¹ Court of Appeal (England) on appeal from the Family Division, No. 92/1379/F. 30 June, 4 August 1993. The reasoned judgment in the Court of Appeal was delivered by Butler-Sloss, L.J., Bracewell, J., concurring. In the High Court the case was heard by Judge Compston sitting as a High Court Judge.

² Courts Act, 1971 (Act 372), s. 65, rule 1, today the Courts Act, 1993 (Act 459), s. 54, rule 1, which provides: “An issue arising out of a transaction shall be determined according to the system of law intended by the parties to the transaction to govern the issue or the system of law which the parties may, from the nature or form of the transaction be taken to have intended to govern the issue.” The courts were not informed which variety of Akan law was the appellant's personal law, but were satisfied from the expert evidence that no differences between the varieties would be significant for the present issue.

³ For the English courts this was a question of foreign law, and so a question of fact. However, in an exception to the general rule such questions of fact are readily subject to review on appeal: Parkasho v. Singh [1968] 233 at 250–51, 254.

⁴ A few writings give accounts of the ceremonies which may be conducted: see Danquah, J. B., Gold Coast Akan Laws and Customs: and the Akim Abuakwa Constitution, London, 1928, 147–52;Google ScholarBrokensha, D., Social Change at Larteh, Ghana, Oxford, 1966, 221–23 (referring to a “series of ceremonies”);Google ScholarKodwo, Mensah-Brown, “Marriage in Sefwi-Wiawso customary law: a comparative study in ethno-jurisprudence” 68 Présence africaine (1968) 61, 69–77, and 19 Sociologus 19 (1969) 39, 47–55;Google ScholarLowy, M. J., “Establishing paternity and demanding child support in a Ghanaian town”, in Roberts, S. A. (ed.), Law and the Family in Africa, The Hague, 1977, 15, 17–19. However, some of these add that the ceremonies are often not followed in detail: thus Brokensha, 221, prefaces his account by stating that many aspects of the process are “not governed by rigid principles”. Other writings refer to the requisites of marriage, such as the giving of aseda, but do not state that a ceremony, such as a formal presentation of aseda, is necessary.Google Scholar See: Rattray, R. S., Ashanti Law and Constitution, London, 1929, 25–26, 30–31 (although Rattray states that even the presentation of aseda is not in practice essential);Google ScholarFortes, M., “Kinship and marriage among the Ashanti”, in Radcliffe-Brown, A. R. and D. Forde (eds.), African Systems of Kinship and Marriage, London, 1950, 252, 278–81;Google ScholarOpoku, K. T., The Law of Marriage in Ghana: A Study in Legal Pluralism, Frankfurt-am-Main, 1976, 34;Google ScholarBleek, W., “Marriage in Kwahu, Ghana”, in Roberts, S. A., 183, 186–87;Google ScholarAdinkrah, K. O., “The essentials of a customary marriage: a new approach” 12 Review of Ghana Law (1980) 40, 41–42. Although not based on observation of a West African group, the view put in S. A. Roberts, “The Kgatla marriage: concepts of validity” in S. A. Roberts, 241 accords with the evidence from the Akan, and seems particularly persuasive.Google Scholar

⁵ See especially Adinkrah, op. cit. That paper argues that, because it is impossible to define any conditions which are essential for a customary marriage, it would be preferable to settle such issues by asking whether the community accepted the man and woman as married.

⁶ See the writings referred to above, n. 4. This widely-held view was thus summed up by a leading anthropologist: “To understand African marriage we must think of it not as an event or a condition, but as a developing process” (A. R. Radclifle-Brown, “Introduction”, in A. R. Radclifle-Brown and D. Forde, op. cit., 1, 49).

⁷ The distinction between these bodies of norms has been discussed in: G. R. Woodman, “Some realism about customary law—the West African experience” (1969) Wis L Rev 128; G. R. Woodman, “Customary law, state courts, and the notion of institutionalization of norms in Ghana and Nigeria”, in Allott, A. and Woodman, G. R. (eds.), People's Law and State Law: the Bellagio Papers, Dordrecht, 1985, 143;Google Scholar G. R. Woodman, “How state courts create customary law in Ghana and Nigeria”, in Morse, B. W. and Woodman, G. R. (eds.), Indigenous Law and the State, Dordrecht, 1988, 181.Google Scholar

⁸ Cf. Adinkrah, op. cit.

⁹ This judicial process has been considered in more detail in Woodman, G. R., “Judicial development of customary law: the case of marriage law in Ghana and Nigeria” (1977) 14 University of Ghana Law Journal 115.Google Scholar

¹⁰ [1961] GLR 573 at 578–79.

¹¹ [1965] GLR 574, at 582 saying: “Publicity, in the absence of writing, is and has been one of the essential features, nay, requirements of customary transactions such as marriage. ” The Court of Appeal commented that Ollennu, J., in Yaotey v. Quaye (above) “did not refer to the requirement of publicity”. It would seem that in that case the requirement of publicity was clearly implied in requisites (2) and (3) by the references to “acknowledgement” (which would normally be by relatively formal, public acts), and even more in requisite (4) by the words “in the sight of the world”. (It seems that “consummation” was not intended to carry exclusively the technical meaning which it has in English marriage law, since the words “in the sight of the world” would not be applied to this—or so one hopes.)

¹² See e.g.: North, P. M. and Fawcett, J. J., Cheshire and North's Private International Law (12th ed.), London, 1992, 572–73Google Scholar; Collins, L. and ors., Dicey and Morris on The Conflict of Laws (11th ed.) London, 1987, Vol. 2, 597.Google Scholar See Also Sykes, E. J., “The formal validity of marriage” (1952) 2 ICLQ 78.Google Scholar

¹³ The Ghanaian authorities appear never to mention a question of proxies. Is it conceivable that the difficulty on this score was inspired by Sowa v. Sowa [1961] P 70, a well-known English decision arising from another Ghanaian customary marriage? There the Ghanaian couple were married according to Ga customary law. The man had left Ghana for England before the principal ceremony had been carried out, and the Divisional Court said that there had been “a ceremony of marriage by proxy” (at 72). However, the validity of that marriage under Ghanaian law was not in issue and this statement was not necessary to the decision.

¹⁴ Cheshire and North, op. cit.; Collins and ors., op. cit., 599. Cf. Sykes, op. cit., who at n. 13 remarks that “it is difficult to conceive of a legal system which could dispense with all element of” a ceremony of marriage; however, at 81 he accepts that there may be a question as to whether a ceremony is needed at all under the applicable law.

¹⁵ See e.g. Dalrymple v. Dalrymple (1811) 161 E.R. 665.

¹⁶ Re Green, Noyes v. Pitkin (1909) 25 T.L.R. 222, adopted in this respect by Cheshire and North, op. cit., 572, n. 12. Cf.: Rooker v. Rooker, (1863) 164 E.R. 1379, Collins and ors., op. cit., 601, where the requirement of domicile is not mentioned.

¹⁷ The statute came into force on 14 June, 1985, a few months after the “ceremony” in McCabe v. McCabe. The statute provided at the relevant times in s. 1: “On the commencement of this Law any marriage contracted under customary law before or after such commencement shall be registered…”, and in s. 2(2): “… an application for the registration of a marriage contracted before the commencement of this Law shall be made within three months of such commencement”. The Law did not invalidate unregistered customary law marriages: In re Pratt's Caveat; Bentil v. Pratt [1989–90] GLRD 121. In 1991 the quoted provisions were amended with retrospective effect from the date of the original enactment to make registration permissive rather than mandatory and to remove the time limits: Customar y Marriage and Divorce (Registration) (Amendment) Law, 1991 (P.N.D.C.L. 263), ss. 1, 2.

¹⁸ When that step is considered, it will be necessary to debate whether it is desirable to bring about the practical results which will ensue from full recognition by municipal English law of customary marriages contracted in England. The result could be state control of customary transactions and so a loss of the limited autonomy currently enjoyed by customary law communities. This consideration was the ground for caution in the final principal recommendations on an analogous issue in: Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31 (2 vols.), Canberra, 1986. It is not entirely clear what was the practical objective of the petitioner in McCabe v. McCabe, but one may speculate that she hoped to obtain a property order in her favour under the Matrimonial Causes Act, 1973, ss. 23, 24. An alternative means of providing this remedy in such cases would be a statutory extension of the court's jurisdiction to cases of unmarried couples who have cohabited.

¹⁹ The judgment of Butler-Sloss, L.J., says at one point: “… I find myself in some confusion as to what Professor Allott really meant. The evidence of both Professors also dealt with issues which do not appear to be relevant to the problems raised in this case and I have great sympathy with the judge attempting from the wealth of detail to extract the relevant passages. Even with the help of the transcripts, not available to the judge, I have found it difficult. In an understandable attempt to make some sense out of all this. …”