Aryeetey Vrs Aryeetey [2023] GHADC 694 (21 July 2023)

CORAM: HER WORSHIP NANA ABENA ASOH OWUSU-OMENYO (MS.), MAGISTRATE, DISTRICT COURT ‘1’, KANESHIE, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON …………………. JULY, 2023. SUIT NO. A8/152/22 ELLEM NAA ADUKEI ARYEETEY } PETITIONER VRS. SAMUEL NII TETTEH ARYEETEY } RESPONDENT JUDGMENT The parties to the instant petition were married at the St. Anglican Church Odorkor. They share three issues named Antoinette, Hanekel and Klyivs Aryetey. The bane of the petitioner’s case is that the parties for the past three years have not lived as husband and wife for the past three years as a result of the respondents behaviour. That after the birth of their second child, the respondent stopped maintain the family and also stated flirting with another lady. That the respondent upon being found out apologized but after the birth of their child she found out that he was still flirting with the said woman. She states that the respondent has gone as far as locking her out of the matrimonial home. She further states that on an occasion when she enquired about money for upkeep the respondent punched her in the face and the matter ended up at the DOVSU. That the respondent after that incident left the matrimonial home and moved to his live with his mother nearby. That he on occasion came to take the children on the pretext of going to church and never returned them. It took a call to his head of family to return the children. The respondent informed the family that he is no longer interested in the marriage and was advised to seek out a dissolution in court. He has indeed sent the customary drinks back to her family. She therefore prays an order for the dissolution of her marriage to the respondent. The respondent in answer stated that he at no point lost his job and has at all material times provided maintenance for his family. That indeed it is true that the parties have not lived together as husband and wife for the past three years because of the unreasonable behaviour of the petitioner. He avers that the likes fighting and is disrespectful towards the elderly. That the petitioner has no regard for him and is disrespectful towards him. That she never takes part in his family gatherings. That the petitioner does not take proper care of the children of the marriage and beats them at will. He makes several averments which all allude to the disrespectful nature of the petitioner. The issues for determination are: 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Custody and Maintenance. 3. Whether or not the petitioner is entitled to Alimony. The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Section 1(2) of the Matrimonial Causes Act, A1971 (ACT 367). In order to establish that her marriage has broken down beyond reconciliation, the petitioner must discharge the burden of proof placed on her by to establish the existence of one or more of the factors laid down in section 2(1)(a)-(f) of ACT 367 in accordance with the rule of evidence. SEE section 2(1)(a) -(f) of ACT 367 and section 11(1), 12(2) and 14 of the Evidence Decree 1975 NRCD 323. S. A Brobbey in his book Essentials of the Ghana Law of Evidence at page 30 states” “…. In the language go classical writers, the maxim is semper necessities probandi incumbit ei qui agit, which means the necessity of proof always lies with the person who lays the charges”. Will the petitioner by her evidence be able to discharge the burden? The one thing both parties agree to is that for the past three years they have lived together as husband and wife. This fact constitutes desertion in accordance with section 2(1)(b) of ACT 367. Both parties indicate per their evidence that they currently do not live together. In his book the law on family relations in Ghana, William Ekow Daniels states, that in order to establish desertion the parties must have separated; there should have been an intention to desert and there should be a lack of consent by the deserted partner. In this case the respondent left the matrimonial home without the consent of the petitioner to live with his mother and had no intensions of returning. The petitioner also describes being hit in the face by the respondent. a fact the respondent admits. I need not waste the time of the parties by going to any further details as to the ordeal of the petitioner. In the case of MENSAH v. MENSAH (1972) 2 GLR 198, the court observed that ‘the conduct complained of must be sufficiently grave and weighty enough to justify the finding that the Petitioner cannot reasonably be expected to live with the Respondent. Mere trivialities will not suffice. The parties must be expected to put up with what has been described as reasonable wear and tear of married life” Further, in the case of ANSAH V. ANSAH [1982-83] GLR 1127 the court stated the test for unreasonable behavior as “whether the petitioner could reasonably be expected to live with the respondent in spite of the latter's behavior”. I do not believe being punched in the face is considered a mere triviality. And I also do not find that the petitioner can be expected to continue living with the respondent. I find that the petitioner has been able to establish a breakdown in her marriage. CUSTODY AND MAINTENANCE On the issue of custody, Section 22(1) of the Matrimonial Causes Act, 1971, (ACT 367), states that in any proceedings under the ACT, whether for divorce or nullity it is the duty of the court to inquire if there are any children of the house hold and the court may on its own initiative or on the application by any of the parties to the proceedings make an order concerning the children of the household which it thinks reasonable for the benefit of the child. Such orders may include inter alia custody awards. In making custody order the Children’s Act 1998, Act 560 enjoins the court to as a matter of importance consider the best interest of the child. It is my considered opinion that the best interest of the children of the household will be served if custody is given to the petitioner who is the mother of the children; seeing as the children are very young. The respondent is to have reasonable access to the children. I take cognizance of the arrangements as to access made by the family head of the respondent and order that the status quo be maintained. ALIMONY Section 20 of Act 367 states that “The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable.” Under the circumstances and considering the manner in which the respondent treated the petitioner I order that the petitioner is entitled to alimony. FINAL ORDERS 1. That the marriage between the parties celebrated on the 26th day of September 2009 at the St. Johns Anglican Church Odorkor has broken down beyond reconciliation and is hereby declared dissolved. 2. That custody of the three children of the marriage is hereby granted to the petitioner with reasonable access to the respondent. He is to have them every weekend and during the long vacations of their school. 3. That he respondent is to be responsible for all expenses consequential to the education of the children. 4. He is to be responsible for all their medical and health expenses as well and register them on the national health insurance scheme if he has not already registered same. 5. He is to pay an amount of three hundred Ghana cedis a week cumulating to one thousand two hundred cedis a month for the three children. 6. He is to pay the petitioner alimony of ten thousand Ghana cedis. 7. Each party is to bear their own cost. NANA A. A. OWUSU-OMENYO (MS.) (MAGISTRATE)