EDITH ABA HUGHES VS. ROBERT G. THOMPSON
by HER LADYSHIP JUSTICE ELFREDA AMY DANKYI (MRS)
Jurisdiction
HIGH COURT
Judge
HER LADYSHIP JUSTICE ELFREDA AMY DANKYI (MRS)
Catalog Type
Case
Judgement Date
Oct 30, 2023
Summary
The Petitioner sought the dissolution of a marriage celebrated on 5th June 2008 in Accra under the Marriages Act (Cap 127). Although both parties are Ghanaian citizens, the Petitioner is ordinarily resident in the United Kingdom. During the subsistence of the marriage, the parties lived together in both the Greater Accra Region and the United Kingdom. Notably, there were no children born of the marriage. The Petitioner’s primary relief was a decree dissolving the marriage, along with an order that each party bear their own costs. The Respondent, despite being duly served with the petition, failed to enter an appearance, file a response, or participate in the proceedings at any stage, including the trial. As a result, the case proceeded uncontested, relying solely on the Petitioner’s evidence, which was presented through her lawful attorney. The central issue before the Court was whether the marriage had broken down beyond reconciliation, which is the sole ground for divorce under Section 1(2) of Act 367. The law requires that this ground be established by proof of at least one of the specific facts listed under Section 2(1), such as adultery, unreasonable behaviour, desertion, prolonged separation, or inability to reconcile differences. In this case, the Petitioner relied on evidence that the parties had lived apart and had not maintained a marital relationship for approximately eight years preceding the filing of the petition. The lawful attorney testified that the parties had neither cohabited nor been intimate during this period, and that all attempts at reconciliation had failed. This evidence was unchallenged due to the Respondent’s absence. The Court emphasized its duty under Sections 2(2) and 2(3) of Act 367 to independently assess the evidence and be satisfied that the marriage had indeed irreconcilably broken down, even in the absence of opposition. Relying on established legal principles, held that uncontroverted evidence on oath may be accepted as proof of the facts asserted. Upon evaluating the evidence, the Court found that the parties had lived separately for well over the statutory minimum period and had been unable to reconcile their differences. It also inferred from the Respondent’s consistent failure to participate in the proceedings an intention not to contest the divorce. Accordingly, the Court concluded that the marriage had broken down beyond reconciliation within the meaning of Sections 2(1)(d) and 2(1)(f) of Act 367. In its final orders, the Court granted the petition and dissolved the marriage with immediate effect. The marriage certificate was cancelled, and the Petitioner was granted all the reliefs sought, including the order as to costs.
Full Content
JUDGMENT:
By her Petition filed in this Court, the Petitioner seeks a dissolution of the marriage celebrated between the parties on 5th June, 2008, under the Marriages Act, 1884 – 1985 (CAP 127), at the office of the Principal of Marriages, Accra. The Petitioner and the Respondent are Ghanaian citizens but Petitioner is ordinarily resident in the United Kingdom. After the marriage the parties cohabited in the Greater Accra Region and the United Kingdom.
There is no issue of the marriage.
The Petitioner prays for the following reliefs;
a. That the marriage celebrated between the parties be dissolved.
b. That the parties be made to bear the cost of this proceeding.
The Respondent who was served with the Petition failed to file an Appearance, within the time required by the Rules of Court. The pleadings having closed, the Petitioner applied to set the suit down for trial. The Respondent who was served with the Notice to set the suit down for trial, failed to attend Court. The Petitioner filed her Witness Statement. The case the suit adjourned for trial. The Respondent who was served with Hearing Notice, failed to attend the trial.
The only issue for determination in this suit, is whether or not the marriage celebrated between the parties has broken down beyond reconciliation.
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 the Petitioner prove one or more of the facts set out in the said section as follows:
2. (1) For showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy the Court of one or more of the following facts:
(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.”
Therefore, notwithstanding the Respondent did not attend the trial, the Petitioner must establish on her evidence that the marriage between the parties has indeed broken down beyond reconciliation, in accordance with Section 2 (1) of Act 367, supra.
The testimony of the Lawful Attorney of the Petitioner was that the parties have not lived as a married couple for the past eight years and have not been intimate for these periods and says that the marriage has broken down beyond reconciliation.
The evidence of the Lawful Attorney of Petitioner on the breakdown of the marriage was uncontroverted, thereby amounting to an admission of same. It is settled law that where evidence on oath is unchallenged, same amounts to an admission. See: MANTEY & ANOR V. BOTWE [1989 – 90] 1 GLR 479; IN RE; ASHALLEY BOTWE LANDS; AGBOSU V. KOTEY [2003 – 2004] SCGLR 420 per WOOD JSC. Therefore, as I have no reason to disbelieve the Petitioner’s testimony, I accept same as being the facts pertaining to the marriage of the parties.
Upon the evidence adduced before the Court, I am satisfied that the parties have not lived as husband and wife for a period of eight years preceding the commencement of this Petition. The Respondent who has been served with all processes and has failed to attend this Court, has clearly evinced an intention not to contest the prayer for the dissolution of the marriage. I am also satisfied that the parties have been unable to reconcile their differences. In the circumstances, this Court is entitled to dissolve the marriage between the parties, as having broken down beyond reconciliation, by virtue of sections 2 (1) (d) and 2 (1) (f) of Act 367, supra.
Accordingly, it is hereby decreed, that the marriage celebrated between the Petitioner and Respondent on 5th June, 2008 in Accra, under the Marriages Act, (CAP 127) be and is hereby dissolved forthwith. The Marriage Certificate is cancelled.
The Petitioner prays this Court to grant her reliefs as stated supra. The Court hereby grants Petitioner all her reliefs.
(SGD.)
JUSTICE ELFREDA AMY DANKYI (MRS)
JUSTICE OF THE HIGH COURT
COUNSEL: