Nicholas Konney Vrs Rebecca Konney [2022] GHADC 4 (27 October 2022)

NICHOLAS KONNEY VRS. REBECCA KONNEY IN THE DISTRICT COURT ONE, TEMA ON THURSDAY 27TH OCTOBER 2022 BEFORE H/W BIANCA ADWOA OSEI-SARFO (MRS.), SITTING AS MAGISTRATE. NICHOLAS KONNEY PETITIONER vrs REBECCA KONNEY RESPONDENT A4/28/2021 PET.: Present RES.: Present Time:11:27A. M JUDGMENT The parties in this suit were married under the Ordinance on the 4/12/2012 at the Tema Metropolitan Assembly Chamber. After the celebration of their marriage, the couple lived together at Tema Community one. They have a child together. The Petitioner says he is a forklift driver whilst the Respondent is a hairdresser. By a petition filed on 07/10/2020, the Petitioner prayed for dissolution of the marriage between the parties. The Petitioner averred that this was due to the Respondent’s inconsiderate behaviour which the Petitioner should not be expected to live with. This was particularized as follows;  The Respondent was not willing to perform any household duties. The Petitioner averred that the Respondent refused to take care of their child and that the Respondent would remain in bed whilst the Petitioner would wake up early to bathe their female child each day, and feed her before the child went to school. NICHOLAS KONNEY VRS. REBECCA KONNEY  The Petitioner averred that the Respondent misconducted herself in the house, and that the respondent was quarrelsome and would often insult the Petitioner publicly and without any reasonable cause. He said that the Respondent was so quarrelsome that there was no cohesion between the Respondent and the Petitioner’s family. He said whenever he was unable to provide the Respondent with housekeeping money, she would insult him, screeching at the top of her voice to the hearing of the neighbours and the public at large. He said that whenever the Respondent returned from church, she would remove her wedding ring and leave to town, returning whenever she pleased.  He further averred that the Respondent did not accord him the respect due to him as her husband. He cited an example of an occasion when he was on admission in hospital and called the Respondent to bring him food. He says the Respondent asked him whether she should ease herself to pick the money out of it and bring him food. He told the Court that the Respondent paid him no courtesies and travelled without informing him anytime she wanted to travel.  He told the Court that although they lived in the same house, and in the same room, they lived separate lives and the Respondent had told him that she was ready for a divorce and that the Petitioner should take her to Court hence this petition. He said there was a breakdown of communication between the parties, there were times when the parties were not on speaking terms, and that in view of the Respondent’s conduct he was no longer interested in the marriage as they had irreconcilable differences.  He told the Court that there were too many problems and misunderstandings and that he had begun to mistreat and frustrate the NICHOLAS KONNEY VRS. REBECCA KONNEY Respondent in a bid to get her to leave the marriage, and that their marriage cannot be sustained without any further acts of deprivation and substantial hardship.  The Respondent denied all the allegations averred by the Petitioner against her in her reply. She averred that indeed there a lot of insults and misunderstandings in their marriage, and that she did not perform household chores simply because the Petitioner had warned her not to touch any of his belongings, not even his soap. She averred that the Petitioner had neglected to maintain her and their only child, and that conversations between them often quickly spiralled downwards into insults and derogatory words.  She denied that she left the care of their daughter solely to the Respondent, and averred that she took care of their daughter day and night except when she had travelled. She averred that the Petitioner was a quarrelsome man, and it wasn’t that she was disrespectful of him but it was this quarrelsome attitude of his which led to bickering for which he accused her of disrespecting him. She said whenever the Petitioner began his quarrelsome ways, she would come down from the storey building to the ground floor to avoid any quarrels with him. She said that as a result of their constant quarrels and penchant for the use of derogatory words, there was no effective communication between them as husband and wife.  The Respondent further averred to the Court that one day without any reasonable cause, the Petitioner’s girlfriend packed all her belongings out of their room and came to live with him in their matrimonial home and when she came to pick up the rest of her things she met the other woman in her matrimonial home, wearing the respondent’s dress. She told the Court that the woman subsequently has married another man as a result NICHOLAS KONNEY VRS. REBECCA KONNEY of the Petitioner’s appalling behaviour and he has been in three other failed relationships since then.  She averred that because they were incompatible as a married couple, she had no option than to accept the dissolution of their marriage for them to go their separate ways as they cannot live together. She said on the 14th of May, 2020, their marriage was customarily dissolved. She cross-petitioned for dissolution of their marriage, custody of their child, maintenance, school fees and medical bills and rent of GHC200.00 a month. Neither party called any witnesses. The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.- Section 2 (1) of Act 367, The Matrimonial Causes Act 1971 is reproduced as follows:- (1) That 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 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 NICHOLAS KONNEY VRS. REBECCA KONNEY (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; (e) that the parties to the marriage have not lived as man 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. UNREASONABLE BEHAVIOUR According to Mrs. Frederica Ahwireng-Obeng, the author of ‚Contemporary Principles of Family Law in Ghana”, ‘Unreasonable behaviour’ has been defined in English law ‚as conduct that gives rise to injury to life, limb, health or conduct that gives rise to a reasonable apprehension of such danger. The conduct must be grave and weighty and must make living together impossible. It must be serious and higher than the normal wear and tear of married life‛. S. 2(1) (b) of Act 367 implies that the Petitioner must prove the conduct constituting the unreasonable behaviour on the part of the Respondent and the fact that she cannot reasonably be expected to live with the Respondent as a result of the bad behaviour. To prove these two requirements, Petitioner had to lead evidence in support of his claim and the court had the duty to objectively determine, on the facts presented, whether he cannot reasonably be expected to live with the Respondent. Not much evidence was provided by either party to prove their averments or to disprove the allegations against them. Neither party called any witnesses. NICHOLAS KONNEY VRS. REBECCA KONNEY However, what was clearly beyond dispute was that this was a couple who had lived apart for a year. There was clearly no love lost between the parties . Both parties indicated that various attempts to reconcile them had not been successful and to all intents and purposes, they had both moved on with their lives. The question then is whether the laid grievances before this Court amount to ‚unreasonable behaviour‛? Unreasonable behaviour is determined on a case by case basis and the ordinary incidents, wear and tear resulting from two different people living together, such as the occasional argument, discord, anger, mistrust, disagreements on finances, personal goals, etc. do not constitute ‚unreasonable behaviour‛. However, where the aggregate of such ordinary incidents exceed the “good times” or mutual happiness and companionship expected from a healthy marriage, whether it be deliberate or not, but causes the disaffection, ill-health (physically or otherwise), apprehension/anxiety of one party or negatively affects a spouse, a court may infer unreasonable behaviour”. The Petitioner stated in his Petition in paragraph 27 that ‘the Petitioner is no longer interested in the marriage hence he was mistreating and frustrating her to leave the marriage’. The Respondent also in her Witness statement at paragraph 12 stated that one day the petitioner’s girlfriend packed the Respondent’s things out of their home, and she returned to meet the other woman wearing her clothes. It is the considered view of this Court that these are extreme acts and not analogous as part of the ordinary wear and tear of married life, and from the evidence generally adduced in this matter, the events/incidents of unhappiness recounted to this court exceed the good times and their cumulative effect will be rough on any average marriage. NICHOLAS KONNEY VRS. REBECCA KONNEY The Petitioner accused the Respondent of desertion. In William Ekow Daniel’s book, The Law of Family Relations in Ghana, desertion is defined as the cessation of cohabitation brought about by the fault or act of the parties. Therefore, the conduct of the parties must be considered. If there is a good cause or reasonable excuse, it seems there is no desertion in law. Also, under Section 2(1)(c) of the Matrimonial Causes Act, 1971, the desertion must exist for a continuous period of at least two years preceding the presentation of the petition. Section 5(1) states that for the purposes of determining whether the period for which the respondent has deserted the petitioner has been continuous, the court shall disregard any period or periods not exceeding six months in aggregate during which the parties resumed living as husband and wife. In Williams vrs Williams, Lord Greene M. R said, the act of desertion requires two elements on the side of the deserting spouse, namely, the factum of separation and the animus deserendi; and on the side of the deserted spouse one element, namely, the absence of consent. Although physical separation is a feature of desertion, in law desertion is not the withdrawal from a place, but from a state of things. Thus, it is possible for desertion to take place even if there is no matrimonial home or that the parties are in fact living at different places voluntarily or where the separation is compulsory. Desertion can exist even if the parties’ live under the same roof provided they can no longer be regarded as sharing one household but have in effect set up two households. Absence of a just cause or reasonable excuse is also an ingredient of desertion. If one of the spouses has a reasonable excuse for leaving the other, this shall not amount to desertion. There are two kinds of desertion, actual and constructive desertion. It is not necessarily the spouse who takes the physical step of leaving the NICHOLAS KONNEY VRS. REBECCA KONNEY matrimonial home who will be the deserter. It is the one who intends to to bring cohabitation to an end and whose conduct causes its termination. As Lord Parker explained in Lang vrs Lang, If the husband knows the probable result of his acts and persists in them, in spite of warnings that the wife will be compelled to live the home… that is enough.. In this case , the evidenced adduced before the Court shows that the petitioner at some point took a decision to make the respondent’s life such as would make her leave the marriage, to the extent of bringing in another woman to live in their matrimonial home and to pack out the Respondents belongings. DECISION From the foregoing, it is the considered view of this Court that the marriage between the parties has broken down beyond reconciliation, the divorce petition filed on the 7/10/2020 is hereby granted and the marriage celebrated between Nicholas Konney and Rebecca Konney at the Tema Metropolitan Assembly Chamber, Tema is hereby dissolved. Their Marriage Certificate with license number TMA/RM/2256/2012 is hereby cancelled. Let a Divorce Certificate issue in lieu. Custody of the daughter of the parties is granted to the Respondent with access to the Petitioner every other Saturday from 9 : 00am in the morning till 5.00pm in the evening. The Petitioner is to cater for the educational and medical needs of the child, maintenance of GHC350.00 to be paid monthly into Court, and rent to be shared in a ratio of 60:40 until the child attains majority or the respondent remarries, whichever occurs first, whilst the Respondent caters for her feeding and clothing needs. NICHOLAS KONNEY VRS. REBECCA KONNEY Compensation of GHC 7,000.00 awarded in favour of the Respondent. There will be no order as to costs. No further orders. (SGD.) ...................................................................... H/W BIANCA ADWOA OSEI-SARFO ESQ. (MRS.) 9