HARRIET AKROFI V. FRANK DOKU
by AGBEVEY, J.
Jurisdiction
HIGH COURT
Judge
AGBEVEY, J.
Catalog Type
Case
Judgement Date
Jul 12, 2016
Summary
The parties were married on 3 July 2009 in Accra, Ghana, and later lived together in London from September 2006 until January 2013, when they separated due to persistent misunderstandings. The petitioner subsequently filed for divorce on 31 March 2016, alleging that the respondent’s behaviour made continued cohabitation impossible, and further claimed that the respondent was impotent and unable to have children without medication. The issue before the court was whether the marriage had broken down reconciliation in accordance with the requirements of the Matrimonial Causes Act, and whether the grounds advanced by the petitioner were legally sufficient. The court held that impotence and childlessness are not recognized grounds for divorce under the Act. The court further found that the parties had lived apart for at least two years preceding the filing of the petition and that the respondent consented to the divorce, thereby satisfying the statutory requirement for dissolution. Accordingly, the court concluded that the marriage had broken down beyond reconciliation and granted a decree dissolving the marriage celebrated on 3 July 2009.
Full Content
JUDGMENT
AGBEVEY, J.
The parties were married on the 3rd day of July 2009 under the Marriage Ordinance (Cap 127) (1951 Rev.) at the Office of the Principal of Marriages, Accra. Per the petition filed on 31st March, 2016, the parties co-habited at Hounslow, West London, England and there is no issue of the marriage. The parties are Ghanaians. The Petitioner is domiciled in Ghana and the Respondent is ordinarily resident in London, England.
The Petitioner is a banker and the Respondent is a nurse. It is the Petitioner’s case that the Respondent has behaved in such a way that she cannot reasonably be expected to live with the Respondent. She also avers that the parties have been unable to reconcile their differences after diligent effort.
In her evidence-in-chief, the Petitioner testified that the parties lived together in London from September 2006 until January 2013 when she left for Ghana as a result of a series of misunderstandings. She testified further that the Respondent is impotent and cannot have children and that he cannot make love to her without having some sort of intravenous injection to enable him have sex, and that sexual intercourse with the Respondent is “nothing to write home about” as “he comes quickly.” She also added that because of his low sperm count he cannot get her pregnant.
Under the Matrimonial Causes Act, 1971 (Act 367), impotence subsequent to the consummation of a marriage or childlessness are not grounds for the dissolution of a marriage. A marriage is valid if it meets all the legal requirements of Cap 127 (1951 Rev.). On the evidence I find that there was consummation of the marriage albeit with the help of an injection and the mere fact that the Respondent cannot sustain an erection without medication and the Petitioner’s childlessness are not grounds for the dissolution of the marriage and I so find. See MENSAH v. MENSAH (1972) 2GLR 198. In the case of BAXTER v. BAXTER (1947) 2 ALL ER 886, the House of Lords held that the possibility of conception was quite irrelevant to the question of consummation.
In the case of HAYES v. HAYES (1958) Times, March 3, it was held that a wife’s frustration and inclination to weep because of the husband’s inability to satisfy her sexually due to an affliction did not amount to cruelty and thereby did not entitle her to a divorce. In the Ghanaian case of MENSAH v. MENSAH (1972) 2GLR, 198, the Court held that childlessness and sterility are not grounds for divorce under Act 367.
Be that as it may, the Petitioner testified that the Respondent’s younger brother kept taunting her for being barren at her grandmother’s funeral and that as a result of the childlessness she has left the matrimonial home in London on 30th January 2013 to relocate to Accra where she now works in a financial institution.
The Respondent who did not file any Answer to the petition was represented in Court by his lawful attorney, who testified on his behalf. The attorney, Theophilus Evans Doku tendered a Power of Attorney which was admitted in evidence as EXHIBIT ‘1’.
The Respondent’s attorney who incidentally is his younger brother told the Court that the Respondent who is ordinarily resident in London, consents to the divorce.
It is important to note that the parties were not represented by Counsel from filing to the hearing of the petition.
Section 2 (1) (d) of Act 367 one of the facts for showing that the marriage has broken down beyond reconciliation specifies “That the parties to the marriage have not lived as man and wife for a continuous period of at least (2) 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.”
On grounds that the parties have not lived together for a continuous period of at least 2 years immediately preceding the presentation of the petition and the Respondent consents to the decree of divorce as provided by Section 2 (1) (d) of the Matrimonial Causes Act, I find that the marriage has broken down beyond reconciliation. I decree the marriage celebrated on the 3rd day of July 2009, between the Petitioner and the Respondent at the Office of the Principal Registrar of Marriages, Accra with certificate number RGM 1520/2009per licence number AMA 4675/2009dissolved.
SGD.
CECILIA DON-CHEBE AGBEVEY J.
JUSTICE OF THE HIGH COURT
Appearances
NO LEGAL REPRESENTATION