Dissolution of Monogamous marriages

Question 1

Jurisdiction of the Ghanaian Courts in the dissolution of monogamous marriage (Section 31 of the MCA)

Answer 1

The courts in Ghana will have jurisdiction in any matrimonial case where either the husband petitioner or the wife petitioner is a citizen of Ghana or domiciled in Ghana or has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings.
NB: It is a well-known principle of law that it is the status of the petitioner that determines the jurisdiction of a court in divorce proceedings.

Question 2

Amponsah v. Amponsah (Jurisdiction)

Answer 2

The court stated that even though the naturalization of the petitioner as an American citizen had changed her political allegiance, the dictates of citizenship were different and distinct from those of domicile. Naturalization was a question of law but domicile was a question of fact and dependent on intention to make a permanent home in a particular country. Since there was no evidence that the parties had abandoned their domicile of origin acquired at birth and intended to or had acquired anew domicile of choice, the limited right of stay due to their visa regulations did not mean an automatic loss of domicile unless and until they were actually deported from the country.
** It is a fundamental principle of law that it is the status of the plaintiff (i.e. the petitioner in that case) and the issues in the statement of claim that determine the jurisdiction of the court.

Question 3

Ofori v Ofori (Reconciliation; and also custody later)

Answer 3

The MCA encourages attempts being made to reconcile parties to divorce suits. Section 8 gives the court power to adjourn the proceedings for a reasonable time to enable attempts to be made to effecti reconciliation. If therefore, after a petition has been filed, the parties themselves for the purpose of effecting reconciliation, agree to live together again as man and wife then, unless they do so for an inordinately long period, it would be defeating the promotion of reconciliation to hold that the parties are thereby barred from pursuing the remedy of divorce if the attempt at reconciliation fails.

Question 4

Happee v. Happee

Answer 4

The court discussed section 31. In that case, the petitioner was a native of Netherlands and the respondent was a native of Ghana. The court ruled that since the petitioner had been ordinarily resident in Ghana for twenty five years, the court had jurisdiction even though he was still domiciled in, and a citizen of, the Netherlands.

Question 5

Two year limitation for dissolution of marriages

Answer 5

The dissolution of monogamous marriages is governed by the Matrimonial causes Act 1971, Act 367 (“MCA”).
A petition for divorce will be not entertained until the couple has been married for at least two years unless the party can establish substantial hardship or depravity.

There is only one recognizable ground for divorce - that the marriage has broken down beyond reconciliation - but the offences and reasons may be based on occurrences that happen in the first 2 years

Question 6

Petition for divorce under the MCA

Answer 6

Pursuant to Section 1 of the MCA, either the wife or the husband can petition for a divorce.
The sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation.

Question 7

Marital Offences

Answer 7

Pursuant to section 2 of the MCA, there are six ways to establish a marriage has broken down beyond reconciliation, including unreasonable behavior.

• Adultery
• Unreasonable behavior
• Desertion
• Inability to reconcile differences
• Separation (Failure to live together as husband and wife (2 years))
• Separation (5 years)

When a petitioner proves one of the above facts mentioned under section 2(1) of the MCA he or she may be deemed to have proved that the marriage has broken down beyond reconciliation

Question 8

When can a petitioner bring the marital offense of adultery?

Answer 8

Adultery is dealt with under section 2(1)(a) – it states as follows “A petitioner may rely on the fact that the respondent has committed adultery and the fact that as a result of the adultery, he or she finds it intolerable to live with the respondent to prove that the marriage has broken down beyond reconciliation”.

The above provisions means that a petitioner must prove two things:

a. Firstly that adultery has been committed;
b. Secondly, that the petitioner as a result of the adultery finds it intolerable to live with the respondent. This provision is subjective and offered by the petitioner, and the trier of fact will weigh the supposition and facts to make a ruling.

Question 9

What must be established in order for adultery to succeed?

Answer 9

1. Penetration: That there was penetration of a woman by the man. Full penetration does not have to be proved. Partial penetration is enough to constitute adultery. Lesser acts such as masturbation will not constitute adultery – Dennis v. Dennis (1959) (Hint to remember Dennis = Sinned backwards; Adultery is a sin)
2. Voluntary: The act of sexual intercourse must be voluntary. Therefore, if there is prove that consent was obtained through fear or force, there is no adultery.
   (As well as that it was with someone other than the spouse)

Question 10

What is Adultery?

Answer 10

The MCA defines adultery as follows: Voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse.

V - S - I of M- P

Question 11

What is the burden of proof

Answer 11

The burden is on the petitioner to establish that adultery has been committed. Once this has been done the burden shift to the respondent to prove that sexual intercourse did not take place or that if it did, it was not consensual (voluntary was/consent).

Question 12

How may adultery be proved?

Answer 12

Because direct evidence is difficult to obtain to establish sexual intercourse, the courts may draw inferences from circumstantial evidence surrounding the case. e.g. where the respondent books a double room in a hotel with woman who is not his wife, adultery could be inferred. See, Blum v Blum.

• A Voluntary Confession may be used to establish adultery. However a confession made under duress or undue influence will not be admissible. Quartey v Quartey
• If the petitioner has contracted a sexually transmitted disease from the respondent adultery may be inferred.
• If it is proved that a child born by the respondent is not the child of the petitioner, the respondent will be presumed to have committed adultery.
• Where a married person is caught having sex with a person who not his/her spouse, adultery would have been established.

Mmm 4Cs + S (Confession, Child, Caught in the Act, Circumstantial evidence, STD)

Question 13

What does the intolerability test mean?

Answer 13

The test means that the court must decide whether the particular petitioner finds it intolerable to live with the respondent and not what a reasonable petitioner would have found intolerable. Thus, the test is subjective and not objective.

• The discovery of the adultery must make life intolerable for the petitioner or by linked to the adultery.

Question 14

Are there any reconciliation provisions regarding adultery?

Answer 14

Section 3 of the MCA provides that if a petitioner continues to live with the respondent as husband and wife for a period exceeding six months or more after the discover of the adultery, he cannot subsequently rely on that adultery as a fact proving that the marriage has broken down beyond reconciliation.

Question 15

What is the standard of proof in adultery?

Answer 15

The court has held that the standard of proof in adultery cases should be between a balance of probability and beyond reasonable doubt i.e. the proof should be to the satisfaction of the court or the judge. See, Adjetey v. Adjetey

Question 16

What is Unreasonable behavior

Answer 16

A conduct that gives rise to injury to life, limb or health or the reasonable apprehension of such danger.
Actual injury does not have to be established. Mere apprehension of such injury so far as it has led to the break-down of the marriage beyond reconciliation.

Question 17

What amounts to Unreasonable behavior

Answer 17

• The conduct must be grave and weighty and must make living together impossible.
• It must be serious and higher than the normal wear and tear of married life.
  E.g.
  1. Willful refusal of sexual intercourse
  2. Transmitting venereal disease
  3. Persistent/excess demand for sex
  4. Persistent drunkenness and addiction to gambling
  5. Nagging and Insults

Question 18

How may unreasonable behavior be established?

Answer 18

A petitioner seeking to base his petition on unreasonable behavior must establish that the respondent has behave in a way that she/he cannot be reasonable expected to live with the respondent, to prove that a marriage has broken down beyond reconciliation.

Question 19

What test is applied to determine that the petitioner cannot reasonably be expected to live with the respondent?

Answer 19

The objective test is applied. Thus, whether or not the petitioner cannot reasonably be expected to live with the respondent is a question of fact fo the court to decide.
Cases: Happee v Happee, Knudsen v Knudsen, Mensah v Mensah, Opoku-ware v Opoku ware

Question 20

Are there any reconciliation provisions regarding Unreasonable behavior?

Answer 20

Section 4 of the MCA provides that if a petitioner continues to live with the respondent as husband and wife for a period exceeding six months or more after the discover of the adultery, he cannot subsequently rely on that adultery as a fact proving that the marriage has broken down beyond reconciliation.
See, Ofori v Ofori

Question 21

What is Desertion?

Answer 21

Desertion has been defined as follows : the unjustifiable withdrawal from cohabitation without the consent of the other spouse and with the intention of remaining separated permanently.

Question 22

What must be established to prove Desertion?

Answer 22

Section 2(1)(c) of the MCA requires the petitioner to establish that: - The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition

• Desertion may result from a physical withdrawal from a place or a withdrawal from a state of things.
• The withdrawal must amount to a total repudiation of marital obligations. Naylor v Naylor
• The separation must be continuous for a period of at least two years and must exist at the time that the petition is filed.

Question 23

What are the elements of desertion?

Answer 23

• Defacto separation
• Animus Deserendi
• Lack of consent from the other spouse
• Want of reasonable excuse.

Question 24

Defacto separation

Answer 24

• De facto separation means the total and actual withdrawal from performance of all marital obligations/consortium and a complete cessation of cohabitation. (Naylor v Naylor)
  • A refusal to perform some of the marital obligations is not sufficient. In Hopes v Hopes, the spouses slept in separate rooms and the wife did not wash for him but she had meals with the family and shared the house with them. Court held there was insufficient separation for there to be desertion.
• The withdrawal can be physical; i.e. the spouse leaves the matrimonial home or it can be a withdrawal from the state of things; i.e. the spouses may be living under the same roof but won’t be cohabiting. They can for example live in separate units in the home.
  • With withdrawal, the courts ascertains whether the parties are living as two separate households or one household.

Question 25

Animus Deserendi

Answer 25

- Animus deserendi is the intention to bring cohabitation to a permanent end. • Temporary intention to do so is not sufficient. - The respondent must have capacity to form the required intent so for example, if the spouse is insane, she or he cannot be accused of desertion. - If the respondent left with the intention of coming back, there is no desertion. - With desertion there must be factum (the fact of separation) and animus (intention to leave permanently). Both must be established; just one is inadequate. • Spouses can agree to de facto separation for example where one spouse moves out of the home for work. In this case, there is no desertion because the animus is absent. But, if during the period, one of them develops the intent to bring cohabitation to a permanent end, the supervening animus occurs and de jure desertion begins

Question 26

Lack of Consent

Answer 26

- If the spouse withdraws from the performance of consortium without the consent of the other spouse, this requirement is met. (Nutley v Nutley) - The consent may be express or implied and should be freely and voluntarily given. - Whether or not consent is given is a question of fact. - Court ascertains this looking at all circumstances of the case.

Question 27

Want of reasonable cause

Answer 27

- Where there is no good/just reason for desertion, this requirement will be met. However, if there is good reason as in the case of Opoku-Owusu v Opoku-Owusu, there will not be desertion.

Question 28

Constructive desertion

Answer 28

- Where the conduct of the one spouse compels the other to leave the matrimonial home, that spouse will be the one guilty of desertion. This is known as constructive desertion. • Factum and animus must be established. The petitioner must prove that the respondent intended to expel him/her from the household and to bring cohabitation to a permanent end. - The difference between this and the simple desertion is in one case consortium ceases and with this, the conduct of one spouse forces the other to leave.

Question 29

Are there any reconciliation provisions regarding Desertion?

Answer 29

- Under section 5, if the parties resume living together and the period or periods of living together is or are less than six months, the period will be discarded when considering whether the petitioner has been deserted for a continuous period of 2 years. - But if the parties resumed living together for more than six months or for two or more periods exceeding six months, the chain would be broken and desertion would have come to an end.

Question 30

Separation for two years (section 2(1)(d))

Answer 30

- For this, the petitioner must prove that the parties have not lived as husband and wife for at least 2 years immediately preceding the presentation of the petition and that the respondent consents to the decree being granted. - The 2 year period must be continuous. - Separation here also can be physical or from a state of things and should amount to a total repudiation of marital obligations.

Question 31

Consent

Answer 31

- Petitioner must produce evidence from the respondent stating that the respondent agrees that the marriage should be dissolved. - The consent must be express, in writing and attached to the petition. - Section 6(1) imposes a duty on the petitioner to obtain the consent from the other party before the petition is filed. • The petitioner must give the respondent all the information that will help them to understand the effect of the divorce decree. - Court has power to dismiss proceedings if it is satisfied that the petitioner (whether intentionally or not) lied about a matter hat the respondent took into consideration in deciding to consent to a divorce (section 6(2)) - Also, if there is proof that consent has been unreasonably withheld, the court will grant the divorce despite the refusal.

Question 32

Addo v Addo:

Answer 32

Parties had lived apart for more than the continuous period of 2 years. Husband sought consent of wife to file a petition for divorce based on separation for 2 years. Wife refused to give consent even though the husband’s refusal to have sex with her for a long period of time had affected her mental health. Court held that the wife’s refusal to give consent was unreasonable and decreed a divorce.

Question 33

Separation for 5 years (section 2(1)(e))

Answer 33

Under section 2(1)(e) a party may prove that a marriage has broken down beyond reconciliation by establishing that the parties have not lived together as husband and wife for a continuous period of five years immediately preceding the presentation of the petition. - NB: this is the only cause for automatic dissolution (i.e. court has no discretion) - The fact that the respondent has not committed any matrimonial offence is immaterial. - Similarly, there must be physical withdrawal or withdrawal from a state of things and the total repudiation of marital obligations. - Mere separation is not sufficient; the petitioner has to prove that he/she has ceased to recognize the marriage as subsisting and intends never to return to the other spouse.

Question 34

Kotei v Kotei

Answer 34

husband and wife hadn’t lived together as husband and wife for 6 years. Husband wanted to dissolve the marriage on this basis and did not intend to take his wife back. He even lived with another woman and had 3 children with her. The respondent said she still loved him and was willing to make attempts at reconciliation. Court held the marriage had broken down beyond reconciliation and dissolved the marriage.

Question 35

Reconciliation provisions for both types of separation

Answer 35

- Petitioner must prove during the two year or five year period, the parties had not lived together as husband and wife for more than six months (continuous or aggregate). If they have, the court will hold that the period in question was not continuous. - In Mouncer v Mouncer, the parties shared the same household but did not have a normal physical relationship that a husband and wife would have. Court held that the mere rejection of a normal physical relationship and affection is not sufficient to constitute living apart.

Question 36

Inability to reconcile differences (section 2(1)(f))

Answer 36

- Where the petitioner proves to the court that the marriage has broken down beyond reconciliation because of the inability to reconcile differences, the court may order the dissolution of the marriage if it is satisfied that the parties have not been able to reconcile their differences. - There must be evidence that the parties tried to settle their differences. So an attempt or attempts at reconciliation must be established. - The differences must be between the spouses and not between one of the spouses and a third party. - The difference must make it impossible for the marriage to continue.

Question 37

Mensah v Mensah:

Answer 37

Here the parties were unable to have children and although the husband was aware of the petitioner’s anxiety to have children, he refused to co-operate in finding a solution to their problem and used the petitioner’s barrenness to taunt and insult her. She thus left the matrimonial home with no intention to return. Court held that the wife could not reasonably be expected to live with her husband who behaved in this manner and dissolved the marriage.

Question 38

Foreign decrees

Answer 38

- Foreign decrees are recognized in Ghana under section 36 of MCA. - Foreign decrees on divorce, nullity or presumption of death are valid if: a) The decree was obtained by a judicial that accorded with natural justice b) The tribunal which granted the decree had significant and substantial connection with the parties or is in accordance with the law of the place the parties to the marriage were resident at the time of the relevant action.

Question 39

Gifts and bequests

Answer 39

Gifts or bequests become invalid upon divorce or annulment unless the will contains an express provision to the contrary.

Question 40

Cross-petitions

Answer 40

Under section 11 of MCA, a respondent is entitled to divorce without cross-petition where the respondent, during the proceedings, alleges and proves the relevant elements for divorce.

Question 41

Donkor v Donkor

Answer 41

The MCA does not permit spouse to come to court and pray for the dissolution of their marriage just for the asking…In discharging the onus of the petitioner it is immaterial that the respondent has not contested the petition, he must prove the charges and flowing from all evidence before the court, the court must be satisfied that the marriage has irretrievably broken down.

Question 42

Danquah v Danquah

Answer 42

Couple petitioned and cross petitioned for divorce based on adultery and the fact that they had not lived together for more than 5 years. Respondent never appeared to testify and informed through her counsel that she did not oppose the petition. Petitioner also did not lead evidence on the adultery. Turns out couple was fighting cos wife and daughter refused to give up the identity of the man who had impregnated the daughter. Petition was dismissed because adultery was not proved.