DONKOR V. DONKOR
by OSEI-HWERE J.
Jurisdiction
HIGH COURT
Judge
OSEI-HWERE J.
Catalog Type
Case
Judgement Date
May 30, 1983
Summary
The issue in this case is whether a court can grant a divorce where the respondent does not contest the petition and seeks removal of the petitioner’s allegations, and whether such a petition can succeed without sufficient proof of breakdown of marriage beyond reconciliation. Under the Matrimonial Causes Act, 1971, the petitioner must plead and prove that the marriage has broken down beyond reconciliation. The court has a duty to investigate the allegations and must be satisfied on the evidence, regardless of whether the petition is contested. In this case, the court rejected the respondent’s condition to remove the petitioner’s evidence, emphasizing that proof cannot be waived by agreement. It also found the evidence insufficient, particularly regarding prior reconciliation efforts. Consequently, the court referred the matter to the church for reconciliation and required a report. In conclusion, the court refused to grant the divorce and reaffirmed that proof of breakdown of marriage beyond reconciliation is essential, even in uncontested petitions, while also promoting reconciliation efforts.
Full Content
OSEI-HWERE J.
The proceedings in this petition for dissolution of marriage are part-heard before this court. The petitioner had already called three witnesses and she was in the course of giving her evidence-in-chief when the respondent’s counsel announced that his client would not contest the petition provided the petitioner would consent that the court expunged from the record her testimony about the respondent’s alleged matrimonial offences. He had consulted the petitioner’s counsel in anticipation and so he readily gave the petitioner’s consent. The view was expressed in court that the court cannot force marriage on parties who no longer desire to live together as man and wife.
The Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. The petitioner must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act for the purpose of showing that the marriage has broken down beyond reconciliation. Section 2(3), which is pertinent, provides that even if the court finds the existence of one or more of those facts it shall not grant a petition for divorce unless it is satisfied that the marriage has broken down beyond reconciliation.
As I had the occasion to indicate in Danquah v. Danquah [1979] G.L.R. 371 the petitioner is under a duty not only to plead any one or more of those facts in section 2(1) of the Act but he must also prove them. Equally the court is under a statutory and positive duty to inquire so far as it reasonably can, into the charges and counter-charges alleged. In discharging the onus on the petitioner, it is immaterial that the respondent has not contested the petition, she must prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage has irretrievably broken down.
To exclude the evidence of the petitioner would amount to the absence of any attempt to prove what she alleges in her petition. I have read the evidence of the three witnesses called by the petitioner. If their evidence is intended to show that the Session of the Central Presbyterian Church of Resurrection attempted to effect reconciliation which failed, then the petitioner has gone completely off the mark. So far as the evidence goes, it shows that “session” tried to advance reconciliation but that it did not come to any conclusion either because the matter was in court and they thought they could not interfere or that they felt that the parents of the petitioner had to be consulted.
If all the evidence there is about an attempt to reconcile, which the petitioner can put before the court, is what took place at “session” then I, for my part, in compliance with the provisions of Act 367 will order that the whole matter be referred to the Session of the Central Presbyterian Church of Resurrection, Accra, to attempt a reconciliation and to report back to the court. After all, there is no body more fit to try and patch up what cracks there exists in their conjugal relationship than the church which united the parties in holy matrimony sitting in session. I would reject the application of the respondent’s counsel because its effect, if allowed, would be that without proving any matrimonial offence and without proof that the marriage has broken down beyond reconciliation, the court can, nevertheless, decree a divorce.
I direct that the registrar of this court writes to the Session of the Central Presbyterian Church of Resurrection, Accra (through their secretary) inviting them to try to effect a reconciliation between the parties in this divorce proceedings and to report the result of their attempt to the court at the next adjourned date on 19 July 1983. A copy of the above ruling should accompany the said letter. The session minutes book, which was tendered in court, should also be returned to “session.”
Appearances
T. A. NELSON-COFIE FOR THE PETITIONER; I. QUANSAH FOR THE RESPONDENT.