ANTEH VRS. BORTIER (GTNDC/A4/72/21) [2022] GHADC 408 (5 October 2022)

1 IN THE DISTRICT COURT HELD AT TESHIE -NUNGUA ON WEDNESDAY THE 5TH DAY OF OCTOBER, 2022 BEFORE HER WORSHIP PRISCILLA SOPHIA YEBOAH AS DISTRICT MAGISTRATE SUIT NO. GTNDC/A4/72/21 EBENEZER TETTEY ANTEH PETITIONER HOUSE NO. H96/2 TESHIE, ACCRA VRS. MARY BORKOR BORTIER RESPONDENT OF NUNGUA, ACCRA _____________________________________________________________________ PETITIONER PRESENT RESPONDENT ABSENT JUDGMENT The instant petition was instituted by the husband petitioner on grounds that the marriage between him and the respondent has broken down beyond reconciliation. The fact of this case is that the parties converted their marriage under the part three of the marriages in 1997 after they had been married customarily in 1984. There are no issues to the marriage after the only child to the marriage passed at age eight. The respondent attended court only on one occasion and has since not complied with all the orders in furtherance for the hearing of the case. The gravamen of the petitioner is that even though at a point in time the issue of child bearing became an issue for the parties after the demise of the child they however tried to cope with the situation and lived in love with each other. According to the petitioner the Respondent unceremoniously moved out of the matrimonial home without any provocation or issue whatsoever and on 8th June, 2015, caused drinks to be sent to petitioner’s family to end our marriage. Petitioner says his family rejected their drinks and told her family they have not gotten in touch with me for my approval and acceptance. After several rejections, petitioner says he approved and the drink was accepted and the marriage dissolved customarily. Further it is Petitioner’s case that for the past 7 years the parties have lived apart without any intimacy and he is of the view that the marriage between them has broken down beyond reconciliation. ISSUES From the above narrations I am being called upon to determine whether the marriage between the parties have broken down beyond reconciliation. I shall answer in the affirmative with reasons assigned below. Dissolution of Marriages in Ghana is governed by the Matrimonial Causes Act, 1972 (Act 367). This law provides that either party may present a petition for divorce to the court. However, the sole ground for the grant of a divorce is that the marriage has broken down beyond reconciliation. A Petitioner therefore ought to present evidence to the effect that his or her marriage has broken down beyond reconciliation. This is seen in Section 1(2) of Act 367. For the purposes of showing that the marriage has broken down beyond reconciliation, Section 2(1) of Act 367 specifies facts the existence of which will enable the court determine same. “2. PROOF OF BREAKDOWN OF MARRIAGE The Act stipulates that (1) For the purpose of showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy the Court of one or more of the following facts: (a) That the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent; (b) That the respondent has behaved in a way that the petitioner cannot reasonably be expected to Live with the respondent; (c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) That the parties to the marriage have not lived as husband 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 the 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 despite the refusal; (e) That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or (f) That the parties to the marriage have, after diligent effort, been unable to reconcile their differences.” Section 3 (1) also states, ‘’On a petition for divorce the Court shall inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent. Among the facts alleged by the petitioner is the fact that the parties have not lived as man and wife for over 7 years. In the 2016 case of MICHAEL MANTEY V ELIZABETH OYINKA, the High Court dissolved a marriage on the grounds that parties had been separated for at least two (2) years. Also in the case of KOTEI v. KOTEI [1974] 2GLR 172 The Court speaking through SARKOEE J as he then was held that “the petitioner was entitled to a grant of dissolution”. Sarkodee J. said: Once the facts are proved bringing the case within any of the facts set out in section 2(1) a decree of dissolution should be pronounced unless the court thinks otherwise. In other words, the burden is not on the petitioner to show that special grounds exist justifying the exercise of the courts power: Once he or she comes within any one of the provisions in section 2(1)(e) and (f), the presumption is in his favour; proving one of the provisions without more is proof of the breakdown of the marriage beyond reconciliation. The court further stated that Proof of five years’ continuous separation enables the marriage to be dissolved against the will of a spouse who has committed no matrimonial offence and who cannot be blamed for the breakdown of the marriage… Again the provision (of the Act) stands it seems no blame need be attributed to either party and there may be no passing of any sort of moral judgement. There may be no need to label one or the other party as technically innocent even though the conduct of both has brought about the breakdown of the marriage.” Further, in the case of Danquah v. Danquah [1979] G. L. R. 371 that the Ppetitioner is under a duty not only to plead any one or more of those facts in section 2(1) of the Act but he must also prove them. Equally the court is under a statutory and positive duty to inquire so far as it reasonably can, into the charges and counter-charges alleged. In discharging the onus on the petitioner, it is immaterial that the respondent has not contested the petition, petitioner must still prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage has irretrievably broken down. The petitioner has successfully proved the breakdown of the marriage because if the parties have been living separate and apart for over seven years then section2 (1) (E) is proved without further interrogation. Since facts 2(1) (E) is a reliance to prove that a marriage has broken down beyond reconciliation I am satisfied that the instant marriage is beyond salvage and same is dissolved. I decree, the marriage, celebrated between the parties under Part Three of the Marriages Act with certificate number TSPC 4/97 is cancelled. The Petitioner shall be issued with divorce certificate and same shall be issued on the Registrar of marriages who shall amend its records. No other to cost. (SGD) H/W PRISCILLA SOPHIA YEBOAH DISTRICT MAGISTRATE 05/10/2022