Customary marriage dissolution :Presenting drinks, same being accepted by family not enough – Court

Parties in a divorce proceeding were not ad idem as to whether their marriage had collapsed or subsisted thus the High Court, Accra before which the case was pending, had to resort to cases and scholarly authorities to resolve the same.

In this case, Mavis Osei Owusu had petitioned the court for inter alia, a dissolution of the customary marriage between her and Robert Osei Owusu.

Shockingly but expected, this relief became a great point of disagreement between the parties when in his cross-petition, the respondent-husband denied that there is a subsisting customary marriage between them.

According to him, in view of the wife’s persistent accusation of infidelity and the many quarrels which caused his BP to rise, he decided to end the marriage thus informed her family and was given a date and he came to Ghana and met them with his family at which he presented a bottle of schnapp which was accepted by the wife’s parents thus sealed the dissolution.

The wife on her part insisted that there was a subsisting marriage between them. Even though she concurred that the husband took some drinks to her family in an attempt to dissolve the marriage, it failed because her family refused to accept the drink.

However, during the trial, it became evident per the finding of the court presided over by Justice Cecelia Don-Chebe Agbevey that the wife, whom he sought to divorce, was at the time of the presentation of the drink, on admission at the Lisbon Groove Health Centre in London.

At this point, it was the court’s duty to ascertain whether or not going by the evidence from both parties, the customary marriage was dissolved or not.

The court first made reference to William E. Offei’s book, Family Law in Ghana, Fourth Edition, Page 172 Writing under the topic, ‘Dissolution of Customary Marriages’, which states as follows; 

The relatives of the two (2) parties meet and when all efforts at reconciliation fail, those assembled, known as Baguafo ask the parties which of them has lent anything to the other party. Any borrowed item must be returned to the partner who lent it, except that the man may say that even though he lent a particular item or particular items to the wife, he does not intend to claim it or them back. The wife may do likewise. The only item that must be returned to the husband is the Ti Nsa or head money which he paid, at the time of the marriage, to the wife’s family. If the dissolution of the marriage was due to the man’s fault, he will be requested by the Baguafo to ‘send off’ (i.e. compensate) the wife. If on the other hand, the wife’s default e.g. prostitution or adultery occasioned the dissolution, she will be required to ‘send off’ the husband. The dissolution is sealed by the ceremony called hyirewgu or powdering. A member of the Baguafo takes white powder in his hand and puts it on the shoulder of the wife. He says to her: “Nne yeama wo hyirew. Yene wo nni asem biara bio.” This may be translated thus “Today we have powdered you. We have no matter with you again”. The speaker then hands over the woman to her family, and that ends the ceremony. It must be noted that the speaker does not spread the powder over the whole body of the woman.

Further to the above, the court referred to the case of ATTA V. ANNAN (1975) 1 GLR 366 in which the court held in respect of a customary marriage in which the grandfather of the wife sought to forcibly terminate the marriage that;

…the marriage could be terminated, only after an arbitration (to which must be invited members of the family of each spouse and neutral persons) had been conducted to find out whether any of the spouses had committed any marital offence. If an offence was proved, it was the duty of the arbitrators to try their utmost to effect a reconciliation between the spouses in a genuine attempt to salvage the marriage especially where there were issues of the marriage. After the arbitrators had ruled that the situation called for divorce, the spouses must then be given an opportunity to show whether any of them owed any amount or had any property belonging to the other. After settling all legitimate accounts between the spouses, the final act of divorce was then performed by the husband releasing her from conjugal obligation, either by chalking her or saying so in the presence of the gathering.

Yet another authority which the court resorted to, was “THE LAW OF FAMILY RELATIONS IN GHANA” in which learned author, W.C. Ekow Daniels at page 319 summarized JB Danquah’s extra-judicial divorce procedure which he extracted from the latter’s book, “AKAN LAWS AND CUSTOMS” as follows:

Lodging a complaint by the aggrieved spouse to the family of the other spouse;

An opportunity is given for the formal hearing of the complaint and or the ground in support of the dispute;

The hearing of adjudication of the dispute is conducted in accordance with the rules of natural justice whereby either party is given the opportunity of stating his or her case and answer any counter-charges that may be levelled against him or her;

After that a serious attempt is made to reconcile the parties;

If both parties or either party to the marriage insists on terminating the marriage, then the next step will be;

The pronouncement or declaration that the marriage is dissolved.

Therefore applying the personal law of the parties thus the Akan customary law, the court held that the marriage between the parties was not resolved as there was a breach of natural justice per the fact that the wife was not heard during the said meeting for the marriage dissolution.

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