ASARE VRS APASU (C5/137/23) [2024] GHACC 8 (25 January 2024)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON THURSDAY THE 25TH DAY OF JANUARY, 2024, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO.C5/137/23 KOFI KWADADE ASARE ----- PETITIONER VRS. SELASE APASU ----- RESPONDENT PETITIONER PRESENT RESPONDENT ABSENT KOFI BEKOE, ESQ. FOR THE PETITIONER ABSENT JUDGMENT The petitioner, then a spinster got married to the respondent herein under customary law on 24th December 2015. The said marriage was converted to one under Part III of the Marriages Act (1884-1985) at the Good Shepherd E.P. Church. Lashibi on the same day after the celebration of the customary marriage. Thereafter, the parties cohabited at 7 Hibiscus Avenue, Acarina Estates, Community 22, Tema. There is no issue between the parties and the parties are domiciled and resident in Ghana. On 2nd August 2023, the petitioner filed the instant petition for divorce alleging that the marriage celebrated between the petitioner and the respondent had broken down beyond reconciliation and prays the court for the sole relief of dissolution of the marriage celebrated between them. The petitioner avers that the respondent’s unreasonable behaviour caused him to move out of the matrimonial home of the parties sometime in May 2021. The petitioner and the respondent have not seen each other since May 2021. The petitioner states that he was compelled to leave the matrimonial home because the respondent failed to carry 1 out her marital obligations and was very disrespectful towards him. The petitioner states that the respondent’s conduct led to numerous disagreements as the parties were unable to agree on any issue whatsoever. The petitioner states further that he and the respondent have had many disagreements and that various attempts made by friends and family members to reconcile their differences have all proved futile. He further states that the parties have attended counselling sessions on more than seven (7) occasions all in a bid to resolve their differences but have been unable to resolve their differences. Thus, the petitioner maintains that the parties have irreconcilable differences which makes it impracticable for them to continue living together as husband and wife. He therefore prays for the dissolution of the ordinance marriage celebrated between the petitioner and the respondent. LEGAL ISSUE Whether or not the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. ANALYSIS Under Section 1 of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for granting a divorce petition is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, the petitioner is required to establish at least one of the facts set out in section 2(1) of Act 367; which are adultery, unreasonable behaviour, desertion, failure to live as man and wife for two years preceding the presentation of the petition for divorce, failure to live as man and wife for a continuous period of five years preceding the presentation of the petition, and irreconcilable differences. Section 2(3) of Act 367 enjoins the courts to enquire into the circumstances alleged and only grant the decree when there is no reasonable possibility for reconciliation. In the case of Adjetey v. Adjetey [1973] 1 GLR 216, the court held in holding 2 that: “On a proper construction of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 2 367), the court could still refuse to grant a decree even where one or more of the facts set out in section 2 (1) had been established. It was therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage had broken down beyond reconciliation would not be enough.” From the pleadings filed by the parties and the evidence led, the petitioner relies on the fact that for more than two years preceding the presentation of the petition for divorce, the parties had not lived as husband and wife and the respondent consents to the dissolution of the marriage coupled with irreconcilable differences. Section 2(1)(1)(d) of the Matrimonial Causes Act, 1971(Act 367), “for the purpose of showing that the marriage has broken down beyond reconciliation, the petitioner shall satisfy the Court that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, the court may grant a petition for divorce under this subsection notwithstanding the refusal.” To succeed on this ground, the respondent must consent to the grant of the decree for divorce; however, the consent of the respondent should not be unreasonably withheld. See the case of Addo v. Addo [1973] 2 GLR 103 at 106. In the case of R v. Creamer [1919] 1 K.B. 564 at 569 the court per Darling J. said; “In determining whether a husband and wife are living together the law has to have regard to what is called consortium of the husband and wife. A husband and wife are living together, not only when they are residing together in the same house, but also when they are living in different places, even if they are separated by the high seas, provided the consortium has not been determined” Furthermore, the petitioner must prove that he ceased to recognise the marriage as 3 subsisting and never intended to return and the respondent must consent to the dissolution of the marriage. The consent may be given in the answer to the petition or in the form of cross-petition. It may also take the form of consent to the dissolution during attempts at settlement. The petitioner testified on oath that he got married to the respondent on 25th December 2015 customarily and on the same day, the potentially polygamous marriage was converted into one under the ordinance. Thereafter, they cohabited as husband and wife but there is no issue between them. The petitioner further testified that the marriage celebrated between them had broken down beyond reconciliation due to the unreasonable behaviour exhibited by the respondent in the marriage. According to the petitioner, the conduct of the respondent reached a crescendo which caused him to leave the matrimonial home in the year 2021. Consequently, the petitioner maintains that they ceased carrying out their marital obligations towards each other and since May 2021, they have not had any conjugal relations. Additionally, the petitioner states that the respondent was very disrespectful towards him and failed to accord him the needed respect as her husband. The respondent’s conduct led to numerous disagreements as they were not able to agree on any issue whatsoever. In a bid to help resolve their differences, his parents as well as the respondent’s parents on countless occasions met to resolve their disagreements but all those efforts proved futile. Indeed, all efforts made at reconciliation by family members have proven futile. Also, the respondent and himself attended counselling sessions on more than seven (7) occasions but they have been unable to resolve their differences. The petitioner therefore maintains that the marriage between himself and the respondent has broken down and they have indeed operated for a long time. He therefore prays the court to dissolve the marriage. The respondent was duly served with all processes but failed to enter an appearance to contest the petition for divorce. The respondent rather wrote a letter to the court 4 requesting the court to proceed with the petition for divorce in her absence since she was not in a position to attend court. The respondent therefore failed to appear to contest the petition for divorce with the effect that the evidence of the respondent that for two years immediately preceding the presentation of the petition for divorce, they had not lived together as husband and wife remains unchallenged on the evidence. In the case of Mensah v. Mensah [1972] 2 GLR 198, the court held in its holding 1 that: “Under Act 367, s. 2(2) the court has to inquire into the facts alleged by the parties. However, the court does not have to hold such inquest in all cases. Where the evidence of a petitioner stands uncontradicted an inquest is not necessary unless it is suspected that the evidence is false or the true position is being hidden from the court.” In the case at bar, the consent of the respondent to the dissolution of the marriage is also evidenced by the fact that being fully aware of the pending proceedings chose not to file any processes and informed the court to proceed in her absence. In the circumstances, I find that for two years immediately preceding the presentation of the petition for divorce, the parties had not lived together as husband and wife and that the respondent consents to the dissolution of the marriage. The evidence adduced by the petitioner also shows the various attempts made by the parties themselves, the family members, friends and counsellors to reconcile the differences of the parties which have proved futile. I therefore hold that the ordinance marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. CONCLUSION In conclusion, I hold that the ordinance marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. I accordingly enter judgment for the petitioner in the following terms; 1. I hereby grant a decree for the dissolution of the ordinance marriage celebrated between the petitioner and the respondent on 24th December 2015 at the Good Shepherd E.P. Church, Lashibi. 5 2. The petitioner shall present the original copy of the marriage certificate for cancellation by the Registrar of the Court. 3. I make no order as to costs. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 6