KOTEI V. KOTEI

SARKODEE J.: The husband and wife were married in 1962. In April 1968 they separated and have since not lived as man and wife. Very little explanation for the separation was offered except that in 1967 when the parties returned from the United Kingdom (where the petitioner undertook some training) the petitioner went to Kumasi on posting. He had no suitable accommodation and therefore his wife and children had to remain in Accra. Whilst he was in Kumasi she visited him on two occasions only. On the first occasion she went to collect her personal belongings from the petitioner’s house. On the second visit she and the petitioner slept in the petitioner’s house but in separate rooms. Whereas the husband says that their marriage has broken down beyond reconciliation she asserts the contrary and adds that she is still, after six years, waiting for her husband to send for her, that she still loves her husband and will entertain an attempt at reconciliation. There are two children of the marriage, Emmanuel Neequaye, born on 20 March 1962 and Sarah Adei, born on 10 June 1964.

The sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. But the petitioner is also obliged to comply with section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367), which requires him to establish at least one of the grounds set out in that section. The petitioner in this case has set out to prove (1) (e), namely, “that [he and the respondent] have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition. “Subsection (3) contains an important provision which brings into focus the general scheme of the Act, which is to encourage reconciliation as far as may be practicable. Thus section 8 enjoins the petitioner or his counsel to inform the court of all attempts made to effect a reconciliation and gives the court power to adjourn the proceedings at any stage to enable attempts at reconciliation to be made if there is a reasonable possibility of reconciliation. It is, however, wrong, in my view, to say that proof of total breakdown of the marriage and the possibility of reconciliation should be taken “disjunctively.” This, counsel for the respondent explained, meant that there is a burden to prove separately that the marriage has broken down and even when it is proved that it has broken down that there should be the further proof that it is beyond reconciliation. It is accepted that proof of one or more of the facts set out in section 2 (1) is essential and that proof of one of them shows the marriage has broken down beyond reconciliation. It is also conceded that notwithstanding proof the court can refuse to grant the decree of dissolution on the ground that the marriage has not broken down beyond reconciliation. It will be noted that the discretion given to the court is not a discretion to grant but to refuse a decree of dissolution. This means that once facts are proved bringing the case within any of the facts set out in section 2 (1) a decree of dissolution should be pronounced unless the court thinks otherwise. In other words, the burden is not on the petitioner to show that special grounds exist justifying the exercise of the court’s power. Once he or she comes within any one of the provisions in section 2 (1) (e) and (f), the presumption is in his favour; proving one of the provisions without more is proof of the breakdown of the marriage beyond reconciliation.

Proof of five years’ continuous separation enables the marriage to be dissolved against the will of a spouse who has committed no matrimonial offence and who cannot be blamed for the breakdown of the marriage: see Fuller v. Fuller [1973] 2 All E.R. 650, C.A. where the original cause of the separation was that the husband suffered from coronary thrombosis. Later when the husband left the hospital he went to stay in a house where his wife lived with another man. The husband lived there as a lodger because his doctor told his wife that he must not live on his own. The wife’s petition for divorce was granted on appeal. A more sordid and pathetic example is the Western Australian case of Main v. Main (1948-49) 78 C.L.R. 636, S.C. where the respondent husband became completely paralysed and was admitted to a hospital. He recovered and returned home but later collapsed and he was sent to hospital again. This happened several times. In 1943 he was admitted to a home as a patient where he remained until 1945 when he was transferred to an institution. He lived continuously in that place and it was unlikely that he would ever be discharged. In 1948 the wife petitioned on the ground that she and her husband had lived separately and apart for a period of five years immediately prior to the presentation of the petition and that it was unlikely that cohabitation would be resumed. The trial judge dismissed the petition. The decision was affirmed by the full court. On appeal the Supreme Court of Western Australia held that there were no grounds for withholding relief from the wife and the appeal should be allowed.

This provision of our Act should bring relief and consolation to hundreds of couples who live in stable, illicit unions and who before 1971 were unable to marry because one or both of them could not secure a release from another union. As the provision stands it seems no blame need be attributed to either party and there may be no passing of any sort of moral judgment. There may be no need to label one or the other party as technically innocent even though the conduct of both has brought about the breakdown of the marriage.

This must not be taken to mean that divorce has become a relatively easy matter, for one of the aims of the reform introduced by Act 367 is, as stated by Hayfron-Benjamin J. (as he then was) in Mensah v. Mensah [1972] 2 G.L.R. 198 at p. 204, to “buttress, rather than to undermine the stability of marriage as a central social institution.” For even under the provision of five years’ separation there must be proof that the parties have not lived as man and wife for at least five years immediately preceding the presentation of the petition. There must be a total breakdown of the consortium vitae. Mere physical separation is not sufficient; a petitioner has to prove not only the factum of separation but also that he or she has ceased to recognise the marriage as subsisting and intended never to return to the other spouse: see Santos v. Santos [1972] 2 W.L.R. 889, C.A. Therefore it seems the state of mind of the parties needs to be considered, that is, whether they treated the marriage as at an end. It may not matter whether the state of mind of one of the parties was not communicated to the other. See Santos v. Santos (supra) at p. 898 where the court observed that: “In the end we have firmly concluded that communication by word or conduct is not a necessary ingredient of the additional element.” Also the physical relationship must be considered as in Fuller v. Fuller [1973] 2 All E.R. 650, C.A. where one of the spouses lived with another as husband and wife.

The petitioner and the respondent have undoubtedly lived apart since 1968. The petitioner lives with another woman with whom he has three children. In any case six years is a very long time and only in very exceptional circumstances will a husband and wife live apart in the same locality for so long and yet maintain a matrimonial relationship. I hold that the petitioner ceased to recognize the marriage as subsisting. He regarded it as in “truth a mere shell, intending never to return to” his wife: see the Santos case (supra) at p. 900. I think this empty legal shell should not be allowed to stand but should be destroyed. I will therefore grant the petitioner’s prayer and pronounce a dissolution of the marriage between him and the respondent.

The two children of the marriage are both at school. Emmanuel Neequaye lives with the petitioner and attends the Armed Forces Experimental School, Burma Camp, where the petitioner lives. Sarah Adei, on the other hand, is at a boarding school in Accra. For the benefit of the children, I think the present arrangement by which the two children spend some part of their vacation with each parent is satisfactory and must be maintained. I have seen and heard them and I think they would be emotionally disturbed if the present situation is changed. I will therefore grant custody of Emmanuel Neequaye to the petitioner with a right of access to the respondent. The petitioner should also have legal custody of Sarah Adei but the respondent should have care and control of her until further order. During vacation Sarah Adei will stay with the respondent but will spend part of the holidays with the petitioner.

Appearances

PETER A. ADJETEY FOR THE PETITIONER; MISS A.A. AYISI FOR THE RESPONDENT.