BARNES V. BARNES
by EDUSEI J.
Jurisdiction
HIGH COURT
Judge
EDUSEI J.
Catalog Type
Case
Judgement Date
Jan 15, 1971
Summary
The petitioner and respondent were married in 1966 and had one child. The marriage broke down in 1968 when the respondent disclosed that he was already married to another woman. He subsequently subjected the petitioner to physical abuse and expelled her from the matrimonial home. Despite attempts at intervention, the abuse persisted, leading the petitioner to leave the home permanently. The issue before the court was whether the respondent’s conduct amounted to cruelty and constructive desertion sufficient to justify a decree of divorce, and whether recent statutory reforms applied to the petition. The court held that the respondent’s actions constituted cruelty and constructive desertion. It further held that although the English Divorce Reform Act, 1969 allowed for divorce on grounds of desertion, it was inapplicable as the petition predated its coming into force. Accordingly, the court granted a decree nisi on the ground of cruelty, to be made absolute within seven days, and awarded costs to the petitioner.
Full Content
EDUSEI J.: The wife-petitioner and her respondent-husband were married on Christmas day in 1966 at the Anglican Christ Church at Cape Coast. The evidence shows that soon after the marriage the petitioner and the respondent settled at Kumasi. There is one issue of the marriage, a girl, called Emma Barnes who was born on 20 October 1967. It does seem that the marriage of this couple was blissful and happy until May 1968, when trouble started to set in to destroy the wedding vow taken before the alter of God where the man had promised the wife to comfort her and, forsaking all others, to keep to her only so long as both of them shall live. On or about 18 May 1968, the petitioner returned from Cape Coast where she had given birth to their daughter only to be told by the respondent that she must pack up her belongings and leave the matrimonial home because he was married to another woman. Though this second wife was not in the matrimonial home there was a photograph of the respondent and this second wife displayed in the living-room of the matrimonial home and, in my view, this was sufficient to break the heart of any wife. This photograph further demonstrated that the respondent really meant what he said, i.e. that he was having an affair with that other woman. Be that as it may, the petitioner refused to leave the matrimonial home, whereupon the respondent threw her belongings out and beat her up. The petitioner went and reported the matter to the Rev. Canon Ahmoah who came to settle the differences between the petitioner and her husband. As soon as the Rev. Canon Ahmoah had left, the petitioner was subjected to further beatings and her personal belongings were again thrown out by the respondent. This was too much for any woman to bear and so she left the matrimonial home for Cape Coast and she has stayed away from the respondent ever since.
I am satisfied on the evidence that the physical acts of the respondent, beating up his wife, throwing out her belongings and displaying a photograph of the respondent and the other woman in the living-room of the matrimonial home were matters that constituted cruelty in the circumstances, for it has been held that a course of conduct when looked at as a whole does constitute cruelty although no act by itself amounts to cruelty: see Jamieson v. Jamieson [1952] A.C. 525, H.L.
From the evidence it was the conduct of the respondent that forced the petitioner to leave the matrimonial home and therefore it could be said that the respondent was in constructive desertion. Section 2 (1) of the English Divorce Reform Act, 1969 (c. 55), which came into force on 1 January 1971 states as follows:
“The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say — that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.”
It does appear that the court can grant a divorce if the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. The respondent was in constructive desertion from 18 May 1968 and the petition was presented on 7 August 1970. By calculation, two years have passed since the respondent deserted the petitioner. The point to consider is whether this English Divorce Reform Act, 1969, does apply to Ghana. The decision in Ashong v. Ashong, Court of Appeal, 13 March 1967, unreported; digested in (1968) C.C. 26 was that the jurisdiction of the Ghana Supreme Court in “Divorce and Matrimonial Causes and proceedings may, subject to this Ordinance [the Courts Ordinance, Cap. 4 (1951 Rev.), s. 17 which has been saved by the Courts Decree, 1966 (N.L.C.D. 84), para. 93] and to Rules of Court, be exercised ... in conformity with the law and practice for the time being in force in England. “It does seem to me therefore that by that decision the English Divorce Reform Act, 1969, which came into force on 1 January 1971, does apply to this country.
I do not wish to comment on the need or otherwise for the applicability of English legislation on divorce to Ghana. I have already done so in my judgment in the case of Dodoo v. Dodoo, High Court, 27 February 1970, unreported; digested in (1970) C.C. 65.
Be that as it may, there is a hurdle to be got over here. Section 10 of the English Divorce Reform Act, 1969, states as follows: “This Act (including repeals and amendments made by it) shall not have effect in relation to any petition for divorce or judicial separation presented before the commencement of this Act.” This petition was presented on 7 August 1970, and the Divorce Reform Act, 1969, came into operation on 1 January 1971. In my judgment the said Act does not apply to the instant proceedings; it is necessary therefore to find out whether the desertion has run for a period of three years immediately preceding the presentation of the petition. Desertion began on 18 May 1968 and the petition was presented on 7 August 1970. It is clear from simple arithmetic that a period of three years had not elapsed at the time the petition was filed and the dissolution of the marriage on this ground fails. I, however grant to the petitioner a decree nisi on the ground of cruelty, and this is to be made absolute within seven days from today.
The other reliefs of custody and maintenance for the only child of marriage were abandoned by the petitioner. I therefore strike out those two reliefs. It was agreed that cost of N¢60.00 be awarded to the petitioner against the respondent.
Appearances
FORSON FOR THE PETITIONER; E. B. SAKYI HUGHES FOR THE RESPONDENT.