Is her husband right?

Dear Mirror Lawyer, My cousin, Aba, got married seven years ago and has two kids. Prior to the marriage, her husband told her he could not afford a white wedding due to some financial constraints and so they should start life from a humble beginning with the traditional marriage (popularly called “engagement”) with the assurance that Aba will be the only woman in his life.

Aba’s husband recently informed her that he wants to marry another woman. When she complained and objected, he informed her that since they never married in church and it was just a customary marriage, he is allowed to marry another woman.

Is Aba’s husband right?

Gloria Osei-Nyame, Tema

Dear Gloria, In Ghana, three types of marriages are recognised in law. These are Customary Marriage, Mohammedan Marriage and Ordinance Marriage.

The traditional marriage (popularly known as “engagement”) which is what Aba and her husband had is known in law as the Customary Marriage.Customary marriages are recognised under the Marriage Ordinance CAP 127.

The legal effect flowing from these marriages differ. While customary marriage and Mohammedan marriage permits a man to marry more than one wife, Ordinance marriage limits a man to just one wife and no more.

The definition of an Ordinance marriage as defined in the case of Hyde v Hyde states that it is the voluntary union between a man and a woman to the exclusion of all others. This goes to explain that the man can only tie the knot with one woman; he can, therefore, not marry another woman in addition to his lawfully wedded wife.

 He must first divorce her, otherwise it amounts to the criminal offence of bigamy and it is also a ground for divorce by either the man or the woman.

Customary marriage is recognised as a full marriage in Ghana and can be registered. Because it can be registered, one would expect it to be “secured”. This is, however, not the case.

Customary marriages are not in the least secured; especially if you are a woman who is not prepared to share your husband with other women. This is because customary marriages are potentially polygamous.

It means that a man married under the customary law is entitled in law to marry more than one woman as he can harmoniously cater for and live with in addition to an existing customary wife.

 He may decide not to marry any other woman in addition to his customary married wife for as long as both of them shall live. But a mere promise not to marry additional women does not change the character of the customary marriage neither does the registration of it. In other words, it does not convert the polygamous or potentially polygamous marriage into a monogamous one (where a man is entitled in law to marry only one woman).

 The discriminatory aspect is that while a husband under customary marriage is entitled to more than one wife, the woman to that customary marriage cannot flirt outside her marriage or marry more than one man.

The floodgate, for want of a better word, is only opened to the men under customary law. Flirting outside the marriage for the woman can, therefore, be a ground for a man to divorce his wife.

In the case of Graham v. Graham [1965] GLR 407 HC, the parties were married in accordance with customary law and subsequently went through a marriage ceremony in the Catholic Church to convert the customary marriage to that of Ordinance; the court said that a customary law marriage is one in which the union is comparatively loose and the man is not precluded from taking unto himself as many wives as he can harmoniously live with and conveniently manage but if he goes a step further to solemnise the marriage in church, the husband by that act renounces all his rights, obligations and privileges under the customary marriage which automatically converts to an Ordinance (monogamous) marriage.

Therefore, if a man married under customary law thinks he can handle and manage more than one woman under his roof, live peacefully with them and has the financial means to take good care of them, then he is allowed under the law to marry as many as he can.

Aba’s husband is therefore right in saying that he is entitled in law to marry more than one wife. However, it is worth noting that a man married under customary law, is not permitted to marry another woman under the Ordinance unless he first dissolves the customary marriage.

This is because the Ordinance marriage is a monogamous one which is not in any way akin to that of customary marriage which is potentially polygamous.

Also, if a man is married to more than one woman under the customary law and seeks to convert only one of the marriages into that of a monogamous one under the Ordinance, he must first divorce the other women to make the Ordinance marriage valid in law.

When a customary marriage is converted to that of an Ordinance marriage, the rights, obligations and privileges attached to the customary marriage cease to exist because the customary marriage is extinguished by the Ordinance marriage.