Introduction to Marriage

Introduction:

This note will discuss the meaning of marriage, its recognition as a special contract, and highlight the types of marriages recognised under Ghanaian law.

Meaning of Marriage:

In Black’s Law Dictionary, 9th ed., marriage is defined as

The legal union of a couple as spouses

A classic definition of marriage is given by Lord Penzance in the case of Hyde v. Hyde (1866) LR 1 P & D 130 as follows:

I conceive that marriage, as understood in Christendom, may . . . be defined as the voluntary union for life of one man and one woman to the exclusion of all others.

While this conception is constricted to marriage in Christendom, it similarly recognises marriage as a union between two people, particularly a man and a woman.

Marriage as a Contract:

It has been repeatedly recognised that marriage is a contract. Lowe and Douglas [1], at page 37, cited the case of Re Sheffield City Council v E and S [2004] EWHC 2808 (Fam), where it was similarly stated that:

Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.

The learned authors added that:

In English law, marriage is an agreement by which two people enter into a certain legal relationship with each other and which creates and imposes mutual rights and duties. Looked at from this point of view, marriage is clearly a contract. It presents similar problems to other contracts—for example, of form and capacity; and like other contracts it may be void or voidable. But it is, of course, quite unlike any commercial contract, and consequently it is sui generis in many respects.

Despite recognising that marriage is a contract, there is equal recognition that it is a special kind of contract. Among others, it differs from other contracts in the following respects:

1. The grounds on which a marriage may be void or voidable are distinct from the grounds on which other contracts may be avoided.
2. Unlike contracts that can be discharged by agreement, frustration, or breach, a marriage cannot be so discharged.
3. The law relating to the capacity to marry is different from that of any other contract.

Types of Marriages in Ghana:

Three types of marriages are recognised under the Marriages Act, 1884-1985 CAP. 127. These are

1. Customary Marriages - also known as marriage under Part One of CAP 127.
2. Marriage of Mohammedans - also known as marriage under Part Two of CAP 127.
3. Christian and Other Marriages – also known as marriage under Part Three of CAP 127.

These types of marriages are discussed in subsequent notes.