EUNICE ANIM VERSUS NANA KWADWO FOSU

JUDGEMENT

Decreeing divorce between married couple is a daunting task for me, especially in young marriages like the present one which was filed by leave of the court because the marriage was less than two years prior to the filing of the Petition.

The Holy Bible book of Proverbs 31:3 (NIV), reads:

“Do not spend your strength on women, your vigour on those who ruin kings.” The above writing is apt in the petition under consideration.

Again, it is trite that the decision to fall in love is mostly unconscious but the decision to stay in love is very conscious. However, no court can compel parties to continue to marry. Thus, if the parties themselves decide to seek divorce contrary to the biblical position if they are Christians, then the court will have to give its blessing to it.

On 2/5/2023, the Petitioner herein filed a motion seeking the leave from the court to file a petition under Section 9 [1] and [2] of Matrimonial Causes Act [1971] Act 367. On 18/5/2023 leave was granted by this court for the Petitioner to file the petition for divorce. The Petitioner filed a petition on the 20th of June 2023 and prayed for the following reliefs against the Respondent:

a)           That the Ordinance Marriage contracted on the 6th of August 2022 be dissolved.

b)           That the respondent be ordered to pay in ‘alternative’ (sic) a lump sum of GH¢5,000.00 as financial settlement.

The Respondent never filed an appearance and answer even though he was duly served.

The matter was later set down for trial. When the case came up for hearing, the Petitioner testified without calling any witnesses.

The Petitioner testified in evidence as follows:

Her name is Eunice Anim. She lives at Mpraeso Akropong in the Kwahu South Municipal area and she is a trader whereas the Respondent is a Herbalist who lives at Olebu Accra. She got married to the Respondent by ordinance on the 6th day of August 2022 at Nkawkaw District Court. After the marriage, they moved to Accra to live at Olebu in a house she was made to believe was the personal property of the Respondent. According to her, before the marriage the Respondent made her to believe that he was a divorcee, but he has some children, all minors from his previous marriage. She added that, the Respondent also informed her that he was a clearing agent at Tema Port for the past 10 years and that he was financially independent. She continued that, she got to know that all the information that the Respondent gave to her before the marriage was incorrect as the Respondent was a married man with children, had no property of his own and was also jobless. What is more disturbing and humiliating was that in the course of the marriage, it came out that the Respondent has been having sexual intercourse with her biological sister which led to cleansing rituals that were performed on the 26th day of March 2023 by her family for the culprits (The Respondent and her sister). The abominable act has caused her to stay away from her matrimonial home for the past six months for her to get over the psychological trauma. It is her case that, it has become extremely clear that both parties are incompatible based on the Respondent’s behaviour. She therefore prays to the Honourable Court to dissolve the marriage accordingly. She demands nothing from the Respondent as a push-off or financial provision.

The Compelling issue is whether the marriage between the parties has broken down beyond reconciliation.

The Petitioner prayed for the dissolution of the marriage. The law is that, even if parties might want dissolution of the marriage, the court or the judge must examine the evidence before the court to find out whether there exists such substantial difference or differences between the parties to demand dissolution of the marriage.

Dilating on the applicable Sections 1, 2 (1) (2) and (3) of the Matrimonial Causes Act 1971 (Act 367), Justice Hayfron Benjamin stated in Mensah v. Mensah (1972) 2 GLR 198 that, “Our legislation seems to state that proof of one of the facts show that, the marriage has broken down beyond reconciliation, and yet the court can decline to grant the decree because, it is not satisfied that the marriage has broken down beyond reconciliation. The Matrimonial Causes Act seems to draw a distinction between appearance and reality. The petitioner after proving one of the enunciated facts would be held to have shown that, the marriage has broken down beyond reconciliation.

The court is then to find out whether in truth the marriage has broken down beyond repairs. Here, the court is directed to conduct an inquiry as far as reasonable into the facts relied on by the parties. The court is then to consider all the evidence, that is, including what it has found on its inquiry, and if satisfied that the marriage has really broken down beyond reconciliation, decree a divorce.”

Similar sentiments were echoed by Osei Hwere J (as he then was) in the case of Danquah v. Danquah (1979) GLR 371 at 376 thus: “The requirements in section 2 (1) of Act 367 that the petitioner must satisfy the court of one or more of those five facts therein specified to prove that the marriage has broken down beyond reconciliation will mean those facts which a petitioner has both pleaded (in his petition) and proved. It will accordingly exclude facts pleaded but not proved or facts proved but not pleaded”.

The Matrimonial Causes Act 1971, (Act 367) does not permit spouses to go to court and pray for the dissolution of their marriage just for asking sake. In discharging the onus of the Petitioner, it is immaterial that the Respondent has not contested the petition. The Petitioner must prove the charges flowing from the evidence before the court. The court must therefore be satisfied that the marriage has broken down beyond reconciliation before the court can decree a divorce.

Furthermore, in Darko v. Darko (2011) 29 GMJ 121, the Court of Appeal held per Henrietta Abban J.A that, “since the learned Circuit Court Judge inherited this case, which had been pending from 1994, he should have gone through the matter himself, ensure that the parties and their counsel were all present and that the matter had been inquired into as required by section 2 (2) of the Matrimonial Causes Act, 1971(Act367) before finally giving his judgment. None of the above scenarios was enacted. Failing this, we are of the opinion that, the learned Circuit Judge erred in granting the divorce without taking evidence and concluding that the marriage has broken down beyond reconciliation”.

All the above authorities confirm the position of the law that, a court cannot proceed to dissolve a marriage without making any inquiry; that is to verify the facts stated in the petition as to whether the marriage has broken down beyond reconciliation or otherwise. In effect, it is mandatory that the court should first listen to the petitioner on oath even if the respondent has not filed an answer to the petition as in this case, before decreeing divorce. See Mariam Partey v. William Partey (2014) 71 GMJ 98 CA.

In this case, the evidence before the court is that, the parties have not lived together as man and wife for barely six months as a result of the abominable act of the Respondent by having sexual intercourse with the biological sister of the Petitioner which the Petitioner and her family as well as society frown upon. The Respondent's Conduct therefore falls under Section 2 [1] [a] and [b] of the Matrimonial Causes Act, act 367. The entire family of the Petitioner is at war with the Respondent and is unwilling to assist the parties to reconcile because of the abominable act of the Respondent. Aside infidelity, the Respondent is believed to have a wife prior to the marriage. The Respondent told lies on his occupation, properties and the number and ages of his children outside the marriage to the Petitioner. The Respondent is unwilling to come to court to testify or file an answer even though he has been served. The Petitioner is unwilling to live with the Respondent as husband and a wife because of the behaviour of the Respondent. The adulterous behaviour of the Respondent among others, the Petitioner’s inability to cope with it and the attitude of the Petitioner’s family toward the Respondent to me depict that, the said marriage has broken down beyond repairs. However, it is hoped that the abominable act of the respondent that had caused significant tension between the parties and their families be made to find a deserved rest and that going forward, the parties will find a place in their hearts to smoke the peace - pipe and bury the hatchet.

I will nevertheless proceed to dissolve any form of marriage contracted between the parties on the 6th of August 2022 with Marriage Certificate no 003/2022 since the marriage has broken down beyond reconciliation.

In respect of financial provision, even though Petitioner pleaded for settlement of financial provision, she did not give evidence to buttress her pleadings. It is trite that, pleadings are not evidence and one can plead a fact without necessarily giving evidence on same for the consideration of the court. See the case of Danquah vs. Danquah [1979] GLR 371 at 376 per Osei Hwere J [as he then was] and since pleadings are not evidence, I am unable to award any financial provision to the Petitioner. I will however award cost of GH¢2,500.00 against the Respondent. The marriage contracted between the parties on the 6th of August 2022 is hereby dissolved and the marriage certificate no 003/2022 is hereby cancelled.

(SGD.)

JUSTICE CYNTHIA MARTINSON (MRS)

HIGH COURT JUDGE

LEGAL REPRESENTATION

No legal representation as announced.