Introduction
Marriage, in legal contemplation, is more than the legitimization of a desire of people in love to live together.
Legally, marriage is a contract being the expression of consent by which parties take each other for husband and wife. Within the Ghanaian context, a marriage contract may be contracted only between a man and a woman and has no validity if one of the parties has already entered into a similar contract with someone else. Where a party to the marriage contract breaks the vow or promise to “love and to hold”, the innocent party is required to resort to legal proceedings in order to enforce the numerous rights arising therefrom or to compel the performance of a legal duty. These and many more make marriage more than a contract. It is formed and also dismantled by the law and not by the mere consent of the parties. The state has an interest in it for sure, mainly because it is the foundation of the family around which many social institutions are built. Legally, the formal validity of marriage is governed by the law of the place where it is celebrated. Thus, where the law of the place where the marriage is contracted prescribes compliance with certain formalities, meeting those formalities would ensure that the marriage so contracted will be recognized elsewhere as valid. Furthermore, the essential validity of a marriage is determined by the ante-nuptial domicile of the parties. Aside from questions which may arise under the supreme law of the land, a country would ordinarily give effect to any foreign marriage once same has been proven.
Proof of foreign marriage under Ghanaian jurisprudence
The jurisprudence of the Superior Courts in Ghana, as espoused in cases like in re Canfor (Decd.); Canfor v Kpodo [1968] GLR 177-184, is that the existence of a foreign marriage is an issue which ought to be pleaded and proved. In fact, the laws of Ghana clearly emphasize that foreign law is a question of fact which ought to be pleaded and proved. Thus, section 1(2) of the Evidence Act, 1975 (NRCD 323) states that “the determination of the law of an organisation of states to the extent that such law is not part of the law of Ghana, or of the law of a foreign state or sub-division of a foreign state, is a question of fact, but it shall be determined by the court.”
It is important that at the trial stage, foreign law being a question of fact be pleaded and proven. In order to prove foreign law, the Superior Courts of judicature in cases such as Godka Group of Companies v P.S. International [1999-2000] 1 GLR 409 and Khoury v Khoury [1958] 3 WALR 52 have emphasized that when proving foreign law, expert witnesses may be offered. Parties, in practice, would further prove the existence of a foreign marriage with a foreign marriage certificate. The courts of Ghana often make a declaration on the validity of a marriage if the status of the marriage is relevant to a matter to be determined by the court. Where a foreign marriage satisfies both the essential and formal validity requirements, the courts of Ghana would readily recognize the marriage as valid. Upon recognition by the courts in Ghana, a valid foreign civil marriage would be treated as a monogamous ordinance marriage in Ghana.
Authenticating foreign marriage certificates for use in Ghanaian courts
As a general rule, foreign documents intended to be used as evidence in Ghanaian courts are required to be authenticated before they may be admitted in a Ghanaian court. In the Supreme Court case of Sylvanus Juxon-Smith v KLM Royal Dutch Airline J4/19/2005, the court was emphatic when it stated that no foreign official document was admissible in evidence without authentication. The effect of a failure to authenticate such a document is that the court may exclude such evidence irrespective of whether or not there has been any objection to its admissibility. This power of the court is derived from Section 8 of the Evidence Act which provides that “evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion.”
The Evidence Act makes authentication a condition precedent to admissibility. As a general rule, there is no presumption of authenticity and authorisation of a foreign official document. Thus, the admission of foreign official documents is regulated by section 161 of the Evidence Act. Under the Act, foreign official documents ought to be accompanied by certifications attesting to the genuineness of the signatures and the official positions of the persons who executed the writings in order for them to be presumed genuine and authorised. Furthermore, these certifications must be signed and sealed by the diplomatic agent of Ghana or of a Commonwealth country who is assigned or credited to that country. Failure to do any of these means that such document may be excluded totally as inadmissible or no value could be placed on the contents of same. In the words of Acquah JSC, that power is to enable the court “to exclude evidence which is inadmissible per se.” According to section 136 of the Evidence Act, where “the relevancy of evidence depends upon its authenticity or identity, so that authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.”
The only exception to the need to authenticate a foreign official document is when under section 161(3) of the Evidence Act, the court is permitted to apply what is known as the authenticating presumption rule. With that, the power is reserved in the court, to presume authenticity. This occurs in exceptional cases or difficult circumstances where for some good reason, it would be impossible to obtain the proper legal certification, but reasonable opportunity has been given to all the parties to investigate theauthenticity of the foreign signature or document for which reason the court may order that it be treated as presumptively authentic.
Conclusion
A marriage contracted outside Ghana is recognized if it is valid according to the laws of the country where it is celebrated and the parties had capacity to marry under Ghanaian law. Recognizing foreign marriages under Ghanaian law requires meeting specific legal requirements. An unauthenticated or uncertified foreign official document is clearly not relevant to any cause or matter to which it relates, and may therefore inadmissible as evidence in a Ghanaian court. Where a foreign official document is sought to be tendered, irrespective of whether or not any objection to authenticity has been raised by the opposite side, it is the duty of the court to determine this critical question of authenticity and proceed to admit the document only when it has been satisfied, provided of course all other hurdles to admission have also been cleared. That notwithstanding, it must be stated that authentication per se does not lead to automatic admission. It also may not guarantee cogency or full weight being accorded the document in question. It is merely a preliminary certification that the document is what its proponent claims it to be, and therefore it does not debar an opponent, at the appropriate time, from providing contrary evidence in proof of it being forged or something so related.
God bless!
