To print this article, simply register or connect to Mondaq.com.
Marriage annulment in Ghana is based on law, in particular the Marital Causes Act 1971 (Act 367) and the Marriage Act 1884-1985, CAP 127.
A marriage celebrated under the Marriage Act may be considered valid, void or voidable in accordance with the legal provision governing marriages. Thus, a marriage annulment is the process by which a party to a legal marriage (marriage law) seeks to completely erase the marriage on the grounds that the marriage law since its inception is null or voidable by claiming a legal basis. . It is imperative to note that a marriage is valid if it is contracted in accordance with the strict provisions of the laws of the Republic of Ghana.
Lord Greene, Mr. offers a fine distinction between null and voidable marriages. In the case of De Reneville v. De Reneville (1948) 1 ALL ER 56-60, CA, Lord Greene, in the following terms, described the distinction between null and void marriages:
“A null marriage is a marriage which will be considered by each court in all cases where the existence of the marriage is in question as never having taken place and can be treated thus by both parties without a decree annulling it. is necessary: an annulable marriage is a marriage which will be considered by each court as a valid surviving marriage until a judgment annulling it has been pronounced by a competent court ”.
Annulment of a null or voidable marriage, such as divorce, changes the status of the party by court decree. Whatever the theoretical differences between them, both are ways to end a broken marriage. Divorce, however, is not retroactive; the parties are still considered to have been husband and wife until the time the decree was made absolute.
When a party to a valid marriage wishes to end it, they must initiate divorce proceedings for the dissolution of the marriage. However, when proceedings are initiated to end a null or voidable marriage, it should be a process of annulment and not of dissolution of the marriage. Such a marriage annulment proceeding is called a nullity proceeding.
The causes of nullity of null and revocable marriages are governed by the express stipulations of the promulgated laws of the Republic.
- Matrimonial Causes Act 1971 (Bill 367)
- Marriage Act, 1884-1985 (chap. 127)
The Matrimonial Causes Act regulates the grounds for initiating annullable marriages, while the Marriage Act deals in detail with the grounds for initiating void marriages.
Talking about a void marriage is only a concise way of saying that although the parties have experienced a marriage ceremony, they never acquired the status of husband and wife due to the presence of an impediment. .
If they have never experienced any ceremony, their union cannot be qualified as a null marriage.
Grounds for declaring marriages void
According to article 74 of the law on marriages, 1884-1985 (CAP 127), the grounds for annulment of a marriage on grounds of nullity ab initio are as follows:
- Existing legal marriage
If one of the parties, at the time of the celebration of the marriage, is legally married to another person, the subsequent marriage is declared null and void. The Marriage Law states unequivocally that, even if one of the parties is married under customary law applicable to a person other than the person with whom the marriage is celebrated, the subsequent statutory marriage remains void ad initio.
Section 74 (1) (b) of the Marriage Act, 1884-1985, Chapter 127, succinctly states that a marriage is not valid:
“when one of the parties, at the time of the solemnization of the marriage, is married under customary law applicable to a person other than the one with whom the marriage is solemnized.”
From the above reading of the law, it should be understood that parties to a previous customary marriage must jointly enter into a subsequent legal marriage to prevent the subsequent legal marriage from being declared null and void.
- Decree prohibiting consanguinity and affinity
Section 74 of the Marriage Act provides another valid ground for declaring the marriage void ab initio. The marriage is likely to become void due to consanguinity. Inbreeding is a form of marriage between people related by blood. At the same time, an affinity is a form of marriage entered into by individuals with whom one is bound by marriage.
- Defects in form
A marriage becomes void for certain formal defects, among which are the following:
- When both parties knowingly and voluntarily consent to its celebration in a place other than the office of a registrar of marriages or an approved place of worship (except when authorized by a special license).
- When the parties marry without the certificate of notice from the registrar or the certificate of notice or the special license of the marriage agent.
- when the marriage is celebrated by a person who is not a recognized minister of a denomination or of a religious organization or a registrar of marriages.
- When the parties celebrate the marriage under a false name or under false names.
- Age of marriage and consent
Under section 59 of the Marriage Act, if one of the parties to the marriage has not reached marriageable age, the marriage is null and void. This article 59 provides as follows:
“When one of the parties to the proposed marriage, who is neither a widower nor a widower, is under twenty-one years of age, the written consent
- From the father, or if the father is deceased or alienated or absent from the Republic, from the mother, or
- From the mother, or if the mother is deceased or insane or absent from the Republic, from the guardian of that party, must be produced annexed to an affidavit before a license can be issued or a certificate issued ”.
The requirement here is mandatory. The use of “shall” makes it mandatory for a person twenty-one years of age and over, or in situations where it is less, to fulfill the strict legal obligation by providing written consent.
Section 13 (4) of the Matrimonial Causes Act and its Effects on Marriage
Article 13 (4) of Law 367 stipulates that nothing in this article should be interpreted as validating a marriage which is null by law but in respect of which a judgment of nullity has not been granted. The above section clearly demonstrates that if a marriage is void, it is void whether a court says it or not.
A voidable marriage is considered valid until a party takes feasible steps to initiate legal proceedings to have it declared void. In essence, it is valid until stated otherwise.
Reasons for declaring marriages annullable
Section 13 (2) of Law 367 states that in addition to any other grounds for which a marriage is legally null or voidable, a marriage is voidable on the grounds that:
- the marriage was not consummated because of the respondent’s willful refusal to consummate it; or
- at the time of the marriage, either party to the marriage was alienated or subject to recurrent attacks of insanity; or
- the respondent was, at the time of the marriage, pregnant by a person other than the applicant; or
- the respondent suffered at the time of the marriage from an incurable venereal disease in a contagious form.
Restriction on grounds in articles
13 (2) (b), (c), (d) of the Matrimonial Causes Act, 1971
However, the court will not grant a judgment of nullity in any of the cases falling under points b, c and d, unless a party can demonstrate one of the following:
Article 13 (3) stipulates that the court cannot pronounce a judgment of nullity in a case falling under sub-paragraph (b), (c) or (d) of paragraph 2 unless it is satisfied that:
- the applicant was unaware at the time of the marriage of the facts rendering the marriage void,
- the procedure was initiated within one year of the date of the marriage, and
- no marital relationship with the applicant’s consent has taken place since the applicant discovered the existence of the facts rendering the marriage voidable.
Article 13 (2) seeks to examine an additional ground, in addition to the one listed with the introductory words,
“in addition to any other reason for which a marriage is by law null or voidable …”
The question remains, what other motives did the legislature want? It has been argued that one of these grounds is the common law principle that when a marriage has not been consummated due to the incapacity of one of the parties, as opposed to willful refusal to consummate the marriage, the injured party may request the annulment of the marriage. In addition, in some cases, the incapacitated party may request annulment itself.
Children of annulled marriages
Section 14 of the Matrimonial Causes Act 1971 provides for the consequences of the annulment of marriages on children. It stipulates that, when the judgment of nullity is pronounced, a child of the parties to the decree is deemed to have the same status and the same rights as if the marriage of the parties had been dissolved rather than annulled. However, this provision is limited to an annulable marriage.
Difference between null and void marriages
Here are the differences between void and voidable marriages:
- When the marriage is void, the legal situation is as if there had been no marriage at all, and you do not need to get a court order to say it is void. On the other hand, a voidable marriage is considered valid in all respects until a court annuls it.
- When a marriage is void, it can be settled during the lifetime of the parties or at any time after their death. On the other hand, an annulable marriage can only be contested during the lifetime of the parties.
- Anyone affected by a void marriage can initiate annulment proceedings to end the marriage. On the other hand, only a party to an annulable marriage can bring an action for annulment of the marriage.
- During the existence of a void marriage, any party to it may legally enter into another marriage with a third party, and the injured party may not seek any recourse regarding the marriage. In contrast, a party to an annulable marriage cannot legally marry a third party until a competent court has annulled the existing union.
Marriage is a creation of law. Therefore, a marriage is valid if it meets all established legal requirements. To establish that the marriage is null or voidable, an initiating party must prove with certainty one of the grounds listed above to be successful in nullity proceedings.
It is crucial for a party to a marriage to consider the option of divorce. In particular, when it cannot establish a ground for nullity since there are several grounds for divorce under the Matrimonial Causes Act 1971, including the ground of unreasonable behavior.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.