Effect of an Ordinance marriage on capacity to marry under customary law
By section 87 (1) of the Courts Ordinance the only limitation which a marriage under the Marriage Ordinance can place upon a person’s right to have his case or matter determined in accordance with customary law, is in matters relating to his said marriage, and to such matters only during the subsistence of such marriage, save as where otherwise provided by law. Thus he cannot contract a valid marriage under the Ordinance while his marriage under customary law subsists, nor can he contract a valid marriage under customary law during the continuance of a marriage he has contracted under the Ordinance (section 44), and consequently he cannot, during the continuance of his marriage under the Ordinance, have a legitimate child except by the wife of the said marriage (section 49).
Validity of a customary marriage before, during and after an Ordinance marriage
Section 42 lays down inter alia that no marriage celebrated in Ghana under the Ordinance shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person with whom such marriage is had. The simple and plain interpretation of these two sections 42 and 44 of the Ordinance as read together, in our opinion is as follows: Firstly marriage which a man duly contracts by customary law prior to marriage under the Ordinance is valid, and any issue of that marriage is legitimate. If a man, married under customary law, intends to marry under the Ordinance he must either marry the person to whom he is already validly married according to customary law, or if he intends to marry a person other than the wife married by customary law then he must determine the customary marriage lawfully. Secondly, any marriage which a man purports to contract by customary law while the marriage under the Ordinance still subsists, is null and void, and any children of that relationship are illegitimate. Thirdly, after the determination of his marriage under the Ordinance (either by divorce or by the demise of his wife) any marriage which he duly contracts by customary law will be valid, and the issue of that marriage will be legitimate.
