Dissolution of Monogamous marriages Flashcards
Jurisdiction of the Ghanaian Courts in the dissolution of monogamous marriage (Section 31 of the MCA)
The courts in Ghana will have jurisdiction in any matrimonial case where either the husband petitioner or the wife petitioner is a citizen of Ghana or domiciled in Ghana or has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings.
NB: It is a well-known principle of law that it is the status of the petitioner that determines the jurisdiction of a court in divorce proceedings.
Amponsah v. Amponsah (Jurisdiction)
The court stated that even though the naturalization of the petitioner as an American citizen had changed her political allegiance, the dictates of citizenship were different and distinct from those of domicile. Naturalization was a question of law but domicile was a question of fact and dependent on intention to make a permanent home in a particular country. Since there was no evidence that the parties had abandoned their domicile of origin acquired at birth and intended to or had acquired anew domicile of choice, the limited right of stay due to their visa regulations did not mean an automatic loss of domicile unless and until they were actually deported from the country.
** It is a fundamental principle of law that it is the status of the plaintiff (i.e. the petitioner in that case) and the issues in the statement of claim that determine the jurisdiction of the court.
Ofori v Ofori (Reconciliation; and also custody later)
The MCA encourages attempts being made to reconcile parties to divorce suits. Section 8 gives the court power to adjourn the proceedings for a reasonable time to enable attempts to be made to effecti reconciliation. If therefore, after a petition has been filed, the parties themselves for the purpose of effecting reconciliation, agree to live together again as man and wife then, unless they do so for an inordinately long period, it would be defeating the promotion of reconciliation to hold that the parties are thereby barred from pursuing the remedy of divorce if the attempt at reconciliation fails.
Happee v. Happee
The court discussed section 31. In that case, the petitioner was a native of Netherlands and the respondent was a native of Ghana. The court ruled that since the petitioner had been ordinarily resident in Ghana for twenty five years, the court had jurisdiction even though he was still domiciled in, and a citizen of, the Netherlands.
Two year limitation for dissolution of marriages
The dissolution of monogamous marriages is governed by the Matrimonial causes Act 1971, Act 367 (“MCA”).
A petition for divorce will be not entertained until the couple has been married for at least two years unless the party can establish substantial hardship or depravity.
There is only one recognizable ground for divorce - that the marriage has broken down beyond reconciliation - but the offences and reasons may be based on occurrences that happen in the first 2 years
Petition for divorce under the MCA
Pursuant to Section 1 of the MCA, either the wife or the husband can petition for a divorce.
The sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation.
Marital Offences
Pursuant to section 2 of the MCA, there are six ways to establish a marriage has broken down beyond reconciliation, including unreasonable behavior.
- Adultery
- Unreasonable behavior
- Desertion
- Inability to reconcile differences
- Separation (Failure to live together as husband and wife (2 years))
- Separation (5 years)
When a petitioner proves one of the above facts mentioned under section 2(1) of the MCA he or she may be deemed to have proved that the marriage has broken down beyond reconciliation
When can a petitioner bring the marital offense of adultery?
Adultery is dealt with under section 2(1)(a) – it states as follows “A petitioner may rely on the fact that the respondent has committed adultery and the fact that as a result of the adultery, he or she finds it intolerable to live with the respondent to prove that the marriage has broken down beyond reconciliation”.
The above provisions means that a petitioner must prove two things:
a. Firstly that adultery has been committed;
b. Secondly, that the petitioner as a result of the adultery finds it intolerable to live with the respondent. This provision is subjective and offered by the petitioner, and the trier of fact will weigh the supposition and facts to make a ruling.
What must be established in order for adultery to succeed?
- Penetration: That there was penetration of a woman by the man. Full penetration does not have to be proved. Partial penetration is enough to constitute adultery. Lesser acts such as masturbation will not constitute adultery – Dennis v. Dennis (1959) (Hint to remember Dennis = Sinned backwards; Adultery is a sin)
- Voluntary: The act of sexual intercourse must be voluntary. Therefore, if there is prove that consent was obtained through fear or force, there is no adultery.
(As well as that it was with someone other than the spouse)
What is Adultery?
The MCA defines adultery as follows: Voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse.
V - S - I of M- P
What is the burden of proof
The burden is on the petitioner to establish that adultery has been committed. Once this has been done the burden shift to the respondent to prove that sexual intercourse did not take place or that if it did, it was not consensual (voluntary was/consent).
How may adultery be proved?
Because direct evidence is difficult to obtain to establish sexual intercourse, the courts may draw inferences from circumstantial evidence surrounding the case. e.g. where the respondent books a double room in a hotel with woman who is not his wife, adultery could be inferred. See, Blum v Blum.
- A Voluntary Confession may be used to establish adultery. However a confession made under duress or undue influence will not be admissible. Quartey v Quartey
- If the petitioner has contracted a sexually transmitted disease from the respondent adultery may be inferred.
- If it is proved that a child born by the respondent is not the child of the petitioner, the respondent will be presumed to have committed adultery.
- Where a married person is caught having sex with a person who not his/her spouse, adultery would have been established.
Mmm 4Cs + S (Confession, Child, Caught in the Act, Circumstantial evidence, STD)
What does the intolerability test mean?
The test means that the court must decide whether the particular petitioner finds it intolerable to live with the respondent and not what a reasonable petitioner would have found intolerable. Thus, the test is subjective and not objective.
- The discovery of the adultery must make life intolerable for the petitioner or by linked to the adultery.
Are there any reconciliation provisions regarding adultery?
Section 3 of the MCA provides that if a petitioner continues to live with the respondent as husband and wife for a period exceeding six months or more after the discover of the adultery, he cannot subsequently rely on that adultery as a fact proving that the marriage has broken down beyond reconciliation.
What is the standard of proof in adultery?
The court has held that the standard of proof in adultery cases should be between a balance of probability and beyond reasonable doubt i.e. the proof should be to the satisfaction of the court or the judge. See, Adjetey v. Adjetey
What is Unreasonable behavior
A conduct that gives rise to injury to life, limb or health or the reasonable apprehension of such danger.
Actual injury does not have to be established. Mere apprehension of such injury so far as it has led to the break-down of the marriage beyond reconciliation.
