MICHAEL MANTEY V. ELIZABETH OYINKA
Jurisdiction
HIGH COURT
Judge
N/A
Catalog Type
Case
Judgement Date
Jul 19, 2016
Summary
Family Law — Dissolution of Marriage — Breakdown of Marriage beyond Reconciliation — Separation with consent — Section 2(1)(d) Matrimonial Causes Act, 1971 (Act 367) This case concerns a petition for divorce brought before the High Court by a husband against his wife, both of whom are Ghanaians married under the Marriage Ordinance in 2005. The marriage produced two children, aged eight and five at the time of the proceedings. 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 proposed that custody of the children be granted to the Respondent, with reasonable access to himself, and that he pay monthly maintenance. The Respondent, in her answer, denied the allegations of misconduct but similarly prayed for dissolution of the marriage. She agreed that custody should be granted to her and requested maintenance payments, payment of such maintenance into court for enforcement purposes, and legal costs due to financial hardship allegedly caused by the Petitioner. It was established that even before the physical separation, the parties no longer lived as husband and wife, as they occupied separate rooms. Both parties consented to the divorce and had filed terms of settlement addressing custody and maintenance. The court found that the marriage had irreconcilably broken down within the meaning of Section 2(1)(d) of the Matrimonial Causes Act, 1971 (Act 367), since the parties had lived apart for a continuous period exceeding two years and the Respondent consented to the divorce. Consequently, the marriage was dissolved.
Full Content
JUDGMENT
AGBEVEY, J.
The parties both of whom are Ghanaians were married under the Marriage Ordinance (Cap 127) (1951 Rev.) on the 8th day of July 2005 at the Accra Metropolitan Assembly. The Petitioner is a businessman and the Respondent operates a restaurant. There are two issues of the marriage namely Yaa Asantewaa Mantey and Nana Adwoa Mantey who are 8 and 5 years old respectively. Per the petition filed on the 3rd day of December, 2015, the Petitioner, on the grounds that the Respondent behaved in such a manner that the Petitioner cannot reasonably be expected to continue living with her, prays the Court for reliefs as follows:
i. That the marriage celebrated between the parties on the 8th day of July, 2005 be dissolved.
ii. That the Respondent be granted custody of the two children of the marriage with reasonable access to the Petitioner.
iii. That the Petitioner pays the Respondent sum of GH¢500 monthly for the maintenance of the two children of the marriage.
iv. That the Respondent provides clothing for the children.
The Respondent filed an Answer on the 13th day of January 2016. She denied the material particulars and prayed the Court as follows:
(i) That the marriage between the Petitioner and the Respondent be dissolved.
(ii) That the custody of the children be granted to the Respondent.
(iii) That the Petitioner makes monthly payment of GH¢500 for the maintenance of the two children of the marriage.
(iv) That the Court orders that the Petitioner makes the monthly maintenance payment into Court to ensure his compliance.
(v) That the Court orders the Petitioner to bear the cost of the Respondent’s legal fees owing to the undue financial distress that the Petitioner has caused the Respondent.
The Petitioner testified on oath that the parties have been separated for the past 4 years and that the parties have tried to resolve their marital differences but have not been successful. He told the Court that the parties have filed terms of settlement. He tendered the terms of settlement filed on the 12th of May, 2016 which was admitted in evidence as EXHIBIT ‘A’. The marriage certificate was admitted in evidence as EXHIBIT ‘B’. Under cross-examination, he could neither give the dates of birth of the issues of the marriage nor the name of the school the issues attend. He also admitted he has not been paying maintenance for the upkeep of the home.
On her part, the Respondent who is 43 years old testified on oath that she consents to the divorce and that she agrees with the terms of settlement filed. She further testified that the Petitioner is irresponsible and that they have been living separately for about 6 years now.
She, however, admitted under cross-examination that the matrimonial home she presently resides in with the issues of the marriage and the shop she runs are located in the Respondent’s family premises for which she does not pay rent.
From the evidence it is not in doubt that the Petitioner has deserted the matrimonial home for some years and both parties are ad idem that the parties are not living together but whereas the Petitioner says the period of separation is 4 years, the Respondent testified that it is rather 6 years.
Be that as it may, on the evidence, even whilst living under the same roof, the parties were sleeping in separate rooms, prior to the Petitioner moving out of the matrimonial home. In her Answer to the petition, the Respondent avers that the younger issue of the marriage, Nana Adwoa Mantey is aged 5 years and in the absence of further evidence to the contrary, the Petitioner’s version of the period of separation is more probable and more in accord with the assertion that the Petitioner left 4 years ago. For in the absence of further evidence, to find otherwise, will lead to an absurdity for if the Petitioner left the matrimonial home for the past 6 years how can the younger issue be 5 years old? I find that the parties have not lived together as man and wife for a continuous period of at least two years immediately preceeding the presentation of the petition and the Respondent consents to the decree of divorce as provided by Section 2 (1) (d) of the Matrimonial Causes Act 1971 (Act 367) which provides as follows:
“That the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition 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.”
Accordingly, I find that the marriage has broken down beyond reconciliation. I decree the marriage celebrated between the Petitioner and the Respondent at the Accra Metropolitan Assembly on the 8th of July 2005 with certificate number 0820/MC/2005per licence number AMA 3548/2005, dissolved.
In respect of the ancillary reliefs the Petitioner is to pay for the educational and medical expenses of the two issues of the marriage. Furthermore, I enter the terms of settlement filed on the 12th day of May, 2016, signed by the parties with their respective Counsel as consent judgment of the Court as follows:
a) That the marriage contracted between the parties on the 8th day of July 2005 be dissolved.
b) That custody of the two (2) children of the marriage should be granted to the Respondent with reasonable access to the Petitioner.
c) That the Petitioner would make monthly payments of GH¢500.00 into Court as maintenance payment for the two (2) children.
d) That the Respondent would provide clothing for the children.
e) The Respondent shall be entitled to costs of GH¢2000.00 payable by the Petitioner.
f) The terms of settlement stated herein will be adopted as consent judgment in the suit.
SGD.
CECILIA DON-CHEBE AGBEVEY J.
JUSTICE OF THE HIGH COURT