The Legal Framework of Marriage in Ghana

Ghana operates a plural legal system, which means that different forms of marriage are recognised under the law.

The principal legislation is the Marriages Act, 1884–1985 (CAP. 127), which consolidates the various provisions governing marriages in the country.

The main types of marriages recognised by Ghanaian law are:

(a) Customary Marriage
A customary marriage is one contracted in accordance with the traditional rites or customs of a particular ethnic group (for example, Akan, Ewe, Dagomba, etc.).

The nature of the marriage, whether monogamous or polygamous, depends on the custom of the people involved.

However, principally, all customary law marriages are potentially polygamous. Customary marriages are valid once the essential customary rites have been performed and the union is recognised by the families and community.

The law allows for the registration of customary marriages for evidential and legal certainty.

(b) Ordinance (Civil) Marriage
This form of marriage is celebrated under Part 3 of CAP 127, and it follows western or Christian procedures.

It is strictly monogamous, meaning a man can have only one wife during the subsistence of the marriage.

Such marriages are usually performed in church or before a registrar and are evidenced by a marriage certificate.

(c) Islamic (Religious) Marriage
Marriages contracted under Islamic law are also recognised in Ghana, provided they comply with the applicable statutory requirements under Part 2 of CAP 127.

Islamic marriages are widely practised, but registration is encouraged to avoid disputes.

In cases of death intestate, statutory succession laws such as the Intestate Succession Law, 1985 (PNDCL 111) may apply instead of Islamic inheritance rules.

Note: Ghanaian law does not recognise “common-law marriage” in the full sense used elsewhere.

However, long cohabitation and public acknowledgment can serve as evidence of a customary union in a court action.

2. Case Law and Judicial Approach

Ghanaian courts have clarified the operation of these marriage systems through several key cases:

Customary Marriage:
In Yaotey v Quaye [1961] GLR 573 and Re Caveat by Clara Sackitey: Re Marriage Ordinance, CAP 127 [1962] 1 GLR 180, the court examined what constitutes a valid customary marriage.

The focus is on the essential customary rites and community recognition.

In Graham v Graham [1965] GLR 407 and Yeboah v Appiah [1975] 1 GLR 465, the courts dealt with situations where customary rites were followed by a church blessing.

The courts held that a church ceremony does not automatically convert a customary marriage into an ordinance marriage unless it is celebrated under the Ordinance with the proper notices and registration.

Islamic Marriages and Statutory Succession:

Courts have recognised Islamic marriages but have also affirmed that statutory provisions on succession (PNDCL 111) override religious rules where the law applies.

Thus, even in Islamic unions, property distribution may follow statutory intestacy provisions.

3. Comparison: Monogamy in Ghana and Germany
   (a) Requirement of Monogamy
   • In Ghana, only ordinance marriages are monogamous. Customary marriages are potentially polygamous.
   • In Germany, marriage is strictly monogamous under §1306 of the German Civil Code (BGB). Bigamy or polygamy is prohibited and not recognised for legal purposes.

(b) Recognition of Polygamous Marriages
• Ghana recognises polygamous customary marriages if they are valid under the relevant custom.
• Germany does not recognise polygamous marriages. Only the first marriage may be acknowledged, while subsequent unions are treated as void in German law.

(c) Property and Divorce
• In Ghana, property rights may depend on the type of marriage and whether the property is family/stool property or self-acquired.

Divorce and matrimonial relief are governed by the Matrimonial Causes Act, 1971 (Act 367).
• In Germany, property relations are regulated by the BGB, with the default marital property regime being community of accrued gains (Zugewinngemeinschaft).

In summary: Ghana applies a plural system that recognises customary, statutory, and religious marriages, while Germany follows a single, civil, and strictly monogamous system.

4. Wills and Succession in Ghana
   The main statutes governing succession are:
   • Wills Act, 1971 (Act 360) – deals with the making and validity of wills.
   • Intestate Succession Law, 1985 (PNDCL 111) – governs the distribution of property when a person dies without a valid will.

Testamentary Freedom:

A person aged 18 years or above may dispose of his or her property by Will, subject to the formal requirements under Act 360 (writing, signature, and attestation).

Testamentary freedom is recognised but not absolute; dependants may be provided for under certain circumstances.

When a person dies with a valid Will:
The Will is submitted to the High Court or depending on the value of the estate, the District Court or the Circuit Court for probate, and the executor administers the estate according to the terms of the Will.

When a person dies intestate:
The distribution of the estate is carried out in accordance with PNDCL 111, which provides for spouses, children, parents, and other relatives in a fixed order of priority.

Family or stool property is usually excluded from the operation of this law.

Customary and Religious Contexts:

In polygamous or customary unions, the court examines which marriage is valid and how many lawful spouses exist before applying PNDCL 111.

Courts favour the statutory law where there is a conflict between religious rules and state law.

5. Practical Guidance
   1. Register marriages, particularly customary and Islamic marriages, to ensure legal recognition and protection of rights.
   2. Understand the type of your marriage, Ordinance marriages are monogamous; customary marriages are potentially polygamous.
   3. Make a valid will to avoid disputes over property after death.
   4. Seek legal advice when dealing with cross-border marriages or property in countries like Germany, which do not recognise polygamy.
   5. Clarify ownership of assets, distinguishing between self-acquired, family, and stool property is crucial for proper distribution.
6. Key Statutes and References
   • Marriages Act, 1884–1985 (CAP.127)
   • Matrimonial Causes Act, 1971 (Act 367)
   • Wills Act, 1971 (Act 360)
   • Intestate Succession Law, 1985 (PNDCL 111)
   • Ghanaian case law: Graham v Graham [1965] GLR 407; Yeboah v Appiah [1975] 1 GLR 465; Yaotey v Quaye [1961] GLR 573; Re Caveat by Clara Sackitey: Re Marriage Ordinance, CAP 127 [1962] 1 GLR 180
   • German Civil Code (BGB) — §1306 and related provisions

Short Summary

Ghana recognises three main types of marriage: customary, ordinance (civil), and Islamic.

Customary marriages are potentially polygamous, while ordinance marriages are strictly monogamous. The nature and registration of the marriage determine the legal rights of spouses, especially in property and succession matters.

Wills are governed by Act 360, and intestate distribution by PNDCL 111. In contrast, Germany maintains a single civil system where marriage is strictly monogamous and regulated under the German Civil Code.