Section 48: distribution of the estate of an intestate married under the Ordinance
This section invokes the law of England relating to the distribution of personal estate of intestates in force on the 19th of November, 1884, and relates it to the distribution of two-thirds of the estate, real and personal, of two classes of intestates. These classes are: (i) persons married under the Ordinance, and ( ii) persons who are issue of marriages under the Ordinance. In the case of a person married under the Ordinance who dies intestate, the English law will apply only if such person (a) left a widow or husband of a marriage under the Ordinance, or (b) left issue of a marriage under the Ordinance; otherwise the law of England will not apply. In the case of issue of the marriage, no condition precedent is required to make the law of England applicable. It follows that since the plaintiff is issue of a marriage between the deceased and Wihelmina under the Ordinance, and has survived the deceased, the law of England applies to this case.
Section 48: meaning of "leaving a widow or husband or any issue of such marriage"
Before proceeding to answer this question we must emphasise that the expression “leaving a widow or husband or any issue of such marriage” in section 48 of the Marriage Ordinance does nothing more than indicate the condition precedent upon which English law would be applied to the estate of an intestate husband who married under the Ordinance; that is to say, English law will apply if a wife of such marriage survives him, or if any issue of such marriage survives him. It is not in accordance with the law, in our view, to hold that when a person subject to customary law marries under the Ordinance, and dies intestate, the only classes of persons entitled under the Statute of Distribution to share the two-thirds of his estate are a widow or a husband and/or issue of such marriage, as has been the practice hitherto in this country.
Turning to our own Marriage Ordinance, it can be seen that under section 49(1) the only child who can be illegitimate under the Ordinance is the child procreated in adultery; and section 49 (2) provides that “adultery shall not be held to include the intercourse of a man married by native customary law with an unmarried woman.”
Sections 42 and 44: customary marriage and marriage under the Ordinance
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.
