Sempah Vrs Kwakye [2023] GHADC 300 (30 March 2023)

1 IN THE DISTRICT COURT AGONA SWEDRU - A. D. 2023 BEFORE HIS HONOUR ISAAC APEATU Civil Suit No A4/70/2023 30th March, 2023 SANDRA OWUSU SEMPAH …… Petitioner VERSUS BISMARK KWAKYE …… Respondent JUDGMENT Another matrimony, meant in its natural spirit, purpose and form to be holy, undefiled and sacrosanct, has been defiled and is about to be put asunder. The once adamant couple who tied the knot together with hopes of enduring the tests of time, have in no time, forgotten why they came together and have succumbed to the pressures that be. Such has been the transformation in the character of the matrimony that they cannot now see eye to eye. The bitterness and enmity that has engulfed them is too deep that they have resolved that it is better apart than together. It comes as no surprise that both parties agree to the dissolution of the marriage. This is because this happens to be one of the most acrimonious proceedings I have witnessed in recent years. I am hoping that this judgment will bring some quietus to their acrimony. The petition, filed by the petitioner-wife of the marriage, reveals that the parties to this marriage got married on the 4th day of April, 2020. After two years of marriage out of which have sprung two children, the petitioner filed this petition asserting among others, that the marriage has broken down beyond reconciliation. Petitioner therefore prayed for certain reliefs endorsed on her petition details of which I have given below. In accordance with Order 18 rule 1(3) of the District Court rules, C. I. 59, which mandates written statements to be filed in matrimonial causes, the petitioner filed this petition which was subsequently amended by leave of this court, stating the grounds upon which she claimed dissolution of the marriage and the other reliefs. The Petitioner deposed in her amended petition that the Parties got married traditionally on 4th April, 2020 and have been blessed with two (2) children whose names she gave as Allan Jay Calkins Kwakye and Morgan Well Kwakye. That the marriage between parties has broken down beyond reconciliation. Petitioner averred that she met Respondent in 2014 and they dated until 2019 when she became pregnant with their first child. That after their marriage they decided to build a house located at Apaebir, Agona Swedru for which respondent being the head of the family used his name in preparing the indenture. That even when she was pregnant with their 2nd child, Respondent used the project as an excuse and refused to give her even a pesewa for antenatal care. Petitioner averred that being a loving wife and caring mother who wanted a better future and shelter for her children, she contributed financially towards the building in terms of buying cement, moulding of blocks, purchase of iron sheets and many other things to complete the houses as they are now. That she gave financial assistance from her own coffers on several occasions to the respondent to top up with his money to enable him buy items mentioned above and to pay the workers. That based upon her contributions both in cash and in kind, Respondent has been able to build and buy a 3-bedroom house at Apaebir, a one storey-building with 2 bedrooms at Apaebir, Agona Swedru, two (2) cars (1 private car and another taxi) during the pendency of the marriage. Petitioner averred that on 8th September, 2022 respondent told her that if she and her 2nd child want to live longer, then they should leave the house. According to petitioner, this made her pack all her personal belongings and left the matrimonial home. That Respondent resorted to battery and insult of her person at the least provocation and was also fond of insulting her and her family. That this battery started during her first pregnancy, one of which assaults she reported to the DOVVSU at Agona Swedru. That a medical Form was issued to her by the Police and asked to report to the Medical Doctor. Petitioner averred that the Respondent is fond of sleeping outside home. That the Respondent used to lock her in her room anytime he wanted to sleep outside home. Sometimes the Respondent hands over the keys to the house to the security man who would lock her and the kids out after he (Respondent) had left the house. That he (Respondent) rarely left money for her and the children and compelled her to fend for herself. Petitioner averred that the Respondent has committed adultery by bringing other women to their matrimonial home right under her eyes. That the Respondent has not had any intimacy with her for the past six months. She alleged rather that respondent brings other women home to a renovated room in the house. That all attempts at reconciliation by their elders have proved futile. That the Respondent has presented a bottle of schnapps and GH¢100 cash saying he cannot marry her again. On the back of the aforementioned averments, the petitioner prayed for the following reliefs: 1. Dissolution of the marriage. 2. An order for a fair share of the properties mentioned in paragraph 11. 3. Alimony of GH¢30,000.00 to be granted to the Petitioner. 4. Custody of the children to be granted to the petitioner with reasonable access to the Respondent who should endeavour to maintain the children. The petition together with attached documents and notices was duly served on the Respondent as mandated by procedure. On receipt of the processes, Respondent filed an answer to the petition and averred denying most of petitioner’s assertions. Respondent denied that he failed to maintain the petitioner insisting that he maintained the Petitioner during her pregnancy and delivery. Respondent averred that it was the Petitioner who on her own volition packed her personal belongings from the matrimonial home to her parents. That he was compelled to send elders to the Petitioner and her father but they insisted that she would no more marry him. According to the respondent, he then provided some drinks together with GH¢100 which they accepted and the marriage was accordingly dissolved. Respondent denied that he assaulted and insulted the petitioner. He maintained rather that he showed her love, affection and admiration even to the extent that when she packed out, he sent delegations to her to come back. Respondent insisted that the petitioner was not entitled to the amount of money she claimed as alimony because she vacated the matrimonial home on her own volition. Respondent further questioned the justification behind her entitlement to alimony since it appears to him that the petitioner has no justification at all. Having laid down the charges made by the parties in their respective statements, on which of them did the burden of proof lie in this case? It is settled law that the court before which a petition for dissolution of marriage is filed, was under a statutory and positive duty to inquire so far as it reasonably could, into the charges and counter charges alleged by parties in a divorce suit as this one. But the onus of proof is on a petitioner to prove all allegations made against any such respondent. The converse is that where a respondent made a counter allegation, he/she in accordance with section 14 of the Evidence Act, 1975 (NRCD 323), bears the onus of proof to establish those allegations. It is worthy of note that in discharging the onus of proof cast on the petitioner, it was immaterial that the respondent had not contested the petition; such petitioner was under a statutory duty to prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage had irretrievably broken down. See Danquah v. Danquah [1979] G. L. R. 371; Donkor v Donkor [1982-83] GLR 1158. Thus, the burden of producing evidence of any particular fact, as in civil cases, is on the party against whom a finding of fact would be made in the absence of further proof: see Section 17(a) and (b) of NRCD 323. The authorities are also in harmony that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under sections 10 (1) and (2) and 11(1) and (4) of NRCD 323. Closely associated with the above is the fluctuating nature of the burden cast on a party. The principle has always been that the burden of proof is not static but could shift from party to party at various stages of the trial depending on the obligation that is put on that party on an issue. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 as follows: “14 Except as otherwise provided by law, unless it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. So, in accordance with the general rules of procedure as mentioned, the Petitioner had the burden of proving all the assertions and allegations she made against the respondent on a preponderance of probabilities. If she succeeds in establishing her assertions by evidence, the onus will then shift to the Respondent to lead some evidence to rebut same failing which a ruling may be made against him on any particular issue (which he failed to rebut). The Matrimonial Causes Act, 1971 (Act 367) regulates divorces and other like causes in this country. Under section 1(2) of the Matrimonial Causes Act, 1971 (Act 367), a Court shall not grant a petition for divorce unless the marriage is proven to have broken down beyond reconciliation. And under Section 2(1) of Act 367, for the purposes of showing that the marriage has broken down beyond reconciliation, a petitioner for divorce shall satisfy the Court of one or more of the following facts: a. that the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent; b. that the respondent has behaved in 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 at least two years immediately preceding the presentation of the petition; d. that the parties to the marriage have not lived as husband 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; e. that the parties to the marriage have not lived as husband 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. It has been held in a line of cases including Donkor v Donkor [supra] that the Matrimonial Causes Act, 1971 (Act 367), did not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. The courts have held that the petitioner in such a case for dissolution of marriage must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act (above), not only by pleading them but also by proof for the purpose of showing that the marriage had broken down beyond reconciliation. The courts have explained further that Section 2 (3) of Act 367, provided that even if the court found the existence of one or more of those facts, it should not grant a petition for divorce unless it was satisfied that the marriage had broken down beyond reconciliation. What evidence then, did the petitioner lead to prove breakdown of the marriage beyond reconciliation? The Petitioner gave evidence in a bid to prove break down of the marriage. She then called one other witness, her father, in proof of her assertions. The nub of the case as presented by the petitioner is to the effect that the respondent is her husband. That they got married under customary law in April 2020. However, before the marriage, they had cohabited from 2014 until they eventually got married in 2020. That there are two children in the marriage. According to petitioner, on 8th September 2022, respondent brought a woman to sleep in their matrimonial home. That when she complained about it, the respondent slapped her, pushed her and exposed her nakedness. Respondent then told her to leave the matrimonial home because she and her 2nd child had no interest in the house. She said as a result of that, on the 9th September 2022, she packed out for her parent’s house. Petitioner stated that at her parent’s house, the respondent presented drinks to her parents that he could not continue in the marriage again. Petitioner prayed for alimony of GH¢30,000 and justified her claim by asserting that she stayed with the respondent from 2014 at a time he had nothing. That she helped the respondent in school by giving him financial assistance during his school days to date. She alleged further that they have been able to put up a building and bought cars. However, she was not making a claim to any of the properties save the claim for alimony so that she could start her life over again. During the cross examination that followed, the petitioner maintained that the respondent showed gross disrespect to her by bringing a woman into the home to have sexual intercourse with her in her presence. Again, when the respondent suggested that the petitioner had told him that she did not marry to engage in work and so the woman she saw in the house was the maidservant, the petitioner denied it insisting that the woman was not a maidservant since respondent brought her to the home at 12 am. The petitioner denied as untrue the respondent’s assertion that she did not cook or wash for him during the marriage. Petitioner further alleged that when completed secondary school, she was to proceed to the university. However, the respondent convinced her to shun the idea and to get pregnant for him. That she did and after her delivery, the respondent performed her rites and married her. However, because he could not continue in the marriage but brought a woman into the home, she was entitled to alimony. Petitioner further alleged that the respondent assaulted her and tendered in evidence the medical report as Exhibit A as proof of the assault on her by the respondent. As I stated above, the petitioner called one witness after she had closed her testimony. That witness happened to be her father. I have assessed the evidence thoroughly and shall make references to it as I proceed with this delivery. Respondent was called to open his defence after the petitioner closed her case in accordance with procedure. He obliged the invitation and gave evidence on his own behalf. He however did not called any witnesses in proof of his claims. The testimony of the respondent was to the effect that petitioner got pregnant in the year 2019. In 2020, they got married. Then she got pregnant again. That petitioner accused him of flirting with other women. That he was once talking on phone to his uncle. Petitioner thinking that he was talking with a woman slapped him and ransacked the things in the room. That in the struggle that followed, the petitioner held his testicles. To free himself off her grips, he held her shoulder but she quickly went to the hospital and made a complaint. It is the further case of the respondent that petitioner once told him that she could not do anything in the house and requested for a maidservant. That when he brought a maidservant to the home, petitioner got angry and accused him of bringing one of his girlfriends to the home. Petitioner then packed out of the home. That when the two families met, the father of the petitioner told them that his parents that he was tired of the marriage and proposed that it should be dissolved. That the delegation met again in the presence of the petitioner. When she was asked whether she wanted to continue, she told the gathering that she did not want to continue the marriage. So his family presented drinks to dissolve the marriage and offered GH¢100.00 for the benefit of the delegate. During the cross examination that followed, the respondent maintained that the petitioner did not wash or cooked for him during the entire marriage. He claimed that he cooked and washed by himself until he brought the maid servant. When the petitioner denied requesting for a maid servant because she could not cook, the respondent insisted that she made the request for a maid servant in July 2022 and that the petitioner had made the request on several occasions. Respondent further denied having any sexual relationship with named women including Lydia, Precious and one other. He denied that it was Precious he had brought to the home on the night the petitioner packed out. He however admitted that he has gone to perform the customary rites for the marriage of one lady but insisted that the lady he has gotten married to is not Precious. Now, before I discuss the issues relevant for a determination of this case, I shall shortly determine the jurisdiction of this court in respect of the fact that the marriage the subject of this petition before the court is not one celebrated under the ordinance but remained a customary marriage. The petitioner has called on the court to grant a dissolution of the marriage even though it remained customary. Does this court have jurisdiction in the face of that fact? I think this court has jurisdiction to hear and pronounce on this marriage albeit customary. Section 41 of Act 367 (supra) states: 41. Application of this Act (1) This Act shall apply to all monogamous marriages. (2) On application by a party to a marriage other than a monogamous marriage, the Court shall apply the provisions of this Act to that marriage, and in so doing, subject to the requirements of justice, equity and good conscience, the Court may (a) consider the peculiar incidents of that marriage in determining appropriate relief, financial provision and child custody arrangements; (b) grant any form of relief recognised by the personal law of the parties to the proceedings, in addition to or in substitution for the matrimonial reliefs afforded by this Act. (3) In the application of section 2 (1) to a marriage other than a monogamous marriage, the Court shall consider the facts recognised by the personal law of the parties as sufficient to justify a divorce, including in the case of a customary law marriage, but without prejudice to the foregoing, the following: (a) wilful neglect to maintain a wife or child; (b) impotence; (c) barrenness or sterility; (d) intercourse prohibited under that personal law on account of consanguinity, affinity or other relationship; and (e) persistent false allegations of infidelity by one spouse against another: (4) Subsection (3) shall have effect subject to the requirements of justice, equity and good conscience. From section 41 of Act 367 above, a court presented with a petition for dissolution of a marriage which is not monogamous may apply the provisions of Act 367. So this court is competent to apply the provisions of the Matrimonial Causes Act to determine whether the marriage has broken down beyond reconciliation as claimed by the petitioner. However, in doing that, the court is enjoined to consider not only the facts stated under section 2 (1) of this Act, but also the facts recognised by the personal law of the parties as sufficient to justify a divorce, including in the case of a customary law marriage, but without prejudice to the foregoing, certain factors including whether or not there has been any wilful neglect to maintain a wife or child; impotence; barrenness or sterility; intercourse prohibited under the personal law of the parties on account of consanguinity, affinity or other relationship; and persistent false allegations of infidelity by one spouse against another. I shall hence proceed to determine the case subject to the factors stated in section 2 (1) of Act 367 and those stated above under section 41 (3) of Act 367. One other issue which I wish to bring a conclusion to is whether or not the marriage was dissolved customarily before the filing of the petition by the wife for dissolution. From the evidence led generally, I find statements by the respondent suggesting that he presented drinks to the family of the petitioner indicating the dissolution of the marriage and afterwards, gave GH¢100 to the gathering. The petitioner did not deny the statement. However, I do not think that the presentation by the respondent of the drinks to the father of the petitioner alone is enough to signify a dissolution of the marriage. I think that the respondent ought to have exhausted the proper customary processes to have the marriage dissolved. From the evidence as led by the respondent, when the petitioner packed out of the home, he sent delegations to bring her back. At the meetings held, the petitioner and her father insisted that they would not allow the petitioner to go back. It appears that the meeting was then adjourned to a further date. It was during the following sitting that the respondent presented the drinks in a bid to dissolve the marriage customarily. As I indicated in the course of the proceedings, it takes more than what the respondent did to dissolve a customary marriage. To determine whether the marriage was dissolved under custom, I shall apply the personal law of the parties, i.e. the Akan customary law. In order to achieve the above purpose, I shall refer to the learned W. E. Offei in his book, Family Law in Ghana, Fourth Edition, at page 172. Writing under the topic, ‘Dissolution of Customary Marriages’, he stated under the sub-heading, ‘Method of Dissolution’ as follows; “The relatives of the two (2) parties meet and when all efforts at reconciliation fail, those assembled, known as Baguafo ask the parties which of them has lent anything to the other party. Any borrowed item must be returned to the par tner who lent it, except that the man may say that even though he lent a particular item or particular items to the wife, he does not intend to claim it or them back. The wife may do likewise. The only item that must be returned to the husband is the Ti Nsa or head money which he paid, at the time of the marriage, to the wife’s family. If the dissolution of the marriage was due to the man’s fault, he will be requested by the Baguafo to ‘send off’ (i.e. compensate) the wife. If on the other hand, the wife’s default e.g. prostitution or adultery occasioned the dissolution, she will be required to ‘send off’ the husband. The dissolution is sealed by the ceremony called hyirewgu or powdering. A member of the Baguafo takes white powder in his hand and puts it on the shoulder of the wife. He says to her: “Nne yeama wo hyirew. Yene wo nni asem biara bio.” This may be translated thus “Today we have powdered you. We have no matter with you again”. The speaker then hands over the woman to her family, and that ends the ceremony. It must be noted that the speaker does not spread the powder over the whole body of the woman.” This procedure was further reaffirmed in the case of Atta v. Annan (1975) 1 GLR 366, where the court held in respect of a customary marriage in which the grandfather of the wife sought to forcibly terminate the marriage that; “…the marriage could be terminated, only after an arbitration (to which must be invited members of the family of each spouse and neutral persons) had been conducted to find out whether any of the spouses had committed any marital offence. If an offence was proved, it was the duty of the arbitrators to try their utmost to effect reconciliation between the spouses in a genuine attempt to salvage the marriage especially where there were issues of the marriage. After the arbitrators had ruled that the situation called for divorce, the spouses mus t then be given an opportunity to show whether any of them owed any amount or had any property belonging to the other. After settling all legitimate accounts be tween the spouses, the final act of divorce was then performed by the husband releasing her from conjugal obligation, either by chalking her or saying so in the presence of the gathering”. In this case, there is no proof on the record that the families of the parties ever met to dissolve the marriage. There was no such arbitration spoken of in the above authorities on the subject. There is no proof that legitimate accounts were taken by the couples as intended under custom. There is also no proof that the husband i.e. the respondent ever performed any rites to release the petitioner-wife from conjugal obligation as is done under custom. The upshot is that the customary marriage was not dissolved as between the parties. It not having been dissolved, this court is seised with jurisdiction under section 41 [supra] to consider the petition for dissolution. Having stated the legal framework above, I shall discuss the issues germane to a determination of the case. The issues which call for determination in this case are: 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Whether or not the respondent committed adultery 3. Whether or not the petitioner is entitled to alimony of GH¢30,000. 4. Whether or not the petitioner was able to prove the claims on her petition. From the settled law confirmed in a line of judicial decisions, in a petition for divorce, any other established fact from the evidence has to support a finding that the marriage has broken down beyond reconciliation. In other words, any of the grounds upon which divorce is founded as laid down under section 2(1) of Act 367 must only go to prove breakdown beyond reconciliation and nothing else. From the evidence of the petitioner as relayed above, I am able to decode a plethora of facts upon which she seeks dissolution of this marriage. In fact, even though the trial of this case has been relatively short, I can say that it has been one of the acrimonious I have determined in my career on the bench. The petitioner did not hold back in her allegations against the respondent. Indeed, she made a range of allegations against the respondent chief among which is that the respondent brought his girlfriends into their matrimonial home and had sex with them to her hearing; slapped her and exposed her nakedness to their security man when she complained; failed to maintain her and her children. The respondent denied the allegations of adultery leveled against him by the petitioner. He admitted that he brought a woman to the house. However, that woman was not his girlfriend but a maidservant whom he brought to the house as a result of petitioner’s insistence that she cannot cook and wash in the house. He thus claimed that the girl he brought to the house was the maid servant. Even though the petitioner sought to further buttress her allegation of adultery against the respondent, he denied same. Adultery has been defined as sexual intercourse between two persons of whom one or both are married but who are not married to each other. See Bromley, Family Law (6th Ed), p. 195. It is also defined by Halsbury’s Laws of England (3rd ed.), Vol. 12, at pp. 235-236, to mean, “consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse.” Rayden on Divorce (7th ed.), at p. 131 defines in clear terms that the offence is committed when it takes place “between a married person and a person of the opposite sex.” Adultery is thus a voluntary sexual intercourse of a married person with one of the opposite sex other than his/her spouse. The adulterous act must itself be voluntary. Consequently, if a married woman is raped or her consent to the intercourse was obtained by force or fear, she does not commit adultery. See Yarrow v Yarrow [1892] P. 92; Blum v Blum [1963] 107 Sol Jo 512. It bears emphasizing that the burden of proving adultery lies upon the party who alleges it. This is because there stands in favour of the spouse against whom this grave misconduct is charged, a presumption of innocence. The standard of proof of such allegation of adultery is on a balance of the probabilities as established above. But although the evidence in proof of adultery need not reach certainty as in criminal cases, it must carry a high degree of probability. As such adultery can be inferred from the circumstances of the case but mere opportunity to commit adultery will not be sufficient to ground adultery. And though direct evidence of adultery is rare, it must be proved to the satisfaction of the court. See the case of Adjetey v Adjetey [1973] 1 GLR 216. The view has been taken long ago that one who alleges adultery must show at least a prima facie case. If that is done the court may then, in the absence of evidence in disproof, come to the conclusion and infer that adultery has been committed. Based on the above statement of the law, I wish to evaluate the evidence led by the petitioner in proof of her allegation of adultery against the respondent. Having made an allegation of adultery, it behoved the petitioner to lead evidence to prove it. But as I stated above, the facts which constituted the petitioner’s allegation of adultery was vehemently denied by the respondent. As claimed that it was a maidservant he brought to the house and not his girlfriend. Even though the petitioner tried to get him to admit that the girl was one Precious, his girlfriend and not a maidservant, the respondent stood firm. However, just when all seemed as though the petitioner was not going to succeed in her bid to get the respondent to admit to the commission of adultery, the door opened up for her. In a question posed to the respondent whether he has married and it was one Precious whom he married, the respondent admitted that he had gotten married a week before the cross-examination but sought to say that it was not Precious to whom he had gotten married. For the sake of emphasis, I have reproduced extracts of the cross-examination below: Q: You claim you do not know Precious. But you have engaged her at New Tafo on 11th February, 2023. A: Yes. I have but it was not Precious who came to the house. Petitioner then went ahead to tender in evidence as Exhibits A and A1, marriage invitation cards bearing the photographs of the respondent and a woman whom she claimed was Precious. Even though the respondent admitted that the woman in the photo was Precious, he denied that she was the one whom he had brought to the home. Be that as it may, what interests me is the fact that the respondent admitted that on the 11th February, 2023, while this case was pending, he performed the customary rites for the said Precious. That is a clear admission of adultery by the respondent. In the case of Quartey v Quartey [1972] 1 GLR 6, the Court held that a Court may act upon an admission of adultery even though there be no confirmatory proof of it, if the court is satisfied that the evidence as to the admission is trustworthy and if the evidence amounts to clear, distinct and unequivocal admission of adultery. In this case, the respondent’s admission does not admit of any inconsistencies. It is clear, distinct and unequivocal whatsoever and admits of no controversy. Having admitted adultery, there was no further burden on the petitioner to prove anything. His admission relieved the petitioner of the burden placed on her shoulders to prove the allegation she had made. And I think that his admission sounded so clear enough as to be relied on by the court. I hold that the respondent has committed adultery with Precious whom he has married on the 11th day of February, 2023 at New Tafo. So, on the first issue of whether the marriage has broken down beyond reconciliation, I find that the petitioner succeeded in convincing the court by her evidence that the marriage has broken down beyond reconciliation on account of the respondent’s adultery. I am of the firm conviction that the petitioner was able to prove breakdown of the marriage based on the facts provided in section 2(1) (a) of Act 367. I am satisfied that the petitioner proved that the respondent has committed adultery with one Precious whom he has married on the 11th day of February, 2023 at New Tafo. On the totality of the evidence on record, I am satisfied that the marriage has broken down beyond reconciliation. I will therefore grant the petitioner’s prayer and pronounce dissolution of the marriage between her and the respondent. The marriage between the parties is hereby dissolved. Besides the claim for dissolution, the petitioner claimed a plethora of reliefs. I shall determine each of them presently. The petitioner made a claim for the payment to her of alimony of GH¢30,000 by the respondent. The legal framework for the payment of lump sum to a spouse upon dissolution of marriage is provided for in the Matrimonial Causes Act, 1971 (Act 367). Section 19 of the Act reads as follows: 19. Financial provision for spouse The Court may, whenever it thinks just and equitable, award maintenance pending suit or financial provision to either party to the marriage, but an order for maintenance pending suit or financial provision shall not be made until the Court has considered the standard of living of the parties and their circumstances. When read together with section 20 of the same Act, a court may award financial provision for either party to the suit upon consideration of these conditions: a. The standard of living of the parties b. The circumstances of the parties c. Just and equitable principles The Act uses the term “financial provision”. This expression “financial provision” is defined in section 43 to include “Maintenance and all other forms of financial support to be provided by one spouse to the other or to any child of the household.” So even though in practice, various terms such as maintenance, alimony, lump sum etc. are used, these are mere exercise in semantics. In fact, there is no distinction between maintenance, alimony and periodical or lump sum payment. They are all described as ‘financial provision’ in the Act to be awarded whenever the court thinks it just and equitable. It has been held that the income, future earning capacities of the parties, property and resources of the parties, their standard of living, ages of the parties and duration of the marriage, and contribution of each of the parties are some of the factors which are taken into consideration in determining what is just and equitable. See the case of Gloria Odartey Lamptey v Nii Odartey Lamptey, Suit No BDMC 454/2013, 14th June, 2017, HC. Alimony or lump sum is thus to be understood to be a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. Alimony is not child support where after divorce one party is required to contribute to the support of a child of the marriage. With the modern liberalized divorce laws such as ours, alimony has come to be linked to the concept of fault in the divorce. Thus, alimony to a wife was paid because it was assumed that the marriage, and the wife’s right to support, would have continued but for the misconduct or misbehavior of the husband. On the reverse, if the wife committed the misconduct, she was hitherto considered to have forfeited any claim to ongoing support. The misconduct of one of the parties to the marriage was therefore generally considered a factor in determining alimony in divorces. However, it has been held that even though a wife may have, by her conduct contributed to the breakdown of the marriage, that should not be a ground to deprive her of what is due her. In the case of Wachtel v Wachtel [1973] Fam. 72 at 90, CA, the English Court of Appeal went to great lengths to clarify the issue. Lord Denning stated thus: “It has been suggested that there should be a ‘discount’ or ‘reduction’ in what the wife is to receive because of her supposed misconduct, guilt or blame (whatever word is used). We cannot accept this argument. In the vast majority of cases it is repugnant to the principles underlying the new legislation, and in particular the Act of 1969. There will be many cases in which a wife (though once considered guilty or blameworthy) will have cared for the home and looked after the family for very many years. Is she to be deprived of the benefit otherwise to be accorded to her…because she may share responsibility for the breakdown with her husband? There will no doubt be a residue of cases where the conduct of one of the parties is in the judge’s words . . . ‘both obvious and gross,’ so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered.” And there is no gender bias in the award of alimony as males may be granted alimony after divorces. That is why under the Act the expression “either party to the marriage” is used to refer to a husband or a wife. Now that the foundation has been laid on what constitutes alimony which the petitioner prayed for, is she (petitioner) entitled to the sum of GH¢30,000 which she claims as alimony? I have thoroughly considered the circumstances of this case. There is an abundance of evidence to rest the cause of the dissolution of the marriage at the doorstep of the respondent. It was his adultery that has led to the breakdown of the marriage beyond reconciliation. Moreover, from the evaluation of the evidence and the circumstances of the parties, it is a fact that the parties have been married since 2020, a period of approximately three (3) years. Even though the petitioner suggested that they started cohabitation in 2014 before they eventually got married in 2020, it was rebuffed by the respondent. Beyond the rebuff, the petitioner failed to lead evidence in proof of it. So, I take it that the parties began cohabitation after their marriage in 2020. Having lived as husband and wife for that length of time and having given birth to two children, the petitioner has given a lot to the marriage. The stress and pain of childbirth must have negatively affected her physique into deterioration. I find in this case, as with all similar fact situations, that if not for this marriage to the respondent, the petitioner may have gotten another man to marry which marriage may have endured. Even though the parties did not disclose their ages, looking at the petitioner, she is not growing any younger. I take cognizance of the fact that even though the prospects of her getting another man to marry have by no means diminished, the odds are against her bearing in mind that she has two children in her marriage to the respondent. That prospect has slimmed taking into consideration the wears and tears she has had to endure in the marriage. Furthermore, I get the impression from the generality of the evidence and conduct of the parties that the petitioner appears to have been hurt so bad by respondent’s conduct that there appears a slim likelihood that she will want to commit to another marriage again. Alimony is in the nature of compensation for injury to a person who claims it. The gravity of respondent’s adultery in this case is too clear to gloss over. He chose to conduct himself in certain ways which led the petitioner to pack out of the matrimonial home. Petitioner filed for divorce alleging that he has been committing adultery. Before the case before the court could be determined, he brazenly schedules a marriage ceremony with the same woman who appears to have broken the home. Having chosen to get married to Precious while his marriage with petitioner had not been dissolved, the respondent caused a lot of grief and embarrassment to the petitioner. Petitioner is said to be employed as a non-professional teacher. She admitted that she teaches in a private school. Even though she gets paid for her work at the school, I find that her marriage to the respondent was another, if not the main, source of earning income. Her ability to earn has been diminished by this divorce. The respondent would certainly have continued maintaining her as a wife had they continued to live as husband and wife in the marriage. Without this means of support, she would have to find alternative means of maintaining herself at least for the time being. Even though it cannot be said that she is by any means incapacitated or that she cannot fully support herself to a large extent financially, I think that the marriage to the petitioner has had a toll on her which has to be compensated for. I think she needs to be compensated for her time, effort, sweat and sacrifices made in this marriage. As I stated above, she appears young but not growing any younger. She is likely to find another man albeit it is a slim chance now. Be that as it may, it is important to stress that the prospect of her re-marriage is no ground to deny her payment of a lump sum by the respondent or as a ground to reduce it. In the case of Aikins v. Aikins [1979] GLR 223 at 231, Sarkodie J stated regarding the circumstances under which alimony is paid in these words: “Such a sum when granted is not affected by subsequent remarriage and it is not reduced because a wife is likely to re-marry...” Remarriage is independent of what a wife is entitled to at the dissolution of a marriage. Moreover, there is no indication that the respondent is unable to compensate the petitioner for the services she rendered during the marriage. He is a businessman who has been able to build houses in Agona Swedru. It is said in the evidence that besides the building, he has two cars. He has been able to employ a security man in his residence. He is by no means impoverished. He has class. One factor to consider is that even though the petitioner appears to have made a claim for a fair share of the above- mentioned properties, she waived them in the course of the trial and opted to pray for alimony to be paid her in lieu thereof. In fact, I find no circumstance known to the court that prevents him from making financial provision for the petitioner. In the circumstances of the case, and for all the manifold reasons given above, I think it just and equitable to award alimony or lump sum of Thirty Thousand Ghana Cedis (GH¢30,000.00) to the petitioner. The petitioner had prayed for custody of the two children to be granted to her with reasonable access to the respondent. The respondent did not deny this claim. In fact, he did not make mention of the children or the claim for custody by the petitioner ever in the entire proceedings. The ages of the children who are presently staying with the Petitioner were not quoted. However, considering that it was the conception of the first child that prompted the marriage in 2020, I can hazard their ages to be about 3 years. In the interest of the children, I think they should continue to stay with the Petitioner so that she can devote time for them. Custody of the said Allan Jay Calkins Kwakye and Morgan Well Kwakye is granted to the Petitioner with reasonable access to the Respondent. The Respondent shall have access to the children by paying them visits during two weekends in a month and having the children spend the vacations with him or on such days as the parties may agree. The court ordered the Respondent to maintain the children with an amount of GH¢400 each month pending the final determination of the matter. This order was made in 2022 when the matter was first called for hearing. I reckon that the circumstances have changed a bit such that a review ought to be made to the maintenance order. Considerations made in 2022 cannot hold this day. The amount of GH¢400 cannot maintain two children today. It is therefore ordered that the Respondent shall maintain the two children of the marriage with an amount of GH¢800 each month i.e. GH¢400 for each child. This order takes effect from April 2023. He shall hence be responsible for the health, educational, shelter and all other needs of the children in fulfilment of his responsibility as a father. Next on the issues to be determined would have been the distribution of the properties. However, as I stated above, the petitioner waived them in the course of the trial opting rather to focus on her prayer for alimony to be paid her in lieu thereof. In the result, and based on the available evidence assessed on a balance of probabilities and the relevant law, the Petitioner succeeds in terms as follows: i. The marriage between the Petitioner and the Respondent contracted under the Marriages Act, 1884-1985, Cap 127 is dissolved and the marriage certificate cancelled accordingly. ii. The respondent shall pay alimony of GH¢30,000.00 to the petitioner, having caused the breakdown of the marriage and for the sacrifices and services rendered to him as a wife and her time spent in the marriage. iii. Custody of Allan Jay Calkins Kwakye and Morgan Well Kwakye is granted to the Petitioner with reasonable access to the Respondent. The Respondent shall have access to the children by paying them visits during two weekends in a month and having the children spend the vacations with him or on such days as the parties may agree. iv. Respondent shall henceforth maintain the two children of the marriage with an amount of GH¢800 each month i.e. GH¢400 for each child. This order takes effect from April 2023. Given the circumstances of this case, the financial strengths of the parties, and the circumstances under which the marriage has come to an abrupt end as is borne out by the evidence on record, I am inclined to make an order for cost of GH¢1,000 against the respondent in favour of the Petitioner. (SGD) HIS HONOUR ISAAC APEATU DISTRICT MAGISTRATE