Obaa Yaa Apietu-ankrah [2022] GHACC 82 (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. C5/91/22 OBAA YAA APIEDU-ANKRAH ----- PETITIONER VRS. PRINCE QUASHIE ----- RESPONDENT PARTIES PRESENT NO LEGAL REPRESENTATION JUDGMENT FACTS: The parties herein got married under Part III of the Marriages Act (1884- 1985) Cap 127, at the Presbyterian Church of Ghana (Nantoma Congregation Kanda) on the 1st September, 2012. Thereafter, the parties cohabited at Dawhenya. There are two issues to the marriage namely; Daniel Ohene Quashie aged 9 years and Othniel Quashie aged 7 years at the time of filing the instant petition for divorce. On 25th July, 2022, the petitioner filed a petition for divorce alleging that the marriage between herself and the respondent has broken down beyond reconciliation and prayed for the following reliefs; a. Dissolution of their marriage contracted on the 1st September, 2012 under the Ordinance Marriage Cap 127 at the Presbyterian Church of Ghana (Nantoma Congregation Kanda.) b. Custody of the children should be granted to the petitioner with reasonable access to the respondent. c. Any other Order the court may deem fit. The petitioner avers that the parties are incompatible and there exists irreconcilable differences between them which has made it impossible for them to live in harmony as man and wife. According to the petitioner, the respondent left the matrimonial home in 2019 and subsequent to that, she received information that the respondent is currently cohabiting with another woman at Abokobi, Accra whilst this marriage is subsisting. Additionally, respondent brought an action against her at the Family/Juvenile Court, Accra for access to the children. The court ruled in her favour and the respondent was ordered to pay maintenance of GH₵2000 every month for the children but the respondent only paid for March 2022 and has since failed to pay the arrears. The petitioner further states that for more than 5 years, the parties have separated and there is no sexual intimacies between them. All efforts made by the petitioner’s family to have the differences resolved have proved futile and the parties have agreed that their marriage should be dissolved. The petition was duly served personally on the respondent but he failed to enter appearance and also failed to file an answer to the petition. The respondent also failed to appear to participate in the proceedings after due service of all processes on him. The court granted the petitioner leave to lead evidence to prove her case. LEGAL ISSUE Whether or not the marriage between the petitioner and the respondent has broken down beyond reconciliation. ANALYSIS Under section 1 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 succeed, a petitioner is required to prove one of the facts set out in section 2(1) of Act 367, namely; adultery, unreasonable behaviour, desertion, failure to live as man and wife for a continuous period of at least two years, failure to live as man and wife for a continuous period of at least five years and irreconcilable differences. The need for a petitioner to plead and prove any of the facts set out under section 2(1) was emphasized in the erudite decision of the Osei Hwere J (as he then was) in the case of Donkor v. Donkor [1982-1983] GLR 1158, in the following terms: “The Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under the Marriage Ordinance… to come to court and pray for the dissolution of their marriage just for the asking. The petitioner must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act for the purpose of showing that the marriage has broken down beyond reconciliation…the petitioner 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, she must 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 parties are also mandated to inform the court about all attempts at reconciliation and the court shall refuse to grant a petition for divorce if there is a reasonable possibility for reconciliation. See Section 2(3) of the MCA and the case of Adjetey & Adjetey [1973] I GLR 216 at page 219. The petitioner in the instant petition has set out to prove fact 2(1) (e) namely; "that she and the respondent have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition.” To succeed under this ground, the petitioner must prove that for at least for five years preceding the presentation of the petition for divorce she and the respondent have not lived as man and wife and she has ceased to recognize the marriage as subsisting. It is not necessary to establish blame and once there is evidence of the parties, not having lived together as husband and wife, the marriage will be dissolved even against the wishes of a party who has committed no matrimonial offence. In the case of Kotei v. Kotei [1974] 2 GLR 172, a husband petitioned for divorce alleging that he and the respondent had not lived as husband and wife for six years, and that the marriage had broken down beyond reconciliation and should be dissolved. It was the petitioner’s case that he had recognised and continued to recognise that the marriage was at an end and that he never intended to take back his wife. In resisting the petition, the respondent asserted that she still loved her husband, that she was still waiting for the husband to send for her and was willing to make attempts at reconciliation if the proceedings were adjourned for that purpose. The High Court per Sarkodie J, espousing on section 2(1) 1(e) of the MCA held page 175-176 “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…There must be a total breakdown of the consortium vitae. Mere physical separation is not sufficient; a petitioner has to prove not only the factum of separation but also that he or she has ceased to recognise the marriage as subsisting and intended never to return to the other spouse… Therefore it seems the state of mind of the parties needs to be considered, that is, whether they treated the marriage as at an end. It may not matter whether the state of mind of one of the parties was not communicated to the other.” The petitioner testified that the respondent has neglected her and the children of the marriage and is cohabiting with another woman at Madina, Abokobi area. Consequently, there has not been any sexual intercourse between them for well over five years. During this period that they lived apart, the respondent commenced an action against her at the Family/Juvenile Court Accra, for the access to the children and the court ruled that respondent should pay maintenance of GH₵1,000 every month for the upkeep of the children but the respondent has refused to pay. In support, she tendered in evidence the judgment of the Children/Juvenile Court admitted and marked as Exhibit “A”. The behaviour of the respondent has caused her so much grieve and anxiety and that the respondent has behaved unreasonably that she cannot continue to live with him and therefore the need for the dissolution of the marriage. That the marriage has broken down beyond reconciliation. The respondent was duly served but failed to appear at the trial to participate in the proceedings. The effect is that the evidence of the petitioner regarding the failure of the parties to live as man and wife for at least five years preceding the petition for divorce remains unchallenged. In the case of Ghana Consolidated Diamonds Ltd. v. Tantco and Ors. [2001-2002] 2 GLR 150, the court held in its holding 4 that: “A party who was aware of the hearing of a case but chose to stay away out of his own decision could not, if the judgment went against him, complain that he was not given a hearing. He could only appeal on the merits of the judgment. Accordingly, since the defendants chose not to take any further part in the proceedings after their stay of proceedings had been refused and the trial court went on with the action and entered judgment for the plaintiffs, the defendant could not complain that they had been denied a hearing.” The respondent in this case has been given ample opportunity to contest the petition for divorce but he has failed to appear thereby spurning the opportunity to be heard on the merits of the case. The uncontroverted evidence on record now is that for five years immediately preceding the presentation of the petition for divorce, the parties had not lived as husband and wife. The parties both consider the marriage to be at an end and there is no possibility of reconciliation. Under the circumstances, I hold that the marriage between the petitioner and the respondent has broken down beyond reconciliation. The petitioner also prays the court for custody of the two children of the marriage. From Exhibit “A”, tendered by the petitioner, there is a subsisting order for custody, access and maintenance dated 16th May, 2022, which is a consent judgment at the Family/Juvenile court and I make no order regarding same. CONCLUSION 1. In conclusion, I hold that the marriage between the petitioner and the respondent has broken down beyond reconciliation. I accordingly grant the petition for divorce and enter judgment in favour of the petitioner in the following terms; 2. I hereby grant a decree for the dissolution of the marriage celebrated between the petitioner and the respondent on 1st September, 2012, at the Presbyterian Church of Ghana (Nantoma Congregation Kanda). 3. The petitioner shall present the original copy of the marriage certificate for cancellation by the Registrar of the Court. 4. No order as to costs. (SGD) H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 7