- WHAT IS DIVORCE UNDER THE ORDINANCE?
Divorce, according to Black’s Law Dictionary, is the legal dissolution of a marriage by a court. Concretely, this means that the two individuals involved in the marriage no longer form a matrimonial unit. Legally, they do not represent one household, be it for tax purposes or any another matter.
A marriage under the ordinance is one that is formed pursuant to the Marriages Act 1884 – 1985 (CAP 127). Such a marriage is distinct from a customary marriage, which is another type of marriage under the Act that is primarily based on the performance of certain customs specific to the individuals’ ethnicities/culture.
In Ghana, the dissolution of marriage by way of divorce proceedings is governed by the Matrimonial Causes Act 1971 (Act 367) (the “MCA”), except those which are not contracted as monogamous marriages that may occur outside the MCA. Divorce under the ordinance requires that procedural and substantive conditions are met.
- PROCEDURAL REQUIREMENTS FOR DIVORCE UNDER THE MCA
First, the law provides that divorce proceedings must be initiated by a petition to the court and the said petition may be presented to the court by either party to the marriage. Further, Section 9 of the MCA provides that: “A petition for divorce shall not be presented to the court within two years from the date of the marriage.”. There are, however, two exceptional circumstances to this general rule. They include:
- substantial hardship suffered by the person petitioning the court for divorce; or
- depravity on the part of the non-petitioning party.
An unfortunate example of substantial hardship is conjugal violence, which constitutes grounds for bypassing the “two-year” mandatory minimum for seeking divorce. Also, depravity on the part of the non-petitioning party may include sexual acts that the petitioning party has not consented to, such as, threesomes, engaging in sexual intercourse with another person under the gaze of the non-petitioning party, etc.
Petitions for divorce under the MCA is not open to all persons. Pursuant to Section 31 of the MCA, “The court shall have jurisdiction in any proceedings under this Act where either party to the marriage-
- is a citizen of Ghana; or
- is domiciled in Ghana; or
- has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings.”
The MCA also has only one substantive ground under which a marriage may be dissolved. The petitioner must provide evidence to the effect that the marriage has broken down beyond reconciliation. If the divorce is sought outside the MCA, the grounds may be different, as customary or personal law may hold sway.
- WAYS OF PROVING THAT A MARRIAGE HAS BROKEN DOWN BEYOND RECONCILIATION UNDER THE MCA
Ghanaian matrimonial law provides for both fault-based and no-fault divorces. The former represents those divorces that are granted to one spouse on the basis of some wrongful act by the other spouse. An effective example of a fault-based divorce is one where a spouse is being accused of adultery. On the other hand, in no-fault divorces, the parties are not required to show fault or grounds showing the irretrievable breakdown of the marriage or irreconcilable differences. Pursuant to Section 2(1) of the Matrimonial Causes Act:
“For the purpose of 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 such adultery the petitioner finds it intolerable to live with the respondent; or
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or
(d) 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 and the respondent consents to the grant of a decree of divorce; provide 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 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.”.
These instances form the basis for a party’s petition for divorce to proceed under the MCA of Ghana. Once the divorce is established, the court may still retain powers to determine whether one party is entitled to maintenance/stipend (Section 19), who may retain full custody of a child (if the marriage bears one) (Section 22), or even who may be compelled to pay moneys to retain full possession of matrimonial property (Section 20).