1. Oklahoma Choice of Law Principles
We must determine whether an Oklahoma court would recognize the NH’s purported foreign
marriage to J~ entered into under Ghanaian law. Under choice of law principles, it
is unclear what test or analysis Oklahoma implements concerning foreign marriages.
The U.S. District Court for the Northern District of Oklahoma has indicated that the
principles of comity apply to foreign marriages and that under comity, states have
discretion as to what effect they will give to a foreign marriage. See Bishop v. Oklahoma, 447 F. Supp.2d 1239, 1248 (N.D. Okla. 2006). The Oklahoma Supreme Court has stated
that “Oklahoma subscribes to the principle of comity, where comity seeks ‘to reconcile
the territoriality (sovereignty) of states with the need for consideration of foreign
law in appropriate cases,” but that comity “is not the end, but the beginning of the
analytical process.” Beard v. Viene, 826 P.2d 990, 995 (Okla. 1992). Thus, it is possible that an Oklahoma court would
apply comity and look to Ghana’s laws in deciding the validity of the foreign marriage
In other contexts, Oklahoma courts have applied both the “place where contracted”
test and the “most significant relationship” test to choice of law questions. In contract
actions, the court applies a form of the “place where contracted” test in that the
forum court should apply the law of the state (1) chosen by the parties, (2) where
the contract was made or entered into, or (3) the place of performance if indicated
in the contract. See Moore v. Subaru of America, 891 F.2d 1445, 1449 (10th Cir. 1989); Okla. Stat. Ann. tit. 15, § 162 (“A contract
is to be interpreted according to the law and usage of the place where it is to be
performed, or, if it does not indicate a place of performance, according to the law
and usage of the place where it is made.”). In tort actions, Oklahoma courts apply
the “most significant relationship” test which states that the factors to be considered
are: (1) the place where the injury occurred, (2) the what the conduct causing the
injury occurred, (3) the domicile, residence, nationality, place of incorporation
and place of business of the parties, and (4) the place where the relationship, if
any, between the parties occurred. See Martin v. Gray, 385 P.3d 64, 66 (Okla. 2016); White v. White, 618 P.2d 921, 924 (Okla. 1980). It is unclear which of these choice of law tests
an Oklahoma court would apply in considering the validity of a foreign marriage; however,
Oklahoma considers marriage a contract. Oklahoma law states that “marriage is a personal
relation arising out of a civil contract…” Okla. Stat. Ann. tit. 43, § 1. Thus, we
believe it is possible that an Oklahoma court would apply the “place where contracted”
test to apply Ghana’s laws to determine the validity of the foreign marriage at issue.
Under either principle, comity or the “place where contracted” test, we believe that
an Oklahoma court may first look to Ghana’s marriage laws to determine the validity
of the marriage between the NH and J~ entered into in Ghana. Thus, we next consider
whether the NH and J~ have a valid marriage under Ghanaian law.
2. Ghanaian Law:
We Are Unable to Determine Whether the NH and J~ Have a Valid Marriage under Ghanaian
The Law Library of Congress confirmed that Ghana recognizes three forms of marriage:
customary marriages, statutory marriages, and marriages contracted under Mohammedan
rites. Here, the NH has purported a tribal, or customary marriage under the rites
of the Ga tribe in Ghana. Therefore, we will explore the requirements to establish
a valid Ga customary marriage in Ghana.
The Law Library of Congress explained that Ghana does not have uniform statutory and
procedural rules governing the process of contracting a valid customary marriage because
the Ga tribe dictates those requirements. The procedure for contracting a valid marriage
under the Ga rites involves the creation of a relationship between a boy and a girl.
In summary, once a boy wishes to marry a girl there is a process by which he seeks
out the girl and offers her a gift; both sets of parents send messengers to discuss
the marriage; the boy’s family sends a sum of money and gifts to the girl’s family;
and ultimately there is a ceremony.
The Law Library of Congress stated that there may be different ways of proving a valid
marriage in Ghana and that the easiest way to establish the existence of a customary
marriage is to produce a certificate of registration of marriage that has been certified
and personally signed by the Registrar. Additionally, the party seeking to prove the
marriage may produce oral or documentary evidence “to the satisfaction of the court
before which the matter is being considered.”
Here, however, the NH did not provide a certificate of registration of marriage. Rather,
he provided two Declarations from J~’s father, signed before a notary public in Ghana.
The Law Library of Congress was unable to determine whether the father’s Declarations
would be sufficient to prove the tribal, or customary marriage under Ghanaian law,
stating that “only a court can decide” whether these Declarations were sufficient.
The Law Library of Congress noted that “[n]o case law was located indicating that
courts in Ghana have accepted this type of evidence as proof of the existence of marriage,”
but that “this does not necessarily mean that they do not accept such evidence.” The
Law Library of Congress stated that the Declarations from J~’s father appeared on
their face to meet the requirements for a valid affidavit under Ghanaian law, but
the Law Library of Congress was unable to “verify the authenticity of the documents.”
Thus, although a Ga customary marriage is a valid type of marriage under Ghanaian
law, in light of the information from the Law Library of Congress, it is unclear whether
a Ghanaian court would find the evidence the NH has presented (the two Declarations
from J~’s father made before a notary public in Ghana) sufficient to prove the Ga
customary marriage between the NH and J~.
We also note that there is an issue as to whether the NH’s marriage to J~ on March
XX, 2001, is valid under Ghanaian law due to the NH’s prior Oklahoma marriage to A~
that did not end by divorce until July XX, 2001. See Okla. Stat. Ann. tit. 43, § 127 (the divorce shall be final and take effect from
the date the decree of divorce is rendered). Although the NH reported to the agency
that he married J~ on August XX, 2001, the two Declarations provided by J~’s father
state that the NH’s customary marriage to J~ took place on March XX, 2001. Thus, it
appears that the customary marriage between the NH and J~ occurred at a time when
the NH was party to a valid Oklahoma marriage with another woman.
Ghanaian law, as the legal experts at the Law Library of Congress reported, states
that a person married under statutory law is barred from contracting a customary marriage
with a third party. However, the Law Library of Congress stated that it is unclear
if a statutory marriage contracted outside Ghana would violate this law. The Law Library
of Congress noted that in a 1968 case involving an inheritance matter, the High Court
in Accra held that a marriage contracted in a foreign jurisdiction may not constitute
a statutory marriage and therefore would not be considered bigamy. However, this case
seems to have been reversed on appeal in 1969, though the Law Library of Congress
was unable to find a copy of the appellate decision. Thus, it is unclear whether Ghanaian
law would deem the customary marriage between the NH and J~ invalid due to the NH’s
valid Oklahoma marriage.
In summary, based on the evidence the NH has presented to the agency and upon the
Law Library of Congress report as to Ghanaian laws, we are unable to determine the
validity of the NH’s Ga customary marriage to J~ under Ghanaian law. Furthermore,
even though Ghanaians marriage laws may be a relevant part of the analysis, we believe
that Oklahoma law, which we next address, is ultimately determinative.
3. Oklahoma Law:
The Ghanaian Marriage is Invalid under Oklahoma Law as it Violates Oklahoma Public
In evaluating the validity of this foreign marriage, we believe that an Oklahoma court
would consider whether recognizing this Ga customary marriage violates Oklahoma’s
laws and thus, public policy. See Burrell v. Burrell, 192 P.3d 286, 288 n.4 (Okla. 2007) (noting that comity “is inadmissible when it is
contrary to [a state’s] known public policy or prejudicial to its interests . . .
.”) (quoting Myatt v. Ponca City Land & Improvement Co., 78 P. 185 (Okla. 1903)); Coffe & Carkener v. Wilhite, 156 P. 169, 172 (Okla. 1916) (Oklahoma “is not obligated by any principle or comity
to recognize and uphold as valid contracts made in another state” that violate Oklahoma’s
express public policy); see also Beard, 826 P.2d at 996 (where the state legislature has enacted laws, “such legislation
unequivocally constitutes the public policy of the state”). In addition, where the
evidence is insufficient to prove Ghanaian laws on a Ga customary marriage, which
the Law Library of Congress has indicated is the case is here, we believe that an
Oklahoma court would apply Oklahoma’s laws to determine the validity of the marriage.
See Panama Processes, S.A. v. Cities Service Co., 796 P.2d 276, 294 (Okla. 1990) (“The trial court may take judicial notice of a
foreign country’s laws if it can be properly informed of its terms. The applicability
and tenor of foreign law is a matter for the court.”); Swan Air Conditioning Co. v. Crest Const. Corp., 568 P.2d 1330, 1335, (Okla. Civ. App. 1977) (“when a party fails to plead or otherwise
give reasonable notice to the court as to the foreign law to be relied on, the court
will not take judicial notice of the foreign law, but will apply the law of Oklahoma
with the presumption that the foreign law is the same as the law of Oklahoma.”); Okla.
Stat. Ann. tit. 12, § 2201(B)(2) (a court may take judicial notice of the laws of
foreign countries). Thus, we believe an Oklahoma court would ultimately apply Oklahoma
law to determine the validity of the NH’s Ghanaian marriage to J~.
Under Oklahoma law, any unmarried person who is at least eighteen years of age and
not otherwise disqualified is capable of contracting and consenting to marriage with
another person. Okla. Stat. Ann. tit. 43, § 3(A) (emphasis added). Thus, if a married
person marries another person they will be guilty of bigamy and the subsequent bigamous
marriage is void. See Matter of Estate of Brown, 384 P.3d 496, 499 (Okla. 2016) (“The Oklahoma Constitution [Art. 1, § 2] contains
a prohibition against polygamous or plural marriages.”); Tatum v. Tatum, 736 P.2d 506, 509 (Okla. 1982) (“By Oklahoma law only one person may be recognized
as the legal spouse of another.’); Whitney v. Whitney, 134 P.2d 357, 359 (Okla. 1942) (the married spouse was “incapable of entering into
a contract of marriage with the plaintiff and the parties’ attempted marriage void
ab initio”); Okla. Stat. Ann. tit. 21, § 881 (“Every person who having been married
to another who remains living, marries any other person . . . is guilty of bigamy.”).
Here, the NH was party to a valid Oklahoma marriage to another woman, A~, until an
Oklahoma court issued a final decree of divorce on July XX, 2001. The evidence we
received concerning the date of the NH’s marriage to J~ includes: (1) the NH’s statement
that they were married in Ghana on August XX, 2001 (less than one month after his
divorce from A~); and (2) two Declarations from J~’s father stating that the Ga customary
marriage between the NH and J~ occurred on March XX, 2001. Inasmuch as the NH’s statement
is self-severing, the totality of the evidence indicates that the NH and J~ attempted
to marry in Ghana on March XX, 2001. As such, we believe an Oklahoma court would find
the NH’s marriage to J~ void because the NH was still married to A~ at that time.
Because Oklahoma law mandates that only unmarried individuals may marry, we believe
that an Oklahoma court would deem the NH’s Ghanaian customary marriage to J~ void
We are unable to determine the validity of the Ghanaian tribal, or customary marriage
between the NH and J~. Furthermore, even if the Ghanaian tribal marriage was valid,
we believe that an Oklahoma court would not recognize the NH’s foreign marriage to
J~ because the evidence indicates that the NH was validly married to another woman
in Oklahoma at the time, and bigamous marriages are void under Oklahoma law. As a
result, we believe the agency may reasonably conclude that the NH has not proven a
valid marriage to J~ for purposes of the NH’s application for Medicare based on J~’s
insured status as his spouse.