Can an Unregistered Customary Marriage Be Taken to the Court for a Divorce in Ghana?

Can an Unregistered Customary Marriage Be Taken to Court for a Divorce in Ghana?

As a Matrimonial Consultant, this is one of the questions I am asked most often, usually by couples who were married customarily many years ago and are now separated, confused, or facing new life decisions. The short answer is yes. An unregistered customary marriage can be taken to court for divorce in Ghana. The longer answer is where the law becomes interesting and where many people make costly mistakes.

Let me explain this carefully and practically, drawing from how the courts actually treat these matters.

Understanding Customary Marriage in Ghana.

Under Ghanaian law, a customary marriage is a valid form of marriage. It is formed when the essential customary rites of the particular ethnic group are performed. These usually include mutual consent of the man and woman to become husband and wife, consent of the families, presentation of drinks or items, and acceptance of the union. Registration is encouraged, but it is not what creates the marriage. The marriage becomes legally valid and in full existence from the moment the rites are completed.

This point is critical because many people wrongly assume that if a customary marriage is not registered, then it is not a marriage at all. That assumption is legally incorrect.

Under Ghanaian law, the registration of customary marriages is governed by the Marriages Act, 1884 (Act 127). This law provides a legal framework for the voluntary registration of marriages contracted under customary law, primarily to aid administrative processes such as inheritance claims, immigration applications, pension rights, and social security benefits.

“A customary marriage is valid upon compliance with the essential requirements of the particular custom. Registration merely provides documentary proof.”— Customary Marriage and Divorce (Registration) Law, 1985 (PNDC Law 112)

Can Such a Marriage Be Dissolved by a Court?

Yes, it can.

Ghanaian courts have jurisdiction to dissolve customary marriages, including those that were never registered. The primary legal basis for adjudicating customary divorce proceedings in Ghana is the Matrimonial Causes Act 1971, supplemented by customary law, enforced through Family Tribunals and High Courts, and guided by constitutional protections and judicial precedents.

Although the Matrimonial Causes Act 1971 is primarily focused on marriages under the Marriage Ordinance (Cap 127), the courts have extended their jurisdiction to adjudicate issues arising from customary marriages, particularly where the customary divorce process has broken down or is contested.

The courts have consistently held that once a customary marriage is proven to exist, it can also be brought to an end through judicial processes. The absence of registration does not deprive the court of jurisdiction. In practice, what the court looks for is proof that a customary marriage was contracted. This proof may include testimony from family members, evidence of bride price or drinks presented, acknowledgment by the families, cohabitation as husband and wife, or children born during the union.

Why it is Recommended for Couples to go to Court Instead of Family Dissolutions,

Under customary law, families traditionally have the authority to dissolve marriages. In theory, a customary marriage can be ended by the families involved following the customs of the ethnic group. However, modern realities make this approach problematic.

First, families may be unwilling to cooperate. Second, disputes often arise over property, children, or maintenance. Third, institutions such as immigration authorities, employers, and courts require formal proof of divorce. A purely family-based dissolution often leaves one party legally exposed and dissatisfied. For these reasons, it is advised that couples choose the court route even for customary marriages. The courts provide clarity, enforceability, and documentary proof.

What the Court Considers During the Divorce.

• When a customary marriage divorce comes before the court, the judge considers several issues including but not limited to;

• The court examines whether a valid customary marriage existed. It looks at how the marriage was contracted and whether both parties accepted the union.

• The court then considers whether the marriage has broken down beyond reconciliation. Grounds such as separation, neglect, cruelty, or abandonment may be relevant, although the courts generally focus on the irretrievable breakdown of the relationship.

• If there is property acquired during the marriage, the court may also determine how that property should be shared. Ghanaian case law has evolved significantly in this area. The Supreme Court has emphasized equitable distribution rather than strict proof of financial contribution. Non-monetary contributions such as homemaking and childcare are now recognized.

• Child custody and maintenance are also addressed, always guided by the best interest of the child.

Registration Still Matters and Here is Why

Although an unregistered customary marriage can be dissolved by the court, registration remains extremely important. Registration simplifies proof. It reduces disputes. It strengthens a party’s position in court. It also makes future legal processes easier, including remarriage, inheritance, and international documentation.

As a Matrimonial Consultant, my professional opinion is clear. Registration is not just a bureaucratic step. It is legal protection and strongly advised.

Two Common Misconceptions That Need to be Corrected.

• Some people believe that only ordinance marriages can be divorced in court. That belief is outdated and dangerous. Ghanaian family law has moved beyond that narrow view. The courts now actively protect parties to customary marriages, especially women who are usually left vulnerable.

• Housewives are not automatically entitled to a share of matrimonial property solely because they did not contribute financially; however, a spouse who may not have contributed money but has contributed significantly to the household can still claim a fair share of matrimonial assets. In practice, this ensures that property distribution reflects equity and justice, rather than purely financial calculations. (Supreme Court case- Gladys Mensah v. Stephen Mensah, 22 February 2012)

In my view, these are some of the most progressive developments in Ghanaian family law which reflects social reality and aligns with constitutional values of equality and fairness.

Final Thoughts

An unregistered customary marriage is fully recognized by the law. Such a marriage can be taken to court for divorce, particularly in situations where traditional dispute resolution mechanisms are ineffective or where one party is being denied justice. A customary marriage can be dissolved by judicial order, with rights enforced and obligations imposed as appropriate. Therefore, if you are in such a marriage, or advising someone facing irreconcilable differences, it is important not to rely on assumptions or informal advice. The judicial system can assist, provided there is sufficient evidence to demonstrate both the existence of the marriage and the breakdown of the relationship. Seeking proper legal guidance is essential, as the cost of ignorance in family law is often far higher than the cost of professional advice.

Let Us Help You Do It Right

Interested in registering your marriage or making an enquiry? Contact us today and let us guide you through every step of the process with professionalism and ease.

As Ghana’s leading agency for expert legal referral services, you may also contact us for a referral to a qualified lawyer from our carefully curated list of experienced and high-profile legal professionals.

Continue Reading

Interested in learning more about marriage laws and procedures in Ghana? Explore our related articles below:

• Why Should Your Marriage be Registered: The Hidden Benefits of Legal Recognition.

• Proper Registration of Marriages in Ghana: Understanding Legal Compliance Under the Marriages Act.

• Understanding Customary Marriage in Ghana: A Guide for Young Couples and Foreigners.

Visit kaysemarriageconsult.com to explore our wide range of services and discover other insightful articles on marriage registration and legal compliance in Ghana.

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