Abena Akyiaa Anim-adjei Vrs Daniel Amaning Tabi [2022] GHACC 269 (9 November 2022)

IN THE CIRCUIT COURT 3 OF GHANA HELD IN ACCRA ON WEDNESDAY THE 9TH DAY OF NOVEMBER, 2022 A. D. BEFORE HER HONOUR SUSANA EDUFUL (MRS.) CIRCUIT COURT JUDGE SUIT NO. C5/301/2022 ABENA AKYIAA ANIM-ADJEI PETITIONER VS. DANIEL AMANING TABI RESPONDENT PETITIONER PRESENT AND RESPONDENT ABSENT JUDGMENT The Parties to this suit got married in under the Marriages Ordinance (CAP 127) on July 20, 2013, at the Garrison Methodist & Presbyterian Church Burma Camp, Accra. After the said marriage the resided at Santa Maria the Respondents family house and Teshie. However due to the Respondents work schedule the Respondent lives at Sunyani. The parties have two children out of this marriage. They are Joshua Agyeiwaa Tabi aged 8 and Jaron Agyekum Tabi aged 3. The Petitioner is seeking the dissolution of the ordinance marriage celebrated between the parties on grounds of unreasonable behaviour in addition, the following ancillary reliefs; 1. That Petitioner be granted custody of the children of the marriage with reasonable access to the Respondent from Friday to Sunday every other weekend. 2. That the Respondent to maintain the issues of the marriage with a monthly payment of GHC2,000.00 reviewable annually by 5% increment pending the determination and of the suit and thereafter. 3. An order directed to the Respondent to pay for the medical bills and all cost relating to the education of the children. 4. That the Toyota Corolla with registration number GR 9070- 18 be settled on the Petitioner. The Respondent in his response contested the Petition, but prayed for the following in the event of a grant by the court; 1. An order granting the Respondent reasonable access to the children of the marriage including sharing all school vacation breaks with the Petitioner 2. Granting the Respondent, the right to travel with the children during school vacation when the children are with the respondent. 3. An order directing Petitioner and Respondent to be equally responsible for the care maintenance, education and other necessities of the children. Section 1(2) of the Matrimonial Cause Act, 1971 (Act 367) states that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. In addition, the court before which such a petition is presented is required by law to determine as a fact that the marriage, has indeed broken down beyond reconciliation. In Support of this, Section 2(3) of Act 367 provides as follows: Notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1) the court shall not grant a petition for divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation. Section 2(1) of Act 367 stipulates the facts which a petitioner or a cross-petitioner may rely on to prove that the marriage which is sought to be dissolved has broken down beyond reconciliation as follows, a) That the Respondent has committed adultery and by the reason of such adultery the Petitioner finds it intolerable to live with the Respondent; or b) That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; or c) That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or d) 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 such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a Petition for divorce under this paragraph notwithstanding the refusal; or e) That the Parties to the marriage have not live as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; f) That the parties have after diligent effort been unable to reconcile their differences. The parties subsequently filed terms of settlement with respect to the ancillary reliefs and prayed that the court adopts it as Consent Judgment. Unreasonable behaviour is a conduct that gives rise to injury to life, limb or health or conduct that gives rise to a reasonable apprehension of such danger. In Ansah v Ansah [1982-1983] GLR 1127-1133, Owusu-Addo J held that: ‚The test under the section, was whether the petitioner could reasonably be expected to live with the respondent in spite of the latter's behaviour. The test was therefore objective. But the answer obviously had to be related to the circumstances of the petition in question. That had to be a question of fact in each case. It followed that the conduct complained of must be sufficiently serious - since mere trivialities would not suffice.‛ In the case of MENSAH V. MENSAH (1972) GLR the Court held that ‘the conduct complained of must be sufficiently grave and weighty enough to justify the finding that the Petitioner cannot reasonably be expected to live with the Respondent. Mere trivialities will not suffice. The parties must be expected to put up with what has been described as reasonable wear and tear of married life‛ In Mensah v Mensah [Supra], Hayfron-Benjamin defined what amounts to unreasonable behaviour when he held as follows, ‚In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behaviour including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivialities will not suffice for Act 367 is not a Casanova’s Charter. The test is objective.‛ In considering whether one party has good cause for leaving the other much depends on whether the conduct of the other is of a grave or weighty character as to amount, in law, to cruelty: see Gollins v. Gollins [1963] 2 All E. R. 966, H. L. Conduct which is of a grave or weighty nature may sometimes fall short of cruelty if it lacks the element of injury to health as in Edwards v. Edwards [1950] P. 8, C. A. ISSUE The main issue for determination is; Whether or not the marriage celebrated between the Petitioner, Abena Akyiaa Anim- Adjei and the Respondent Daniel Amaning Tabi on July 20, 2013, at the Garrison Methodist & Church Burma Camp, Accra has broken down beyond reconciliation? The Petitioner prayed that the marriage between the parties be dissolved on the basis of unreasonable behaviour on the part of the Respondent. The Petitioner in her oral evidence to the court tendered exit A the marriage certificate to prove that the parties are indeed marriage couple under CAP 27 of the Marriages Ordinance. According to her they have been unable to reconcile their differences. This is as a result of the fact that the Respondents confessed to her he has committed adultery with another woman during the subsistence of the marriage and all attempts at reconciliation the two has proved futile. The Petitioner therefore prayed that their marriage be dissolved and the terms of settlement filed by the parties by the parties adopted by the court as consent judgment. The Respondent also testified orally in court. The Respondent admitted in evidence that he has indeed committed adultery. There have also been steps taken to resolve their differences but it has not yielded any fruits as the Petitioner insists that their marriage be dissolved. The Respondent therefore prayed that the terms of settlement filed be adopted as consent judgement. The parties did not call any witness. Having considered the evidence before the Court as a whole, the Court is satisfied that the Petitioner has been able to prove to the satisfaction of the Court that the marriage has broken down beyond reconciliation and on grounds of unreasonable behaviour. The court considers it unreasonable for the Respondent, who is a married man under CAP 27, The Marriages Ordinance to commit adultery during the subsistence of their marriage. Even though it is the Court’s desire to maintain the sanctity of the marriage bond, some situations warrant the granting of divorce. In my opinion and on the strength of the evidence before this Court, the Parties should not be compelled to stay in the relationship. In the circumstances, I hold that the marriage between the parties have broken down beyond reconciliation. A decree of divorce is granted. DECISION 1. The marriage celebrated between the Petitioner herein, Abena Akyiaa Anim- Adjei and the Respondent Daniel Amaning Tabi on July 20, 2013, at the Garrison Methodist & Church Burma Camp, Accra has broken down beyond reconciliation and same is dissolved. The marriage certificate No. 6/GMPC/2013 is hereby cancelled. A Decree of Divorce is hereby granted. The parties have filed terms of settlement on the ancillary reliefs. The court hereby adopted the terms of settlement filed as stated below consent judgment; Parties have failed to live together as husband and wife for about two years now and Petitioner maintains that parties 2 4 6 8 cannot come together to live together and therefore they consent to the marriage being dissolved. The marriage contracted by the parties and celebrated at Garrison Methodist and Presbyterian Church Burma Camp, Accra on 20th July 2013 be dissolved as having broken down beyond reconciliation. There shall be no order as to costs. That Petitioner should have custody of the children of the marriage namely Josana Agyeiwaa Tabi and Jaron Agyekum Tabai. Respondent should have reasonable access to the children. The children shall stay with Petitioner for school from Monday to Friday. The children shall go to the Respondent by 6pm by Friday to spend the weekends and return on Sunday by 6pm to prepare for school once every two (2) weeks. During school vacation, the children shall spend 50% of the vacation break with each parent. Either parent could travel with the children during the period that they are in their custody provided the travel will not interfere with the other party’s right unless otherwise mutually agreed to the contrary. The decision to choose the school each child attends shall be by consensus and where parties fail to mutually agree to any particular school for a child and/or the children, the choice of Respondent shall prevail unless Petitioner expressly undertakes to bear the additional responsibility of contributing the difference in cost of school fees if any, in which case Petitioner’s choice shall prevail. Petitioner and Respondent shall equally be responsible for the care, maintenance, education and general upkeep including extra educational needs of the children of the marriage until each child attains the age of maturity. Respondent shall pay for the school fees, school feeding and requisite educational books for the children unless otherwise expressly agreed in writing by both parties. Petitioner shall cater for transportation for the children unless otherwise expressly agreed in writing by both parties. Respondent shall contribute GH₵2,000.00 monthly towards the upkeep and maintenance of the children of the marriage which shall be revised upwards by 5% every twelve months. Petitioner and Respondent shall be equally responsible for the provision of clothing, footwear and other similar necessities for the children until each child attains the age of maturity. Notwithstanding the attainment of the age of maturity of a child, it shall be the joint responsibility of Petitioner and Respondent to contribute towards the care, maintenance and general upkeep of each child of the marriage until such time that each child is reasonably expected to be independent. Respondent shall at all times maintain a valid National Health Insurance policy for the children or any similar insurance policy Respondent may opt for. Any additional medical expense which cannot be covered by Respondent’s subscribed insurance policy shall be borne by Respondent upon prior notice to Respondent. Being a medical practitioner, Respondent shall take major decisions relating to the health of the children and give appropriate directions including the health facilities the children attend at any given time. However, should Petitioner decide not to go along with Respondent’s decisions and/or directions, Petitioner shall solely bear the cost of any. In times of emergency when the children are with the Petitioner and it is impossible to reach the Respondent via telephone, the Petitioner shall make the decision relating to the children’s healthcare and the appropriate facility which accepts the prevailing Health Insurance policy for the children and any additional expenses shall be borne by Respondent upon reasonable notice. The Toyota Corolla with registration number GR9070-18 should be settled in favour of Petitioner and the children of the marriage. Respondent shall sign the relevant transfer forms and letter within two (2) months from the date of the adoption of the Terms of Settlement. This Agreement is entered into by parties on their own free will having had the opportunity to read the content hereof and obtained clarification from their respective undersigned Solicitors. 22 The terms herein contained shall be adopted by the court as Consent Judgment between the parties. LEGAL REPRESENTATION BENEDICTA MAWUSI FIANOO FOR THE PETITIONER SELINA ASANTEWAA ODAME FOR THE RESPONDENT H/H SUSANA EDUFUL (MRS) (CIRCUIT COURT JUDGE) 11