Re Caveat by Clara Sackitey: Re Marriage Ordinance

This case concerns the criteria for what constitutes a valid customary marriage. In question was whether or not the respondent was precluded from marrying another as a result of the prior customary marriage alleged. The case arose after the complainant filed a caveat against the issue of a registrar’s certificate in respect to an alleged ordinance marriage between the respondent and another woman. The complainant claimed that she was married to the respondent under customary law at a ceremony held in March 1958 at which both her family and the respondent’s family were present and that was presided over by the head of the larger family to which both of the families belong; that the ceremony called “fiapun” in Adangbe was performed; and that the respondent’s family provided drinks and a customary fee for the marriage. Therefore, the complainant claimed that the respondent was precluded under Ordinance from marrying another. The respondent denied that the ceremony held in March 1958 constituted a lawful marriage under customary law and further maintained that whatever relationship subsisted between him and the complainant was determined by their subsequent separation. The Court confirmed that the essential pre-requisites laid out in Yaotey v Quaye. It also held that consent by the two parties’ families may be actual or constructive. The Court held that the unrefuted evidence presented by the complainant of the ceremony and cohabitation contained all the essential elements of a valid customary marriage. The Court also held that since the marriage is as much the families’ concern as it is the concern of the two individuals, the agreement of the parties to live apart does not affect their legal status, and the marriage will subsist until the marriage is dissolved by the family. The Court confirmed that a marriage under the Ordinance and a customary marriage was mutually exclusive, and the existence of one precluded the other. The complainant’s application for prohibition of the Registrar of Marriages from issuing the certificate was sustained, as she and the respondent were still married under customary law.