DR ALEXANDER YAWSON V. AGNES WARDY
Jurisdiction
HIGH COURT
Judge
N/A
Catalog Type
Case
Judgement Date
Jun 28, 2016
Summary
Divorce – Irretrievable Breakdown of Marriage – Separation – Unreasonable Withholding of Consent – Burden of Proof – Maintenance, Custody, and Financial Provision. This case involves a petition for divorce filed by the Petitioner against the Respondent, who were married under the Marriage Ordinance in 1998 and had two children. The Petitioner sought dissolution of the marriage on the ground that the Respondent’s behaviour made it unreasonable for him to continue living with her. He also sought shared custody of the children. The Respondent, however, denied that the marriage had broken down beyond reconciliation and sought ancillary reliefs including maintenance, custody, rent, and a lump sum payment. The primary issue for determination was whether the marriage had broken down beyond reconciliation as required by section 1(2) of the Matrimonial Causes Act, 1971 (Act 367). The Petitioner alleged that the Respondent’s constant arguments over money caused him significant stress, negatively affecting his health and work. However, the court found that he failed to substantiate these claims with credible evidence, as required under the Evidence Decree, 1975 (NRCD 323), which places the burden of proof on the party making the assertion. Despite this failure, the court found that both parties admitted to having lived apart and having had no marital relations for a period of four years prior to the filing of the petition. This fact satisfied one of the statutory indicators of irreconcilable breakdown under section 2(1)(d) of Act 367. Although the Respondent withheld her consent to the divorce, the court held that such refusal was unreasonable given the prolonged period of separation. Relying on the authority of Addo v Addo (1973) 2 GLR 103, the court concluded that a respondent cannot insist on maintaining a marriage in circumstances where cohabitation and marital relations have ceased for a significant duration. The court therefore held that the marriage had broken down beyond reconciliation and granted a decree of divorce.
Full Content
JUDGMENT
AGBEVEY, J.
The Petitioner and the Respondent were married under the Marriage Ordinance (Cap 127) (1951 Rev.) on the 17th day of April, 1998 at the Good Shepherd Catholic Church, Tema. The Petitioner is a senior lecturer at the University of Cape Coast whilst the Respondent is a tutor at the Queensland International School, Sakumono, Accra. There are two issues of the marriage namely Vanessa Efua Egyirba Yawson aged 16 years and Chelsea Aba Kwansima Yawson who is 13 years old. Both issues are girls.
The Petitioner filed a petition on the 19th day of May 2015 on the grounds that the Respondent has behaved in such a manner that the Petitioner cannot reasonably be expected to live with the Respondent. The Petitioner prays for reliefs as follows:
a) The marriage celebrated between the Petitioner and the Respondent be dissolved.
b) The Petitioner be granted shared custody of their children with sufficient accessibility.
c) Such further orders as this Court may deem fit.
The Respondent filed an Answer on the 24th day of August 2015 in which she denied the material particulars. She averred that the marriage has not broken down beyond reconciliation and prayed in the event that the petition is granted for reliefs as follows:
1. Maintenance pending suit.
2. Custody of the children of the marriage with limited access to the Petitioner
3. Maintenance
4. Lump sum payment
5. The Petitioner be ordered to rent a house for the Respondent and their 2 children when the existing tenancy expires.
6. The Petitioner be ordered to pay the Respondent’s costs.
A reply was filed on the 16th day of September, 2015. The issues to be determined are as follows:
1. Whether or not the marriage celebrated between the parties has broken down beyond reconciliation.
2. Whether or not the Respondent is entitled to the ancillary reliefs namely maintenance, lump sum, rent and custody.
The Petitioner who is a 51 -year old scientist testified on oath that he met the respondent on the campus of the University of Ghana, Legon where he was pursuing a master’s degree. This relationship culminated in a marriage on the 17th of April, 1998. There are two issues of the marriage namely Vanessa Efua Egyriba Yawson and Chelsea Aba Kwansima Yawson who are 16 and 13 years respectively.
He told the Court that they co-habited at Flat I, Ravico Flats, Nungua. He further testified that the marriage has broken down due to the intolerable behaviour of the Respondent. According to the Petitioner, they get into frequent and incessant arguments about money which has affected his health such that when they were living together his blood pressure was often high and that he could also not meet deadlines at work. He added that there was often so much pressure on him that he had to seek funds to supplement what he was already giving to the Respondent and that he was suffering in silence.
He further testified that he and the Respondent have not had sex for the past 4 years. He prayed for shared custody of the 2 issues of the marriage. He stated that for the past 5 years he has lived apart from the Respondent.
Under cross-examination, the Petitioner denied that he left home because the Respondent refused to abort a 3rd pregnancy after the two issues were born. He explained that the Respondent developed complications as a result of the pregnancy and suffered a miscarriage whilst he was still living in the matrimonial home.
The Respondent, in her evidence-in-chief testified on oath that the parties were married on the 17th of April 1998 under the Marriage Ordinance (Cap 127). She tendered the Marriage certificate EXHIBIT ‘1’ evidencing the marriage. She testified that after the marriage, the parties initially co-habited in rented premises at the Sakumono Ghacem Flats. She testified further that she took a Barclay loan for the payment of rent for a 2-year tenancy for the said premises. Her sister subsequently purchased the said premises and they continued to live there rent –free for a further 3 years prior to moving to their current matrimonial home at Buade, Nungua in the year 2003. She admitted that it was the petitioner who gave her money to pay for the rent for the initial 2-year tenancy at their current premises. The Petitioner travelled to the United Kingdom for his doctorate programme in the year 2002 and returned in or about 2005 or 2006. On his return, he was working with the Ghana Atomic Energy Commission, Kwabenya. In addition, he was working on a part-time basis with the University of Cape Coast. He is now a full time employee of the latter.
None of the parties called a witness.
Per Section 1 (2) of the Matrimonial Causes Act, 1971, (Act 367) the only ground for the grant of a divorce petition is that the marriage has broken down beyond reconciliation. For the purpose of showing that the marriage has broken down beyond reconciliation, Section 2 (1) of Act 367 specifies facts which the Court will take into consideration as follows:
a) That the respondent has committed adultery and by reason of such adultery the petitioner finds it intolerable to live with the respondent.
b) That the Respondent has behaved in such 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 2 years immediately preceding the presentation of the petition.
d) That the parties to the marriage have not lived as man and wife for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce provided that such 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 notwithstanding the refusal; or
e) That the parties to the marriage have not lived as man and wife for a continuous period of at least 5 years immediately preceding the presentation of the petition
(f) That the parties have after diligent effort been unable to reconcile their differences.
The issue to be determined is whether or not the marriage has broken down beyond reconciliation? The Petitioner attributed the breakdown of the marriage to harassment by the Respondent by way of incessant and frequent arguments about money which he alleged affected his health. Specifically, he said his blood pressure when he was living with the Respondent was often high and he could not meet deadlines at work. The Respondent has denied these allegations.
Section 11 (1) of the Evidence Decree, 1975 (NRCD 323) provides that the ‘burden of producing of evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.’
Section 17 (1) of NRCD 323 further provides that ‘the burden of producing evidence of a particular fact is on party against whom a finding of fact would be required in the absence of further proof’.
In the case of MAJOLAGBE v. LARBI and OTHERS (1959) GLR 190, the learned judge stated that “proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances or circumstances, and his averment is denied, he does not prove it by merely going into the witness -box and repeating the averment on oath or having it repeated on oath by his witness(es). He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true.”
See also ZABRAMA V. SEGBEDZI (1991) 2GLR 221 CA.
On the evidence, the Petitioner has not led any evidence to show that the incessant arguments leading to destructive quarrels with the Respondent over money caused him to develop diseases including hypertension. Neither did the petitioner prove that the respondent’s engagement in squabbling with him over money resulted in his non concentration on his academic and research work as averred by him in his pleadings. In the case of Ababio v. Akwesi IV (1994-1995) GBR 774, Aikins JSC stated: “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.”
Be that as it may, the Petitioner and the Respondent have both admitted in evidence that they have been living apart for the past 4 years. The Respondent responded to questions under cross-examination as follows:
“Q. For how long had the two of you stayed apart – not staying under the same roof.
A. For about 4 years ago.
Q. And for how long have you and your husband not have any sex?
A. Four years.
The Petitioner in his pleadings and testimony told the Court that the parties have lived apart for the past four years. I therefore, make a finding of fact that the parties have neither lived together nor had sexual intercourse for the past four years. It is the Respondent’s case in her Answer that the Petitioner deserted them without just cause and she denied that the marriage has broken down beyond reconciliation.
Section 2 (1)(d) requires that the parties have not lived as man and wife for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce .
By the denial of the Respondent, this means that she does not consent to the divorce. However, Section 2 (1) (d) (Supra) also provides that such consent should 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 the paragraph, notwithstanding the refusal.
Having already found as a fact that the parties have not lived together as man and wife for 4 years, it is my considered opinion that the Respondent cannot withhold her consent to a decree of divorce. In the case of ADDO v. ADDO (1973) 2GLR 103 where the parties had neither had sex since 1967 nor lived together as man and wife since 1969, it was held that the Respondent therein, was unreasonable in withholding her consent under Section 2(1)(d) (Supra). The Court in that case granted the decree of dissolution notwithstanding the wife’s denial of consent.
Accordingly I find that the marriage has broken down beyond reconciliation. Sarkodee J. in held ADDO v. ADDO (supra) that:
“it is now settled that a wife has a right to the consortium of her husband those rights are reciprocal. However, a wife has no greater right to force herself upon her husband than he has to compel her to co-habit with him”.
I am satisfied that the marriage has broken down beyond reconciliation. On the evidence, I decree that the marriage celebrated between the Petitioner and the Respondent on the 17th day of April 1998 at the Good Shepherd Catholic Church, Tema with certificate number, TGSCC/41/98 per licence number, STMA/52/97 be and is hereby dissolved.
Is the Petitioner entitled to pay maintenance?
Under Section 47 (1) of the Children’s Act, 1998 (Act 560), “a parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child.”
Section 22 of Act 367 provides as follows:
(2) The court may either on its own initiative or on 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.
These provisions enjoin parents of the issues of a marriage who are under the age of 18 years to maintain same.
The children have always been in the custody of the Respondent and from the evidence she has had to look after them since the Petitioner left for his doctorate programme to date. The Petitioner testified that in addition to a standing order for GH¢50 he has been paying maintenance over the years to the Respondent as well as school fees of the issues of the marriage.
From the respective affidavit of means, the Petitioner is to pay for the educational and medical expenses of the issues of the marriage. In addition, the Petitioner is to pay GH¢800.00 as maintenance. The Respondent is to supplement the upkeep of the household. Both the Petitioner and the Respondent shall contribute towards payment of rent. I have taken due cognisance of charges for utilities which are astronomical these days.
Is the Respondent entitled to a lump sum provision? Section 20 of Act 367 provides:
(1) “The Court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof as part of financial provision as the Court thinks just and equitable.”
(2) “Payments and conveyances made be ordered to be made in gross or by instalments.
The Court is enjoined to be just and equitable in considering whether or not the Respondent is entitled to a financial provision. To this end, the Court is to take due cognizance of the peculiar circumstances of the case, the future earning capacity of either party, the issues of the marriage, the ages of the respective parties, the duration of the marriage, their standard of living among other factors in determining what is just and equitable and this is a question of fact.
The parties have filed their respective affidavit of means. The Petitioner who is 51 years old is a Senior lecturer at the University of Cape Coast and from his affidavit of means and as indicated in his August 2015 pay-slip, he earned a total net pay of GH¢5,135.00 that month. He also gave a corresponding expenditure of same including maintenance and school fees of the issues.
The Respondent, on the other hand, whereas her counsel challenged the petitioner for not exhibiting his October 2015 pay slip, strangely, failed to exhibit her pay slip in her affidavit of means. She pegs her monthly income at a total of GH¢2,225.05 excluding monthly maintenance of GH¢600 from the Petitioner. The Respondent, being a salaried worker, should have produced her pay slip for the court to verify. What is the respondent hiding? To be fair to her, she testified that she has given her pay slip to her counsel. She gave her monthly expenditure as GH¢2,412.00. The parties have been married for the past 18 years and do not appear from the evidence, to have acquired any landed property.
The Respondent testified that like the petitioner, she had her master’s degree albeit in insect science as at the time of the marriage but had to relegate further education to the background to enable her raise their family whilst the Petitioner was furthering his education. The Respondent is 48 years old presently and a hypertensive who is on medication daily. She testified that she has taken loans for rent purposes which she is still repaying although this is not reflected in her affidavit of means.
From the evidence and taking all the circumstances of this case into consideration, I will award a financial provision of GH¢10,000.00 to be paid to the Respondent.
In respect of custody, I am enjoined by Section 18 (2) of the Courts Act 1993 (Act 459), Sections 2 (1) and (2) of the Children’s Act, 1998 (Act 560), Section 22 of Act 367 to consider the best interest of the issues of marriage in making any orders thereof. The issues of the marriage are teenaged girls in their formative years. They have been with the Respondent since their birth and it is my considered opinion that it will be in their best interest for the Respondent to be granted custody of the issues namely Vanessa Efua Yawson and Chelsea Aba Kwansima Egyir –Yawson who are 16 and 13 years old respectively. The Petitioner is to have reasonable access to the children. The Petitioner and the Respondent shall contribute towards rent in equal shares.
Costs of GH¢1000.00 awarded the Respondent.
SGD.
CECILIA DON-CHEBE AGBEVEY J.
JUSTICE OF THE HIGH COURT