on this marital offence.
Ten, Section 2(1)(f) allows a petitioner to file a petition for divorce based on the fact that
the parties, after diligent effort, have been unable to reconcile their differences. This
clearly promotes reconciliation by specifically requiring evidence of attempt at
reconciliation through diligent efforts, before a petition for divorce may be granted.
Eleven, section 8 of the Matrimonial Causes Act is titled ‘Promotion of Reconciliation’,

another clear objective of the Matrimonial Causes Act. The section requires a petitioner or
his/her counsel to inform the court of all the attempts at reconciliation made by both
parties before and after the commencement of the proceedings. It is not mandatory that
in every case there must be evidence of unsuccessful attempt at reconciliation but failure
to disclose an attempt at reconciliation may lead a court to conclude that the marriage has
not broken down beyond reconciliation. See: Dankwa v Dankwa [1979] GLR 371; Knudsen
v Knudsen.
It should be emphasised that attempt at reconciliation is not a condition precedent to the

presentation of a divorce petition or the grant of a divorce decree. The section gives the
court the discretion to adjourn a case for the parties to attempt a reconciliation. If the
attempt is successful, the court is informed, and the proceedings will come to an end. If
the attempt is unsuccessful, the hearing will continue. The details of what happens during
the attempt at reconciliation are not to be disclosed to the court.
Twelve, the Act also promotes reconciliation between spouses in cases where a marriage
is voidable. It tries to save a marriage instead of having it declared void.
Thus, where a marriage is voidable by reason of lack of consummation, the Matrimonial

Causes Act allows the spouses unlimited time to attempt a reconciliation where the lack
of consummation is due to wilful refusal to consummate. Again, where lack of
consummation is due to inability to consummate, the marriage will not be nullified if the
condition causing the inability can be cured without causing harm to the spouse with the
condition.
Furthermore, where a marriage is voidable on the ground that either party to the marriage
was insane at the time of the celebration of the marriage, or the respondent was pregnant
by some person other than the petitioner or at the time of the marriage the respondent
was suffering from an incurable venereal disease in a communicable form, the petitioner
has to establish that the condition making the marriage voidable was unknown to him/her
at the time of the celebration of the marriage, that voluntary sexual intercourse has not
taken place since the petitioner discovered the condition making the marriage voidable
and that the petition was filed within one year of the celebration of the marriage.
TOPIC 18: INTESTATE SUCCESSION
Intestate Succession is governed by the Intestate Succession Act, 1985 (PNDCL 111).
The devolution of the estate of a person who dies intestate on or after 5th July 1985 shall
be determined in accordance with PNDCL 111. This is subject to the rules on private
international law (conflict of laws). See: Section 1(1) of PNDCL 111.
PNDCL 111 does not apply to a Stool, Skin, or family property. See: Section 1(2) of PNDCL
111.
A person dies intestate if at the time of death that person had not made a will disposing of
his estate. See: Section 2(1) of PNDCL 111.
A person who dies leaving a will disposing of part of his estate shall be deemed to have
died intestate in respect of that part of the estate which is not disposed of in the Will.
Accordingly, PNDCL 111 shall apply to that part of the estate. See: Section 2(2) of PNDCL
111.
NB: “estate” means the self-acquired property which the intestate was legally competent
to dispose of during the lifetime of the intestate and in respect of which the interest of the
intestate has not been terminated by or on death. See: Section 18 of PNDCL 111.
DISTRIBUTION OF PROPERTIES UNDER PNDCL 111
a. HOUSEHOLD CHATTELS
Section 18 of PNDCL 111 provides that:
“Household chattels includes jewellery, clothes, furniture and furnishings,

refrigerator, television, radiogram, 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.”
The law is that where the intestate is survived by a spouse or by a child or both, either or
both of them is or are entitled absolutely to the household chattels of the intestate. See:
Section 3 of PNDCL 111.
b. HOUSE
PNDCL 111 does not define what a house is. However, the law is that a house includes an
uncompleted house. See: Appiah v Biani [1991] GLR 155.
In Appiah v Biani [1991] GLR 155, Lutterodt J (as she then was) pages 156 and 157 noted
that:
“The Intestate Succession Law, 1985 (PNDCL 111) did not define what a “house” was,
but on a literal interpretation, a house meant a building for dwelling in, a dwelling
place and must therefore have a roof, walls and windows. On a literal interpretation
therefore, an uncompleted house would not be a house. But the clear provisions of
PNDCL 111 was that on a spouse’s death intestate his self-acquired house should
devolve on the surviving spouse and children. And in order to achieve that legislative
purpose a house would be defined to include any building or part thereof which was
occupied or intended to be occupied and would include both a residential and a
commercial house. Accordingly, an uncompleted house was a house within the
meaning of section 4 of PNDCL 111. Therefore, the uncompleted house of the deceased
would devolve on the plaintiff and their children”.
Where the estate includes only one house, the surviving spouse or the child or both of
them is or are entitled to that house. And where it devolves to both the spouse and the
child, they shall hold it as tenants in common. See: Section 4(1)(a) of PNDCL 111.
However, where the estate includes more than one house, the surviving spouse or child or
both shall determine which of those houses shall devolve to either or both. See: Section
4(1)(b) of PNDCL 111.
Where there is disagreement as to which of the houses devolves to the surviving spouse
or child, or to both, either or both of them have the exclusive right to choose any one of
those houses. See: Section 4(2) of PNDCL 111.
Where the surviving spouse or child or both of them is or are unwilling or unable to make
the choice, the High Court shall on application made to it by the administrator of the estate
determine which of those houses shall devolve to either or to both of them. See: Section
4(3) of PNDCL 111.
c. RESIDUE
The residue refers to remainder of the estate after the household chattels and the house
has devolved to the surviving spouse or child or both as the case may be.
Where the intestate is survived by a spouse and by a child the residue of the estate shall
devolve in the following manner:
a. three-sixteenth (3/16) to the surviving spouse.

b. nine-sixteenth (9/16) to the surviving child.
c. one-eighth (1/8) to the surviving parent.
d. one-eighth (1/8) in accordance with customary law.
Where there is no surviving parent one-fourth of the residue of the estate shall devolve in
accordance with customary law. See: Section 5 of PNDCL 111.
Where the intestate is survived by a spouse and not by a child the residue of the estate
shall devolve in the following manner:
a. one-half (1/2) to the surviving spouse.

b. one-fourth (1/4) to the surviving parent.
c. one-fourth (1/4) in accordance with customary law.
Where there is no surviving parent one-half of the residue of the estate shall devolve in
accordance with customary law. See: Section 6 of PNDCL 111.
Where the intestate is survived by a child and not by a spouse the surviving child is entitled
to three-fourths (3/4) of the residue and of the remaining one-fourth,
a. one-eighth (1/8) to the surviving parent and

b. one-eighth (1/8) shall devolve in accordance with customary law.
Where there is no surviving parent the whole of the one-fourth shall devolve in accordance
with customary law. See: Section 7 of PNDCL 111.
Where the intestate is survived by a parent and not by a child or spouse, three-fourths (3/4)
of the estate shall devolve to the surviving parent and the remaining one-fourth (1/4) shall
devolve in accordance with customary law. See: Section 8 of PNDCL 111.
NB: Where a customary law is not applicable to the devolution of that part of the residue
which shall devolve in accordance with customary law, that part shall devolve in equal
shares to those beneficiaries otherwise entitled to share the residue under section 5,6,7 or
8 as discussed above. see: Section 9 of PNDCL 111.
Where the intestate is not survived by a spouse, a child or a parent the estate shall devolve
in accordance with customary law. See: Section 11(1) of PNDCL 111.
Where a customary law is not applicable to the devolution of the estate of an intestate
who is not survived by a spouse, a child or a parent, the estate shall devolve to the
Republic. See: Section 11(2) of PNDCL 111.
Where the estate of an intestate devolves to the Republic, the High Court if satisfied on
application that a person who was maintained by the intestate or with whom the intestate
was closely identified, should be maintained out of the estate or a portion thereof or the
whole should devolve to that person, the Court may make an order for the maintenance
of that person out of the estate or that a portion thereof or the whole estate devolves to
that person. See: Section 11(3) of PNDCL 111.
NB: Notwithstanding the discussions above, where the total value of the residue does not
exceed fifty thousand cedis, the residue shall devolve to a surviving spouse or child of the
intestate or where both the spouse and the child survive the intestate to both of them.
See: Section 12(a) of PNDCL 111.
Again, where the intestate is survived only by a parent and the total value of the estate
does not exceed fifty thousand cedis the estate shall devolve to the surviving parent. See:
Section 12(b) of PNDCL 111.
NB: The value of the estate or residue can be varied by an LI by the Attorney-General. See:
Section 13 of PNDCL 111.
NB: Where two or more persons are entitled to share a portion of an estate, they shall
share it equally. This is however subject to the rules of customary law relating to a
member’s interest in communal property. See: Section 14 of PNDCL 111.
LAPSED INTESTACY
Where a child of the intestate who has predeceased the intestate is survived by a child who
is the grandchild of the intestate, the grandchild is entitled, if that child is dependent on
the intestate at the time of death, to the whole or a portion of the estate which would
otherwise have devolved to the parent if that child had not predeceased the intestate.
See: Section 16 of PNDCL 111.
NB: The idea here is similar to the idea on lapsed disposition in the case of Wills where a
descendant-beneficiary predeceases a Testator but leaves behind issues. See: Section 8(2)
of the Wills Act.
DETERMINING THE FAMILY OF AN INTESTATE
Where the rules of succession under customary law applicable to a portion of the estate
provide that the family of the intestate is entitled to a share in the estate
a. that family is the family to which the intestate belonged for the purposes of
succession in accordance with the customary law of the community of which the
intestate was a member.
b. in the case of an intestate who, being a member of two customary law communities
belonged to two families for the purposes of succession, that family shall be the
two families.
c. in the case of an intestate who is not a member of a family, that family is the family
with which the intestate was identified at the time of death or, failing that, to the
families of the parents of the intestate or failing that to the Republic.
THE COMMORIENTES RULE
Commorior in Latin means “dying together” and the rule governs survivorship of estate in
circumstances where it is difficult or impossible to determine who predeceased who. The
rule was first applied in 1925 by section 184 of the Law of Property Act.
In Ghana the commorientes rule is found under section 34 of the Evidence Act, 1975 (NRCD
323). It provides that:
“Subject to the provisions of any enactment relating to succession to property,
where two or more persons have died in circumstances in which it is uncertain which
survived the other, the older is presumed to have predeceased the younger.”
This is a rebuttable presumption.

The Wills Act provides a different approach when dealing with testate dispositions. For
section 34 of NRCD 323 allows this. Section 7(7) of Act 360 provides that:
“Where a Testator and a beneficiary under the will, die in circumstances
a. in which it appears that their deaths were simultaneous, or

b. rendering it uncertain which of them survived the other,
the beneficiary shall be deemed to have survived the Testator for any purposes affecting
the entitlement to property under the will of that Testator; but for the purposes of the
entitlement of the Testator to that property under a will of that beneficiary, that
beneficiary shall be deemed to have survived that Testator, unless a contrary intention
appears from the will.”
In the case of intestacy, section 15 of the Intestate Succession Act, (PNDCL 111) provides
that:
“Where spouses die in circumstances
a. in which it appears that their deaths were simultaneous, or

b. rendering it uncertain which of them survived the other,
the older shall, for the purposes of this Act, be presumed to have predeceased the
younger.”
PROHIBITION OF EJECTION OF SPOUSES
A person shall not, before the distribution of the estate of a deceased person whether
testate or intestate, eject a surviving spouse or child from the matrimonial home
a. where the matrimonial home is the self-acquired property of the deceased.

b. where the matrimonial home is rented property, unless the ejection is pursuant to
a Court order.
c. where the matrimonial home is the family house of the deceased, unless a period
of six (6) months has expired from the date of the death of the deceased; or
d. where the matrimonial home is public property unless a period of three (3) months
has expired from the date of the death of the deceased. See: Section 16A (1) of
PNDCL 111.
For the purpose of the above, matrimonial house” means
a. the house or premises occupied by the deceased and the surviving spouse, or the
deceased and a surviving child or all of them, at the time of the death of the
deceased, or
b. 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. See: Section 16A (2) of
PNDCL 111.
It is an offence for a person to do either of the following before the distribution of the
estate of a person whether testate or intestate:
a. unlawfully ejects a surviving spouse or child from the matrimonial home.

b. unlawfully deprives the entitled person of the use of
i. a part of the property of the entitled person,
ii. a property shared by the entitled person with the deceased to which this
Act applies, or
iii. removes, destroys or otherwise unlawfully interferes with the property of
the deceased person.
TOPIC 19: DRAFTING
PROCEDURE FOR MATRIMONIAL CAUSES
All proceedings for divorce, nullity, presumption of death, dissolution of marriage,

maintenance orders and child custody orders shall commence by a petition. See: Order 65
rule 2 of CI 47.
The District Court, Circuit Court, and the High Court have jurisdiction in the above matters
except that the jurisdiction of the District and Circuit Courts may be limited by the value of
the estate or property in question.
The High Court has both original and appellate jurisdiction in Family Law matters.
However, appeals from the Circuit Court go to the Court of Appeal. Only appeals from the
District Court go to the High Court.
It is for the lawyer to decide which court to file a petition. If it is at the Circuit Court or High
Court, Order 65 of CI 47 should apply.
If it is at the District Court, Order 32 of CI 59 should apply.
The party seeking divorce is referred to as “the Petitioner.” The party accused of the
matrimonial offence is referred to as “the Respondent.”
SEQUENCE OF PROCEEDINGS AT THE DISTRICT COURT
A form specified in the Second Schedule to Order 32 shall be completed by the Petitioner.
The form shall contain the following information:
a. The full name and occupation of the petitioner and his/her residential address.
b. The full name and occupation of the petitioner’s husband/wife and his/her
residential address.
c. The nature of the marriage, whether marriage under custom or under the
Ordinance.
d. How long the parties have been married.
e. The names, ages and occupation of children of the marriage if any.
f. Whether petitioner is living with respondent or in respondent’s family home.
g. The amount of rent payable if petitioner is living elsewhere in rented

accommodation.
h. The names and ages of petitioner’s parents if still alive.
i. The names of Head of Family of the petitioner and Head of family of Respondent.
j. How long the problem complained about has persisted and whether there have
been any attempts at settlement.
k. Summary of the reasons for divorce.
l. A list of all the reliefs sought and cost of maintenance of children and petitioner.
The Respondent, if he/she wishes to be heard, shall use the form for Respondent specified
in the Second Schedule of Order 32.
The contents of this form are similar to the contents of the form for the Petitioner.
The Registrar of the Court shall within fourteen (14) days after the petitioner’s form has
been served on the respondent set the action down for trial.
SEQUENCE OF PROCEEDINGS AT THE CIRCUIT AND HIGH COURT
Petition (by the Petitioner)
Appearance (by the Respondent)
Answer and Cross Petition (by the Respondent)
Reply and Answer to Cross Petition (by the Petitioner)
Close of Pleadings
Fourteen (14) days after the close of Pleadings, the Petitioner or his Lawyer shall notify the
Registrar that the action is fit to be set down for trial. A notice will then be served on the
Respondent that the matter has been set down for trial.
CONTENTS OF A PETITION
Order 65 rule 6(1) sets down the Contents of a Divorce Petition.
a. State the names of the parties to the marriage, the place and date of the marriage
and the status of the parties before the marriage.
b. State the principal addresses at which the parties have co-habited in the country or
any other place other than this country.
c. State the occupation of each party at the date of issue of the petition.
d. State the fact that the parties are resident or domiciled in Ghana.
e. State whether any children of the household are living and if so their names and
ages.
f. State whether there have been any previous court proceedings with reference to
the marriage or children of the household.
g. State the marriage has broken down beyond reconciliation.
h. State the conduct (fact) complained of.
i. Give particulars of the conduct of the Respondent and not the evidence proving
the conduct.
j. State that the parties acquired properties during the subsistence of the marriage
and list them.
k. State that all attempts at reconciliation have proved futile.
l. State the prayer or reliefs sought.
IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
DIVORCE AND MATRIMONIAL CAUSES DIVISION
ACCRA- GREATER ACCRA REGION.
AD 2023
SUIT NO:
Mrs Araba Hammond Petitioner
No. 2 Maabre Road
Cape Coast.
Versus
Dr kuku Hammond Respondent
No 6 Tantra Hill
Kwaabotwe
Cape Coast.
PETITION OF MRS ARABA HAMMOND
TO: HIS LORDSHIP, THE JUDGE
HIGH COURT,
(DIVORCE AND MATRIMONIAL CAUSES DIVISION),
ACCRA.
THE HUMBLE PETITION OF Mrs Araba Hammond shows:
1. That the petitioner, then a spinster called Araba Nelson was lawfully married to the
respondent then a bachelor under the Marriages Act (Cap 127) at a ceremony
officiated by Mr George Grant, Registrar of Marriages at the City Council at Sekondi
on 20th June 1980. (CONSTANT)
2. That after the marriage the parties co-habited at Sekondi, Tema, and Cape Coast.
3. That there are three issues of the household, Ato 14 years, Kuuku Jnr 10 years and
Ewurabena 8 years.
4. That the petitioner and the respondent are both citizens of Ghana.
5. That both the petitioner and the respondent are Medical Doctors by profession.
6. That there have been no court proceedings concerning the marriage or the children
of the household.
7. That the marriage has broken down beyond reconciliation. (CONSTANT)
8. That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent and the respondent has caused
the petitioner much anxiety and distress.
PARTICULARS OF UNREASONABLE BEHAVIOUR
a. That the respondent suddenly started coming home late.
b. That the respondent slapped the petitioner in the face in the presence of the
children.
c. That the respondent refused to maintain the children.
d. That the respondent on one occasion threw boiling water on the petitioner
causing serious burns on the petitioner’s body.
e. That the respondent called the petitioner ugly names in public.
f. That the respondent on another occasion left the matrimonial home for three
days without telling anyone where he was.
9. That the petitioner during the subsistence of the marriage acquired the following
properties:
a. A ten-acre cocoa farm at Bekwai.
b. A block of flats at Kwadaso at Kumasi.
c. The matrimonial home at Roman Ridge, Accra.
d. Two plots of land at Prampram and Sekondi.
e. A Kia Sportage Salon Car with registration number PP 154 G.
10. That all attempts by the families of the parties at reconciliation have proved futile.
WHEREFORE the petitioner prays as follows:
i. That the marriage celebrated in fact between the parties be dissolved.

ii. That the petitioner be granted custody of all the children of the marriage, Ato,
Kuuku Jnr and Ewurabena, with limited access to the respondent.
iii. That the respondent be ordered to make to the petitioner such maintenance
pending suit and thereafter such periodical payments as may be just.
iv. That the respondent be ordered to pay in the alternative to the petitioner a lump
sum of X amount.
v. That the following properties be settled in favour of the Petitioner:
a. The two plots of land at Prampram and Sekondi.
b. The Matrimonial House at Roman Ridge in Accra.
c. The red Kia Sportage saloon car with registration number PP 154 G.
DATED AT ACCRA THIS 15TH DAY OF JANUARY 2023.
SIGNED
PETITIONER/COUNSEL
THE REGISTRAR,
HIGH COURT
(DIVORCES AND MATRIMONIAL CAUSES DIVISION)
ACCRA.
AND TO THE ABOVE-NAMED RESPONDENT.

Important tips to note for examinations:
NB: When drafting, use roman numerals when stating the reliefs. However, when stating
the properties, use alphabets.
Also, where the property is a company, state that you want the shares of the company to
be shared but not the properties of the company.
NB: Always ask for maintenance pendente lite (pending suit) even if the question does not
state it.
Always ask for lump sum payment (as settlement under section 20) even if the question
does not state it.
NB: Under unreasonable behaviour, do not combine two or more acts in one paragraph.
Separate them!
On the properties acquired during marriage, where the scenario is silent on what the
petitioner is asking for, use your own discretion and ask some of the properties as given in
the facts to be given to the petitioner as part of the reliefs!
If the child is above 18 years, do not ask for custody of the child!!!!!!!!!
Always copy the Registrar of the Court and the Respondent!

PARTICULARS OF PETITION (SAMPLE)
A. UNREASONABLE BEHAVIOUR
That the respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with him/her and the respondent has caused the petitioner much anxiety,
distress and embarrassment.
PARTICULARS OF UNREASONABLE BEHAVIOUR
a. The Respondent on several occasions asked the Petitioner to leave the matrimonial
home.
b. The Respondent slapped the Petitioner in public on three occasions.
c. The Respondent shouted at the Petitioner and the children for no reason.
B. ADULTERY
That the respondent has committed adultery and as a result of the adultery, the petitioner
finds it intolerable to live with the respondent.
PARTICULARS OF ADULTERY
a. The Respondent has impregnated the house help.

b. The Petitioner caught the Respondent having sex with the neighbour’s wife.
C. DESERTION
That the respondent has deserted the petitioner for a continuous period of at least two
(2) years immediately preceding the presentation of the petition.
PARTICULARS OF DESERTION
a. The Respondent left the matrimonial home two and half years ago with the
intention of bringing co-habitation permanently to an end.
b. The Respondent and the Petitioner have not seen or spoken to each other for the
past two and half years.

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FAMILY LAW & PRACTICE (Selﬁe)

FAMILY LAW & PRACTICE NOTES

All the best.

EBENEZER ADDAI OSEI

Ghana School of Law (Main Campus, Accra)

023 883 5922

Again, I wish to thank the following friends:

TOPIC 1: BREACH OF PROMISE TO MARRY

The law is that a breach of promise to marry is actionable. See:

1. Afrifa v Class Peter [1975] 1 GLR 359.

According to Muhammadan Law, unless the contract of marriage is completed, no

The same subject is referred to in Mulla Principles of Mahomedan Law as follows:

1. Amoah v. Boakye Gyan, Civil Appeal No. H1/42/2012.

1. Aning v Kingful [1980] GLR 404.

1. There must be an agreement. Thus, there must be mutual exchange of promises

DEFENCES TO AN ACTION FOR BREACH OF PROMISE TO MARRY

1. Schnaar v Jansen (1924} 4 NLR 218 (Saf)

The categories of damages are: Compensatory, aggravated, and punitive damages.

1. Drobnich v Bach (1924) 159 Minn 258.

a. The notoriety of the marriage.

1. Donkoh v Ankrah [2003-2005] 2 GLR 125

The question of whether a gift was given in contemplation of a marriage is a question of

ARGUMENTS ON WHETHER OR NOT AN ACTION FOR BREACH OF PROMISE TO MARRY

1. Donkoh v Ankrah [2003-2005] 2 GLR 125

TOPIC 2: CUSTOMARY LAW MARRIAGES

1. Yaotey v Quaye [1961] GLR 573.

1. Graham v Graham [1965] GLR 407.

CHARACTERISTICS OF CUSTOMARY LAW MARRIAGE

a. It is potentially polygamous. See: Graham v Graham [1965] GLR 407.

Customary marriage is potentially polygamous whilst ordinance marriage is

j. Customary law marriages do not necessarily require documentary evidence as

TYPES OF CUSTOMARY LAW MARRIAGES

There are two types of customary law marriages. They are:

a. Formal customary law marriages and

FORMAL CUSTOMARY LAW MARRIAGES

INFORMAL CUSTOMARY LAW MARRIAGES

1. Essilfie & Another v Quarcoo [1992] 2 GLR 180.

1. Asumah v Khair [1959] 1 GLR 353.

CUSTOMARY LAW MARRIAGE DISTINGUISHED FROM CONCUBINAGE

According to the Black Law Dictionary, 9th edition,

It is important to distinguish informal customary law marriage from concubinage. The

a. Cohabitation over a long period of time with or without children.

c. Attending functions together.

IMPLICATION OF THE ESSENTIALS OF A CUSTOMARY LAW MARRIAGE

a. Agreement by the parties to live together as husband and wife.

1. Akorninga v Akawagre [1987-88] 2 GLR 562.

3. Kombat v Lambim [1989-90] 1 GLR 324.

1. “A person shall not force a child

b. Consent of both families to the marriage

1. Djarbeng v Tagoe [1989-90] 1 GLR 151.

CRITICISMS OF THE ESSENTIALS

a. Agreement by the parties to live together as husband and wife

b. Consent of both families to the marriage

MARRIAGES PROHIBITED UNDER CUSTOMARY LAW

a. Same sex marriage

TOPIC 3: REGISTRATION OF CUSTOMARY LAW MARRIAGES AND DIVORCES

a. REGISTRATION OF CUSTOMARY LAW MARRIAGES

1. Section 1 of Cap 127.

The objections are heard in chambers. See: Section 10 of Cap 127.

APPLICATION OF INTESTATE SUCCESSION ACT, 1985 (PNDCL 111) UPON REGISTRATION OF

1. Essilfie & Another v Quarcoo [1992] 2 GLR 180.

b. REGISTRATION OF CUSTOMARY LAW DIVORCES

A summary of the procedure is as follows:

The objections are heard in chambers. See: Section 10 of Cap 127.

Family Law & Practice (Selfie)

Family Law & Practice (Selfie)