21 Jun Ernestina Boateng V Phyllis Serwaa & 2 Ors Civil Appeal No. J4/08/2020 Judgment of The Supreme Court Dated 14th April, 2021.
” In Family Law, a marriage is either valid or invalid and there is no third category of “marriages of convenience” or “connection marriages” which are partly valid for some purposes and partly invalid for some purposes.”
The wife met the husband in Belgium. They got married under the Customary Law in Ghana. Subsequently, the wife petitioned for divorce, praying for dissolution of the marriage and a declaration of joint ownership of two landed properties in Ghana.
The husband disputed the wife’s claim to joint ownership of the properties. He claimed that after their marriage, he discovered that the wife was in a subsisting monogamous marriage which made their customary marriage void. The wife alleged that the deceased was aware of the earlier marriage, which was only for immigration documents (“marriage of convenience”). The husband passed away during the subsistence of the suit.
The deceased husband’s family were granted letters of administration over the estate of the deceased, including the properties that were the subject matter of the pending matrimonial case. The wife applied to substitute the deceased’s family for the deceased so the case could be determined. The Court struck out the application based on the fact that divorce proceedings are in personam and therefore do not survive a party’s death.
The wife then commenced a fresh action seeking a declaration that she was the legal wife and the lawful widow of the deceased. The wife further claimed that by the death of her husband in the course of the suit, she became the sole owner of their joint property.
The Supreme Court had the task of determining the validity of the earlier marriage of convenience in order to determine whether the subsequent marriage was indeed valid. It was held that marriages of convenience are not categorized under the law. There are only valid and invalid marriages under Ghanaian law. Once parties have met the statutory requirements for contracting a monogamous marriage, the marriage of convenience is a valid marriage which cannot be dissolved except by a Court of Law.. The Court determined that the earlier monogamous marriage had not been dissolved and as such, the customary marriage between the wife and the deceased was void.
The Court held that notwithstanding the fact that the customary marriage was void, the wife successfully led evidence to show that she contributed to the acquisition of the properties being claimed. Thus, the wife was granted some portion of the property due to the fact that the properties were acquired through joint resources. The wife’s appeal thus succeeded in part.
Insight: Ghanaian law does not recognise marriages of convenience. The Courts consider the elements of a marriage and determine whether it is valid or invalid in accordance with applicable law. Additionally, the mere invalidity or illegality of a marriage does not deny a person of the right to jointly acquired property. One only needs to prove that a contribution was made.