GHANA'S MARRIAGE ACT IN A 24-HOUR ECONOMY: WHY CAP 127 MUST DIE AND BE REBORN
By Justice Alexander Osei Tutu, J.A.
Abstract: This article argues that Ghana’s Marriage Act, Cap 127, is archaic, discriminatory, jurisdictionally confused and a Trojan Horse for foreign values. Drawing on relevant sections of Cap 127 and Act 367, the 1992 Constitution, with case law including Coleman v. Shang and the presumption of advancement cases, it calls for repeal and re-enactment into a unified Ghanaian Family Act fit for a 24-hour economy and a plural legal system.
Colonial Origin – Not Meant for us
According to the literature, the Marriage Ordinance of 1884 was enacted for the colonial administrators and the Christian merchants. It was not originally intended for the indigenous people of the Gold Coast,[1] who had their own customary marriage. Professor Zabel[2] gives an insight: - “[T]he initial impetus for its introduction came from the administrators in West and East Africa who merely wanted legislation which would get over shortcomings in the received English law, which in particular did not appear to cover marriages between non-Africans who were not English subjects.” [3]
As Ekow Daniels[4] notes, the Ordinance did not expressly bar Africans from contracting English marriages. Akoto[5] in her research paper describes it as a “legal transplant.” She explains the colonial logic - the belief was that white “superiority” would naturally cause the English form to be preferred over so-called “primitive” customary law marriages.[6]
[1] Shirley Zabel, ‘The legislative History of the Gold Coast and Nigeria Marriage Ordinances: 1’ (1969) 13 (2) J Afr L., 64. Zabel notes it took five years of drafting before the Ordinance was finalized.
[2] H.F. Morris, “The Development of Statutory Marriage in Twentieth Century British Colonial Africa.” (1979).
[3] Professor Zabel in tracing the genesis of the Gold Coast/Lagos Marriage Ordinance of 1884 revealed: “The story is a complex one, to which full justice cannot be done in the scope of a single article, … the legislation was not imposed upon the territories as part of any formulated policy for the introduction of English-based marriage law to replace the indigenous customary law, nor was it brought in at the request of the missionaries, in their desire to eradicate polygamy; indeed in some territories missionaries were highly critical of its introduction, fearing that it would deter Africans from Christian marriage.”
[4] WC Ekow Daniels, ‘Marital Family Law and Social Policy’ in WC Ekow Daniels and Gordon Woodman (eds), Essays in Ghanaian Law 1876-1976 (Ghana Publishing Corporation 1976).
[5] Augustina Akoto, “Research Handbook on Marriage, Cohabitation and the Law.’ (Chapter 7: ‘Marriage, the Law and Pluralism in Ghana). Published on 21st May, 2024 by Edward Elgar Publishing.
[6] As observed in Ackah v. Arinta [1893] Sar. FLR 99.
The Leaky Thatched Roof
There is an old Akan proverb: you do not mend a leaky thatched roof by placing fresh straw on only one side.[1] Ghana’s Marriage Act, Cap 127 [1884-1985][2], is that leaking thatch. We have patched it for one hundred and forty years, but the rain still beats the children inside.
We call it the Marriage Act, but in substance it is the Gold Coast Marriage Ordinance of 1884 wearing a Ghanaian smock. The name changed, the colonial skeleton remained. If marriage is the foundation of family, then our foundation is built on timber infested with termites.
And when the thatch leaks, it leaks differently on different heads. That brings us to the first leak.
1. A Tale of Two Polygamies – And A Statute That Calls Muslims Mohammedans
Customary marriage and Mohammedan marriage are both potentially polygamous.[3] They are twin brothers from the same womb. Yet the law treats one as a prince and the other as a servant.
The registration of customary marriage is couched in permissive terms. Under section 1 of the Marriage Act (Cap 127), it is optional: “… a marriage contracted under customary law … may be registered in accordance with this Act.” It is a gentleman’s choice. No penal consequences attach. No one is charged in court or convicted for failing to register a customary marriage.
