From whence cometh our help? The dilemma women face after their marriages are nullified.

Introduction

Ghana, like most African countries, has a plural legal system whereby the Constitution recognizes our customary laws and usages, the common law and statutes passed by Parliament as part of our laws. Therefore, in addition to the formal laws passed by Parliament, the customary laws and practices of the traditional communities in Ghana are recognized, applied and given effect to in the various communities. One of the areas of our lives as Ghanaians that epitomizes the plurality of our laws is the institution of marriage.

The three forms of marriages recognized under our laws are marriage under the Ordinance, marriage under customary law and marriage under Mohammedan or Islamic law. For persons who marry under the Ordinance (that is whether in Church, at the District, Municipal or Metropolitan Assembly Office or under special license before the Registrar of Marriages), the strict rule applicable is “one man, one wife”. Marriages under the Ordinance are, therefore, monogamous. It is an offence – bigamy - for a person married under the Ordinance to marry another person or persons in addition to the original spouse. However, for those who marry under customary law or Mohammedan/Islamic Law, their marriages are potentially polygamous in that, the men are at liberty to marry other wives in addition to the first wife.

This article seeks to throw light on how the courts have handled the property rights of parties who hitherto went through a marriage ceremony under the Ordinance but the marriage so contracted has been declared a nullity for the reason that one of the parties was already married under the Ordinance before contracting the annulled marriage.


What happens when a man marries two women under the Ordinance?

By the criminal laws of Ghana, a person commits the crime of bigamy when that person, being married to another person under the Ordinance, goes through another marriage ceremony, whether in Ghana or elsewhere, with any other person. Bigamy is a misdemeanour, meaning that a person found guilty of bigamy could be imprisoned for up to three years.

Secondly, since the subsequent marriage is not recognized under the law, it is deemed to be a nullity. Either of the parties may apply to a court for an order declaring the second marriage as null and void. It is worth noting that, in most instances, the subsequent marriage may have subsisted for years and the couple may have acquired property and even had children together. What then happens when a court declares such marriage a nullity?


Marriage is declared a nullity by court– what next?

The main question that arises after a court declares a marriage null on grounds that at the time of contracting the marriage, one of the parties was married to another person under the Ordinance is – what are the respective spousal rights of the parties?; what property rights do the parties have after the marriage has ended?; what are their duties and obligations towards the children of their impugned marriage?, and so forth.

ah, JA.)

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