Grounds For The Dissolution Of Ordinance Marriages In Ghana

Introduction

Marriage, while celebrated as a union of companionship, love and commitment is also a legal institution governed by specific laws. In Ghana, the Marriages Act 1884 – 1985 (CAP 127) recognizes three types of marriages with distinct legal characteristics, formation procedure and dissolution process. These are:

1. Customary Marriages.
2. Marriages of Mohammedans
3. Christian and Other Marriages (Marriage under the Ordinance).

This article focuses specifically on the dissolution of Marriage under the Ordinance in Ghana, guided by the provisions of the Matrimonial Causes Act, 1971(Act 367). It explores the legal framework, jurisdictional requirements, and the grounds upon which an ordinance marriage can be dissolved.

Matrimonial Causes Act, 1971(Act 367) provides the legal foundation for the dissolution of Marriage under the Ordinance in Ghana. It outlines:

• Jurisdictional requirements for instituting divorce proceedings.
• The sole ground upon which a Marriage under the Ordinance can be dissolved.
• The facts or circumstances required to establish that ground.

Who can file for Divorce under this Act.

Under Section 31 of Act, 367 the courts in Ghana will assume jurisdiction over divorce proceedings if either party to the marriage meets any of the following criteria:

1. Is a citizen of Ghana or
2. Is domiciled in Ghana or
3. Has been ordinarily resident in Ghana for at least three years immediately proceeding the commencement of the proceedings.

This means that one does not necessarily have to be a Ghanaian to file for divorce in Ghana, provided the domicile or residency requirements are met.

The Sole Ground for Divorce in Ghana.

Unlike many jurisdictions that recognise multiple grounds for divorce, Act 367 under section 1(2) provides for only one ground for divorce, which is that:

The marriage has broken down beyond reconciliation.

Proving that the marriage has broken down beyond reconciliation.

To establish that the marriage has broken down beyond reconciliation, the petitioner must prove one or more of six (6) factual circumstances provided under section 2(1) of Act 367 which includes:

1. Adultery
2. Unreasonable Behaviour
3. Desertion for two years
4. Two years' separation with consent
5. Five years' separation
6. Inability to reconcile differences.

The Petitioner in proving that the marriage has broken down beyond reconciliation may rely on the fact that the Respondent has committed adultery and by the reason of that adultery the Petitioner finds it intolerable living with the respondent.

Adultery is the voluntary sexual intercourse between a married person and another person of the opposite sex other than his or her spouse. Due to the nature of adultery, direct evidence is rare. It may however be inferred through circumstantial evidence, a confession by the respondent or the birth of a child as a result of the adulterous relationship.

If the petitioner however continues to live with the respondent for more than six months after discovering the adultery, this fact cannot be relied upon as a basis for divorce.

2. Unreasonable Behaviour.

A marriage may be dissolved if the petitioner can prove that the respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the respondent. Some examples of unreasonable behaviour may include, but are not limited to

• Physical and verbal abuse
• Emotional and psychological abuse
• Persistent intoxication or drug abuse
• Gambling addiction
• Refusal to engage in sexual intercourse.
• Unreasonable sexual demands
• Transmission of a sexually transmitted infection (STI)
• Threats of violence, persistent nagging, or demeaning conduct

To determine whether the Respondent has actually exhibited any unreasonable behaviour, the court will apply on objective test by determining "whether a reasonable person, considering the personalities and circumstances of both parties, would conclude that the petitioner cannot be expected to live with the respondent.".

Desertion occurs when one spouse unjustifiably withdraws from cohabitation with the intention of ending the marital relationship. The Petitioner in relying on this fact in proving that the marriage has broken down beyond reconciliation must be proved that:

• The respondent has left the matrimonial home or withdrawn from all marital obligations.
• The separation was without the consent of the Petitioner.
• The respondent intended to end cohabitation permanently.
• The respondent has no reasonable excuse for the separation.
• The separation has been for a continuous period of at least 2 years immediately preceding the filing of the petition.

4. Failure to live as husband and wife for a continuous period of 2 years.

A petitioner may also rely on the fact that the parties have not lived together as husband and wife for a continuous period of two years immediately preceding the filing of the petition, to prove that the marriage has broken down beyond reconciliation, provided the respondent consents to the divorce.

Where the respondent unreasonably withholds consent, the court has the discretion to grant the divorce regardless. Whether consent is unreasonably withheld is determined objectively by asking whether a reasonable person in the respondent's position would withhold consent?

5. Failure to live as husband and wife for a continuous period of five (5) years (No consent required).

The Petitioner under this fact must prove that the parties have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition without requiring the respondent's consent.

The court does not consider whether or not the respondent has committed any matrimonial offence. The mere fact that there has been total withdrawal of co-habitation or fulfilment of marital obligations for a continuous period of five (5) years is sufficient for the court to dissolve the marriage.

6. Inability to reconcile differences.

The Petitioner may rely on the fact that the parties have, after making diligent efforts, been unable to reconcile their differences, leading to the breakdown of their marriage beyond reconciliation. The Petitioner must show that they have after diligent been unable to agree with the Respondent on particular is issues which has led to the breakdown of their marriage.

The court has set out three elements that must be proved to establish to this fact. The Petitioner must prove that,

1. There were existing differences between the parties
2. The parties have made diligent efforts to reconcile these differences.
3. The reconciliation attempts were unsuccessful.

Conclusion

Under the laws of Ghana, the sole ground for the dissolution of Ordinance marriages is that the marriage has broken down beyond reconciliation, as set out in the Matrimonial Causes Act, 1971 (Act 367).

To establish this ground, a petitioner must prove one or more of six specific factual circumstances, namely:

• Adultery by the respondent which makes it intolerable for the petitioner to live with the respondent.
• Unreasonable behaviour by the respondent
• Desertion of the Respondent
• The parties have not lived together as husband and wife for a continuous period of two (2) years.
• The parties have not lived together as husband and wife for a continuous period of five (5) years.
• Inability of the parties to reconcile their differences.

Notwithstanding the establishment of one or more of these factual circumstances, the court shall not grant a decree of divorce unless it is fully satisfied, upon a consideration of all the evidence, that the marriage has indeed broken down beyond reconciliation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.