WHAT IS MARRIAGE?
In Ghana marriages are contracted under Customary Law, some under Part 3 of the Marriages Act 1884-1985 and other under Part 2 of the Marriages Act 1884-1985.
We can further see marriage as an agreement by which a man and a woman enter into a certain legal relationship which has the effect of creating a certain status with resulting rights and duties. Where therefore it may be said to be a contract, it is perhaps more correct to say that marriage is a special form of contract.
However, specifically, marriage as understood in Christendom may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.
Customary law marriage is a union between a man’s family and the woman’s family. But it is also a contract between the man and the woman. When, therefore, one of the parties fails or refuses to honour the contract to marry the other party, the aggrieved party can sue for breach of promise to marry.
So if you promise to marry a person under the Ordinance, after you have already married her/him under customary law and you refuse, you are liable for breach of promise to marry.
The breach may take the form of:
Non-performance when the time for performance has arrived;
An anticipatory breach before time
Defences to Actions of Breach
1.Bad character - unchaste woman, “Romeo man”
2.Mental or bodily infirmity
4.Fraud and misrepresentation
REQUIREMENTS FOR CUSTOMARY MARRIAGE
There are four (4) main requirements
1. Agreement by the parties to live together as man and wife
2. Consent of the family of the man that he should have the woman to be his wife; that consent may be indicated by the man’s family acknowledging the woman as wife of the man.
3. Consent of the family of the woman that she should be joined in marriage to the man; that consent is indicated by the acceptance of drinks form the man or his family or merely by the family of the woman acknowledging the man as the husband of the woman.
If the appropriate bride price is not paid, there is no valid marriage even if the parties have lived like man and wife for many years.
4. Consummation of the marriage by cohabitation. However, in order to amount to consummation, the intercourse must achieve full penetration in the normal sense. Take note that consummation starts only after the ceremony.
We must also bear in mind that every customary marriage is potentially polygamous, that is to say, the husband is entitled in law to marry more than one woman.
Under the Common law marry can also be defines as a contract between a man and a woman by which they mutually promise to marry one another, the promise of each being the consideration for the promise of the other.
Marriage under Common Law is monogamous. In Ghana, Common Law marriage has been codified into the Marriages Act, 1884-1985 (CAP 127).
The main feature of a Common Law or Ordinance marriage is that it is monogamous.
It is union of one man and one woman to the exclusion of all other.