NA (Customary marriage and divorce – evidence) Ghana  UKAIT 00009
Date of hearing: 20 November 2008
Date Determination notified: 12 January 2009
|ENTRY CLEARANCE OFFICER – ACCRA||RESPONDENT|
1. Customary marriages in Ghana can be lawfully dissolved in accordance with the applicable customary law. Dissolutions can be registered but this is optional.
2. The onus of proving either a customary marriage or dissolution rests on the party making the assertion. It is normally for the appellant to prove that a marriage is valid. Where this involves proving that a previous customary marriage has been dissolved, it is reasonable to expect the appellant to produce the best available evidence to support this assertion.
3. As registration of the dissolution of a customary marriage is not mandatory in Ghana, an appellant does not necessarily have to produce a registration of dissolution to prove the divorce although it would be sensible to do so. In the alternative, evidence in the form of a statutory declaration or an affidavit produced by family members or other people able to confirm the dissolution of the customary tribal marriage should be produced.
The Hearing before the Immigration Judge
"1. The appellant has been granted review of the Tribunal's determination dismissing an appeal against the Entry Clearance Officer, Accra, Ghana. The Entry Clearance Officer refused entry to the United Kingdom under the Immigration (European Economic Area) Regulations 2006. He was concerned as to the validity of the claimed marriage.
2. The marriage issue is a tricky one and the immigration judge did not address it. The appellant when he met the sponsor was still married to his first wife. He is a Jehovah's Witness and so is the sponsor. The sponsor is a German citizen exercising her Treaty rights in the United Kingdom. The sponsor was also married when they met; she is divorced and there was no question of her not being free to enter into the claimed marriage. There was no documentary evidence of the appellant's divorce proceedings; his previous marriage is said to have been a customary marriage in Ghanaian law but there is also no evidence before the Tribunal of the terms on which such marriages may be legally contracted and ended.
3. The appellant claims to have ended his marriage before he undertook the present marriage with the sponsor. The parties married on 3 September 2006 in a customary marriage, followed by a civil marriage on 4 September 2006. There appears to have been a discussion at the beginning of the hearing at which the appellant's representatives understood the Immigration Judge to say that he was satisfied that the marriage was lawful; that the Home Office Presenting Officer understood him to say he was satisfied 'about the relationship' and that Immigration Judge Markham-David cannot remember what he said. He thinks there might have been evidence that the appellant was divorced but there is none on the file. The evidence which is on the file is not such as to put beyond doubt that the appellant was free to contract a second marriage on 3 or 4 September 2006 and the point is plainly material. It may be that evidence of Ghanaian marriage law will be necessary to resolve the point.
4. The sponsor was present for the material error of law hearing; she indicated that as the first marriage had just been a customary marriage, they had given a man some money and he gave some money back and that disposed of the first marriage. That sounds unlikely to be legally right; the appellant must make the position clearer. The Tribunal notes that the present marriage was solemnised both by a customary marriage and a civil marriage.
5. The appeal was therefore set down for full reconsideration by any Immigration Judge (excluding Immigration Judge Markham-David, who determined the appeal under challenge)."
Directions were given for filing of evidence including an expert report on Ghanaian marriage law. At the hearing before us the appellant produced documentary evidence in a bundle A indexed and paginated 1-14. The respondent's documents are set out in a bundle indexed and paginated 1-38.
Marriage and Divorce in Ghana
"2 That we are the respective uncle and sister of AKN and AO who were born to their respective fathers OKS (deceased) and CEO (deceased) and their mothers AK (deceased) and AT all being Ghanaians.
3. That a marriage was contracted between the couple in accordance with the Ghanaian customary marriage laws and usages in 1974 at Kumasi in the presence of elders of both parties and was dissolved under the same customary laws on 7 September 1975.
4. That we positively confirm now the dissolution of the marriage under the Ghanaian customary divorce laws between the couple who are at liberty to remarry any woman or man of their choices irrespective of colour or race from any part of the world."
"5. The most common form of marriage in Ghana is the customary marriage. It is a type of marriage contracted under the particular tradition and customary practices of a group of people. Indeed until the introduction of civil marriages by the British in Ghana, then Gold Coast, the only form of marriage was the customary marriage. These days, civil or ordinance marriages and customary marriages co-exist and both are legally recognised. It is up to the parties to choose which form of marriage they desire. A valid customary marriage can only be validly contracted between two Ghanaian citizens and both parties must have capacity to marry. This means that there should be no violation of any rule of tribal relationship. These rules differ from tribe to tribe. Thus, whilst in some traditions, a man cannot marry his cousin, other traditions accommodate cross-cousin marriages.
6. A particular characteristic of customary marriage which distinguishes it from the system of marriage in Europe and other places is that it is not just a union of "this man" and "this woman". It is the union of "the family of this woman" and "the family of this man". Marriage in the customary context therefore unites families and not merely the individuals.
7. It involves payment of a bride price by the bridegroom's family to the bride's family. If the appropriate bride price is not paid, there is no valid marriage, even if parties live as man and woman for many years. The acceptance of drink from the man's family is an indication of the consent of the wife's family to the marriage. In the Akan system which is the area from where [the appellant] hails, the bride price may take the form of drinks, cash, cloth and in the old days, gold dust. It is potentially polygamous in nature; a man may decide to marry as many women as his strength and resources can accommodate.
8. There are four types of customary marriages practiced in Ghana. The most common type is where a man and woman agree to marry. The man approaches the woman's parents or family to ask for the woman's hand in marriage. If the parents or family agree to the marriage, the man makes a present or presents in cash or kind as required by the appropriate custom to the woman's parents or family and the marriage is concluded. There are neither documents nor certificates and in many cases no ceremony.
9. A marriage may also occur when the families agree to a couple getting married after the woman discovers she is pregnant. The marriage may simply be after the man accepts responsibility for the pregnancy and presents a drink or presents which could include money to the woman's family. If the drink and gifts are accepted by the woman's family the couple can start cohabiting. The woman's family are said to have acquiesced and a valid marriage is found to exist. Alternatively, when a woman becomes pregnant, the woman's family sends a representative to the man to enquire as to whether he accepts responsibility for the pregnancy. The man may accept responsibility in two ways – either he sends a message back or he may simply send a drink, usually alcoholic, to the girl's family by way of admission. To register his intention to marry the girl he will send additional drink, presents or sum of money to the girl's family and if the family accepts these gifts, a valid marriage is concluded. The sending of the additional drink or presents amounts to a request by the man for the hand of the woman and the acceptance of that additional drink or presents amounts to consent by the family to the marriage. The marriage is then deemed to have been concluded.
10. There is not always a formal ceremony. Even if there was, the couples do not have to be present at this ceremony for a valid marriage to take place, provided representatives of the two families are present as witnesses to the meeting or event."
"There must be-
(i) the agreement by the parties to live together as man and wife;
(ii) consent of the family of the man that he should have the woman to be his wife – that consent may be indicated by the man's family acknowledging the woman as wife of the man;
(iii) consent of the family for the woman that she should be joined in marriage to the man, that consent is indicated by the acceptance of drink from the man or his family or merely the family of the woman acknowledging the man as the husband of the woman;
(vi) consummation of the marriage by cohabitation"
"12. Customary Marriage and Divorce (Registration) Law 1985 (P.N.D.C.L. 112) provided for mandatory registration of customary marriages and divorces after 1985, but was this law was amended in 1991 by the Customary Marriage and Divorce (Registration) Amendment Law 1991 (P.N.D.C.L. 263) to make the registration of marriages and divorces optional. This is the current position of the law. The parties to a customary marriage may choose to register the marriage at any time after the marriage with the Registrar of Marriages and Divorce but this is not mandatory and records show that registration of marriages have declined over the years. Whereas in 2004 1172 marriages were registered, only 677 were registered in 2007. If the marriage is registered, the couple are issued with a certificate and the notification is entered on the register."
13. Customary marriages are dissolved informally as they are concluded. The relatives of the parties meet and when all efforts at reconciliation have failed, the wife's family returns the bride's price to the husband's family. If the husband is at fault, he is made to pay compensation to the wife and the dissolution is sealed by a special ceremony at the end of which the elder pronounces that the wife is now divorced and she is handed over to the woman's family.
14. When a marriage has been registered with the Registrar of Marriages and Divorce, the parties may register a divorce by making a statutory declaration stating that the marriage has been dissolved in accordance with applicable customary law. If the dissolution is registered the couple is issued with a certificate and the notification is entered on the register. It is also possible to terminate a customary law marriage by application to the court."
"This Act amends Ghana's Customary Marriage and Divorce Registration Act to make the registration of marriages performed according to customary law optional rather than mandatory. The parties to such a marriage may register it at any time after it has been celebrated unless the Secretary for Justice subsequently sets a time limit. The Act also makes optional the notification of the registrar of the dissolution of marriages performed according to customary law that have been registered under the Act."
"15.5.1 The Customary Marriage and Divorce (Registration) Law 1985 provided for the proper registration of customary marriages and divorces in Ghana, and was retroactive (i.e. applied to customary marriages and divorces contracted before, as well as after, its enactment). Non-compliance was punishable by a fine or imprisonment, but the marriage would still be regarded as valid. However, the Customary Marriage and Divorce (Registration) Amendment Law 1991 provided that registration of customary marriages and divorces would no longer be mandatory.
15.5.2 Since it is possible for Ghanaians living outside Ghana to obtain the proper certificates, certificates of marriage or divorce authenticated by the Ghanaian High Commission, should be requested in all cases where the marital state of an applicant is important. Statutory declarations made by a parent or other family elder of either party to an unregistered customary marriage should only be accepted where they complete a chain of otherwise first class documentary evidence of a claim to citizenship."
"Based on the arguments of the parties and the evidence presented by the USCIS, we agree that the holding in the matter of Kumah, supra, has been superseded by amendments to Ghanaian law. The matter of Kumah is accordingly modified to hold that affidavits executed by the heads of household i.e. the fathers of the husband and wife may be sufficient under Ghanaian law to establish the dissolution of a customary tribal marriage. We note, however, that in accordance with the Foreign Affairs Manual, the desirable proper documentation continues to be a court decree, both because customary divorce is more difficult to prove and because polygamous marriage is permissible under the customary law of some groups, but not under civil law."
In the matter of DaBaase (supra) we held that where a party seeks to prove the validity of a customary divorce, he or she must present evidence that establishes 1) the tribe to which he belongs, (2) the current customary divorce law of that tribe, and (3) the fact that the pertinent ceremonial procedures were followed. We also stated the following:
To establish the current customary law of his tribe the party may present evidence derived from reported cases, legal treaties and commentaries, and depositions of legal scholars. The evidence could also consist of advisory opinions from those organisations traditionally recognised by the Ghanaian government as possessing knowledge of customary law.
Moreover the parties must prove that the divorce was properly perfected. Affidavits should be specific and include the full names and birthdates of the parties; the date of the customary marriage; the date of, and the grounds for, the dissolution of the marriage; the names, birthdates of, and custody agreement for any children born of the marriage and a description of the tribal formalities that were observed including the names of the tribal leaders, the name of the tribe, the place, the type of divorce, and any other relevant information."
"3.3.1 The Customary Marriage and Divorce (Registration) Law 1985 provided for the proper registration of divorces in Ghana, and was retroactive. All Ghanaians, whether living in or outside of Ghana, can now obtain certificates of divorce and they should be requested from applicants whenever marital status is important.
3.3.2 However, under the Customary Marriage and Divorce (Registration) Law 1991, registration is no longer mandatory. Where the relevant certificates are not available, we should expect to receive a statutory declaration by the heads of the families concerned (or two people representing the legal interests of the parties) confirming the date, place and type (e.g. tribal custom) of the marriage and/or divorce."
(a) A customary marriage is a lawful form of marriage in Ghana which must be carried out under the relevant particular tradition and customary practices.
(b) Although registration was mandatory from 1985 to 1991, failure to register did not affect the validity of the marriage. Registration is now optional.
(c) Customary marriages can be lawfully dissolved in accordance with the applicable customary law. Dissolutions may also be registered but again registration is optional. Once a customary marriage has been dissolved, the parties are free to enter into another marriage. Customary law generally permits polygamy but this is not permitted for marriages under the Marriage Ordinance Act.
(d) The onus of proving either a customary marriage or dissolution rests on the party making the assertion. Under the immigration rules it is for the appellant to prove that a marriage is valid. Where this involves proving that a previous customary marriage has been dissolved, it is reasonable to expect the appellant to produce the best available evidence to support this assertion. As registration of the dissolution of a customary marriage is not mandatory in Ghana, an appellant does not necessarily have to produce a registration of dissolution to prove the divorce although it would be sensible to do so. In the alternative evidence in the form of a statutory declaration or affidavit produced by family members or other people able to confirm the dissolution of the customary tribal marriage should be produced. The fact that such evidence is not produced does not necessarily mean that the appellant cannot succeed on the basis of oral evidence alone but in such cases an appellant may need to explain the absence of documentary evidence which he can reasonably be expected to produce and may in consequence fail to discharge the onus of proof of showing that a previous marriage has been dissolved.
Signed Date: 19 December 2008
Senior Immigration Judge Latter