Yankey v Offei (A4/19/24) [2025] GHADC 95 (8 May 2025)

CORAM: HER WORSHIP BIANCA GYAMERA-BEEKO MAGISTRATE SITTING AT THE DISTRICT COURT MAMPONG-AKWAPIM ON 8TH DAY OF MAY, 2025. ------------------------------------------------------------------------------------------------------ CECILIA EKUBA YANKEY ……………. PETITIONER SUIT NO.:A4/19/24 THEOPHILUS DANIEL KOFI OFFEI .…………… RESPONDENT VRS. Parties present. Hawawu Kassim holds Yaa Addobea Owusu Addo Okyere’s brief for the petitioner. JUDGMENT. The petitioner in this matter is a teacher and presently resident in the United States of America. The respondent was previously a teacher and is resident at Mamfe. Parties were married under the ordinance on 11th January, 2003 at the Redemption Bible Church International in Accra. The marriage produced one issue; Theophilus Kwame Danso Offei who is 15 years old. By a petition filed on 29th May, 2024 the petitioner herein seeks the following reliefs: 1. Dissolution of the marriage celebrated between the parties. 2. Custody of the only issue of the marriage, Kwame Danso Offei, with reasonable access to the respondent. The petitioner’s complaint is that even though she has been married to the respondent for the past 22 years, she has not been happy in the marriage. She complains that the respondent has behaved in such a manner that she cannot be reasonable expected to continue living with him as his wife. She says that die to the respondent’s conduct she moved out of the matrimonial home in 2020. All attempts by family members to reconcile parties have failed. The respondent in a brief answer denied the allegations but consented to the divorce and to the reliefs of the petitioner being granted. Consequently, the sole issue to be determined by this court is: 1. Whether the marriage celebrated between the parties has broken down beyond reconciliation. Evidentiary burden Section 14 of the Evidence Act, 1975 (Act 323) provides that except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. In the case of Serwah v Kesse (1960) GLR 227, the Supreme Court stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. Accordingly, the Petitioner bears the burden of persuasion in this matter. Section 11(1) of Act 323 explains the burden of persuasion as the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue. This being a civil matter, the parties are required to prove their cases upon a preponderance of probabilities in accordance with section 12 of the Evidence Act 1975 (NRCD 323). Whether the marriage has broken down beyond reconciliation Under Ghanaian law, the sole ground for granting a divorce is that the marriage has broken down beyond reconciliation; section 1(2) of the Matrimonial Causes Act, 1971 (Act 367). In order to prove that the marriage has broken down beyond reconciliation, section 2(1) of Act 367 requires that the petitioner satisfies 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 (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; provided that such 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 notwithstanding the refusal; or (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. Having considered the evidence led by the parties, I find that parties have not lived together for at least two years preceding the presentation of the petition for divorce. I also find that parties consent to the dissolution of the marriage. For this reason, I find that the marriage celebrated between the parties on 11th January, 2003 has broken down beyond reconciliation and same is hereby dissolved. Custody of the only issue of the marriage, Kwame Danso Offei, is granted to the petitioner with reasonable access granted to the respondent. I make no order as to costs. Final orders: 1. The marriage celebrated between parties on 11th January, 2003 has broken down beyond reconciliation and is dissolved. 2. The marriage certificate (R. B. C1/1/03) is cancelled. 3. Custody of the only issue of the marriage, Kwame Danso Offei, is granted to the petitioner with reasonable access granted to the respondent. 4. No order as to costs. SGD. H/W BIANCA GYAMERA-BEEKO