Is A Wife Allowed To Divorce Her Husband On Grounds Of Adultery in a Customary Law Marriage?

“This can never happen in real life! Apuu! It is because this is a telenovela, that’s how come this man could have sex outside his marriage and even marry her on top of his wife! Men are just insensitive!” retorted Adwoa. 

Adwoa’s husband Kwadwo, who was fixing a broken pipe in the kitchen couldn’t help but exclaim “Ah! What is this generalization about men being insensitive? Don’t you know that it is only the “Whiteman’s” kind of marriage that does not allow the man to marry more than one woman? In fact, my great-grandfather married five women and he was allowed to marry all these women, so allow men to be free!” 

Adwoa who saw this as repulsive then rebutted “…true, those were the olden days. You try marrying another woman in addition to me and see if I don’t get you arrested…”

The above conversation ensued between a married couple who are married under the ordinance. Interestingly, they are both legally correct in their assertions, depending on which kind of marriage they are speaking about. There are three (3) types of marriages in Ghana; Ordinance Marriage, Mohammedan Marriage and Customary Law Marriage. All three are legally valid ways of contracting marriages in Ghana.

The issue of whether a man can marry more than one woman in a Mohammedan marriage is a well-settled one, thus this article will focus on the seeming discrepancies between Ordinance marriage and Customary Law marriage when it comes to adultery.

Marriage under the ordinance forbids marriage to more than one person. It is therefore termed monogamous for this reason. Thus, the man cannot marry more than one woman, neither can the woman marry more than one man.

In contrast, customary law marriage which stems from the traditions and practices of the Ghanaian people, allows for a man to marry more than one woman. The man is entitled to marry as many wives as he can harmoniously live with and conveniently manage. The question therefore is whether a man can be guilty of having committed adultery in a customary law marriage. No. A man married under customary law cannot commit adultery because customary law marriages are potentially polygamous.”

Some have argued that since adultery is defined as a married person having sex with any person other than his/her spouse, until the man marries the woman he wants to have sex with, if he goes ahead to have sex with such a woman, he has committed adultery. A consequential question is then asked, if a man is to marry because of sex, then after having sex with such a woman, will he have to divorce her? Whether the answer is an emphatic yes or a yes with explanation, or an emphatic no or a no with explanation, the apparent absurdity cannot be overlooked.

Although a man may lawfully marry several wives, a woman cannot at the same time have more than one husband. Adultery is a ground for divorce, and a wife’s adultery justifies her husband in expelling her from his house and refusing her any maintenance. But the wife cannot enforce divorce or discontinue marriage on the ground of her husband’s adultery or on his marrying more than one wife.

A wife is however allowed to divorce a husband in a customary law marriage if the husband flirts indiscriminately with other women (emphasis mine). It is indeed not clear what will amount to “indiscriminate flirting” and what will amount to “adultery” in a customary law marriage, however, it is very clear that the custom in place will determine and lay to rest such an ambiguity.

Some proponents of traditions and customs have argued that until a woman is traditionally allowed to marry a man by going to seek a man’s hand in marriage like a man is traditionally expected to do in a customary marriage, the woman is not allowed to equally marry more than one man as the man is allowed to.

It is therefore the position of customary law that a man cannot commit adultery in a customary law marriage. Why? Because customary law marriages are potentially polygamous. The court of Ghana is yet to grant a dissolution of a customary law marriage on the basis that the man committed adultery. And yes, although a customary law marriage is not contracted under the Marriages Act, the law permits that a customary law marriage can be dissolved under law and not under custom only. A husband can however divorce a wife for adultery under customary law marriage. 

All hope is not lost for women who do not intend marrying a man who has the intention of marrying more than one woman. In the Adangbe custom for instance, a wife is allowed to divorce her husband when the husband assures the wife that he will stick to her alone throughout the marriage but fails to keep his word and flirts with other women. It will be in the best interest of the couple to know what their customs permit before committing to marry under custom. For what it is worth, wives are allowed to divorce their husbands under customary law if their husbands flirt indiscriminately with other women.

Elis Acquah is a legal practitioner and contributory writer. His practice areas include Litigation and General Corporate Practice.