Dora Naakomecho Addo Vrs Edmund Arku Appiah [2022] GHACC 78 (16 December 2022)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON FRIDAY THE 16TH DAY OF DECEMBER, 2022, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C5/30/23 DORA NAA KOMECHO ADDO ----- PETITIONER VRS. EDMUND ARKU APPIAH ----- RESPONDENT PETITIONER PRESENT RESPONDENT ABSENT NO LEGAL REPRESENTATION JUDGMENT FACTS: The petitioner and the respondent got married under Part III of the Marriages Act, (1884-1985) Cap 127, on 23rd December 1999 at the Full Gospel Evangelic Ministry Central Tema on the 23rd of December, 1999. After the marriage, the parties cohabited at Dawhenya and there is no child to the marriage. There is no previous proceeding regarding this marriage in any court. On 25th October, 2022, the petitioner filed a petition for divorce alleging that the marriage between herself and the respondent has broken down beyond reconciliation and prayed the court for the dissolution of the marriage celebrated between the petitioner and the respondent and any other order the court may deem fit. The petitioner avers that the marriage celebrated between herself and the respondent has broken down beyond reconciliation on account of irreconcilable differences. The petitioner avers that after the marriage, the behaviour of the respondent totally changed towards her. There is no trust and love in the marriage and the parties are always at loggerheads over trivial matters. The petitioner avers that for two years now, the respondent has moved out of the matrimonial home to stay with his brother and wife at Lebanon, Ashaiman. The petitioner avers that since then there has not been any form of sexual intimacies between them. That all efforts by pastors, counselors, friends and members of their families to resolve their differences have proved futile. Also, the parties have agreed for the marriage to be dissolved and consequently, the marriage has broken down beyond reconciliation. The respondent entered appearance and filed consent to the dissolution of the marriage in which he denied the allegation of behaviour but states that he is not opposed to the dissolution of the marriage since the customary marriage between them has already been dissolved on 15th March, 2021. LEGAL ISSUE The sole issue for the consideration of the court is whether the marriage 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 petition for divorce 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 stipulated under section 2(1) of Act 367, namely, adultery, unreasonable behaviour, desertion, failure to live as husband and wife for a continuous period of at least 2 years immediately preceding the presentation of the petition, failure to live as man and wife for a continuous period of five years immediately preceding the presentation of the petition and lastly, irreconcilable differences. Section 2(3) of Act 367, enjoins the court to inquire into the facts alleged in support of the dissolution. The court shall refuse to grant dissolution of the marriage notwithstanding the fact that any of the facts are proved if there is a reasonable possibility for reconciliation. In the case of Kotei v. Kotei [1974] 2 GLR 172, the court held in its holding 1 that: “Once one of the grounds specified in section 2 (1) of Act 367 was proved a decree of dissolution should be pronounced in favour of the petitioner. It was, however, wrong to contend that proof of total breakdown of the marriage and the possibility of reconciliation should be taken disjunctively so as to require firstly, proof of a breakdown and secondly, proof that it was beyond reconciliation.” The petitioner in the instant petition set out to prove that for two years immediately preceding the presentation of the petition for divorce, she and the respondent had not lived as husband and wife within the meaning and intendment of section 2(1)(d) of Act 367. Under Section 2 (1) (d) of the Matrimonial Causes Act, 1971 (Act 367), not living together as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition for divorce can be proof that the marriage has broken down beyond reconciliation. To succeed on this ground, the respondent must consent to the grant of the decree for divorce; however, 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 she ceased to recognize the marriage as 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 that after the marriage, they lived peacefully until their otherwise harmonious relationship turned sour. She maintained that due to the problems in the marriage, the respondent left the matrimonial home to live with a friend and for two years preceding the presentation of the petition for divorce, they had not lived as husband and wife. She further testified that the respondent has consented to the dissolution of their marriage. The respondent did not cross-examine the petitioner and in a rather sober mood, accepted responsibilities to the issues they faced in the marriage and what he has put the petitioner through. According to him, after the marriage, he went to live in their family house with the petitioner which did not augur well for their marriage. Again, he states that he has accepted his responsibilities for the breakdown of the marriage and has consented to divorce to free the petitioner from the shackles of their marriage. On the totality of the evidence led by the parties, the parties are agreeable that for two years preceding the presentation of the petition for divorce, they had not lived as husband and wife. The consent of the respondent is evidenced by the fact that in his answer to the petition, he did not oppose the dissolution of the marriage but consented to same. The respondent also consented to divorce in his evidence on oath and the parties agree that their marriage is at an end and they cannot revive it to resume cohabitation as husband and wife. Accordingly, I hold that the 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 on account of the failure of the parties to live as husband and wife for a continuous period of at least two years preceding the presentation of the petition for divorce. I accordingly enter judgment for the petitioner in the following terms; 1. I hereby grant a decree for the dissolution of the marriage celebrated between the petitioner and the respondent on 23rd December, 1999 at the Full Gospel Evangelic Ministry Central, Tema. 2. The petitioner shall present the original copy of the marriage certificate for cancellation by the Registrar of the Court. 3. No order as to costs. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) (SGD) 5