Is Engagement A Legal Marriage?

My observation on the discussion of traditional marriages on social media has got me to sit behind my laptop to write on social issues again.

The posts I come across are often about ladies worrying about the fact that they might not be staying in a legal marriage because they did not have a white wedding. This is because, in our society, we call the traditional or customary marriages “engagement”.

To most of us and even some churches, that is not the proper form of marriage for Christians. A couple who therefore performs the “engagement” cannot live together because they are not “legally” married. They are to have another marriage ceremony in the church to “legalize” their marriage.

One may want to understand those churches to mean that a couple must be married in the sight of God and so after performing the traditional marriage rites, a Christian couple is expected to bless their marriage in God’s house. I want to believe that is their reason for telling their members that “engagement” is not a legal marriage.

Let me dispel this myth in this new year: Customary marriage is a LEGAL marriage. In fact, Part 1 of the Marriages Act, 1884-1985 (CAP 127) provides for customary marriages.

Reproducing the whole of Part 1 of the Marriages Act will make my short write-up laborious to read and so I will quote the essential provisions and explain further in this article.

To begin with, a marriage contracted under customary law is legal whether it is registered or not. This is supported by Sections 1 and 2 of the Marriages Act which states as follows:

“1. Registration of customary marriage

On the commencement of this Act, a marriage contracted under customary law before or after the commencement may be registered in accordance with this Act.

Application for registration (1) Where a marriage is contracted under customary law, either party to the marriage

or both parties may apply in writing to the registrar of the district in which the marriage was contracted for the registration of the marriage in the register of marriages.

(2) The application for the registration of the marriage may be made at any time after the marriage, but the Minister responsible for Justice may at any time prescribe the periods within which the failure to register a customary marriage contracted before or after the commencement of this Act shall be an offence.” [Emphasis mine]

Thus, a couple who have contracted a marriage under customary law which we prefer to call an “engagement” in our society, may choose to either register the marriage or not and their marriage will still be valid.

The only downside, however, of contracting a customary marriage is that there is no cap on the number of women the man can marry. (Well, this may be the best bet for the man who cannot stick with one woman). Therefore, a man who has contracted a marriage under customary law can marry as many as 100 wives if he can afford to do so.

He cannot, however, contract a marriage under the ordinance with any of his wives. Put simply, a man who marries a woman under the customary law cannot subsequently marry another woman under the ordinance (wedding as we prefer to call it in our society).

A man who marries a woman under customary law and intends to marry another woman under the ordinance would have to first divorce the one he married under the customary law before he can contract to marry the other woman under the ordinance.

This is because contracting marriage under the ordinance means one is contracting to marry only one wife. Marriages under the ordinance are monogamous marriages. A man who therefore marries under the ordinance or performs a “white wedding” and signs the marriage certificate under Part 3 of the Marriages Act contracts to marry only one wife.

He cannot marry any other woman even under customary marriage. To do so, he would have to divorce the first wife, and then go ahead to contract the subsequent marriage.

We may have heard of stories about men who are married under the ordinance yet are married to other women under the customary law. Suffice it to say that those marriages contracted under the customary law after the marriage under the ordinance are invalid.

Such a man and even the woman he marries under customary law subsequent to a marriage under the ordinance commit the offence of bigamy. The Criminal Act, 1960 (Act 29) puts it succinctly as follows:

“Section 262—Bigamy.

Whoever commits bigamy shall be guilty of a misdemeanour.

Section 263—Definition of and Special Provision as to bigamy.

(1) A person commits bigamy who, knowing that a marriage subsists between him or her and any person, goes through the ceremony of marriage, whether in Ghana or elsewhere, with some other person…

Section 264—Marriage with a Person Previously Married.

Whoever, being unmarried, goes through the ceremony of marriage, whether in Ghana or elsewhere, with a person whom he or she knows to be married to another person is guilty of a misdemeanour, whether the other party to the ceremony has or has not such guilty knowledge as to be guilty of bigamy.

Section 265—Marriages under Customary Law.

(1) A person is not guilty of bigamy or of an offence under section 264 if the marriage in respect of which the act was committed, and the former marriage, were both contracts under customary law.

(2) A person may be guilty of bigamy or of an offence under section 264 if, having contracted a monogamous marriage with any person, he marries or purports to marry any other person under customary law, or if, being married to any person by customary law, he goes through a monogamous ceremony of marriage with any other person. [Emphasis mine]

On the other hand, a couple married under the customary law can again marry under the ordinance. This is known as conversion of marriage. It is worth noting, however, that this conversion of marriages is for the man who is married to only one woman. So when the couple has the customary marriage, or what we call engagement, on Friday and have the church wedding on Saturday, they have converted a customary marriage into a marriage under the ordinance.

When a couple, who are married under the customary law, marry again under the ordinance, the first marriage, which is the marriage under the customary law, is extinguished. The second marriage, which is the marriage under the ordinance, is what then subsists or is recognised by law.

However, where the second marriage is rendered invalid as a result of, for instance, non-compliance with the essentials of its registration, the first marriage, which is the marriage under the customary law, will still remain valid.

My husband and I contracted a marriage under the customary law on Saturday, 13th August 2016. On Saturday, 20th August 2016, we married under the ordinance. This means that on the 20th of August, the customary marriage we had contracted on the 13th was extinguished by the marriage under the ordinance.

If, however, it turns out that we did not follow any requisite procedure as stipulated in the Marriages Act, therefore, rendering our marriage under the ordinance invalid, our first marriage, which is the marriage we contracted under the customary law on the 13th of August shall still subsist, making our marriage still valid.

One may wonder why couples would marry under the customary law and then go ahead to marry under the ordinance when the former will be extinguished any way.

It will be hard to forgo traditional marriages in Ghana since we believe that we do not marry individuals but rather families. Customary marriages, as Ollenu J (as he then was) rightly described in the case of Yaotey V Quaye (1961) 2 GLR 579, is “a union between a man’s family and a woman’s family”.

It is therefore important, in our part of the world, to perform the traditional marriage (efie aware) which we popularly call “engagement” according to our various customs and traditions. However, to curb insecurities amongst couples, most women especially, insist on marriages under the ordinance.