Introduction

Ghana, like most African countries, has a plural legal system whereby the Constitution recognizes our customary laws and usages, the common law and statutes passed by Parliament as part of our laws. Therefore, in addition to the formal laws passed by Parliament, the customary laws and practices of the traditional communities in Ghana are recognized, applied and given effect to in the various communities. One of the areas of our lives as Ghanaians that epitomizes the plurality of our laws is the institution of marriage.

The three forms of marriages recognized under our laws are marriage under the Ordinance, marriage under customary law and marriage under Mohammedan or Islamic law. For persons who marry under the Ordinance (that is whether in Church, at the District, Municipal or Metropolitan Assembly Office or under special license before the Registrar of Marriages), the strict rule applicable is “one man, one wife”. Marriages under the Ordinance are, therefore, monogamous. It is an offence – bigamy - for a person married under the Ordinance to marry another person or persons in addition to the original spouse. However, for those who marry under customary law or Mohammedan/Islamic Law, their marriages are potentially polygamous in that, the men are at liberty to marry other wives in addition to the first wife.

This article seeks to throw light on how the courts have handled the property rights of parties who hitherto went through a marriage ceremony under the Ordinance but the marriage so contracted has been declared a nullity for the reason that one of the parties was already married under the Ordinance before contracting the annulled marriage.

What happens when a man marries two women under the Ordinance?

By the criminal laws of Ghana, a person commits the crime of bigamy when that person, being married to another person under the Ordinance, goes through another marriage ceremony, whether in Ghana or elsewhere, with any other person. Bigamy is a misdemeanour, meaning that a person found guilty of bigamy could be imprisoned for up to three years.

Secondly, since the subsequent marriage is not recognized under the law, it is deemed to be a nullity. Either of the parties may apply to a court for an order declaring the second marriage as null and void. It is worth noting that, in most instances, the subsequent marriage may have subsisted for years and the couple may have acquired property and even had children together. What then happens when a court declares such marriage a nullity?

Marriage is declared a nullity by court– what next?

The main question that arises after a court declares a marriage null on grounds that at the time of contracting the marriage, one of the parties was married to another person under the Ordinance is – what are the respective spousal rights of the parties?; what property rights do the parties have after the marriage has ended?; what are their duties and obligations towards the children of their impugned marriage?, and so forth.

Generally, the courts apply the ‘jurisprudence of equity’ principle in deciding how to distribute jointly-acquired property between spouses upon divorce. This is the position when the parties end their regularly contracted marriage by divorce. However, the courts have held that in situations where the marriage is declared a nullity, a spouse who claims any matrimonial property or any part thereof must provide evidence to show that he/she made a substantial contribution towards the purchase of the property before they will be given any part of the property acquired during the impugned marriage. This position adopted by the courts often proves problematic and inequitable.

Two cases decided by the Supreme Court and the Court of Appeal will suffice to demonstrate how unfair the “substantial contribution” principle adopted for distribution of property acquired under a nullified marriage can be to a spouse, mostly the wife. The first is the Supreme Court case of Owuo v Owuo[1]. The husband married the wife under customary law in 1989. They lived together as man and wife for a period of 10 years. In 1999, they married under the Ordinance in Tema. Therefore, their potentially polygamous marriage under customary law had been converted into a monogamous marriage under the Ordnance. The husband went on retirement after working for a considerable number of years with Ghana Ports and Harbours Authority. They later moved into their own house at Community 16, Lashibi. Cracks soon appeared in the marriage and so, the wife filed a petition for divorce at the High Court. The wife asked the court to dissolve the marriage, give her half of the two plots of land with a house on it at Lashibi as a joint owner, an Audi car and the lump sum of GH₵100,000.

The High Court gave judgment in favour of the husband. The judge found that the marriage was a nullity because the husband was married to one Mrs. Beatrice Owuo at the time he purportedly married Mrs. Theresa Owuo, and therefore, the husband lacked the capacity to contract any such marriage with Theresa Owuo. The judge further said that the wife could not claim joint ownership of the Lashibi property since the wife had failed to prove that she made a substantial contribution towards its acquisition. The wife was unhappy with the judgment so she appealed to the Court of Appeal.

The Court of Appeal, on the other hand, gave judgment in favour of the wife. Dordzie (Mrs.), JA (as she was then known) read the judgment as follows: “‘Having placed the petitioner in the position of a wife who, by the evidence, had given the services of a wife for twenty years, I consider half share of the landed property acquired during the relationship an appropriate compensation to the petitioner. I would, in the circumstances, order that the property described as plots No. 68 & 69, Community 16, Lashibi be valued and half of the value paid to her in cash as compensation. I also order that the respondent pays the cost of this litigation including solicitor’s fees of the petitioner.’’ The Court of Appeal concluded that, it would be unjust to allow the husband to benefit from his own wrong doing.

The husband was not satisfied with the Court of Appeal’s judgment giving half of their properties to his wife so he appealed to the Supreme Court. The Supreme Court also gave judgment in favour of the wife but for a different reason. The Supreme Court stated that where a marriage is declared a nullity, the wife who is claiming part of the property acquired during the marriage must “prove with sufficient particularity that she made substantial contribution towards the acquisition of the property.” The Supreme Court added that the record supported the conclusion that the wife, Mrs. Owuo, had made substantial contribution and, therefore, the Supreme Court gave her half the value of the property.

It is interesting to observe that, though the Court of Appeal and the Supreme Court came to the same conclusion that the wife must be given half of the property, the courts gave different reasons for arriving at their conclusions. While the Court of Appeal gave judgment for the wife because she had lived as a wife with the husband and performed wifely duties to him for twenty years, the Supreme Court relied upon the “substantial contribution” test to give judgment in favour of the wife. In my considered view, the Court of Appeal’s approach is preferable as it is purposive in its tenets and accords with equity, fairness and public policy.

The Supreme Court’s holding that having nullified the marriage, the wife could only succeed if she produced credible evidence that she, indeed, contributed and that, the contribution was substantial, is problematic, with all due respect. In reality, many women will never have doubts about the legal validity of marriages they enter into under the Ordinance. And if many years down the line, the husband gets physically or fiscally weak and can no longer sustain the marriage, the husband sets up his prior marriage under the Ordinance to another woman as a ground for nullity, the court should not lend its processes to aid such a fellow.

The second case is Frimpong v Addo[2].  In this case, when the husband (petitioner) was married to one Ewura Ama Baiden under the Ordinance on 29th April, 2004 at the Accra Metropolitan Assembly. The husband was a driver who lived in London. Sometime in 2011, the husband met and fell in love with another woman, that is, the wife (respondent) and married her under customary law on 22nd January 2012 in Ghana. On 29th September 2012, the customary marriage was converted into an Ordinance marriage at the Accra Metropolitan Assembly, despite the fact that the husband was already married to Ewura Ama Baiden also under the Ordinance.

After the marriage, the husband and wife lived at Sowutuom Chop Bar in Accra before moving to Ablekuma NIC, Accra. They had one child. According to the husband, he provided all the necessaries of life for the wife and the child of the marriage. He bought a house at Ablekuma NIC with proceeds of goods sent by his first wife and moved the new wife and the child into that house.  Since the husband was on retirement, he proposed to the wife to rent out the house and give some of the proceeds to her to start a trade but she refused to move for the house to be sold. The wife rather lodged a complaint at the Ablekuma Police Station that the husband wanted to move her out. He added that the wife and her mother after selling the items sent down by his first wife, spent the money. He also alleged that the wife’s brother whom he bought a car for, sold it and kept the proceeds while his father-in-law for whom he also bought a car only paid back One Thousand Ghana cedis (ghȼ1,000). He added that he had not had any sex with the wife since the birth of their child. According to the husband, he still lived with his lawful wife in London.

According to the wife, she was not aware of the existence of the husband’s first marriage. She said the husband had refused to maintain the child of the marriage since 2017. She added that she filed for divorce against him earlier but same could not be served because of the difficulty in ascertaining the husband’s address as he had stopped speaking with her. She maintained that the husband fraudulently misrepresented to her before and during the marriage that he was single and that she and her family members consented to the marriage relying on his misrepresentations and had a child with him and they lived together as husband and wife. The wife stated further that the husband acquired the matrimonial home for them to live in and so when he forcibly told her to move into rented premises for the said home to be sold and she refused, he lodged a complaint at the Police Station that she had taken over his house.  According to the wife, the husband had become impotent and she cross- petitioned for divorce, compensation and lump sum financial settlement of ghȼ50,000.00, maintenance of the child, etc.

The Circuit Court judge declared the marriage a nullity, granted custody of the child to the wife, awarded the wife fifty per cent of the value of the matrimonial home and an amount of ghȼ50,000 as compensation. The husband was also ordered to pay the school fees and hospital bills of the child and to pay a monthly maintenance of ghȼ400.00. This is how the judge excellently analyzed the case: “Through all this the petitioner lied about his marital status and enjoyed the benefits until the relationship fell on rocks and then he pulled out his already subsisting marriage as a “trump card.” If the petitioner did not know that the marriage was a nullity, how then can one explain the urgency and audacity with which he tried to remove the respondent from the marital home? His evidence on the matter, as usual, was very inconsistent and erratic. First, he said he was ejecting the respondent because he had built the matrimonial home from proceeds of goods sent by his first wife and now that he is on pension he proposed that the house be rented out and yet in another breath he says the respondent has refused to move out of the house into an apartment for the house to be sold. He went as far as reporting to the police to have respondent ejected from the house but which effort failed. What gave the petitioner courage to pursue his agenda to eject the respondent from the house was his trump card, a void marriage with respondent and once the marriage was void the respondent had lost out and should, therefore, be thrown out of the matrimonial home. However, this court is of the opinion that the respondent should not be cheated out. She and the daughter deserve better. The Petitioner’s behavior is reprehensible. He who comes to equity must come with clean hands.  Petitioner cannot behave in such a diabolical manner, and then force respondent out of the matrimonial home and leave her high and dry; that will fly in the face of all human rights principles and tenets that human beings have agreed to abide by; principles of fairness, equity, justice and good conscience. Because of the fraudulent misrepresentation by petitioner, the respondent deserves an equal share in the matrimonial home as compensation. It is for this reason that in spite of the fact that the marriage is a nullity, this court will still apply the rules in Mensah v Mensah. The court adopts the decision above and declares house number 102 Ablekuma NIC, which is exhibit 3, the joint property of both parties with a fifty percent share for each party. In addition, this court also awards a further lump sum of ghȼ50,000 to respondent against petitioner”.

The husband found the above judgment of the Circuit Court unacceptable so he appealed to the Court of Appeal. The Court of Appeal also declared the marriage a nullity but concluded, rather strangely in my view, that as the wife had not shown any evidence that she contributed substantially towards the acquisition of the matrimonial property, the Circuit Court should not have declared the house as joint property.  The Court of Appeal set aside the award of half of the matrimonial home to the wife and gave her only GH₵50,000 plus custody of the child. It is unfortunate that the Court of Appeal chose to tread the “substantial contribution” path beaten by the Supreme Court in Owuo v Owuo, thereby inflicting substantial miscarriage of justice on the wife.

Lessons to be learned from the decided cases.

From the cases, it is the intended husbands who fail to disclose their marital status under the Ordinance to the new women they meet. In most cases, they blatantly deny that they are in any subsisting marriage. For instance, in Frimpong v Addo, the wife gave evidence to show that when they met, the husband told her that he was a divorcee. Some of the husband’s relatives also confirmed to the wife that the husband was a divorcee. Ironically, that turned out to be false and the husband used the fact of his prior marriage under the Ordinance as grounds to urge the court to annul the marriage. And sadly, he succeeded.

Secondly, the husbands may maintain their first Ordinance marriages on the blind side of the new wife. And they go back to the other wives when they have had enough of the ‘second’ one and then proffer their previous marriages as the reason to annul the second marriage and walk away. This scenario played out in both Owuo v Owuo and Frimpong v Addo.

Also, such marriages waste the time of the ‘second’ women and prevent them from marrying other potential suitors. In most cases, they are married as young women. Such young women may be saddled with children and left alone to take care of them. But if they had been told the truth at the outset, they most likely, would have rebuffed the advances for marriage. A case in point is Frimpong v Addo.

One rather startling observation is that, even though bigamy is a crime under our criminal laws, none of the courts mentioned it throughout the proceedings. It is unknown whether any of the parties ever faced any criminal proceedings too.

The way forward & conclusion.

From the cases, it is clear that when a marriage is annulled, it is deemed not to have existed at all. However, since the parties might have lived together and carried on as husband and wife for several years, certain rights and interests might have accrued. Should the courts just annul the marriages and look away and let the chips fall where they may? Interestingly, similar situations arise under contract law and the Supreme Court has taken the view that in situations where contracts are declared illegal, the focus of the court should be to achieve a just result on the facts of the case. For that reason, the Supreme Court has urged the need for courts to be creative in order to serve the ends of justice. So, for instance, in one case[3] where a contract was declared illegal under a statute, the Supreme Court, nevertheless, ordered payments to be made under the said contract.

By parity of reasoning, the courts must apply the over-arching principles of fairness, justice and equity when determining the rights of spouses, especially women, after their marriages are annulled, mostly through no fault of theirs. After all is said and done, I firmly believe that our courts will do their part. However, the greatest responsibility still remains on women to do their due diligence well before marriage. Since men have learned to marry more than one wife under the Ordinance without any dire consequences, women must sharpen their pre-marriage due diligence effort without fail.

FOOTNOTES

[1] Civil Appeal No J4/20/2017 dated 6^th December, 2017, SC (unreported)

[2] Civil Appeal No. H1/73/2020 dated 18^th June, 2020, CA (unreported)

[3] City & Country Waste Ltd v Accra Metropolitan Assembly [2007-2008] SCGLR 409. See also: Mirfield Properties Ltd v Board Of Directors, Starwin & 2 Ors & Justice Awuku-Sao & 3 Ors v I.C Securities & Anor Suit No. H1/93/2019 Unreported judgment of the Court of Appeal dated 13^th March, 2020 (Coram: Lovelace-Johnson, JSC., Gertrude Torkonoo, JSC. and Cecilia Sowah, JA.)