EMELIA AMANKWAH V NICHOLAS AMANKWAH

JUDGMENT

INTRODUCTION

The Petitioner on the 9th of January 2020 filed a petition against the Respondent for the dissolution of their marriage claiming that the marriage between the parties has broken down beyond reconciliation and so wanted the ordinance marriage dissolved.

BRIEF FACTS

The Parties were lawfully married under the Marriage Act, Cap 127 at the Aduamuah Presby Church at Kwahu, Eastern Region on the 10th of September 2005. After the marriage, the parties cohabited at Taifa Burkina a suburb of Accra and later built their own house at Kwabenya, Abuom Junction. Both parties are citizens of Ghana. The Parties are both Business woman and man respectively who both deal in Electricals. The marriage produced four children namely, Chris Amankwah 13, Prince Amankwah, 10 years, Manuel Amankwah 6 years, and Samuel Amankwah 4 years respectively at the time the petition for the dissolution of the marriage was filed. The Petitioner averred that, there had been a previous proceeding in another Court regarding the marriage and the children and certain orders were made in respect of custody and maintenance of the children.

The Petitioner averred in the petition for divorce that, the marriage between the parties has broken down beyond reconciliation as the Respondent has behaved in such a way that, the Petitioner cannot reasonably be expected to live with him, as the Respondent has caused the Petitioner so much anxiety, distress and embarrassment. The Petitioner sought the following reliefs;

a)     Dissolution of the marriage.

b)    An order that the Respondent pays the Petitioner’s legal fees and statutory fees during the pendency of the petition since he initiated this divorce by leaving drinks in my parent’s house that he has divorced me.

c)     An order that the parties first three (3) bedroom house at Abuom Junction- Kwabenya where the Petitioner presently lives with the four issues which was acquired by the parties during the pendency of the marriage be settled on the Petitioner and the second six bedroom house located at Katapor at Kwabenya be settled on the Respondent.

d)   The Respondent should also keep two plots of land bought during the pendency of the marriage.

e)    An order for the custody of the four issues of the marriage in favour of the Petitioner.

f)    That the Petitioner (sic) Respondent be ordered to maintain or contribute substantially towards the maintenance of the issues of the marriage.

The crux of the Petitioner’s case can be found in Petitioner’s pleadings contained in paragraphs , 7, 8, 9 , and 10 of the Petition which for brevity, I shall touch on the salient points only. The Petitioner averred that, the Respondent has behaved unreasonably towards her and the Respondent after a misunderstanding threw her things out and did not allow her to sleep in the house for three days. She also averred that, one day when the Petitioner visited the Respondent in his 2nd home, she found the Respondent with another woman naked in bed. And the Respondent in 2019 went to the Petitioner’s parent’s house in Kwahu and left a bottle of Schnapps in the house and informed the Petitioner’s parents that, he was no longer interested in the marriage. The Petitioner averred further that, attempts made by members of the families of both parties to settle the differences between the parties have not been successful.

The Respondent not only filed an Answer, but cross petitioned as well on 15th May 2020. The Respondent in his Answer denied some material particulars contained in the Petition, and said the marriage has broken down because of the recalcitrance and unreasonable conduct and behavior of the Petitioner. He averred amongst others that, the Petitioner constantly humiliated him in public and in front of their children and was very disrespectful towards the Respondent and continues to do so in the presence of their relations. The Respondent stated that, it is the Petitioner who has behaved in such a way that the Parties cannot be expected to live together anymore as husband and wife.

The Petitioner filed a Reply to the petition and Answer to the cross petition on 11th June 2020 and denied the material particulars of the Respondent’s Answer. The case was subsequently set down for trial and the parties were ordered to file their respective witness statements and checklists which they did. At the case management conference, the following issues were set down.

Issues:

1.     Whether or not the marriage has indeed broken down beyond reconciliation.

2.     Whether or not the Petitioner is entitled to the property at Abuom Junction, Kwabenya.

3.     Whether or not property at Katapor at Kwabenya should be settled on the Respondent and two plots of land.

4.     Custody and maintenance of the children.

5.     School fees of the children.

6.     Whether Respondent is entitled to the declaration as sole owner of the property at Katapor Manyira with financial liabilities.

It is important to mention at this juncture that, when trial commenced, and after the Petitioner had given her evidence, the Respondent and his Counsel both failed to be present to cross examine the Petitioner even though they were aware of the days set down for trial. The Respondent’s witness statement was struck out but was later relisted for the Respondent to cross examine the Petitioner and to open his case.

ISSUE 1

Whether or not the marriage has broken down beyond reconciliation warranting its dissolution.

The Petitioner is in Court for the dissolution of the marriage between the parties and has averred that, the marriage has broken down beyond reconciliation as the Respondent has behaved in such a way that, the Petitioner cannot reasonably be expected to live with the Respondent and the Respondent has caused the Petitioner much anxiety and distress.

It is important to mention that, since this marriage was celebrated under the Ordinance, the law regulating its dissolution is the Matrimonial Causes Act, Act 367.

By Section 1 (2) of the Matrimonial Causes Act of 1971 (Act 367), the sole ground upon which an order for dissolution of a marriage can be made, is that, the marriage has broken down beyond reconciliation. Section 2 (1) of the said Act however, requires that,

(1) For the purpose of showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy the Court of one or more of the following facts:

By proving one or more of the facts set out in the said section, as follows:

(a) That the Respondent has committed adultery and that by reason of the adultery, the Petitioner finds it intolerable to live with the Respondent;

(b) That the Respondent has behaved in 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 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 of divorce, provided that the consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a Petition for divorce under this paragraph despite the refusal;

(e) That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the Petition; or

(f)   That the parties to the marriage have, after diligent effort, been unable to reconcile their differences.”

The general position of the law is that, a Court ought to inquire so far as is reasonable, into the facts alleged by the Petitioner and Respondent, to satisfy itself on the evidence that, the marriage between the parties has broken down beyond reconciliation. This requirement is provided for by Sections 2(2) and 2 (3) of Act 367, as follows;

“(2) On a Petition for divorce the Court shall inquire, so far as is reasonable, into the facts alleged by the Petitioner and the Respondent.

(3) Although the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a Petition for divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation.

The Respondent who is in the same position as the Petitioner, in relation to his Cross- Petition, similarly has to prove the facts stated in Section 2 (1), of Act 367 supra. It is in line with the requirement of the law that trial was conducted by the Court to ascertain whether or not the marriage has indeed broken down as alleged by the Petitioner and so should be dissolved as claimed by the Respondent too in his cross petition.

Burden Of Proof

It is trite knowledge that, he who asserts must prove. In the case of Okudzeto Ablakwa (N0.2) V Attorney General & Obetseibi –Lamptey (N0.2) 2 SCGLR 845, the Supreme Court in dealing with the burden of proof in civil trials, held at page 867 as follows; “He who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323) Section 17 (a) .What this rule literally means is that, if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”.

In the case of Ababio V Akwasi [1994-1995] 2 GBR 774, the Court held that; “The general position of the law is that, it is the duty of the Plaintiff to prove what he alleges, in other words, it is the party who raises in his pleadings, an issue essential to the success of his case, who assumes the burden of proving it”. This has been given effect to by relevant Sections of the Evidence Act 1975 (NRCD 323).

Section 10 (1) of the Evidence Act supra provides;

“For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or Court”.

Section 11(1) of the Evidence Act NRCD 323 provides that the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.

In Bisi V Tabiri [1987-88] 1 GLR 360, it was held that “The standard of proof required of a Plaintiff in a civil action, was to lead such evidence as should tilt in his favour the balance of probabilities on a particular issue”.

It is also trite learning that, evidence is what the Court uses in resolving Issues of facts arising from a case and a pleading of averment in proof of which no evidence is offered, virtually serves no useful purpose in a case.

The Petitioner alleged that the Respondent had behaved in an unreasonable manner towards her and as well had committed adultery for which she finds intolerable to live with the Respondent any longer. As specified by law, the onus is on the Petitioner to provide evidence to prove her claim. She assumes the burden of proof and has to lead credible evidence to establish her claim of unreasonableness on the part of the Respondent and the fact that the Respondent had committed adultery.

The evidence led, should be such that, on the preponderance of probabilities, any reasonable person will believe that what she says is more probable than not.

TRIAL

At the trial, the Petitioner gave evidence via her witness statement, as well as her supplementary witness statement which she relied on together with her exhibits A-B11 series as her evidence in chief. The Petitioner testified that, the Respondent had committed adultery because one day when she went to visit the Respondent she saw him in bed naked with another woman and they both saw her.

Per Section 2 (1) (a) of Act 367 supra, one of the facts that the Petitioner must prove to show that the marriage has broken down is when the Respondent commits adultery. Adultery is considered a form of marital misconduct and is grounds for divorce.

Since it is the Petitioner who is alleging that the Respondent has committed adultery, the onus is on the Petitioner to prove that the Respondent has committed adultery as claimed by her.

Adultery has been defined in Section 43 of Act 367 supra as; “the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse”.

In Adjetey and another V Adjetey [1973] 1 GLR @ pages 216-221, the Court stated that;

“Adultery must be proved to the satisfaction of the Court and even though the evidence need not reach certainty as required in criminal proceedings, it must carry a high degree of certainty…”

It is worth mentioning that, proving adultery requires more than just a hunch or a bare assertion. Since adultery is difficult to prove, one would have to prove that a spouse has committed adultery through various means such as direct evidence, digital evidence, financial evidence and circumstantial evidence. And admission of the affair by the partner. Adultery may also be proved through other means such as birth of a child, voluntary confession, caught in the act, and venereal disease. In the Petitioner’s evidence on her claim that the Respondent had committed adultery, she testified that she went to the Respondent’s house and saw the Respondent deeply asleep with a woman and both of them were naked, both the Respondent and the woman saw her. The Petitioner testified further that, when the Respondent finally opened the main door for her to enter the house, she found out that the Respondent had locked the other woman in the children’s room.

During cross examination by Counsel for the Respondent on the evidence led by the Petitioner on the issue of adultery, this is what transpired.

Q. In your evidence in chief you told this Court that, you found the Respondent lying naked in bed with another lady, correct?

A.       Yes.

Q.       At the time you and the Respondent were not living together, correct?

A.       No, we were not living together.

Q.       I put it to you that this event is a figment of your imagination it never happened?

A.       It happened several times.

Q.       Are you now telling this Court that you have caught the Respondent in bed with another woman on more than one occasion?

A.       Yes.

Q.       You will agree with me that at the meeting with the Presbyterian Catechist you did not inform him about the alleged adultery of the Respondent.

A.       No. because he is my husband and I didn’t want to disgrace him.

 

It is worth mentioning that as direct evidence of adultery is rare, in nearly every case, adultery is inferred from circumstances which by fair and necessary inference will lead to that conclusion.

The Petitioner on whom lies the burden of proof was to adduce evidence on the preponderance of probabilities on her claim of adultery on the part of the Respondent. From her evidence, the Petitioner merely repeated her averment in the witness box. Apart from her word against the Respondent which the Respondent denied, it behoved on the Petitioner to provide the Court with some evidence such as photographs of the Respondent with the alleged woman in bed together, text messages between the Respondent and the woman, or provide any corroborative evidence by calling witnesses to testify on her behalf but this, the Petitioner failed to provide the Court.

In the case of Adjetey and another v Adjetey (1973) 1 GLR 216 -221 the circumstantial evidence in that case was strong and weighty and this led the Court to conclude that, adultery had been committed. In this instant case, the circumstantial evidence on the preponderance of probabilities is not strong enough to prove that the Respondent has committed adultery, thus, it is the clear thinking of the Court that, the Petitioner has not been able to discharge the burden of proof in respect of the claim of adultery levelled against the Respondent. I cannot therefore find as a fact that the Respondent has committed adultery, and I so hold.

The Petitioner again testified that, the Respondent had behaved unreasonably towards her thus she wanted the marriage dissolved. Again, the onus lies on the Petitioner to show to the Court that the Respondent has behaved unreasonably towards her to prove this assertion of hers. Per the pleadings and her evidence before the Court, the Petitioner testified that, after a Court had made an order granting the Respondent’s assess to the children of the marriage, the Respondent came forcefully to her house one day and broke her door and this put fear and panic in the children.

Again, the Petitioner testified that, the Respondent drove her out of the house after a misunderstanding and did not allow her to sleep in the house for 3 days whiles her belongings were thrown out and at the mercy of the sun and rains and that, the Respondent had sent drinks to the Petitioner’s parents that he was no longer interested in the marriage.

It is important to mention at this juncture what the Courts have said regarding what will amount to unreasonable behavior.

Unreasonable behavior has been defined in English law as conduct that gives rise to in jury, to life, limb, or health or conduct that gives rise to reasonable apprehension of such danger. What amounts to unreasonable behaviour, has been held to depend on the circumstances of each case. It must not be conduct which can be termed as trivial, or such conduct as is occasioned by the wear and tear of marriage. The conduct must be grave and weighty, such as to merit a finding that the Petitioner cannot be reasonably expected to live with the Respondent. See MENSAH V. MENSAH [1972] 2 GLR, 198 at 204.

In the case of Knudsen v Knudsen [1976]1 GLR @204 it was held that

“The behavior of a party which will lead to this conclusion would range over a wide variety of acts. It may consist of one act if it is of sufficient gravity, or of a persistent course of conduct or of a series of acts of differing kinds, none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so”.

The Petitioner has testified that the Respondent, even though had been given access to the children had come to her house and in a bid to see their youngest child had broken a door in the house. And this same Respondent after a misunderstanding drove her out and also threw out her belongings from their home and did not allow her to sleep in the house for three days. This incident it does appear to the Court was a one off incident. But the question to ask is that, is this one off incident, one that would come under the definition given in the case of Mensah and Mensah and Knudsen V Knudsen supra? Breaking of the door and driving away the Petitioner in the view of the Court, would be considered as incidence of ordinary wear and tear of marriage but not weighty such as would be considered as unreasonable behaviour.

The Respondent had also said in his pleadings that, the Petitioner is the one who has behaved in such a way that, they cannot be expected to live together anymore as husband and wife and also cited the fact that, the Petitioner without provocation humiliated the Respondent in public and in front of the children on the slightest occasion including episodes in Church and before third parties. The Respondent did not provide any proof of what the Petitioner did specifically or does to provoke him and humiliate him in the presence of their children and their church members, so I am unable to find what behavior of the Petitioner the Respondent says is unreasonable towards him.

PARTIES NOT LIVING TOGETHER

From the evidence adduced, the parties have not lived together as man and wife for about 4 years now since the time the Respondent moved to live in the 2nd house at Katapor and also presented drinks to the Petitioner’s parents. The Petitioner per her pleadings stated that, all attempts by family members of both parties to settle the differences between the parties have not been successful.

Section 2 (1) (e) of Act 367 provides one of the facts that must be proved to show the breakdown of the marriage, and that is where the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition.

Section 2 1 (f) also provides, “that the parties to the marriage, after much diligent efforts, have been unable to reconcile their differences”.

CONCLUSION

 

All matters considered per the evidence adduced, I am satisfied that, the marriage has broken down beyond reconciliation warranting its dissolution. Accordingly, I decree that the ordinance marriage celebrated between the parties on 10th September 2005 with certificate number NKT/2/05 and license number AMA.4465/2005 BE and is hereby dissolved and the marriage Certificate is cancelled.

The parties are to furnish the Registrar of marriages in the area where the marriage was contracted with the divorce certificate to amend the records accordingly.

Having dissolved the marriage between the parties, I shall now turn my attention to the other issues.

I shall analyse issues 2 and 3 together, which are, whether the Petitioner is entitled to the property at Abuom Junction and whether or not the property at Katapor at Kwabenya and the two other plots of land should be settled on the Respondent.

Permit me to elucidate on what the law provides on property settlement upon the dissolution of a marriage?

Section 20 (1) of Act 367 supra on property settlement provides that, “the Court may order either party to the marriage to pay to the other party, a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision, that the Court thinks just and equitable”.

Section 21 also provides that;

“When a decree of divorce or nullity is granted, if the Court is satisfied that either party to the marriage holds title to the moveable or immovable property, part or all of which rightfully belongs to the other, the court shall order transfer or conveyance of the interest to the party entitled to it on the terms that the court thinks just and equitable”.

From my understanding of the above provisions of the law, upon the dissolution of a marriage, property acquired jointly during the marriage must be divided fairly between the parties upon divorce, both parties should be able to enjoy what they have acquired jointly and benefit equally from what they toiled to acquire.

Joint marital properties include all properties acquired during the pendency of the marriage. Upon divorce therefore, properties jointly acquired during the pendency of the marriage is supposed to be shared equally between the parties till the contrary is proven.

The Petitioner has asked in her relief “c” that the first three bedroom house at Abuom Junction Kwabenya where she presently lives with the 4 children which was acquired by the parties during the pendency of the marriage be settled on the Petitioner and the second house which is a six bedroom house also located at Katapor at Kwabenya be settled on the Respondent. The Petitioner has also asked that the Respondent should as well keep the two plots of land bought during the pendency of the marriage.

The Respondent in his reliefs in the cross petition is also asking that the Court makes a declaration that the children of the marriage are the owners of the residential property situate at Kwabenya as agreed between the parties. On this relief being sought by the Respondent, it is apposite to mention that, upon the dissolution of the marriage between the husband and wife, the law does not provide that, the matrimonial property should be settled on children of the marriage or should be shared or settled in the names of their children as is being asked for by the Respondent, neither does the law provide that, children can be declared as owners of property acquired in the course of the marriage by the parties.

Although, the children of a marriage are by law entitled to reasonable provision and care from their parents in a divorce proceeding, they cannot be declared as owners of the property as they do not make claims of entitlement to property. Children, even though they are part of the family cannot be made to benefit from jointly acquired properties by their parents in the event of a divorce unless with the express provision or agreement of the parties.

If the Petitioner is asking that the house be settled on her and the children and the Respondent is also asking that the house be settled on the children, the question I pose is that, is what the Respondent asking to be done, what the parties mutually agreed should be done to the matrimonial home they once shared with the children? In its quest to determine on whom should be settled the three bedroom house situate at Kwabenya that was once the matrimonial home, this Court set out to find out whether there was any such agreement between the parties to settle the said property in the Children’s name. Even though the Petitioner in her Reply denied that there was any such agreement that the house be settled on the children, the Respondent did not also provide any evidence that there was such an agreement to settle the house on the children. The Respondent was silent on this in his evidence and Counsel for both parties did not cross examine the parties extensively on that.

In the absence of any evidence to suggest to the Court that, there was an agreement that the children should be declared owners of the three bedroom house at Kwabenya, I am unable to grant the Respondent his relief. The parties did not also lead evidence as to the acquisition of the three bedroom house at Kwabenya regarding how and when the three bedroom house was acquired.

Article 22 (3) of the 1992 Constitution deals with property jointly acquired by parties during the pendency of the marriage and it is in respect of properties jointly acquired during marriage that a spouse may have a right to a share. Unless the Court finds that a property was acquired during the subsistence of a marriage and through the joint efforts of the spouses, such a property will not be jointly owned and therefore will not be matrimonial property for the purpose of property settlement jurisdiction by the Court.

The Court was not provided with any evidence regarding how the said three bedroom house was acquired. Exhibits 1 and 2 which happens to be an Indenture and a Lease respectively purportedly from the vendors of the Respondent is undated and does not have the details of when the Indenture was prepared and the document appeared to be faint for one to decipher the details.

In this regard, I shall go with the general presumption that, the three bedroom house was acquired jointly by the parties during the pendency of the marriage, so I shall distribute it equitably as the justice of the case demands.

I will therefore order that, the three bedroom house be settled on the Petitioner so she continues living in it with the 4 children of the marriage. And as prayed for by the Petitioner herself in her relief (d), I settle the two plots of land bought during the pendency of the marriage on the Respondent.

The Respondent has said that, he should be declared the sole owner of the six bedroom house at Katapor, Kwabenya. The Respondent in his evidence had said that he secured a loan to put up that house but suffice to say that, he did not provide any evidence to support his claim that he secured a loan to build that house. He did not call any witness to corroborate his claim.

Having settled the three bedroom house on the Petitioner to continue living in it with the children of the marriage, I shall settle the six bedroom house on the Respondent as this Court thinks is just and equitable to do so under the circumstances.

In her relief (e), the Petitioner is asking for the grant of custody of the four issues of the marriage to her. On the issue of custody, Section 22 of Act 367 supra provides that, “in proceedings under this Act, the Court shall inquire whether there are any children of the household and the Court either on its own or initiative or on application by a party make an order concerning a child of the household which it thinks reasonable and for the benefit of the child. And the order may include the award of custody of the child to any person”.

Generally, the rule is that, children of tender ages ought to be looked after by their mothers, unless there are circumstances pointing to the contrary. The children involved in this matter wherein the Petitioner seeks custody would be aged about 16,13,9 and 7 years old respectively now. These children are in their teenaged years and nascent stages of life and whatever decisions are taken in respect of them should have their best interests and welfare in mind.

The children from the evidence have been staying with their mother since the Court made an order granting her custody and the respondent given reasonable access to them. Having said this, let me quickly add that, I am not closing my eyes to the fact that, for the past 4 years or so, the children have been living with their mother alone.

In awarding custody, the Court should do so in the best interest and welfare of the children being young children. Per the evidence led before this Court, the children are with their mother.

In the case of Opoku –Owusu V Opoku Owusu [1973] 2 GLR @349 where It was held that…., “In my respectful view and in the best interest of the children who per the records before this Court are in the custody of the mother, I hereby pronounce that custody be granted the Petitioner, with reasonable access to the Respondent, For continuity and stability in their care and education per the Children’s Act 1998 Act 560, they should continue to live with the Petitioner during the school term and the Respondent should have access to them during the weekend and for half of their vacation when the parties would have to split sharing the holidays with each other”.

See also the case of Attu V Attu [1984-86] GLRD @144.

Accordingly, in the best interest and welfare of the children who have lived with their mother for some time now, to ensure continuity and stability in their care and education, it would be in their best interest to grant custody to their mother, the Petitioner with the Respondent granted reasonable access every other weekend. During vacations, the children will spend half of the vacation period with the Petitioner and spend the other half with the Respondent.

Access to the children includes the Respondent having the right to call the children between the hours 5-8 pm when they are home from school and the Respondent shall have the right also to make decisions affecting them.

The Petitioner in her Relief (f) is asking that the Respondent maintains or contributes substantially towards the maintenance of the children of the marriage. Section 16 (1) of the Matrimonial Causes Act 1971, Act 367 provides that “either party to a marriage may petition the Court for an order for maintenance on the ground that, the other party to the marriage has wilfully neglected to provide, or to make a proper contribution towards reasonable maintenance for the Petitioner or a child of the household.”

Section 22 (1-3) of Act 367 supra, also provides that,

(1) In proceedings under this Act the Court shall inquire whether there are any children of the household.

(2)The Court may either on its own initiative or on an application by a party to proceedings under this act, make an order concerning a child of the household which it thinks reasonable and for the benefit of the child.

(3)Without prejudice to the generality of subsection (2) an order under that subsection may;

a) award custody of the child to any person;

b) Regulate the right of access of any person to the child

c) Provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage.

It is therefore appropriate for the Petitioner to pray for such a relief in the Petition and the Court will make a determination as it thinks just and equitable. The responsibility of maintaining children of the marriage is a joint responsibility of both parties and not the preserve of the Respondent alone. See the case of Donkor V Ankra [2003-2005] 2 GLR 125 where it was held that, “under Section 47 (1) and (2) of the Children’s Act supra, where both parents of a child were earning an income, it had to be the joint responsibility to maintain the child, the tendency for women to look up to only men for the upkeep of children was gone…”

I have carefully considered Section 22 of Act 367 supra, which permits the Court to make orders concerning children of the household as the Court thinks reasonable in the best interest of the children, either suo motu or on an application made by a party. I have again, duly considered the respective occupations of both parties.

Again, due consideration has been given to Sections 6 and 47 of the Children’s Act, 1998 (Act 560) which provides amongst others that, no parent, shall deprive a child of his welfare, and it is the duty of parents to provide care, maintenance and necessaries of life for a child.

After considering the circumstances of the parties, it is not lost on this Court that, both parties are business man and woman but they did not furnish the court with their affidavit of means to enable the Court make a determination as to how much should be given to the children as maintenance monthly.

That notwithstanding, the Court In reliance on the provisions of the law above mentioned, in the respectful view of the Court, both parties ought to be responsible for the maintenance of the children and to provide the necessaries of life for them as stipulated under Section (22) 3 (c) of C.I 47 supra, that an order can be made for the education or maintenance of children by either, or both parties to the marriage.

All matters considered, since the Petitioner is the primary care giver, I order the Respondent to pay maintenance of an amount of three thousand, (GH¢3,000.00) a month for the upkeep of the 4 children of the marriage. The Petitioner is also to take up some responsibilities for the children in terms of their maintenance. Both Parties are ordered to be financially directly involved in the provision of care, educational needs and the necessaries of life of the two children of the marriage. Donkor V Ankrah supra.

The amount of GH¢3, 000.00 is to be paid at the end of each month with effect from December 2023, either directly to the Petitioner or through means acceptable to both parties.

Both parties are ordered to contribute towards the education, and medical expenses of the issues of the marriage as and when they fall due. The Respondent, being the father of the children, has a responsibility towards the education of the children much as the Petitioner, who is their mother and the primary care giver. The parties shall both be responsible for the education of the children.

I hereby again order that, the Respondent shall bear a greater part of the school fees of the children by bearing 80% of the combined school fees of the four children and the Petitioner will also bear 20% of their school fees.

All other reliefs not granted are dismissed Each party shall bear the cost of the litigation.

FINAL ORDERS

1.     The Ordinance marriage between the parties is dissolved.

2.     The three bedroom house at Abuom Junction, Kwabenya where the Petitioner presently lives with the four issues is settled on the Petitioner and the Children and the 6 bedroom house is settled on the Respondent.

3.     The Respondent shall keep the two plots of land bought during the pendency of the marriage.

4.     Custody of the four children is granted to the Petitioner with reasonable access to the Respondent as stipulated in the judgment.

5.     The Respondent shall maintain the four children with an amount of Three Thousand Ghana Cedis (GH¢3,000.00) monthly beginning from December 2023.

6.     The parties shall both be responsible for the educational and medical needs of the children as stated in the judgment.

 

 

(SGD)

……………………………………………. MAVIS AKUA ANDOH (MRS)

JUSTICE OF THE HIGH COURT

DIVORCE & MATRIMONIAL COURT “2” ACCRA.

 

COUNSEL:

GODWIN NARTEY COUNSEL FOR THE PETITIONER PRESENT.

DANIEL MENSAH HOLDS EKOW DADSON’S BRIEF FOR THE RESPONDENT.

 

 

AUTHORITIES

1.      SECTION 1 (2) OF THE MATRIMONIAL CAUSES ACT OF 1971 (ACT 367)

2.      OKUDZETO ABLAKWA (N0.2) V ATTORNEY GENERAL & OBETSEIBI – LAMPTEY (N0.2) 2 SCGLR 845

3.      ABABIO V AKWASI [1994-1995] 2 GBR 774

4.      SECTIONS 10(1), 11(1)EVIDENCE ACT 1975 (NRCD 323).

5.      BISI V TABIRI [1987-88] 1 GLR 360

6.      ADJETEY & ANOR V ADJETEY [1973] 1 GLR @ PAGES 216-221

7.      MENSAH V. MENSAH [1972] 2 GLR, 198 AT 204.

8.      KNUDSEN V KNUDSEN [1976]1 GLR @204

9.      OPOKU –OWUSU V OPOKU OWUSU [1973] 2 GLR @349

10.   ATTU V ATTU [1984-86] GLRD @144

11.   SECTION 16 (1) OF THE MATRIMONIAL CAUSES ACT 1971, ACT 367

12.   SECTION 22 (1-3) OF THE MATRIMONIAL CAUSES ACT 1971ACT 367

13.   DONKOR V ANKRA [2003-2005] 2 GLR 125