A private legal practitioner, Susanna Asaabea Nyampong, says marriage by proxy is legitimate under the country’s Customary Law but has its own limitations.
She explained that so far as the families of both parties contracting the marriage are present, and agree to undertake the marriage rights, the absence of the would-be couple does not matter.
According to her, such marriages can still be regarded as lawful and legitimate per the Ghanaian Customary Law.
“Per Ghanaian Customary Law, marriage by proxy is allowed and it’s legitimate. Under normal circumstances, if the persons are not there but the families are there to accept the incidents of the marriage, it’s a marriage.”
“There must be the agreement of the parties that they want to marry; that’s the main thing in a customary marriage that both are in agreement and want to be married and the families must be present as witnesses,” she said.
Speaking on The Law on Sunday, January 15, she, however, highlighted that if one fails to dissolve a previous marriage appropriately and goes ahead to contract another, the new marriage can be considered as invalid.
“If [a] lady had not had her previous marriage, whether customary or ordinance, dissolved and [goes] ahead to contract another marriage by customary law, even if it was by proxy that second marriage is not valid.”
“It even becomes worse if it is under ordinance; under ordinance marriage, if the marriage is not dissolved by a court of law and you contract any other kind of marriage, that other marriage is not valid,” she told host, Samson Lardi Anyenini.
Speaking on the same show, Legal Practitioner Augustine Asafo-Adjei, added that in a situation where the couple are unable to cohabit, the customary marriage may still not be regarded as valid even if they meet other essential validities of the union.
“Customary marriage has what we call the essential validity of marriage; they are four. One is that the parties that are marrying must agree that they want to live as husband and wife – that is not enough.”
“Another essential validity is that there must be cohabitation. Cohabitation initially was construed to mean that there must be sexual intercourse between the husband and wife but one cannot see them actually do it. Once we see them as living together, the presumption is that there has been that consummation,” he explained.
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