Tei Vrs Abayateye [2023] GHADC 685 (27 June 2023)

IN THE DISTRICT COURT HOLDING AT DODOWA, SHAI- OSUDOKU ON TUESDAY THE 27TH DAY OF JUNE, 2023 BEFORE HER WORSHIP BRIDGET AKPE AKATTAH SUIT NO: A4/53/2022 SANDRA TEI PETITIONER VRS NOAH ABAYATEYE RESPONDENT JUDGMENT Per a Petition filed on the 13th day of December, 2021 in the Registry of this Honourable Court, the Petitioner sought the following reliefs: (i) An order of the Court dissolving the ordinance marriage contracted by the parties on 19th March, 2016 forthwith and issue Divorce Certificate to the Petitioner. (ii) An order for custody and maintenance of the issue of the marriage namely Abel Abayateye aged 5 years to Petitioner with reasonable access to Respondent. (iii) An order directed at Respondent to compensate Petitioner with cash an amount of Thirty Thousand Ghana Cedis GH₵30,000.00) for the pain he has caused her. (iv) Any other order or orders that this Honourable Court may deem fit. The Respondent also filed his answer to the divorce petition on 11th January, 2022 and cross petitioned as follows: Page 1 of 12 1) For an order to dissolve the marriage contracted between the parties on 19th March, 2016 forthwith. 2) Custody of the issue of the marriage be granted to the Petitioner with reasonable access to Respondent. 3) Any other order(s) that this Honourable Court may deem fit. Parties were referred to Alternative Dispute Resolution (ADR) and filed their settlement terms after filing their written statements and the Court proceeded to take evidence to establish the breakdown of the marriage beyond reconciliation. EVIDENCE OF BOTH PARTIES Petitioner led evidence in establishing the breakdown of the marriage beyond reconciliation. Petitioner led evidence that she got married to Respondent under the Marriage Ordinance Cap. 127 on 19th March, 2016 at the Ebenezer Pentecost Family Ministry, Accra. That when she got pregnant, circumstances necessitated that she moved to her mother’s house at Henyum, Dodowa by which the Respondent joined her later and they stayed there for about one and half years. Petitioner claimed that during the course of the pregnancy of the issue of the marriage namely Abel Abayateye, she developed a lot of complications including asthmatic attacks, hypertension and other infections and that although Respondent was tasked to take care of her health and education by the families of both parties, he failed to do so. Petitioner claimed she was a student at Monreve Nursing College but she informed the Respondent of her intentions to switch to Teacher Training College which Respondent agreed with and promised financing her. Both parties had to relocate to the Petitioner’s mother’s house and lived there until Respondent moved out after one and half years after delivery of the only issue of the marriage. Respondent packed out his belongings and left the house in somewhere June Page 2 of 12 2018 without any information and never returned till date upon several pleas from Petitioner’s family and all efforts to know the whereabouts of the Respondent proved futile. Petitioner says until sometime in November, 2021, Petitioner discovered that the Respondent was living with another woman and has fathered two children with her during the pendency of this current marriage. Petitioner claimed that Respondent refused to allow her to enroll at a Teacher Training College with the excuse that he would rather invest the money in a plot of land, which resulted in the truncation of her education. Petitioner further claimed that Respondent has committed adultery as he is living with another woman whom he has fathered two children with during the subsistence of their marriage and has also deserted both she and the issue of the marriage as he has not maintained the child for about three and half years now. That both parties have not had sex for over three and half years now and that the marriage between the parties has broken down beyond reconciliation. She called no witnesses. Petitioner therefore prayed the Court for the dissolution of the marriage and custody of the issue of the marriage granted her with reasonable access to Respondent; an order directed at Respondent to compensate Petitioner with a cash amount of Thirty Thousand Ghana Cedis (GH₵30,000.00) for the pain he has caused her with the said amount. It is the case of the Petitioner that in the course of the marriage, she served the Respondent in so many ways and thinks that she deserves some compensation, alimony. Respondent led evidence that as a result of the constant misunderstandings between Petitioner and their Landlord’s wife, Petitioner’s mum suggested that they move into her uncompleted two-bedroom apartment at Henyum. Respondent averred that he agreed Page 3 of 12 and completed the building and they moved in with the Petitioner. Respondent alleged that Petitioner had earlier on attended a Nursing Training College failed two papers of her NVTI Grade I exams and had to put her re-sit on hold because she was pregnant. He further alleged that Petitioner intimated to him that she wanted to change her programme of study from Nursing to Teacher Education and that she wanted Respondent to enroll her. Respondent declined her request with the reason that he wanted her to continue with the Nursing since money had already been spent on that endeavor or she could start teaching in a private school to enable her support him due to financial constraints. This led to disagreements between the parties. Respondent further averred that both families, Pastors and Counsellors of the parties have tried resolving the matter but it has proved futile. That Respondent has not married any other woman apart from Petitioner and have not fathered any other children out of wedlock. Respondent alleged that the only reason the Petitioner wants divorce is hinged on the fact that he was unable to send the Respondent to the teacher training college. During the cross examination that followed, the Respondent maintained his denial of the Petitioner’s assertions that he had sexual intercourse with another woman and that he had children with her. This is a matrimonial cause governed by the Matrimonial Causes Act, 1971 (Act 367). It is therefore in the nature of a civil claim. The onus therefore, of producing evidence of any particular fact, as in all 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 the Evidence Act, 1975 (NRCD 323). Page 4 of 12 The burden of producing evidence has been defined in Section 11 (1) of NRCD 323 as follows; “11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. The burden of proof is also 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 rule of procedure, the Petitioner had the burden of proving all the averments he made against the respondent on a preponderance of probabilities. If he succeeds in establishing his averments by evidence, the onus will then shift to the Respondent to lead some evidence to rebut same. 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 petition 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; Page 5 of 12 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 [1982-83] GLR 1158 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. And 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 court explained further that Section 2 (3) of the Act, 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. 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: Page 6 of 12 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Whether or not the Petitioner is entitled to alimony of GH¢30,000. 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. On the totality of the evidence on record, I am satisfied that the marriage has broken down beyond reconciliation, as the parties have not lived as husband and wife for over four years now. I therefore grant the petitioner’s prayer and pronounce dissolution of the marriage between her and the respondent. The marriage between the parties on 19th March, 2019 is hereby dissolved. Again, on the issue of custody, both parties have agreed the Petitioner be granted custody of the only issue of the marriage. For the best interest of the child to be served herein and for continuity of education and the enjoyment of the environment that the child has been living, custody of the only issue Abel Abayateye aged five (5) be granted in favour of the Petitioner with reasonable access to the Respondent herein. Page 7 of 12 Next in the line of issues is that for financial provision. 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. Page 8 of 12 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 Page 9 of 12 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. Alimony is in the nature of compensation for injury to a person who claims it. That said, 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 Respondent 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 especially having to truncate her education due to child bearing. 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 Page 10 of 12 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 man who is gainfully employed as against the Petitioner who had to stop her education due to marriage and child bearing with the Respondent. Respondent works with the Ghana Education Service while the Petitioner is unemployed at the moment and she is yearning to return to school. He is by no means impoverished. 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 Twenty Thousand Ghana cedis (GH¢20,000.00) to the Petitioner. Custody of the issue Abel Abayateye is granted in favour of the Petitioner with reasonable access to the Respondent. No order as to costs. (SGD) HER WORSHIP BRIDGET AKPE AKATTAH DISTRICT MAGISTRATE Page 11 of 12 Page 12 of 12