MICHAEL AYAYEE VRS. ELIZABETH KELVIS
by CHARITY A. ASEM (MRS.) J.
Jurisdiction
HIGH COURT
Judge
CHARITY A. ASEM (MRS.) J.
Catalog Type
Case
Judgement Date
Dec 22, 2023
Summary
Matrimonial Causes – Dissolution of Marriage – Custody – Maintenance – Alimony – Financial Provision – Breakdown of Marriage beyond reconciliation. This case concerns a matrimonial dispute culminating in divorce proceedings initiated by the petitioner in 2022 before a trial court in Ghana. The parties, who married under both customary law and the Marriage Ordinance in 2012 at Ho, had one child together. The petitioner sought dissolution of the marriage and custody of the child, while the respondent opposed the petition, cross-petitioned for divorce, custody, maintenance, arrears, and alimony, and attributed the breakdown of the marriage to the petitioner’s alleged misconduct. The petitioner’s case was that the marriage had irretrievably broken down due to the respondent’s conduct. He alleged that the respondent was verbally abusive, disrespectful, and had deserted the matrimonial home in 2014, taking their two-year-old child with her. He further claimed that since leaving, the respondent deliberately concealed the child’s whereabouts by frequently changing the child’s schools, thereby denying him access. He denied allegations of drunkenness and abuse and maintained that as a professional teacher with a stable income, he was better placed to care for the child. In response, the respondent denied the petitioner’s allegations and presented a counter-narrative. She contended that the petitioner was irresponsible, abusive, and unfaithful, and that he had neglected his responsibilities toward her and the child. She explained that she left the matrimonial home because she was subjected to hardship, including lack of food and alleged violence. She asserted that she had since struggled to care for the child, earning a modest income as a pupil teacher and relying on family support. She sought custody of the child, monthly maintenance, arrears of maintenance dating back to 2014, and alimony of GH¢50,000. The court identified three key issues for determination: whether the marriage had broken down beyond reconciliation, whether the petitioner was entitled to his reliefs (particularly custody), and whether the respondent was entitled to her cross-petition, including maintenance and alimony. On the first issue, the court applied section 1 of the Matrimonial Causes Act, 1971 (Act 367), which establishes that the sole ground for divorce is that the marriage has broken down beyond reconciliation. The court found that the parties had lived apart for nearly ten years and had exchanged serious allegations in their pleadings and testimony. Although the respondent alleged abuse and hardship, she failed to provide corroborative evidence such as medical reports, police complaints, or third-party testimony. The court therefore rejected her claim that she was forcibly evicted, finding instead that she voluntarily left the matrimonial home. Relying on principles articulated in Knudsen v Knudsen, the court assessed the conduct of both parties objectively and concluded that the marriage had irreconcilably broken down. Accordingly, the court granted a decree of dissolution. On the issue of custody, the court was guided by the welfare principle under the Children’s Act, 1998 (Act 560), which mandates that the best interest of the child shall be paramount in any matter concerning a child. The evidence showed that the respondent had maintained custody of the child for over nine years but had struggled financially and had not facilitated the petitioner’s access to the child. The court found that her conduct of moving the child between schools and locations was intended to frustrate the petitioner’s involvement and was not in the child’s best interest. While acknowledging the respondent’s efforts as a mother, the court determined that the petitioner, as a salaried teacher earning approximately GH¢3,000 per month, was in a better position to provide stability, education, and proper care. Consequently, custody was awarded to the petitioner, with structured access granted to the respondent, including visitation during holidays. Regarding the respondent’s claims for maintenance, arrears, and alimony, the court held that such reliefs are not granted as of right but must be supported by evidence. The respondent failed to substantiate her claim for arrears or justify the quantum of alimony sought. The court also considered her conduct, particularly her prolonged absence from the matrimonial home and lack of contribution to the marital relationship. It concluded that there were no compelling grounds to award alimony. However, the court exercised its discretion to grant her a nominal sum of GH¢5,000 as a “parting gift,” rather than as formal alimony. In conclusion, the court dissolved the marriage on the ground of irreconcilable breakdown, awarded custody of the child to the petitioner in the best interest of the child, denied the respondent’s claims for maintenance and alimony due to lack of evidence, and granted her limited financial relief. Each party was ordered to bear their own legal costs.
Full Content
JUDGMENT
One of my favorite African proverbs is that “when love turns sour there is nothing one can do about it and the sight and sound of things that did not matter make one convulse”.
I believe love brought the parties to this divorce proceeding together sometime in the year 2012. They got married twice, tying the knot under Customary Law and proceeded to celebrate under the Ordinance which ceremony took place at District Court, Ho.
According to the petitioner their once beautiful marriage has broken down beyond reconciliation and prayed the court to decree a divorce. Varied allegations and reasons were stated in the petition filed on the 10/02/2022. He claimed as follows:
(a) The marriage between the parties be dissolved.
(b) Custody of the child of the marriage be granted to the petitioner.
(c) Any other further remedy or relief the court may deem fit and appropriate.
Upon service the respondent caused to be entered on her behalf, an answer and crossed petition filed on the 07/03/2023. Respondent also amongst varied allegations, called petitioner a drunkard, irresponsible and being an abusive husband, and contend that the petitioner is whole responsible for the breakdown of their marriage, and has never been ready to make the marriage work though she has done her maximum best to ensure that they stay together.
She contends that the marriage has broken down beyond reconciliation due to the behavior and conduct of the petitioner and crossed-petitioned as follows:
a) The dissolution of the ordinance marriage contracted on 9/1/2012 between the parties.
b) That custody continues to be with the Respondent with regulated access of the child to the Petitioner.
c) An order for the respondent to maintain the child monthly with an amount of GH¢1,000.00.
d) An order for the Petitioner to provide all the necessaries of life of the child like educational, health, clothing needs among others.
e) An order for the petitioner to pay for arrears of maintenance of the respondent and the child since 2014 to date.
f) An order for the petitioner to pay alimony or compensation of GH¢50,000.00 to the respondent.
g) Any other remedies/reliefs that the court deems fit and appropriate.
h) Costs.
THE LAW
Section 1(1) of the Matrimonial Causes Act 367 1971 provides as follows;
1. A petition for divorce may be presented to the court by either party to the marriage.
2. The sole ground of granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.
THE SUMMARY OF EVIDENCE.
The evidence of the parties was reduced into witness statements as directed by the court. The petitioner filed his witness statement on the 15/06/2023 which contained 26 paragraphs of averments as his evidence in chief. Attached thereto are Exhibits 1, 2, 3 & 4. Remarked as A, B, C & D.
Exhibit ‘A’ is their marriage certificate issued to the parties on 9/01/2012.
Exhibit ‘B’ is petitioner’s identification as a Licensed Teacher.
Exhibit ‘C’ is the Pay slip of the petitioner from Controller & Accountant Generals Department.
Exhibit ‘D’ is the school Bill Sheet of little Ayayee John Oliver.
The evidence in chief of petitioner is that the marriage between him and the wife cannot be served. He contends that the respondent is an abusive person who at the least provocation, verbally abuses and insults petitioner, his family openly without just cause.
That though they had their fair share of marital dispute, respondent without cause moved out of her matrimonial home since 2014, and has not returned for almost 10 years. That respondent took their child who was barely two (2) with her. According to him after leaving the matrimonial home respondent has thrown their child into about 4 different schools with the singular ill motive of dribbling petitioner from knowing which school the child is attending and from having access to the child. That he just got to know the child is attending school at Norvisi Montessori Foundation school after long absence of disclosure by the respondent.
He accused the respondent of unreasonable behavior, stealing of his money and property which matter’s was resolved at the DOVVSU, Accra.
He prays the court to grant the custody of the issue of the marriage to him. In paragraph 23 (i – viii) of the witness statement he justified as an educationist, practicing as a professional teacher his capability of taking care of the child rather than respondent with not fixed income or place of abode. He denied being a drunkard, abusive and irresponsible.
He concluded that, the marriage failed because the respondent deserted the matrimonial home for nearly 10 years, thus breached the marriage contract and so not deserving of alimony, custody of the child, damages, etc.
As stated earlier the respondent crossed-petitioned. She also denied the allegations made by her husband. She explained that, she did not steal his property but took the money to feed herself and their child as the petitioner would leave them without food.
She accused the petitioner for engaging in extra-marital affairs and have stopped having sex with her. It is her story that, it was the petitioner who sacked her from the matrimonial home. She contends that she is capable of taking care of the child. She has roof over her head. She is earing the sum of GH¢370.00 per month as a pupil teacher and being assisted by her family to care for the child.
I must emphasis that both parties have made very serious allegations against each other which ought to be proved.
Petitioner called witnesses to attempt to refute the allegation of being abusive, drunkard and irresponsible. And to demonstrate how respondent left her matrimonial home in 2014 by her free will, which she did in his absence and has since not returned.
From the fact finding and evidence before the court, I found as a fact that, the respondent left home when petitioner had left for work. There is satisfactory evidence that though petitioner was called to attempt to stop her she refused to speak to him. It is therefore not true that the petitioner sacked respondent from the matrimonial home, she left by her own free will. And thus not being truthful to the court.
On the part of the respondent no other evidence was introduced to corroborate the allegations of abuse and drunken habits of the petitioner.
The three issues to be determined therefore are;
(1) Whether or not the marriage has broken down beyond reconciliation
(2) Whether or not petitioner is entitled to his reliefs.
(3) Whether or not respondent is entitled to her cross-petition.
From the stories told, the parties have not lived together as man and wife, under one roof since the year 2014 when the respondent left the matrimonial home. She took along with her their young child without the consent of petitioner. Then subjected herself and the baby to harsher conditions by leaving at the mercy of other family members who accordingly to her have been assisting her to care for the child.
It is a fact that she deserted her matrimonial home. Since she left, she made no effort to go back. According to her, she left because she was starving and being beaten at the same time. Much as I do not doubt the parties were engulfed in marriage challenges, respondent has not been able to adduce any evidence to substantiate her allegations.
Who did she report the abuse to? Did she go to Hospital? Did DOVSU ever heard any issue of Domestic Violence between the parties other than the alleged stealing case reported by the petitioner.? These were doubts created in the mind of the court by respondent.
The court of Appeal in the case of Knudsen Vs. Knudsen (1976) 1 GLR page 204 holding 2 thereof held that;
“The cross petition was based on sections 2 (1) (b) of Act 367 under which the fact to be applied in determining whether a particular petitioner could or could not reasonably be expected to live with the particular respondent was an objective one, and not a subjective assessment of the conduct and the reaction of the petitioner. In assessing such conduct, the court had to take into account the character, personality, dispositions and behavior of the petitioner as well as the behavior of the respondent as alleged and established in evidence. The conduct might consist of acts if sufficient gravity or of a persistent course of conduct or series of acts of different kinds, once of which by itself might be sufficient but the cumulative effect of all taken together would be so”.
As said earlier the respondent testimony remain uncorroborated facts to confer any thorough and fair analysis of the dispute.
Be that as it may, the conduct of the parties appearing from the strong uncompromising and unedifying words used to describe each other in their respective pleadings and witness statement and expressions under cross-examination before the court, gives an indication that the marriage has long reached its breaking point and has become impossible for the parties to reconcile.
How can they then live together, as man and wife from this point? Could it be possible for respondent to lay down with a man he flared from accused of being a wife beater? Seen as nothing but a violent individual?
Could the petitioner be at heart to stay with respondent who abusive, who deserted him for nearly ten years?
The position held by this court by respondent’s failure to substantiate her allegations of violence is not an indicative of disbelieve, but courts determine issues based on cogent facts backed by evidence. I received no evidence to determine any violence behavior on the part of petitioner when the parties cohabited in Accra. Please see the case of MAJOLARGBE V. LARBI (1959) GLR 91
Section 2 of the Matrimonial Causes Act 367, 1971 deals with the various reasons which may bring about the dissolution of marriages.
The parties have not lived together for about 10 years. Though petitioner has made some effects to trace the respondent and the child without much success at the initial stage of her desertion.
From the above reasons I find as a fact that the marriage has broken down beyond reconciliation.
Issue two
Whether or not petitioner or respondent is entitled to custody of the only issue of the marriage.
The evidence before the court is that, when the respondent left the matrimonial home unceremoniously, she left with the child who was barely two years old. It is a fact that she has had custody of him for the last 9 plus years.
According to her own evidence she has struggled to take care of him. Though as a mother she was determined to care for him as much as she could by taking up unstable jobs to put roof and food on the table. Currently, she earns GH¢370,00.00 as a pupil teacher. It shows clearly that respondent has not been able to meet the needs of her child and herself. It is a fact that respondent has not been diligent in dealing with the petitioner the father of her child. And so it is not entirely true that petitioner refused to care for the boy. How does he care when he does not see, or know his where about?
From my assessment of the evidence it is not entirely true that petitioner refused to care for the child. The right inference that could be drawn from respondent conduct of moving the child from place to place, school to school was to keep the child from the petitioner yet she wanted him to be responsible. Dare say that the respondents conduct has not been in the best interest of the child, sacrificing the best interest of the child to settle scores.
Section 2 of the Children’s Act, Act 560 provides as follows;
WELFARE PRICIPLES
2(1) The best interest of the child shall be paramount in any matter concerning a child.
(2) The best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child.
In my further assessment of the evidence juxtaposed with the statutory provision above, the best interest of the child, growth and development as a young lad will best be served when the child moves to Accra to live with his father. He will have a more stable education and home and be better assistance to develop as a boy when put in the care of his father. Considering the income status of the respondent (GHC370.00) per month she has been struggling to care for the child’s needs and her own needs hence she has to fall on her family from time to time for assistance as they also have their own troubles.
Last but not the least issue is;
Whether or not respondent is entitled to alimony of GH¢50,000.00.
The respondent did not give any reasons or adduced any evidence to substantiate this relief she seeks from the court. Award of alimony by court in divorce proceedings is not automatic.
Though I found as a fact that there is no smoke without fire, and respondent may have her reasons for deserting her matrimonial home, she left the court no choice to believe the magnitude of allegation levelled against the petitioner. She left home voluntarily and made no attempt to return. For the last 10 years she has not contributed in any way to the marriage by way of even assisting petitioner as a husband. She denied him sex for 10 years amidst other needs of a husband. By her conduct she spoke loud that she does not need him. It is a fallacy therefore for respondent to state that she has done all she could to save the marriage. I have no tangible and compelling reason to award alimony in favour of the respondent. Petitioner is a teacher and from the Exhibit 3; his income status has not been challenged. He earns not more than GH¢3,000.00 per month.
In the circumstances therefrom, this court decree as follows;
(1) That the marriage contracted between the parties on the 09/01/2012 has broken down beyond reconciliation and same is dissolved.
(2) The court grants custody of Ayayee John Oliver 11 years of age to the Petitioner with reasonable access to the respondent as follows:
a) The Petitioner shall have full custody of the child during school calendar sessions.
b) The child shall spend Christmas and New year vacation with her mother wherever she relocates to. Petitioner must make the arrangement for his travel fare.
c) The parties shall cooperate in the best interest of the child and decide on when the child shall be picked up and returned to each other.
d) Petitioner shall pay the same of GH¢5,000.00 to the respondent as a parting gift.
e) The petitioner with immediate effect put the child in a good school and disclose same to respondent who will be at liberty to visit her child at school whenever she decides.
f) Both parties to bear their legal cost.
(SGD.)
CHARITY A. ASEM (MRS.)
(JUSTICE OF THE HIGH COURT)
COUNSEL:
Benedict Kofitse for the Petitioner
Godwin Kporble for the Respondent