Refers to mode of dissolution of the marriage contract, governed by MCA. S 1(1) either party may present petition to court for divorce, the other may also cross-petition, S 31 either of parties must be a citizen, domiciled in Gh or Ordinary resident in Gh for 3 years’ continuous period.
Sole ground for granting petition for divorce shall be that marriage has broken down beyond reconciliation per S 1(2). A Party May Prove That Marriage Has Broken Down Beyond Reconciliation by Establishing Any one or more of the Following six facts under S 2(1) (a-f) of MCA, per Buffery v Buffery s 1(2) and 2(1) are separate requirements to be satisfied individually, although courts duty to inquire into grounds burden on petitioner to establish any of facts and respondent to shown marriage hasn’t broken down per Ash v Ash, Pheasant v Pheasant. Per Stevens v Stevens petitioner was nevertheless entitled to decree although it was his own behaviour that caused breakdown of marriage.
Adultery – Fact A
S 2(1)(a) of MCA: that respondent has committed adultery and petitioner finds it intolerable to live with same. S 43 adultery is voluntary sexual intercourse of married person with opposite sex other than spouse. Dennis v Dennis since man was unable to effect penetration no adultery committed, per Cleary v Cleary it was conduct of wife after adultery, corresponding with other man again, not previous adultery itself, after taking her back previously when committed adultery, adultery established.
Standard of proof: Quartey v Quartey Kingsley J one who alleges prove, standard is proof beyond reasonable doubt same as that of criminal offences, per Adjetey v Adjetey depart from beyond reasonable doubt to high degree of probability because adultery is a serious offence, Frederica says though adultery a civil matter, standard must be slightly higher than balance of probabilities.
Methods of proof: Circumstantial-Adjetey v Adjetey after agreement to move to house built respondent drove instead to boyfriend’s house and was brought back by uncle after 2 months but she escaped and never retuned again, adultery has been committed, Blum v Blum respondent booked hotel room with another woman, adultery inferred. Voluntary Confession statement-Quartey v Quartey wife confessed because she was under duress and afraid to be beaten, no adultery.
Petitioner has contracted sexually transmitted disease from respondent. Child born by respondent not petitioner’s Child-Hume v Hume adultery as test shows husband can’t be father of child. Evidence of respondent living with another of opposite sex not spouse.
Crentsil v Crentsil, Antwi v Antwi, Arku v Arku
Intolerable test is subjective not objective and must be linked to the adultery and proved separately per Goodrich v Goodrich.
Time: per S 3 where adultery is committed then petition for divorce is to be presented within 6 months after it is discovered, else if more than 6 months living as husband and wife petitioner will be taken to have forgiven respondent.
S 12 person alleged to have committed adultery with respondent may but need not be made a party to the proceedings.
Unreasonable Behavior – Fact B
That respondent has behaved in such a way that petitioner cannot reasonably be expected to live with him, behavior is form of conduct, act or omission, not state of mind of how he is expected to love, etc. per Baker in Katz v Katz mental illness however minor is sufficient to obtaining decree. Examples are homosexuality, refusing sex per Dowden v Dowden, excessive sexual demands, insistence on coitus interruptus despite wife’s health, drunkenness, gambling, emotional dissatisfaction, criminal, threats insults nagging embarrassment, violence per Bergin v Bergin, bullying and financial irresponsibility.
Court to answer whether petitioner can reasonably be expected to live with respondent and test is subjective, per Dunn J in Livingstone-Stallard v Livingstone-Stallard the test is whether any right thinking person will come to a conclusion that behaviour is such that can’t live with, wife entitled to decree though many of complaints were trivial as husband has maltreated her as woman not a wife. Per Ash v Ash test was that whether upon looking at conduct of petitioner also, it is intolerable for him to live with respondent.
Happee v Happee Netherland man Gh woman per Edusei J no man however conciliatory even with the patience of the biblical Job can tolerate a woman of the caliber of the respondent, making false allegations, preventing his flight, wanting him dismissed from employment, embarrassment at meeting, etc. Knudsen v Knudsen living together after all happenings inconsistent with broken down and single act of getting respondent arrested cannot suffice to have marriage broken down beyond reconciliation but was overturned by COA, that it need not be a range of acts but one act may suffice.
Mensah v Mensah unreasonable for wife to live with husband who refuses to cooperate in finding solution to their problem of not having children, test is a question of fact and objective. Opoku-Owusu v Opoku-Owusu wife having 10 children within 11 years on excessive sexual demands, violence, threatens entitled to decree for unreasonable behaviour, although her refusal to have sex with her was ground for cross-petition, it was reasonable on her part.
Reconciliation: S 4 if upon discovery of reasonable behaviour lived as husband and wife for more than 6 months, petition for divorce will be dismissed for assumption of forgiveness, thus should be brought within 6 months of alleged behaviour. Per Ofori v Ofori petition for divorce on grounds of rude and extravagant, whilst pending lived together as husband and wife upon travel to USA for 3 months, since period less 6 months, decree will be granted.
Clerk v Clerk, Hughes v Hughes, Ansah v Ansah
Desertion – Fact C
S 2(1)(c) of MCA: unjustifiable withdrawal from cohabitation without consent of other spouse and with intention of remaining separated permanently, establish continuous 2 years’ desertion preceding petition. S 5(1) in determining the continuous two years, any period less 6 months living together won’t be taken into consideration in computing. Petitioner mustn’t do anything to suggest he regards marriage as over until the 2 years are up. Withdrawal must amount to total repudiation of all marital obligations per Naylor v Naylor. Takes two forms, simple-respondent left petitioner without just cause and without consent, and constructive-petitioner leaves respondent with just cause.
Four elements:
Actual separation-de facto, total and actual withdrawal from all marital obligations, per Hopes v Hopes slept in separate rooms, didn’t do anything but continues to have meals with family and shared rest of house, is insufficient separation. Bull v Bull left and later returned, refused sex but cooked meals and mended clothes, no desertion. Fuller v Fuller leave for another man, health condition made petitioner live with them as lodger having meals and laundry done by respondent, sufficient separation as was a lodger at then not a husband.
Intention to desert, animus deserendi, intend to bring cohabitation to an end, if consensual to separate no desertion, may be inferred from conduct, Crowther v Crowther insane person can’t be in desertion as intent can’t be formed, whether formed intent before becoming insane is question of evidence, Nutley v Nutley where original separation was consensual a party isn’t in desertion because he subsequently make up mind not to resume cohabitation at end of agreed period until he communicates or fails to return upon expiration of agreed period.
Lack of Consent, question of fact, Spence v Spence discussed separation, aware of her intention, did nothing to deter her from going, husband consented. Harriman v Harriman not necessarily involve desire to be remained with, may in fact be thankful that one has gone and nevertheless be desertion, breath sign of relief after respondent has gone doesn’t mean consent,Holroyd v Holroyd wife forced to sign separation agreement, husband in desertion since consent wasn’t freely given, Shaw v Shaw consent if withdrawn desertion automatically begins on refusal to cohabit.
Simple-Separation being without just cause, else no desertion as will be a defence, perWinans v Winans keeping dirty cats so the house is uninhabitable is good defence for deserting, Timmins v Timmins being overbearing, dictatorial and violent, lazy, Quoreshi v Quoreshi contracting 2nd polygamous marriage even where 1st expressly requested not to take a 2nd wife, Partridge v Partridge petition by wife fails since upon wine in temper asked wife to leave when he didn’t really meant it and wife knew so. Bartholomew v Bartholomew wife being dirty doesn’t justify desertion where no evidence of her wish to bring consortium to end.
Problems relating to location of matrimonial home, desertion drawn from state of affairs not a place, can be desertion when there’s currently no matrimonial home, Milligan v Milligan lived in series of hotels and rented homes, desertion the moment he left her to leave alone in officers’ mess and refused to return to her. Bradshaw v Bradshaw visited each other at employer’s home, husband in desertion as soon as he refused her visiting or maintain children, Dunn v Dunn wife deaf and shy and didn’t want to move out of first settlement, posting of husband by Navy and refusal of wife to move there wasn’t desertion whereas husband’s failure to agree to a matrimonial home was desertion
Constructive desertion, one behaves in a way that other is compelled to leave, former in desertion, establish that respondent intended to expel him from household to bring cohabitation permanently to end. Hughes v Hughes husband stopped visiting that wife didn’t receive him well and made unkind remarks about dressing and financial position, not desertion as consent to leave, dissolve on ground of unreasonable behaviour. Dickson v Dickson husband in desertion for bringing mistress to matrimonial home and wife leaves.
Morse v Morse husband insisting on employment of female and paying attention to more than wife was therefore in desertion when wife left for practical impossibility to live with. Patching v Patching husband neglect wife’s health condition as he was a Jehovah’s witness, was desertion. Arku v Arku & Abraham cross petition for judicial separation, both relying on same grounds of desertion, petitioner deserted when by conduct frequently beat respondent and drove her violently out one evening after returning home late visiting an aunt, arbitration to reconcile petitioner refused and respondents family after some time came for her belongings with his consent, though she confessed to adultery it was a result of his conduct.
Since 1971 when MCA was enacted, judicial separation has ceased to be a relief.
Desertion is terminated by subsequent agreement by parties to live apart per Pizey v Pizey, resumption of cohabitation for more than 6 months, deserting spouse genuinely offer to cohabit and unreasonably refused per Ware v Ware, good cause shown for separation.
Failure to live as man and wife for two years – Fact D
S 2(1)(d) marriage has broken down beyond reconciliation by establishing that parties haven’t lived together as husband and wife for a continuous period of 2 years immediately preceding petition and respondent consents to decree grant, whether consent is unreasonably withdrawn is a question of fact on circumstances. S 6(1) duty on petitioner to obtain consent of respondent. Man and wife living under same roof is presumption of living as husband and wife unless rebutted.
Addo v Addo not living apart where sleep in separate rooms and no sexual intercourse but share meals and accommodation but where lack of sexual intercourse affects one’s health a charge of cruelty and behaviour not reasonably expected to be lived with, living apart where leaves for another man and subsequently take man as lodger per Fuller v Fuller. Santos v Santos mere physical separation won’t suffice; one must regard marriage as finished whether or not communicated.
Mason v Mason won’t succeed if respondent can’t be found or can’t give valid consent because of mental illness.
Positive consent required not mere failure to object per Mc Gill v Robson where husband replied that he wanted proceedings completed as soon as possible but didn’t specifically consent, no decree granted.
S 6(2) & 7-reconciliation in relation to S 2D and 2E, in computing continuous period account isn’t taken of period not exceeding 6 months or any two or more periods parties resumed to attempt reconciliation.
Warr v Warr separated at noon 6th February 1972, during afternoon 6th February 1974 petition for divorce rejected because the day on which separation took place should be excluded when computing the 2 years, per Terry v Terry not to file petition until after 2 years and 1 day has elapsed from date of separation and recognition that marriage is at an end.
Not living as husband and wife for at least 5 years – Fact E
S 2(1)(e) similar to fact D but respondent’s consent isn’t required and the fact that the respondent is insane is not important, all that is required is establishment of the fact that the parties have not lived as husband and wife, despite one not committing adultery nor not being responsible for marriage breakdown.
Kotei v Kotei wife visited husband only twice between 1967 and 1974, husband’s petition will be granted in his favour in proving 5 years’ continuous separation without more.
Inability to reconcile differences – Fact F
S 2(1)(f) demonstrate diligent efforts made and yet parties unable to reconcile their differences. S 2(2) duty on court once divorce petition is placed before it to inquire into facts alleged by petitioner and respondent. Mensah v Mensah husband refused to see doctor to help wife become pregnant, parties unable to reconcile differences and marriage has broken down beyond reconciliation.
S 2(3) in divorce petition whether contested or not, court’s duty to take evidence to establish breakdown. Lawrence Annoh Darko v Mrs. Amistina Annoh Darko CC judge erred in granting divorce without taking evidence when parties in fact have reconciled.
S 8 mandatory for petitioner or counsel to inform court of all efforts made at reconciliation between parties
Restriction on Petition
S 9 petition for divorce to be presented after two years of marriage but where substantial hardship is suffered within the 2 years, court may allow application with leave having regard to interest of child and possible reconciliation, if leave by misrepresentation dismiss petition without prejudice to petition brought after expiration of 2 years.
O 65r3(1) Application for leave to commence proceedings for divorce within 2 years shall be by Motion on notice and affidavit per 3(2) in support stating-ground is substantial hardship or depravity, particulars of hardship or depravity, any children names age where and whom living, attempts made at reconciliation. 3(3, 4 &5) attach copy of petition and exhibited, motion served personally on respondent at least 5 clear days before return date, defendant may file affidavit in opposition, court in parties’ presence determine application.
S 10 petitioner is still entitled to file petition for divorce despite being guilty of connivance, condonation, collusion, or any other conduct, S 11 respondent entitled to divorce without cross-petition. Connivance is a defence to adultery in matrimonial causes, Condonation is also a defence to, meaning to forgive and to co-habit, Collusion is also a defence which has to do with agreement between the parties. However, upon all of these defences, a petitioner isn’t barred from instituting a divorce petition, this is because all these are discretionary bars, thus the courts may or may not grant the petition based on those defences.