QUARSHIE VRS NORTEI (A8/87/2023) [2023] GHADC 704 (15 September 2023)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, DISTRICT COURT ‘2’, KANESHIE, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON 15TH SEPTEMBER, 2023. ABIGAIL QUARSHIE HOUSE NO. 24 4TH AVE STREET LA - ACCRA VRS. EBENEZER YEBOAH NORTEI UNNUMBERED HOUSE TESHIE COLDSTORE SUIT NO. A8/87/23 :: PETITIONER :: RESPONDENT JUDGMENT The Petitioner in her petition filed on 8th December 2022 prayed the Court for the following reliefs: a. That the said marriage between the parties be dissolved by this Honourable Court. b. That the Respondent be ordered to make to the Petitioner such maintenance pending the determination of the suit and thereafter such periodic payment as may be just. c. That in the alternative to periodic payments the Respondent be ordered to pay the Petitioner a lump sum of amount. 2 d. Cost. Per the Petition, the parties herein married on 28th November 2020 under Part III of CAP 127 at the Osu Ebenezer Presbyterian Church of Ghana. The parties upon marriage cohabited for one and a half years at Teshie. Whereas the Petitioner is an Administrative Assistant, the Respondent is a Photographer. The parties have no child together. It is the Petitioner’s case that the marriage between her and the Respondent has broken down beyond reconciliation due to the adulterous conduct of Respondent. She averred that the Respondent had confessed to the adultery and she finds it intolerable to live with same She averred that attempts at reconciling the parties by relatives and church elders had been unsuccessful. These facts as presented by the Petitioner stood undisputed by the Respondent. The main issue for determination by this Court is whether or not the marriage between the Petitioner and the Respondent has broken down beyond reconciliation. Section 1(1) of the Matrimonial Causes Act, 1971 (Act 367) allows either party to a marriage to present a petition to the court for divorce. Section 1(2) of the Act further emphasizes that, the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Before the Court can dissolve the marriage, it must satisfy itself that it has been proved on the preponderance of probabilities that the marriage has broken down beyond reconciliation. See: Charles Akpene Ameko v Saphira Kyerema Agbenu [2015] 91 G. M. J. 202 @ 221. In order to prove that a marriage has broken down beyond reconciliation, a petitioner shall prove to the satisfaction of the court one or more of the six facts specified in section 2(1)(a)-(f) of Act 367. Proof of any one of these facts raises a presumption that the marriage has broken down beyond reconciliation. If any of the facts is made out, the court must grant the dissolution unless it is satisfied that the marriage has not broken down irretrievably. In proof that the marriage has broken down beyond reconciliation, the Petitioner has the burden to satisfy the court on at least any 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; provided that 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; 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. The Respondent in this case filed no Answer to the Petition to dispute any of the assertions of the Petitioner although he appeared in Court and was given the opportunity to file an Answer if he so desired. The law is that there is no need for a Plaintiff [Petitioner] to call further or any evidence to prove allegations or assertions of fact in his/her claim where there is no joinder of issues. Unchallenged evidence is deemed admitted. See the cases of: Air Namibia (Pty) Ltd v Micon Travel and Tours & Others [2015] 91 G. M. J. 173 @ 194 Agric Cattle & 2 others v Nii Tetteh Kpobi Tsuru III & 4 others [2018] 125 GMJ 1 @ 115 Fori v Ayerebi [1966] 2 GLR 627, holding 6 Takoradi Flour Mills v Faris [2005-2006] SCGLR 882, holding 1 Quagraine v Adams [1981] GLR 599 Total Ghana Ltd v Thompson [2011] 1 SCGLR 458 Samuel Adrah v. ECG [2018] 119 GMJ 143 @ 184 C. A. The Petitioner testified by relying on her witness statement filed on 26th April 2023 which was adopted by the Court on 7th July 2023 as her evidence in chief. She tendered in evidence as Exhibit ‘A’, a photocopy of the parties’ marriage certificate, attesting to the fact that the parties indeed married under Part III of CAP 127 on 28th November 2020 and as such, the Petition is in order in accordance with Section 9 of Act 367 since it was brought after two years of the celebration of the marriage. The Petitioner testified that the parties had not lived together as husband and wife since January 2022 and they had had no sexual relations or any form of intimacy throughout that period. She stated that both of them had been unreasonable, that their marriage had experienced numerous misunderstandings and reconciliation attempts by relatives and church elders had not yielded any positive outcome. I must state that in her evidence, the Petitioner made no mention at all of the allegation of adultery which had been averred in her Petition and as such, I can safely surmise that she has abandoned that. Her undisputed evidence was in respect of inability to reconcile their differences despite diligent efforts which had been made. From the Petitioner’s evidence which stands uncontested, family members of the parties as well as elders of the church had intervened to assist them in brokering peace but none of these attempts had turned out to be successful. The parties have been staying apart as a result since sometime in January 2022 and have not acted within the period as a married couple. I find the existence of Section 2(1)(f) of Act 367 and consequently find that the marriage between the parties has broken down beyond reconciliation. In the Court’s humble view, it would be pointless to refuse the prayer for dissolution of the marriage. 5 The Petitioner has also prayed this Court for periodic payments of monies to be made to her by the Respondent as maintenance or a lump sum payment to be made to her. It must be made clear that the grant of maintenance pending suit, periodic payments thereafter or a lump sum payment by one spouse to the other is not automatic and must have basis for so praying. In considering the issue of alimony or financial provision, some of the factors taken into consideration include the financial needs and resources of both parties, the standard of living enjoyed during the marriage and the parties’ current circumstances, the duration of the marriage, and the contributions made by each party to the welfare of the family, the parties’ conduct, station in life, age and means of the parties, any agreement, if any, made between the parties regarding alimony, among others. It is necessary to state that there is no cut and dried rule but the peculiarities of each case inform the Court in making any decision in respect of financial provision or alimony, having regards to the specific facts and evidence adduced. In the case of Isaac Kwame Amoah Ahinful v Anne Marie Ahinful (2016) JELR 107733 (HC), the Court made reference to the 6th Edition of the Black’s Law Dictionary in defining alimony as: “…sustenance or support of the wife by her divorced husband and stems from the common law right of the wife to support by her husband. Allowances which the husband or wife by court order pays to the other spouse for maintenance while they are separated or after they are divorced (permanent alimony) …” and the Court was unambiguous that the award of alimony or financial provision, does not automatically follow an order of dissolution of a marriage. Thus, it is dependent on the circumstances of each case and must be just and equitable. In the case of Aikins v. Aikins (1979) GLR 223, the Court took into account factors such as the fact that the wife did not have any capital assets of her own, that for many years prior to the presentation of the Petition she had not worked, that she required some funds to rent a premises for herself and her children, and to set herself up in business, and accordingly awarded her lump sum payment. The Supreme Court also granted the Petitioner in the case of Quartson v. Quartson [2012] 2 SCGLR 1077 a lump sum financial provision on the basis of need; the 6 necessity for her to have some funds to survive on whiles she re-organized her life. In Beatrice Oye Plokhaar v Sterian Plokhaar (2016) JELR 108100 (HC), the Court also emphasized that the Court in deciding whether to grant financial provision to a party or not was to examine the need of the parties. In the present circumstances of the case, although the Petitioner is said to be an Administrative Assistant and the Respondent, a Photographer, no evidence was led for the Court to know the financial standing of the parties or their means, or the contribution made by each of them towards the welfare of the family. The parties had been married for barely two years and a month when the Petition was commenced. In her evidence, the Petitioner testified that both parties had been unreasonable towards each other. No evidence has been led which points to the fact that the Petitioner would be made worse off with the marriage being dissolved or that she has to be financially supported to set herself up in life. I am not inclined to granting this relief sought by the Petitioner amidst the absence of any reasonable justification which would have swayed the Court’s discretion to grant same and as such, the Court in exercising its discretion, refuses to grant same. Having found that the marriage between the parties herein has broken down beyond reconciliation, I hold as follows: 1. The marriage celebrated between the parties on 28th November 2020 under Part III of CAP 127 at the Osu Ebenezer Presbyterian Church of Ghana is hereby dissolved. 2. There shall be no award of maintenance or alimony to any party. 3. There shall be no order as to cost. [SGD] AMA ADOMAKO-KWAKYE (MS.) (MAGISTRATE) 7 7