Marriage in Ghana sits at the crossroads of custom, religion, and statute. The law recognizes three principal forms of marriage, Customary, Mohammedan (Islamic), and Ordinance marriages; each with unique features and legal effects.

Among these, one of the most contested issues in family law is whether a person married under customary law can later contract another marriage under the Ordinance without first dissolving the former. The Ghanaian legal position is clear and consistent: a subsisting customary marriage renders any subsequent Ordinance marriage void.

Beyond invalidity, such conduct may also expose the party involved to criminal liability for bigamy under the Criminal Offences Act, 1960 (Act 29).

The Nature and Legal Character of the Two Systems

Customary Marriage

A customary marriage is grounded in the traditional practices of Ghana’s ethnic communities. It is formed through the performance of customary rites, payment of bride price, and the consent of the families. This form of marriage is recognized by the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112).

It is potentially polygamous, meaning that a man may marry more than one wife according to his custom. Importantly, a customary marriage remains valid and binding until it is properly dissolved through the same customary process that created it.

Ordinance Marriage

An Ordinance marriage, governed by the Marriage Act, 1884–1985 (Cap 127), is a monogamous civil marriage based on English common law principles. It demands exclusivity, each spouse must be free from any other marital ties [not be in any marriage] at the time of marriage.

The Ordinance expressly prohibits marriage by any person who is already married under another system that allows polygamy. It therefore represents a strictly monogamous institution.

Legal Incompatibility: Monogamous vs. Polygamous Systems

The fundamental difference between these two forms of marriage; monogamy versus potential polygamy makes them legally incompatible. The law does not permit a person to be subject to both regimes at the same time.

Section 74(1)(b) of the Marriage Act (Cap 127) provides that:

“A marriage shall be void [not in existence] if either party to the marriage is, at the time of the marriage, married under customary law to another person.”

This provision leaves no ambiguity. If a person is married customarily and attempts to marry another person under the Ordinance, the second marriage is void ab initio [does not exist from the beginning] it never existed in law.

Requirement of Dissolution Before a New Marriage

Under Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112), a customary marriage continues to exist until properly dissolved. Dissolution typically involves the return of the bride price and the performance of recognized customary divorce rites. Only after this process can either party lawfully contract another marriage whether under Mohammedan (Islamic) , or Ordinance law. 

Therefore, to enter a valid Ordinance marriage, any existing customary marriage or Mahammedan (Islamic) must be formally and conclusively dissolved. Failure to do so invalidates the Ordinance marriage.

Judicial Pronouncements on the Rule

The Ghanaian Courts decisions provide valuable guidance and affirm this legal position. 

a. Yaotey v. Quaye [1961] GLR 573

In this landmark case, the court held that a man who had a subsisting customary marriage could not validly marry another woman under the Ordinance. Such an Ordinance marriage was void. However, the same couple who are married under customary law can marry each other under the Ordinance, in which case, their marriage is converted from a potentially polygamous union to a monogamous one.

b. In Re Aryeetey (Decd): Aryeetey v. Okwab (1988) JELR 69340 (CA)

In this case, the late James Aryee Aryeetey had married under customarily law and after relocating to London, he again married another woman under the Ordinance marriage in London. In the judgment, Justice Osei-Hwere J.A, ruled and stated as below: 

“I also find that at the time of the death of James Aryee Aryeetey his marriage with the applicant was still subsisting under customary law. I am satisfied also on the evidence that before the late James Aryee Aryeetey purported to contract the monogamous marriage with the respondent, there was subsisting already a customary marriage between him and the respondent. I hold therefore that by the law of this country the subsequent monogamous marriage with the respondent was null and void — vide section 42 of the Marriage Ordinance, Cap 127 (1951 Rev.).” 

The Court reaffirmed that customary and Ordinance marriages are mutually exclusive. A person cannot simultaneously be bound by both systems. Contracting an Ordinance marriage while a customary marriage subsists offends public policy and is void.

d. Cecillia Osei Owusu v. Akosua Mansah & James Osei Akwasi [2004] JELR 69761 (CA)

In the case of CECILIA OSEI OWUSU v AKOSUA MANSAH & JAMES OSEI AKWASI [2004], the Court of Appeal, entered judgment in favour of the defendants. The facts are that, the Late James Osei-Owusu had married under customary law to Akosuah Mansah and during the subsisting of that marriage, he married another woman under ordinance in London. The Court established that the customary marriage between the late James Osei-Owusu and Akosuah Mansah still subsist [not dissolved] and ruled that the subsequent monogamous marriage contracted with Cecilia Osei Owusu [the Plaintiff] was bigamous and therefore null and void. Both English and Ghanaian Laws does not allow marriage under different marital systems [polygamous and monogamous]. 

Bigamy: The Criminal Dimension

Beyond civil invalidity, contracting an Ordinance marriage while customarily married to another person may constitute bigamy, a criminal offence under Ghanaian law.

Bigamy under the Criminal Offences Act, 1960 (Act 29)

Section 262 of Act 29 defines bigamy as follows:

“A person commits bigamy who, being married, goes through a ceremony of marriage which is void by reason of its taking place during the life of his or her wife or husband.”

This means that if a person, while still married under customary law, goes through an Ordinance marriage ceremony with another partner, that person may be criminally liable for bigamy.

Essential Elements of the Offence

To establish bigamy, the prosecution must prove that:

1. The accused was validly married to another person at the time of the second marriage;
2. The first marriage had not been lawfully dissolved; and
3. The accused went through a second ceremony of marriage.

Bigamy is a serious offence punishable by imprisonment. The purpose of the law is to protect the integrity of the marriage institution and prevent fraudulent or deceitful unions.

Exceptions

If the second marriage is contracted with the same spouse under a different system (for example, converting their customary marriage into an Ordinance marriage), bigamy is not committed. This conversion is lawful and recognized.

Practical Implications of a Void Ordinance Marriage

The consequences of contracting an Ordinance marriage while a customary marriage subsists are far-reaching, both in law and in practice.

• Inheritance and succession: The supposed Ordinance spouse may not qualify as a widow or widower under the Intestate Succession Law, 1985 (PNDCL 111).
• Property rights: Property jointly acquired during a void marriage may become contentious, as the marriage has no legal basis.
• Spousal benefits: Rights to pensions, maintenance, or marital privileges may be denied.
• Children’s rights: Although children remain legitimate under Article 28(5) of the 1992 Republican Constitution of Ghana, issues of custody and succession may still require court clarification.
• Criminal exposure: The offending spouse risks prosecution for bigamy under Act 29.

Conversion from Customary to Ordinance Marriage

It is important to note that the law does not prohibit the conversion of a customary marriage into an Ordinance marriage provided the same two parties are involved.

This conversion effectively transforms their union from a potentially polygamous marriage into a monogamous one governed by the Marriage Act. The parties simply solemnize their relationship under the Ordinance to give it statutory recognition and the legal protection that accompanies it.

Policy Rationale

The rationale behind this strict rule is twofold:

1. To maintain legal consistency: The law seeks to prevent the confusion that would arise from combining two conflicting marital systems.
2. To protect public morality and marital integrity: Allowing a person to maintain a customary marriage and also contract a monogamous one under the Ordinance would amount to legalizing deceit and undermining the sanctity of marriage.

Thus, the rule not only preserves legal order but also reflects Ghana’s broader social and moral commitment to transparency in marital relations.

Conclusion

The law in Ghana is settled:

The subsistence of a customary marriage renders any subsequent Ordinance marriage void.

A person who remains married under customary law cannot lawfully marry another under the Ordinance unless the earlier customary union is properly dissolved. Such an Ordinance marriage is void ab initio and may further expose the parties to criminal prosecution for bigamy under Act 29.

Understanding these distinctions is essential for couples, lawyers, and faith-based institutions. Before contracting an Ordinance marriage, one must ensure that any existing customary marriage has been dissolved or that the Ordinance marriage is with the same spouse for conversion purposes.

Key Takeaway

You cannot be married under both customary law and the Ordinance at the same time.
A subsisting customary marriage not only voids a subsequent Ordinance marriage but may also expose the offender to criminal prosecution for bigamy.