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February 26, 2018 | LifeStyle Opinion/Feature

Why Most Muslim Marriages In Ghana Are Illegal Eduafo-Abraham
Photo credit -Constative
Photo credit -Constative

They are mostly held on Sunday afternoons. You see lots of women gathered at one place doing the cooking. The men will also be gathered at another place chatting heartily. Where huge public address systems are not blurring with music, you are likely to find some young men playing traditional drums such as the “dondo”.

Until recently, I did not know the Muslim marriage rites was called “awuré”. I always called it “amariya”.

I have not yet had the privilege to assist in the preparation for this beautiful ceremony. I missed the great opportunity to do so when my cousin was getting married. My maternal grandfather was once a Muslim so some of my family members are Muslims.

The Islamic marriage feast, also known as walima, I must say, can be grandeur, especially when the bride is from a wealthy home or is highly educated. The ceremony is akin to a beauty pageant. The bride is beautifully adorned with henna, usually called ‘lelley’ on her skin and is seen in at least four different beautiful dresses on that day. During the feast, the bride comes out from her room and dances to the rhythm of the music being played as her guests shower money on her. The money showered on her, I recently found out, is a sign of good luck. At this ceremony, the husband is often not seen. Perhaps, this ceremony is strictly for the bride.

In recent times, however, most Muslim couples hold white wedding ceremonies which is followed by a wedding reception at which you find the groom present.

Usually, on that same day of the wedding feast (walima), the ‘Nikah’ is also performed. This is mostly done in the morning before the feast in the afternoon. I will call the “Nikah” the gathering of the men (who are mostly Islamic scholars). This ceremony begins with prayers, after which the bride and groom are ushered in. If the bride is educated, she is made to recite a passage from the Quran. Here too, the bride is showered with money. After this short ceremony, the couple leaves. Sometimes, the groom stays behind while the bride leaves. The men then take over and recite parts of the Quran and also pray for the couple.

To most of us, those two ceremonies constitute an Islamic marriage. But what makes an Islamic marriage legal? The Marriages Act, 1884-1985(CAP 127), which legitimizes the various forms of marriages in Ghana, outlines what constitutes a valid Islamic marriage. The Islamic marriage is also known as the ‘Marriage of Mohammedans’ under Part two the Act.

Section 23 of the Marriages Act makes the registration of Islamic marriages mandatory. Thus, failure to register such marriages renders those unions invalid unless registered under the Act. This has been clearly espoused under Section 27 of the Act which states.

“A marriage contracted…by persons professing the Mohammedan faith is not valid unless registeredunder this Part”.

To register an Islamic marriage, the Act, under Section 24, provides that:

“The bridegroom, the bride’s wali [father or male guardian], two witnesses to the marriage, and a licensed Mohammedan priest shall as soon as conveniently may be, and before the expiration of a week after the celebration of the marriage, attend to the office of the District Chief Executive (DCE) for the purpose of registering the marriage”.

This means that, in addition to the mandatory registration of Islamic marriages which must be done in the office of the DCE [district, municipal or metropolitan assembly] of the community in which the marriage is held, there is also a deadline for registration which is within a week after the marriage ceremony.

The Act is, however, quick to add under clause 10 of Section 24 that, the bridegroom or the bride’s wali, after the expiration of the limited time for registration or where it is impossible or impracticable to obtain the attendance of a person whose signature of the register is required, may on an ex parte application petition a Justice of the High Court to issue a certificate personally signed by the judge to authorise a DCE to register the said marriage. The ex parte application must, however, be supported by an affidavit giving the reasons for the delay or non-attendance. Under this provision, too, time for registration of the Islamic marriage is of essence.

In the case of “Re Marriage of Mohammedans Ordinance, Cap. 129 (1951rev.); In Re Registration of Marriage Between Byrouthy and Akyere; Ex Parte Ali [1980] GLR 872”, the applicant sought to obtain an order authorizing any DCE to register a marriage which was celebrated in accordance with Islamic law between the cousin of the applicant, Akyere, and her “husband” Byrouthy who was then deceased. The court held that “such an application had to be brought within a reasonable time after the marriage ceremony; at any rate while the marriage was subsisting.”

The court went on further to explain that “the purpose of the registration was to validate the marriage according to Islamic law. But after the marriage had been brought to an end, whether by the parties’ own act or by operation of death, there could be no marriage subsisting which the applicant would be seeking to validate by registration. Since the bridegroom was dead, the marriage had been brought to an end by operation of his death. While the marriage subsisted it was not registered, so under Islamic law it remained invalid,” the court said.

What this means is that even when the man was alive and the two were still married, the law did not recognise their marriage.

As is said of the validity of Islamic marriages, same is also said of Islamic divorce. The Act, under Section 25 mandates the registration of divorce that is effected in accordance with Islamic law. Thus, where there is divorce but it is not registered, such divorce is rendered invalid and the marriage shall still be deemed to be existing.

Here again, the man, the woman’s wali and two witnesses to the divorce and a Mohammedan Priest have within one month of the divorce having been effected, to go to the DCE for the purpose of registering the divorce. There is also an opportunity to petition a Justice of the High Court on an exparte application, to issue a certificate authorizing a DCE to effect the registration of the divorce after the expiration of the one month.

It is also worth noting that on the death of a Muslim whose marriage has been duly registered under the Act, the sharing of the property of the deceased shall be regulated by Mohammedan law. This means that, if such a person’s marriage has not been duly registered, the sharing of his property shall be regulated by the Intestate Succession Law, 1985 (PNDCL 111) if he dies intestate (without a will).

I have had the opportunity to speak with a number of Muslims and I am sad to report that most of them do not know about this law. A handful of them who know about this law do not know it is obligatory. To some, they believe that once they have fulfilled the scripture in the Quran to marry, they are recognized as a couple in the sight of Allah (Subhanahu Wa Ta’ala) and therefore do not need any registration to validate their marriage.

There is also this misconception that once an Islamic marriage is registered, the man loses the right to marry more than one wife as pertained under the Islamic custom. This misconception keeps people from registering their marriages as required of them. But it is not true. A Muslim man who registers his marriage under Marriage of the Mohammedans of CAP 127 can still marry up to four wives.

Under the Act, a man is rather compelled to marry only one wife when the marriage is registered underPart three (Christian and Other Marriages) of the Act. What some Muslims do these days is to register their marriages as Ordinance marriage under part three of CAP 127 and that compels them to marry only one wife.

There is, however, no provision under part two of CAP 127 that provides that the man must marry only one wife. Thus, an Islamic man can marry up to four wives if he has the financial strength to do so. He must, however, ensure that all his marriages are registered in order to render them valid.

What most people do not know is that there are consequences for not registering one’s marriage. A person whose marriage has not been registered is not recognised as the spouse of the other person under the law. Thus, such a person may not be able to claim benefits and other privileges which are accorded a spouse.

No wonder in the case of “Ramia V. Ramia [1981] GLR 275-283”, a husband submitted to the court that the marriage between him and his wife was not a legal one because it was not registered within a week after the celebration as required by law. He raised this argument so he could take back from his wife a property he had acquired in his wife’s name. Unfortunately for him, the marriage certificate showed that the marriage was registered on the same day it was celebrated.

The escape route for Muslims who do not register their marriages is when a traditional marriage is performed before the Islamic one. The traditional marriage is recognised as under Part One of the Marriages Act. In this way, it fails to be an Islamic marriage and the man can marry more than four wives since there is no cap on the number of wives a man can marry under the customary law. But is that what true `Muslims really want? Customary marriage instead of Islamic marriage?

Some Muslims have complained that spouses, especially women, who seek to join their husbands overseas have been denied visas since they could not produce adequate evidence to show that they were indeed married.

Imams, Islamic scholars as well as Mullahs must make it a point to educate particularly the Muslim youth about this law. Also, to make the registration of Islamic marriages simple and effective, the law can be revised so that registration can be done at the ceremony grounds and not necessarily having to go to the office of the District Chief Executive especially when the office of the DCE is remote from the community where the marriage is held.

Many Muslim couples are not validly married. What they have can best be called cohabitation. Sadly, their ignorance of this existing law does not absolve them of any consequence they might face in the future. Ignorance of the law, they say, is no excuse.

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