Ghana recognizes three forms of marriages namely, Ordinance marriage, Mohammedan marriage, and Customary marriage. Procedures for contracting and the registration of the respective marriages are governed by the Marriages Act, 1884-1985 (CAP 127). Customary marriages particularly are governed by the customs peculiar to the various ethnic groups and communities.
The focus of this article is on the divorce process with respect to Marriage by ordinance, and partly on customary divorce which is generally governed by the Matrimonial Causes Act, 1971 (Act 367).
If a person contracts a customary marriage, they may dissolve the marriage in accordance with the applicable customary rules that governs the marriage, without necessarily having to bring a divorce petition before the Court. They may also elect to bring a petition before the Court to have the customary marriage dissolved.
In the case of a marriage under the ordinance, the only means to dissolve the marriage is to bring a petition before the court for a dissolution. The process may be commenced by either of the parties or a lawyer.
The Matrimonial Causes Act provides that a person who petitions the court for dissolution of marriage must prove that the marriage has broken down beyond reconciliation. In proving that the marriage has broken down beyond reconciliation, the petitioner must establish at least one of the following:
- Adultery by the other party
- Unreasonable behaviour
- Desertion for a continuous period of at least two years
- Separation for at least two years
- Separation for at least 5 years
- Irreconcilable differences
ADULTERY
The Act defines Adultery as voluntary sexual intercourse with a person of the opposite sex other than his or her spouse. The petitioner must show that that the respondent has committed adultery and by reason of the adultery the petitioner finds it intolerable to live with the respondent.
This means that proof of adultery perse might not be sufficient. The petitioner must establish further that the respondent's adulterous conduct has made it intolerable for him or her to live with the respondent.
If with a view to reconciliation, the parties have been living together as husband and wife for more than 6 months after the adultery became known to the petitioner, they cannot rely on adultery as a ground for divorce. However, in assessing the period they have lived together for more than 6 months, the Court would discount any period of 6 months or less.
For example, if the parties have been living together as husband and wife for 11 months after the adultery was discovered, the court would disregard any period of 6 months or less. Therefore, the period they would have lived together would be assessed at 5 months, (11months minus 6 months). Since the relevant period would be 5 months, and therefore not more than 6 months, they would be entitled to rely on the adultery as a ground for divorce.
Conversely, if they have lived together for 13 months as husband and wife from the time the adultery became known, the period of 6 months or less would be discounted. Therefore, the period for consideration would be 7 months (13 months minus 6 months). Since the relevant period is 7 months, and more than 6 months after the adultery was discovered, they cannot rely on adultery as a ground for divorce.
UNREASONABLE BEHAVIOUR
The ground of unreasonable behavior may take the form of either an omission to perform an act or the doing of an act that is in the nature of emotional or physical abuse which is sufficient to satisfy the court of the reliance of this ground.
It is quite difficult to specify with sufficient certainty what counts as unreasonable behaviour. Behaviours may include cruelty, nagging, contracting a venereal disease, refusal of sexual intercourse, persistent accusations of infidelity, drunkenness. This list is not exhaustive.
Bottom line is that the petitioner must show that the respondent's behaviour is such that they cannot reasonably be expected to live with the respondent. The petitioner must specify the facts upon which unreasonable behaviour is alleged with particulars of how the alleged behaviour makes it unreasonable to live with the other party.
In determining whether the petitioner cannot reasonably be expected to live with the respondent, the court would disregard any period of 6 months or less in aggregate the parties lived together as husband and wife after the date of the occurrence of the final incident relied on by the petitioner and proved to the court in support of his allegation.
DESERTION
Desertion has been defined somewhere as the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse. However, the physical act of departure by one spouse does not necessarily make that spouse the deserting party.
To rely on this ground, the petitioner must satisfy the court or prove that the act of the desertion is premised on the intention of not to return to the marriage. The desertion per the law must be continuous for a continuous period of at least 2 years immediately preceding the presentation of the petition.
SEPERATION FOR AT LEAST TWO YEARS
A party may file for a divorce if they have been separated from their partner for at least two years immediately preceding the date they file for a divorce. Separation means that the couple have not lived as husband and wife for at least 2 years. It matters not if the couple continue to live in the same premises, provided they are not living together as husband and wife.
The Court may require the consent of the other party before granting divorce on this ground. The Court has power to dispense with the consent requirement if it is satisfied that the other party is withholding consent unreasonably. To qualify as a valid consent, the Court must be satisfied that the consent was given after the other party has been given the information that will enable him or her to understand the consequences of the consent. At any time before the court grants a divorce, the court, may, if satisfied that the petitioner intentionally or unintentionally misled the other spouse on a matter to consent to the separation, dismiss the proceedings before it.
SEPERATION FOR AT LEAST FIVE YEARS
A party may file for a divorce if they have been separated from their partner for at least 5 years from the date the divorce is filed. There is no requirement to obtain the consent of the other partner before the court may decide to grant the divorce. It is sufficient if the petitioner can show that at least 5 years have passed since they last lived together as husband and wife.
IRRECONCILIABLE DIFFERENCES
A party may file for a divorce if they can show that they have after diligent effort been unable to reconcile their differences with the other party. The petitioner must detail the alleged differences and the various unsuccessful attempts made to reconcile them.
PRESUMPTION OF DEATH AND DISSOLUTION OF MARRIAGE
Beside the grounds described above, a party may apply for the dissolution of marriage on the presumption that the other party to the marriage is dead. Where the court is satisfied that the presumption exists, the court may issue a decree of divorce on the grounds of presumption of death.
A person who intends to petition the court for presumption of death and dissolution of marriage may bring the action only when the other party has continuously been absent for at least 7 years and the other party has been continuously absent from the petitioner. The party must again prove that they have no reason to believe that the other party has been living within that time shall be evidence that the other party is dead until the contrary is proved.
RESTRICTIONS ON DIVORCE PETITION
Generally, a party cannot file for a divorce until they have been married for at least two years. However, a person may before the second anniversary of the marriage apply to the court for permission to file a divorce. For the court to grant permission to the party, they must prove at least one of the following:
- That they would suffer substantial hardship if they were not allowed to file a divorce before the period of two years before their marriage;
- depravity on the part of the other party.
If the court is satisfied that either of the grounds exist, they may allow the interested party to go ahead and file a divorce even though the two years limitation may not have expired. The Court may consider the interests of any children in the marriage, and any reasonable possibility of reconciliation.
The objective of this article is to provide information on divorce process in Ghana. Different circumstances may require specific solutions which may in certain situations require the leave of the court to proceed with or may take another form of proceedings to be dealt with. Any person who wishes to commence a divorce process and has doubts about the process or require further clarification may contact a lawyer for advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
