The Matrimonial Causes Act, 1971 (Act 367) governs the current law on divorce in Ghana. The law provides that, a petition for divorce may be presented to the court by either party to a marriage. However, the petitioner of the divorce i. e the person who starts the proceedings must be able to provide evidence to the effect that the marriage has broken down beyond reconciliation. This in fact is the sole ground for divorce.
That notwithstanding, this sole ground must be evidenced by proof of adultery, unreasonable behavior, desertion, separation with consent for a period of 2 years and 5 years of separation
Section 2(1) (a) of Act 367 states that “the Respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the Respondent”.
Adultery may be defined as sexual intercourse between two persons of whom one or both are married but who are not married to each other. It is important to note that if you are the petitioner, you cannot rely on your own adultery. For Adultery to be proven, there must be at least partial penetration.
Under Act 367, adultery is defined as the voluntary sexual intercourse of a married person with a person of the opposite sex other than his or her spouse.
Further, a petitioner must satisfy the court that he/she finds it intolerable to live with the Respondent. This is however a subjective test and depends on the view of the Petitioner, which the court will ascertain and come to a conclusion. Section 3 of Act 367 provides that to rely on this fact, a couple should not have lived together for more than six months after one becomes aware of the adultery, if the couple live together for more than six months after the occurrence of adultery on the part of one of them, this ground cannot be relied upon.
It is interesting to note that, on a petition for divorce in which adultery is alleged, the person alleged to have committed adultery with the party to the marriage may be made a party to the proceedings.
Also, Section 2(1) (b) of Act 367 states that “the Respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the Respondent”.
Section 4 of the Act 367 provides that for the purposes of section 2(1) (b), in determining whether a petitioner cannot reasonably be expected to live with the Respondent, the court shall disregard any period or periods not exceeding six months in the aggregate during which the parties to the marriage lived with each other as husband and wife after the date of the occurrence of the last incident relied on by the petitioner and proved to the court in support of an allegation.
This is the most commonly relied upon fact for divorce. Case law provides that, “unreasonable behavior” can take the form of either an act or omission and can include serious issues of physical/emotional violence or more mild incidents.
The conduct complained of must be serious and higher than the ordinary wear and tear of marriage life.
Further, Section 2 (1) (c) of Act 367 stipulates that “the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition”.
Desertion is the separation of one spouse from the other with the intention on the part of the deserting spouse to bring cohabitation permanently to an end without the consent of the other spouse.
The physical act of departure by one spouse does not necessarily make that spouse the deserting party. The Petitioner must satisfy the court that the Respondent has deserted the marriage and there is no intention to return
Desertion must exist for a period of at least two years immediately preceding the presentation of the petition in order to qualify as a ground for divorce.
Another important factor is Section 2 (1) (d) of Act 367. It states 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 is has been so withheld, the Court may grant a petition for divorce under this paragraph despite the refusal”.
Consent is necessary to rely upon this fact. The Court must satisfy itself that consent to divorce has been given by the respondent only after the respondent has understood the consequences of his or her consent.
Finally, Section 2 (1)(e) of Act 367 adds 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”.
Consent is not needed to rely on this fact. Section 7 of Act 367 provides that, for the purposes of section 2 (1) (d) and (i) in determining whether the period for which the parties to a marriage have not lived as man and wife has been continuous, the Court shall disregard any period or periods not exceeding six months in the aggregate during which the parties resumed living as man and wife.
The Petitioner must demonstrate aside enlisting any of the above-mentioned grounds for the dissolution of the marriage that the parties to the marriage after diligent effort have been unable to reconcile their differences.
Although the court may find one or more of the facts required to be established for the dissolution of the marriage, the court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation.
PROCEDURE FOR DIVORCE
Section 1(i) of the Act 367 states the ground for the commencement of divorce proceedings. A petition for divorce may be presented to the Court by either party to a marriage. However, for avoidance of doubt, court means the High Court or the Circuit Court (section 43 of the Act 367 subject to the Chief Justice’s power to transfer an action under section 40 of the Act 367.
The divorce petition is the document which starts divorce proceedings. This document informs both the Respondent and the Court the legal basis on which the Petitioner is pursuing a divorce. The Petitioner files a petition at either the High Court or Circuit Court and then the Registrar will cause the Petition filed to be served on the Respondent through the Court bailiff. To issue a petition, it must be sent to the Court in triplicate. There is a Court fee for issuing a divorce petition. It is important to note that a divorce petition cannot be issued within the first year of marriage, however, the petitioner can rely on events which occurred within the first year of marriage.
RESTRICTION ON PETITIONING
A petition for the dissolution of marriage cannot be presented to the court by the petitioner within two years from the date of the marriage. That means that, a party to a marriage which is less than two years cannot commence a divorce proceedings notwithstanding the existing of any of the facts necessitating divorce under the Act. (section 9 of Act 367)
There is, however, a proviso to the restriction on petitioning for a divorce. The court may on application allow the presentation of a petition for divorce within two years from the date of the marriage on the ground of substantial hardship suffered by the petitioner or depravity on the part of the respondent.
By Saint-Ayisi Samuel