NEIL LUTTERODT V. GERTRUDE LUTTERODT
by CECILIA DON-CHEBE AGBEVEY J.
Jurisdiction
HIGH COURT
Judge
CECILIA DON-CHEBE AGBEVEY J.
Catalog Type
Case
Judgement Date
Feb 26, 2016
Summary
The case arose from a divorce petition filed by Mr. Neils Lutterodt against Mrs. Getrude Lutterodt. The petitioner sought the dissolution of the marriage and joint custody of their child, alleging that the respondent had refused to interact with him, physically assaulted him with a belt, and caused him to leave the matrimonial home. The respondent denied these allegations and cross-petitioned, seeking dismissal of the petition or, alternatively, financial provision and maintenance, citing the petitioner’s emotional distance, late returns home, and lack of explanation for absences. The legal issue before the court was whether the marriage had broken down irretrievably, warranting dissolution under the relevant family law principles, and whether the respondent had a valid claim for constructive desertion or assault. Under the law, a marriage will only be dissolved where evidence demonstrates a breakdown beyond reconciliation, and normal marital conflicts do not satisfy this threshold. On the facts, both parties provided testimony detailing conflicts, including periods of absence, schooling commitments, and sexual issues. The court evaluated the evidence and found that the differences between the parties reflected typical “wear and tear” of marital life rather than an irretrievable breakdown. Furthermore, neither party nor their families had made significant efforts to reconcile their differences, but the court emphasized that minor disagreements and lapses in communication do not constitute grounds for divorce. The respondent’s claims of constructive desertion and assault were also dismissed due to insufficient evidence. In conclusion, the court held that the marriage had not broken down beyond reconciliation, dismissed the petitioner’s divorce petition, and also dismissed the respondent’s cross-petition.
Full Content
J U D G M E N T
Mr. Neils Lutterodt (hereinafter referred to as the Petitioner) and the Respondent, Mrs. Getrude Lutterodt (hereinafter referred to as the Respondent) contracted a marriage under the Marriage Ordinance (Cap 127(1951 Rev.) on the 9th day of February, 2013 at the St. Joseph Anglican Church, Bubuashie, Accra.
The petition was filed on the 21st day of April 2015 seeking the following reliefs:
a) That the marriage between the parties be dissolved.
b) That the parties be granted joint custody of the child of the marriage.
The facts are that after the marriage the parties co-habited in the home of Petitioner’s parents. The Petitioner works with the Ghana Education Service whilst the Respondent is a nurse undergoing her midwifery training at the Korle Bu Teaching Hospital, Accra. The marriage has produced an issue, a boy by name Gerhadt O. Lutterodt who was born on 2nd April, 2014. On the 15th day of 1 August, 2014, the Respondent left the matrimonial home with the issue of the marriage and has since not returned in spite of efforts by the Petitioner.
The Respondent filed an amended Answer to the Petition and cross-petition in which she denied all the material particulars and rather alleged constructive desertion on the part of the Petitioner which particulars were given as follows:
a) Petitioner would not talk or interact with Respondent after Respondent returned from post natal care from her parents.
b) Petitioner violently beat up Respondent with his belt, injuring her in the event.
c) Respondent was compelled to leave the matrimonial home on grounds of insecurity and fear for her physical and mental well-being.
d) Petitioner continually returns home from work very late, never offering Respondent reasons for his absence.
She cross-petitioned for reliefs as follows:
a) That the petition be dismissed as the marriage has not broken beyond reconciliation; OR in the alternative
b) Financial provision for the Respondent.
c) General maintenance for the child of the marriage.
In his evidence-in-chief the Petitioner testified that after the celebration of their marriage, they co-habited at Ablekuma and that in the course of the marriage the Respondent used her schooling as an excuse to stay away from the matrimonial home particularly at weekends and that this led to misunderstandings in the marriage. He testified further that Respondent often denied him sex. He told the court that the Respondent neither washed his clothes nor cooked for him. According to the Petitioner, the Respondent on the 15th day of August, 2014 told him that she was going to visit her parents for the Homowo celebration and would return on the 17th of August, 2014. He told the Court that to date, the Respondent has refused to return to the matrimonial home in spite of several attempts to resolve their differences. He tendered EXHIBIT ‘A’, their marriage certificate. He also tendered EXHIBIT ‘B’ which is an audio recording on a CD format.
Under cross-examination, he admitted that he was aware that the Respondent is pursuing a midwifery programme at the Korle Bu Teaching Hospital which she commenced prior to their marriage.
The Respondent, in her evidence-in-chief testified that after the celebration of the marriage, the parties cohabited in the home of the Petitioner’s parents. She told the court that she left the matrimonial home because the Petitioner beat her up and she decided to seek refuge in her parents’ house and that prior to that the Petitioner had not talked to her for over a month and neither was he eating her food. She added that Petitioner would stay out late before coming home. She further testified that she would leave for her school campus on Monday and return on Fridays. The Respondent denied having starved the Petitioner of sex and explained that the Petitioner would come for her from her school campus anytime he wanted her. The Respondent not only denied taking pills after sex but she also denied contrary to the assertion of the Petitioner that she was physically excreting semen into a chamber pot after sex to prevent herself from getting pregnant.
The Respondent, under cross-examination told the Court that initially,she was against the divorce petition and that at the Counselling session ordered by the Court, she forgave the Petitioner and was willing to go back with her son to live with the Petitioner and make the marriage work but the Petitioner had been adamant in his refusal to take her back. She told the court that the Petitioner insisted that he still stood by the divorce petition and that he was not ready to accept her back into the matrimonial home. She stated that the Petitioner’s unyielding stance brought to the fore the realisation that she had indeed lost him. According to the Respondent she is therefore no longer contesting the divorce petition.
Under Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for the grant of a divorce petition is that the marriage has broken down beyond reconciliation. Section 2 (1) of Act 367 specifies facts the existence of which will satisfy the court that the marriage has broken down beyond reconciliation.
The issue to determine is whether or not the marriage contracted between the Petitioner and the Respondent has broken down beyond reconciliation? Thus, the petitioner is enjoined to prove the existence of one or more of the grounds specified under Section 2 (1) of Act 367.
Similarly the Respondent who has also cross-petitioned is obliged to satisfy the court that the marriage has indeed broken down beyond reconciliation.
Under Section 11 (4) of the Evidence Act, ‘the burden of producing evidence requires a party to produce sufficient evidence which on the totality of evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence’.
The Petitioner, in paragraphs 13 and 14 of the petition averred that all attempts to resolve the differences between the parties have proven futile and Respondent usually refuses him access to the child, and that the marriage has broken down because of irreconcilable differences
The Petitioner tendered EXHIBIT ‘B’ an Audio recording on a CD format which he secretly recorded.
In the audio, a voice identified as that of the Respondent can be heard saying, “So many things ran through my head and I would have done the he worst if it wasn’t for the God I serve, I would have killed you. So many things. ”
A different voice identified as that of the Petitioner is heard saying; “Kill me?” Respondent: ( inaudible). So many things.
Petitioner: So many things like what? ”
This recording was done without the knowledge of the Respondent and was contrived right from the beginning to achieve a certain objective, I will thus, not attach much weight to this audio.
The marriage is a young marriage since the instant petition was filed barely 2 years after the marriage. The marriage was celebrated between the parties on the 9th day of February, 2013 and the divorce petition was filed on 21st day of April, 2015. According to the Petitioner, in his evidence he had issues with the Respondent’s absence from home by reason of her schooling and that on weekends when he expected her to come home. He added that they had sexual issues.
According to the Petitioner, Respondent neither washed his clothes nor cooked for him and that she would not even heat food he had cooked for himself and she would not allow him to make love to her.
Under cross-examination, he admitted that he was very much aware that the Respondent was undergoing a midwifery programme at Korle Bu Teaching Hospital prior to the marriage and to date. He also admitted that it was nearer in terms of proximity from the Respondent’s parents’ home to the school campus than from the matrimonial home at Ablekuma.
In the case of ADDO V. ADDO (1972) 2GLR 103, it was held that a wilful refusal to have sexual intercourse at all will entitle the party suffering to leave the other. From the evidence it is obvious that the Petitioner knew from the beginning that as a student, living on campus, the Respondent will not be available in the matrimonial home such that she would keep home and provide such conjugal comforts as any stay-at-home wife in a marriage would do.
Thus both parties were aware of the issue of Respondent’s schooling and yet decided to go ahead with the marriage. The Petitioner claimed in his evidence that he raised the issue with the Respondent and was prepared to wait for Respondent to complete the midwifery programme before marriage but Respondent insisted that they should go ahead with the marriage.
It is therefore unfair for Petitioner to expect Respondent to play the role of a wife who sleeps at home daily when she lives on campus.
The Petitioner’s grounds for the divorce are basically that they have not been able to reconcile their differences. From the evidence I find that the parties did not make any diligent efforts to reconcile their differences.
Apart from the Counselling service ordered by the Court which the parties availed themselves of, there were never and serious efforts made by the family members, friends or church to resolve the differences of the parties.
Indeed Section 8 (1) provides that on the hearing of the petition, the Petitioner or his Counsel shall inform the Court of all efforts made by or on behalf of the petitioner, both before or after the commencement of the proceedings to effect a reconciliation. Neither of the parties called a witness.
In the case of MENSAH V. MENSAH (1972) 2GLR 198, the learned Judge held that on a proper construction of Section 2 (3) of Act 367, the Court “can still refuse to grant a decree even when one or more facts set out in Section 2 (1) have been established. It is therefore incumbent upon a Court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage has broken down will not be enough”.
On the totality of the evidence, I am unable to find that the petitioner has established that indeed the marriage has broken down beyond reconciliation. I will ascribe the so-called differences to reasonable wear and tear of a marriage. Under the circumstances of this case, I dismiss the petition.
In respect of the cross-petition, the Respondent agrees that she has vacated the matrimonial home and that together with the issue of the marriage they have been living with Respondent’s parents since the 15th of August 2014. The Respondent however, has pleaded constructive desertion. Respondent said in evidence that it was because the Petitioner beat her up and tore her clothes and his conduct of not talking to her or eating her food for over a month that she packed her things and left for her parents’ house. The question to ask is did she desert the Petitioner? In her book, Contemporary Principles of family Law in Ghana, the learned author, Mrs Frederica Ahwireng – Obeng wrote on page 126 as follows;
“A spouse may be compelled to leave the matrimonial home or to bring co-habitation to an end as a result of the conduct of the other spouse. Such desertion is referred to as constructive desertion”.
Per Section 2 (1) C of Act 367, one of the specified grounds for the purpose of showing that the marriage has broken down beyond reconciliation is that the Respondent has deserted the Petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition. From the evidence I find as a fact that the Respondent indeed left the matrimonial home since 15th August 2014 and this petition was filed on the 21st day of April, 2015 – a period of 8 months which falls short of the statutory period of 24 months as stipulated by Act 367 for the departure of the Respondent to qualify as desertion.
I therefore find that there was no constructive desertion as pleaded by the Respondent in her cross-petition. The Respondent in her pleadings and evidence alleged that she was assaulted by the petitioner. This was refuted by the petitioner. The respondent failed to discharge the evidential burden required of her. Accordingly, the alleged assault cannot be considered as unreasonable behaviour on the part of the petitioner such that the respondent cannot be expected to live with the latter. Accordingly, on the evidence the cross-petition is dismissed.
SGD.
CECILIA DON-CHEBE AGBEVEY J.
JUSTICE OF THE HIGH COURT
Appearances
1. FELIX QUARTEY WITH FELIX NANA OSEI AND BERNICE QUARTEY FOR THE PETITIONER PRESENT 2. WINIFRED ODOI QUARSHIE FOR JOSEPH KAPONDE FOR THE RESPONDENT PRESENT