The debate for the recognition of same-sex marriage in Ghana has mainly focused on whether the country should or should not recognize such relationships. In 2017, “a gay man from Ghana” was denied refugee status in Canada. While this article will not delve into the authenticity of his claim, the case raises an important but often ignore issue in the same-sex marriage debate; how should such relationships be handled in cross-border situations?

The growing trend of the institutionalization of same-sex marriage around the world means that even countries that do not domestically recognize same-sex relationships may be confronted with the challenge of dealing with it in a conflict of laws context. For example, will a same-sex marriage that had been celebrated in Canada be recognized in Ghana? Will the adopted child of a Ghanaian same-sex couple who resides in the UK be allowed to inherit their parent’s estate in Ghana? Can an American same-sex couple adopt from Ghana? In a series of articles, I will draw attention to some areas where the strict application of blanket non-recognition of same-sex marriage may lead to absurdity and unjust results. First, we start with the issue of re-marriage.

Let us consider the following scenario: A, a Ghanaian domiciled in Ghana enters into a same-sex marriage in Canada with B, a Canadian domiciled. A subsequently visits Ghana and purports to enter into a civil marriage with C. Can B (or anyone) enter a caveat to stop the marriage on the basis that he is already married to A under the Civil Marriage Act of Canada? If the marriage is entered into, can A be charged with the offence of bigamy?

In Ghana a marriage is invalid when either of the parties, at the time of the celebration of the marriage, is married under an applicable law to a person other than the person with whom the marriage is celebrated (Marriage Act, 1884-1985, s 74). Essentially, under most marriage laws in Africa, a marriage is not valid when either of the parties thereto at the time of the celebration of such marriage is “married” to another person. Thus, the subsistence of a valid marriage constitutes a valid impediment against any of the parties’ to contract another marriage.

In Re Clara Sackitey Re Marriage Ordinance, CAP 127, [1962] 1 GLR 180, the Ghanaian court found that the applicant and the respondent were validly married under customary law. Under the circumstances, the court held that until the first marriage is dissolved, the respondent cannot validly marry any other woman under the provisions of the Marriage Ordinance except the applicant. The position is also supported by the Ghana Court of Appeal case of Ruth Arthur v John Hector Ansah & Naomi Owusu, [31/7/2003] Civil Appeal NO. 62/2002 where it was held that the Ordinance Marriage celebrated between the first and second defendants was unlawful and of no effect in the light of the existing customary marriage subsisting between the plaintiff and first defendant which has not been dissolved. It can be inferred from the cases that the invalidity of the second marriage arose from the subsistence of the previous marriage and hence the validity of the previous marriage.

In Re Clara Sackitey, the court allowed the applicant to caveat against the celebration of the ordinance marriage because of the existence of a valid customary marriage between the applicant and the respondent. However, where the purported first marriage was void, the validity of the subsequent marriage cannot be questioned on the basis of the void marriage. In the Kenyan case of H N N v M N & Another, [2009] eKLR, for example, the appellant averred that her marriage with the first respondent was valid and still subsisted, and that the first respondent could not lawfully undergo a church wedding with the second respondent whilst the first marriage still subsisted. The court, however, found on evidence that there was no valid marriage between the appellant and the first respondent to constitute a bar to the respondent entering into another marriage. Accordingly, the first respondent had the capacity to perform the marriage ceremony with the second respondent.

In Ghana, a person who, knowing that a marriage subsists between him/her and any person, goes through the ceremony of marriage, whether in Ghana or elsewhere, with some other person commits the offence of bigamy (Criminal Code, 1960 (Act 29), ss 262-263). Section 264 also makes it an offence for any person who, being unmarried, goes through the ceremony of marriage, whether in Ghana or elsewhere, with a person whom he or she knows to be married to another person. This provision suggests that the previous marriage must be valid in order for the offence of bigamy to be committed. It must, however, be stated that the subsequent marriage contracted under customary law will not constitute bigamy if the first marriage had also been contracted under customary law. Under section 265 of the Criminal Code a person is not guilty of bigamy if the marriage in respect of which the act was committed, and the former marriage, were both contracts under customary law. The offence of bigamy is thus founded on the issue whether there was a prior subsisting marriage between one of the parties and a third person.

From the scenario above, B must prove that there was a valid marriage between him and A, and that the said marriage still subsists. In Ghana, where marriage is defined as a union between a man and a woman, it seems the capacity of A to enter into a subsequent marriage cannot be questioned on the basis of the Canadian marriage. In this case A, can argue that the same-sex marriage was not regarded as marriage in Ghana, and that he was, therefore, legally, a single person. The effect of the blanket non-recognition of A’s marriage to B is that the civil marriage will still subsist under Canadian conflict of laws and the second marriage between A and C will be void. The converse will be the position in Ghana the second marriage between A and C will be valid and the civil marriage between A and B will be void. This is more so since Ghana will not recognize the Canadian marriage and, thus, will not grant divorce. Thus, from a conflict of laws perspective, A would be validly married under two laws. But while A may be charged with bigamy under the laws of Canada, he may lawfully contract a valid marriage in Ghana.

As it will be evident, the position in Ghana will lead to the situation where people in same-sex marriages could desert their dependents with impunity and, by crossing a border, free themselves of all obligations of marital property. They could even marry other people without telling those people about their still-existing marriages. The case illustrates that a refusal to recognize a same-sex marriage could cause substantial hardship and injustice to individuals. A rule of blanket non-recognition has the consequence of leading to multiple marriages, and a situation where a valid same-sex marriage produces no legal effect when one party crosses to a state that does not recognize such unions. It is suggested that, the Ghanaian courts should be ready to recognize such marriage for limited purposes of preventing injustice, while still refusing to recognize the relationship in other contexts.