Owuse Vrs Fekaa [2022] GHADC 74 (18 November 2022)

IN THE DISTRICT COURT HELD AT WAMFIE ON FRIDAY THE 18TH DAY OF NOVEMBER, 2022. BEFORE HER WORSHIP DZIFA AZUMAH ESQ. DISTRICT MAGISTRATE SUIT NO. A4 /18/2022 DOUGLAS OWUSU PER HIS LAWFUL ATTORNEY MICHAEL GYAMFI VRS PATIENCE FEKAA JUDGMENT Through the petitioner’s lawful Attorney a petition was filed 17th June, 2022 praying the court to dissolve the marriage celebrated between the petitioner and the Respondent on 24th September 2018, at the Wamfie District Court. The petitioner sought the following relief: (i) An order for the dissolving the ordinance marriage contracted by the parties on 24th September, 2018. Upon service on the Respondent of the divorce petition, she filed an answer with counter claim as follows; (i) That the ordinance marriage contracted between the parties should be dissolved. (ii) Arrears of maintenance for GH¢4,500.00 for nine (9) months at GH¢500.00 a month, be paid to her. Looking at the issue for determination in this case are 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Whether or not petitioner is to pay a maintenance arrears of GH¢4,500.00. The matrimonial causes, Act, 1971 (Act 367) governs divorces in this country. Under section 1(2) of the Matrimonial Causes Act, 1971 (Act 367), a court shall not grant a petition for divorce unless the marriage in proven to have broken down beyond reconciliation. Under section 2(1) of act 367, for the purposes of showing that the Marriage has broken down beyond reconciliation a petition for divorce 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 presentation of the petition, and the Respondent consents to the grant of a decree of divorce; (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. It has been held in a line of cases including DONKOR V DONKOR [1982-83] GLR 1158 that the Matrimonial Causes Act, 1971 (Act 367), did not permit spouses married under the Marriage Ordinance, Cap 127 (1951 Rev) to come to court and pray for the dissolution of their marriage just for the sake of asking. And that the petitioner in such a case for dissolution of marriage must first satisfy the court of any one or more of those facts set out in section 2(1) of the Act, not only by pleading them, but also by proof for the purpose of showing that the marriage had broken down beyond reconciliation. The court explained further that section 2(3) of the Act, provided that even if the court found the existence of one or more of those facts it should not grant a petition for divorce unless it was satisfied that the marriage had broken down beyond reconciliation. The petitioner led evidence to establish her claim that the marriage had broken down beyond reconciliation. He stated that he came all the way from Belgium to marry the respondent in September, 2018. That after spending two weeks with the Respondent in Sunyani, he Petitioner went back to his base in Belgium. That he had since tried his best to procure documents to enable the Respondent live with him at his base in Belgium but was unable to succeed. This shows 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 that Respondent consents to the grant of a decree of divorce. To show her consent to the decree of divorce, the Respondent in her paragraph 8 of the Answer to the petition stated that “in view of the fact that the petitioner has stated in paragraphs 12 and 13 that he (petitioner) is no longer interested in the marriage, the behaviour of the petitioner is such that I Respondent have also lost interest in the marriage and counter-claimed in paragraph 12 as (a) That the ordinance marriage contacted between the parties should be dissolved. Undoubtedly, the parties have not cohabited as husband and wife for more then two(2) years and this is one of the grounds recognized under section 2(1) of the Matrimonial causes Act, 1971 (Act 367) for proving that a marriage has broken down beyond reconciliation. 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 see Kotei V Kotei [1974] 2 gcr 172 – 176. I will therefore grant the petitioner’s prayer and pronounce a dissolution of the Marriage between the petitioner and the Respondent. This court hereby holds that the marriage celebrated by the parties herein on 24th September 2018, at Wamfie District Court be dissolved and same is dissolved this day 17th November, 2022. Now to the issue of Alimony The Respondent in paragraph 11 stated that the petitioner is owing the Respondent maintenance arrears of GH¢4,500.00 arising out of the 9 months of petitioner’s refusal to remit the Respondent her monthly maintenance of GH¢500.00, since he decided not to continue with the marriage. Considering the current economic circumstance in the country the court hereby orders petitioner to pay a send-off amount of GH¢10,000.00 for all the time spent waiting for him to make her enjoy her wifely role, which never materialized. H/W DZIFA AZUMAH ESQ. (MAGISTRATE)