HILDA SERWA KPO V. CONSTANT DZIGBORDI ANYOMI

BAAYEH, J.

This is a petitioner for divorce filed by the petitioner, Hilda Serwa Kpo, seeking dissolution of their marriage contracted on 16th, May 2009.

In her petition the petitioner stated that she and respondent married first under customary law and later under the marriage Act, (1884) Cap 127 at Global Evangelical Church, Have in 2009 and have co-habited in Have. The petitioner is a trader while respondent is a businessman. Petitioner pleaded that the marriage is blessed with 4 children namely, Wise Anyomi 16years old, Princess Anyo - 12 years old, Princella Anyomi – 12 years old (twin) and Courage Anyomi aged 5 years.

Petitioner claimed that the marriage has broken down beyond reconciliation and gave some particulars of the breakdown as the respondent's willful neglect of the children and herself, financially, the respondent openly abuses her in public at the least provocation, and shows her no respect at all. That respondent has consistently told her that he is no longer interested in the marriage because he has got a better woman waiting to marry him.

Finally that several attempts by family members to reconcile their differences have proved futile.

In his response the respondent did not entirely deny the petitioner's claim but simply said that whatever is going on in the marriage is as a result of the behaviour of the petitioner.

In her testimony to the court petitioner said they married under customary law and later married under the marriage Act. That at the time of their marriage, they did not know each other very well but soon after the marriage, respondent starting showing his true colours. He would not give her money for upkeep of the family, he would not pay the children's school fees or buy their educational materials. Respondent has about three concubines in his life and has for some time now not bothered to stay in the matrimonial home.

Petitioner gave the names of Respondents concubines as Florence who lives at Kpeve, Dzifa who lives at Sagyikope near Kpando and the 3rd one at Logba whom she said she does not know her name. On some occasions these concubines sent gifts or parcels to respondent at home. Some which she intercepted but respondent always denied having anything to do with these women.

Petitioner told the court that she does not sleep in the same room with respondent and that it has been over two year since they had sex.

Petitioner believes the marriage has broken down beyond reconciliation because all effects by family members to reconcile them have so far failed to yield the desired results. She told the court that both her family and respondent's family members have spoken to them on several occasions and anytime they meet respondent always promised to maintain her and the children but as soon as the meeting ends, respondent would go back to his old ways.

On his part respondent told the court that petitioner has refused him sex for sometime now hence his decision to get for himself a concubine but denied that they are three and that it is for this reason that he agreed for the divorce. He admitted that he has not been maintaining the petitioner and the children but added that this is because he set up petitioner in business and so expects her to use some of the proceeds from her trade to take care of the household and pay the children's school fees etc. Respondent was persistent that petitioner through her business of selling frozen fish is now richer than he is and so did not see the reason why he should maintain the family.

The issues that this court is called upon to determine is whether or not the marriage between the parties has broken down beyond reconciliation.

By S. 1(2) of the matrimonial causes Act, 1971 (Act 367) the sole ground for the dissolution of a marriage is that the marriage has broken down beyond reconciliation.

However for the purpose of proving that the marriage has indeed broken down beyond reconciliation the petitioner has to prove one or more of certain facts. These include;

(a) That the respondent has committed adultery and for that reason the petitioner finds it intolerable to live with the respondent.

(b) That the respondent has behaved in a way that petitioner cannot be expected to live with respondent.

(c) That respondent has deserted the petitioner for at least a continuous period of two years immediately preceding the presentation of the petition.

(d) That the parties 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 for divorce provided that the consent shall not be unreasonably withheld.

(e) That the parties to the marriage after diligent effort have been unable to reconcile their difference (see S. 2(1) of Act 367).

In the instant case the parties married on 16th May 2009 under the Marriage Act (Cap 127) but before then they were already married under customary law. This is evidenced by the fact that their eldest children, Wise Anyom is 16 years old, even though they married in 2009, barely 6 years ago. The marriage is blessed with 4 children (two boys and two girls). The parties have lived together ever since they married as husband and wife to date. Even though the parties say they sleep in different rooms they still live in the same house built by the respondent.

Indeed the gist of petitioners case is that respondent has failed to maintain the family and has also gone ahead to engage in extra marital activities with other women. In the main, the respondent admits these charges but says that with regards to the non maintenance of the family he set up the petitioner in business and expects her to use part of her profits to maintain the children. His defence for having a concubine or concubines is that petitioner has refused to have sex with him for sometime now.

Going further, the evidence on record is that respondent gave petitioner an amount of GH¢170.00 about 12 years ago and also bought her deep freezers to start the fish business, and this is what respondent says he set petitioner up in business and so expects her to maintain the family out of the proceeds of her trade.

Looking at the parties especially the respondent, his only reason for not maintain the family is that he set petitioner in the fish business and that she is now richer than he is and so he expects her to maintain the family, pay the children's school fees and other bills. I find this most unreasonable. The respondent is a metal fabricator and must be earning a substantial income, and so to leave the burden of catering for the family solely on the shoulders of the petitioner is most unfair.

On the other hand petitioner told the court that since they moved into their own house, two years ago they have been sleeping in different rooms and so for two years now they have not had sex. Petitioner was unable to tell the court why she chose to refuse respondent sex except to say that respondent has several concubines but respondent says he was compelled to take a "girlfriend” because petitioner refused him sex. If this is true then petitioner must have a reason why she refused respondent sex and not just because he failed to maintain the family. I have a feeling that there was something the parties were unwilling to tell the court apart from what they said in their evidence.

The husband has a duty to maintain the family especially where the wife is a house wife but in a clear case where it is proved that lack of maintenance by the husband is not willful, I find nothing wrong with the wife taking that responsibility. In my view the old notion of the husband always being the bread winner of the family must give way to modern reality where some women are gainfully employed and even earn more income than their husbands. In such circumstances the wife should be prepared to contribute substantially to the maintenance of the family, but this does not mean that even where the husband has the means, he should leave everything on the shoulders of the wife simply because he believes the wife is richer than him.

As I indicated above to succeed in a divorce petition the petitioner has to prove that the marriage has broken down beyond reconciliation and to prove this she/he must prove one or more of the facts as provided under S. 2(1) of Act 367.

In the instant case the evidence suggest that the respondent has indeed committed adultery (S. 1(2)(a)). The respondent himself admitted this in court but tried to justify this by the fact that petitioner has refused him sex. He admits having one girl friend but not three as asserted by petitioner.

It is also clear to me that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him S. 2(1)(b). I find the respondent's reason for his failure to maintain the family, not even contribute to the paying of the children's school fees most unreasonable. His only reason being that petitioner is now richer than him and so should bear the entire responsibility of maintaining the family.

Even though the parties live in the same house they sleep in different rooms and have not had sex for the past two years. In my view this also satisfies S. 1(2)(d) of Act 367, that the parties have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and respondent consents to the grant of a decree for divorce. In this case respondent also contents to the grant of the decree for divorce. I am satisfied with the totality of evidence that all attempts by their respective families to reconcile them has prove futile.

From the totality of evidence on record as well as all the processes filed I am persuaded to conclude that the customary marriage between the parties as well as their marriage under the marriage Act, 1884 (Cap 127) on 16th May 2009 has broken down beyond reconciliation. It is my further view that the respondent has behaved in such a manner that the petitioner cannot reasonably be expected to live with him. I shall accordingly invoke the jurisdiction of the High Court under the Matrimonial Causes Act (1971) Act 367 and proceed to dissolve the marriage which I hereby do.

Since the parties are still living in the same house I order that the children of the marriage continue to live in the house. However if in future, the petitioner or respondent decides to re-marry, then respondent has to find appropriate accommodation for petitioner and the children provided the children shall not have attained 18years of age in which case they shall live with petitioner. Those who would have attained the age of 18 years and above should be made to decide where they wish to live, either with petitioner or respondent.

I order the respondent to pay maintenance of GHC200 for each child per month. The parties should share equally the payment of school fees for the children.

In the same way they should share medical bills and other needs of the children equally. If the children are not already registered with the National Health Insurance Scheme, then respondent should do so for them at his expense within two months from today.

I make no order as to cost.