ADJEI VRS ADJEI (C5/10/2023) [2023] GHACC 1040 (9 November 2023)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON FRIDAY, 9TH OF NOVEMBER 2023, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE C5/10/2023 BENJAMIN NII TAWIAH ADJEI PETITIONER VRS HELETTA NAA ODOLEY ADJEI RESPONDENT JUDGMENT On 21st of September 2013, Petitioner and Respondent herein bachelor and spinster then got married under the ordinance at the Belekese Kingdom Hall, Nungua. This union is blessed with two issues namely Aiden-Jayden Nii Adjei Adjei aged 7 years and Janine-Ashlyn Naa aged 5 years. On the 10th day August, 2022, Petitioner herein caused a petition to be filed before the court praying the court for the following reliefs; i. That the Marriage contracted on 21st September 2013 between the Parties be dissolved forthwith. ii. That the Respondent be granted custody of all the children of the marriage due to their ages, whilst Petitioner is granted unrestricted access. iii. That the children spend vacations and public holidays with the Petitioner until the children attain the age of fourteen (14) years after which the children will choose the parent they wish to reside with. iv. An order that both Parties take care of the children's school fees, school uniforms, books, school feeding fees, hospital bills, and necessaries of life including their general upkeep at a 50/50 share. v. That the property acquired should be shared in the ratio of 70% for the Petitioner and 30% for the Respondent. vi. Any other order(s) that the Court considers equitable and just that will advance the welfare of the children. According to him, the marriage celebrated between him and Respondent had broken down beyond reconciliation due to the unreasonable behaviour of Respondent. Respondent in her answer to the Petition agreed that the marriage between parties has broken down beyond reconciliation but denied any unreasonable behaviour on her part. She averred that it was Petitioner rather that has behaved unreasonably in the marriage. She also cross-petitioned the court as follows; i. That the Marriage contracted on 21st September 2013 between the Parties be dissolved forthwith. ii. That the Respondent be granted custody of all the children of the marriage due to their ages, whilst Petitioner is granted unrestricted access. iii. That the children spend vacations and public holidays with the Petitioner until the children attain the age of fourteen (14) years after which the children will choose the parent they wish to reside with. iv. An order that both Parties take care of the children's school fees, school uniforms, books, school feeding fees, hospital bills, and necessaries of life including their general upkeep at a 50/50 share. v. That the property acquired should be shared in the ratio of 70% for the Petitioner and 30% for the Respondent. vi. Any other order(s) that the Court considers equitable and just that will advance the welfare of the children. Petitioner and Respondent therefore assume the statutory obligation to lead sufficient evidence in support of their assertions and their relief(s). On the orders of the court, parties filed their respective witness statements in support of their respective cases. Save parties admitting that the marriage has broken down beyond reconciliation, the pleadings of the parties raised issues of custody, maintenance, educational expenses of the children and sharing of property acquired during the subsistence of the marriage. To promote reconciliation, parties were referred to the Alternative Dispute Resolution Centre by the court. Mediation between them in respect of reconciling as a couple was unsuccessful. However, parties agreed on dissolution of the marriage and all other ancillary issues raised in their pleadings. Despite this express consent to the dissolution of the marriage by the parties, there is only one ground for dissolution of a marriage under the laws of Ghana. Section 1(2) of the Matrimonial Causes Act, 1971 Act 367 states “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.” Section 2(3) of Act 367 provides “Although the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation.” The court is therefore mandated to satisfy itself by evidence that indeed the marriage between the parties has broken down beyond reconciliation before a grant of dissolution. Section 2(1) of Act 367, has outlined several instance which suffice as proof of break down of a marriage. A petitioner must satisfy the court of one or more of the instances listed therein as proof that the marriage has broken down beyond reconciliation. In the case of KOTEI V KOTEI [1974] 2 GLR 172, Sarkodee J held as follows, “the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. But the petitioner is also obliged to comply with section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367), which requires him to establish at least one of the grounds set out in that section… proving one of the provisions without more is proof of the breakdown of the marriage beyond reconciliation…It is accepted that proof of one or more of the facts set out in section 2 (1) is essential and that proof of one of them shows the marriage has broken down beyond reconciliation. It is also conceded that notwithstanding proof the court can refuse to grant the decree of dissolution on the ground that the marriage has not broken down beyond reconciliation. It will be noted that the discretion given to the court is not a discretion to grant but to refuse a decree of dissolution. This means that once facts are proved bringing the case within any of the facts set out in section 2 (1) of Act 367 a decree of dissolution should be pronounced unless the court thinks otherwise. In other words, the burden is not on the petitioner to show that special grounds exist justifying the exercise of the Court’s power.” The court therefore heard the evidence of parties in respect of the claim that the marriage between the parties has broken down beyond reconciliation. Section 2(1)(b) of Act 367 provides that where the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent same suffice as proof of the break down of the marriage beyond reconciliation. Both Petitioner and Respondent ground for seeking the dissolution of their marriage is unreasonable behaviour of the other. Petitioner’s evidence on oath is that Respondent has caused him much anxiety, stress and embarrassment that led to the diagnosis of sinus bradycardia in 2019. According to Petitioner, Respondent frequently verbally abuse and insult him and his family and female friends including married ones. He stated that in 206 when he travelled solo to Sao Tome and Principe through Portugal on vacation, Respondent and her parents labeled him a womanizer and the issue had to be resolved by elders of their church. He stated that in 2017, Respondent and her parents without any reason sacked him from the matrimonial home. he had to take emergency loan from friends to rent a place but they later reconciled. In March 2019, Respondent again accused him of adultery and Respondent once again sacked him from the matrimonial home with the support of her parents. Petitioner stated that he always resorts to loans to rent and furnish an apartment any time Respondent and her mother sacked him from the house. When the matter was called for reconciliation by the elders of the church, Respondent told them she is not interested in the marriage and left the meeting abruptly. In March 2020 they were however able to reconcile after numerous meetings and he authored a reconciliatory note to Respondent, her family and elders of the church as a sign of respect and not because he was at fault. They lived together until he was transferred to Akosombo in the latter part of 2020. On countless occasions he requested that Respondent visit with the children and know where he lives but she willfully refused to visit and prevented the children from visiting him. in November, Respondent called a meeting with him and his parents and told them she was no more interested in the marriage. Petitioner further stated that Respondent denied him sex and they have not had sexual intercourse for about 3 years and the last time he attempted to have sexual intercourse with Respondent, the latter slapped him in the face. He further stated that Respondent has neglected her duties as a his wife. he concluded that all efforts to make peace and get the marriage back on track has proved futile. Respondent in her evidence on oath prior to the marriage, she and her family supported Petitioner through his tertiary education. She stated that she almost called off their wedding when it was disclosed to her that Petitioner had asked her close friend for a date but went on with it after Petitioner had pleaded for forgiveness and had attempted harming himself. According to Respondent, the marriage turned out to be an abusive one. She stated that 3 months into the marriage, Petitioner used a belt too beat her mercilessly over a slight misunderstanding. During the pregnancy of their first child also Petitioner beat her. She stated that after the birth of their first child, Petitioner’s behaviour became worse, showing her no love, coming home late often and having extra- marital affairs. She testified further that during her second pregnancy, Petitioner joined a promiscuous whatsapp group called “Free Your Mind” and had a serious girlfriend. Petitioner despite knowing she shad been medically restricted form driving due to her pregnancy, a time she also schooling and working, he failed to help her resulting in her father driving her to school and work. Close to their wedding anniversary, Respondent went to Sao Tome and Principe with another woman images of them in evidence as exhibit 2. Upon his return, communication ceased and he further shirked his responsibilities. According to her, Petitioner fought, insulted and made her cry all the time and deprived her of love and every good thing in marriage and his mother also verbally abused her on several occasions. She confirmed the several separations and reconciliation championed by their church elders and families. What suffices as unreasonable behaviour has been discussed in the case of Mensah v Mensah [1972] 2 GLR 198. Hayfron-Benjamin held that “In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behavior including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivialities will not suffice for Act 367 is not a Cassanova’s Charter. The test is objective”. Also in the case of Knudsen v Knudsen [1976] 1GLR 204, Amissah JA stated that “the question therefore is whether the Petitioner established that the Respondent behaved in such a way that he could not reasonably be expected to live with her. Behaviour of a party, which would lead to this conclusion, would range over a wide variety of acts. It may consist of one act if of sufficient gravity or of a persistent course of conduct or of a series of acts of differing kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so.” The evidence of the parties in respect of their assertions of unreasonable behaviour remained the evidence of one against the other or the oath of one against the other’s oath. With the issued of unreasonable behaviour of each party challenged by both parties, and parties failing to challenge their evidence on oath, the court unable to find unreasonable behaviour against either of the parties as claimed in the case of both Petitioner and Respondent. This notwithstanding, the evidence on record reveals at least two instances where Respondent had to vacate the matrimonial home due to misunderstandings. The parties at each other in the course of this petition have thrown allegations of infidelity, mistrust, neglect and refusal to have sexual intercourse. All these evidence satisfy the court that parties after diligent efforts are unable to reconcile their differences. Under section 2 (1f) of Act 367, where the parties to the marriage have, after diligent effort, been unable to reconcile their differences, same is proof that the marriage has broken down beyond reconciliation. The court there finds per the evidence on record that the marriage celebrated between the parties herein has broken down due to parties failure to irreconcilable their difference after diligent effort. Accordingly the court decrees the said marriage celebrated between the parties herein at the Belekese Kingdom Hall, Nungua on the 21/9/2013 be and same is dissolved today, the 9th of November, 2023. ANCILLARY RELIEFS As mentioned supra, the parties executed terms of settlement on 8/8/2022 and prayed the court to adopt same as consent judgment during their evidence on oath. Parties per their terms of settlement agreed as follows; i. That custody of the two children fo t he marriage namely Aiden- Jayden Nii Adjei Adjei 7 years and Janine Ashlyn Naa Atsei Adjei,5 years be given to Respondent Heletta Naa Odoley Adjei with access granted to the Petitioner Benjamin Nii Tawiah Adjei. The children can visit their father and spend two nights during vacation after their father has informed their mother on phone ahead of time. The children must have a phone to be contacted on. ii. The care and maintenance allowance of one thousand Seven Hundred and Fifty Ghana Cedis (ghc1750) per month will be given to the Respondent by the Petitioner through the Respondent’s mobile money account. iii. That the care and maintenance allowance would be given upward adjustment every two years iv. The two children will have access to both the VRAS and bank Hospital when sick. v. The school fees will be shared equally 50/50 but the Petitioner will pay his part on behalf og thr boy Aiden –Jayden Nii Adjei Adjei directly to the school- Cornerstone International Academy at East Legon. vi. That the Respondent will be responsible for Janine Ashlyn Naa Atswei Adjei’s school fees at the Cornerstone International Academy East Legon. vii. Parties have agreed to share 50/50 in the property at Prampram after valuation that will be paid by both parties that the valuer must be an independent officer from the court. viii. Parties agreed that the petitioner shall buy out the Respondent’s share value of the property within six(6) months after judgment (consent judgment is adopted). ix. Parties agreed that this honourable court shall determine the appropriate lump sum (alimony) by the Petitioner. x. Parties therefore pray the honourable court adopt this agreement as partial consent judgment. This court therefore adopts the above terms of agreement as consent judgment consequential to the dissolution of the marriage of the parties. Parties as noted supra were unable to agree on the sum to be paid as financial provision and referred this issue to the court for determination. Respondent in her cross-petition prays the court as part of her reliefs’ financial provision in the sum of the court’s powers to award financial provision or alimony is provided by sections 19 and 20 of the Matrimonial Causes Act, 1971 (Act 367). The said sections state 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. 20. Property settlement (1) The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable. It is evident that financial provision contemplated in the provisions above is not gender restrictive, either party to a marriage may pray and be granted financial provisions whenever in the opinion of the Court, it is just and equitable to do so. The use of the phrase “financial provision to either party to the marriage” in section 19 is in itself an attestation of the fact that the legislator did not intend the provision to be an unswerving entitlement of a specific gender to the exclusion of the other. The provisions in sections 19 and 20 above are not to be resorted to in all instances, especially where the circumstances of the case do not warrant such a recourse. It is a discretionary jurisdiction that may be resorted to out of necessity, justice and equity. The grant of any financial provision being in itself discretionary, and this discretion, being borne out of statute, must not be resorted to arbitrarily, capriciously, with prejudice, bias or personal dislike. It must be exercised fairly and reasonably and in accordance with the statute granting the discretion. The BLACKS LAW DICTIONARY 8TH EDITION 2004 at page 228 defines alimony as follows: A court-ordered allowance that one spouse pays to the other spouse for maintenance and support while they are separated, while they are involved in a matrimonial lawsuit, or after they are divorced. A United States Supreme Court in the case of ORR V. ORR, 440 U. S. 268, 99 S. Ct. 1102 (1979); held on alimony also as follows: “‘Alimony,’ which signifies literally nourishment or sustenance, means, in a general sense, the allowance required by law to be made to a spouse from the other spouse's estate for support or maintenance, either during a matrimonial suit or at its termination, where the fact of marriage is established and the right to a separate maintenance is proved. Similarly stated, alimony is the allowance which a party may be compelled to pay to his or her spouse for maintenance when they are living apart or after they have been divorced.” The court in considering factors governing an award of alimony had this to say in the case of Isaac Kwame Amoah Ahinful v Anne Marie Ahinful 2016 JELR 107733(HC); “The factors governing such an award for financial provision are varied. An important consideration is in my view the circumstances of the parties. In Aikins v Aikins 1979 [GLR] 223, the court realizing among others, that the wife had no capital assets of her own, and had not worked for several years before the petition was issued, and also acknowledging that she indeed needed money to rent premises for herself and the children and set herself up as a dress maker, awarded the wife, a lump sum payment. In the supreme court case of Quartson v Quartson [2012] 2 SCGLR 1077, the Supreme Court granted the petitioner a lump sum financial provision on the basis that the petitioner needed to have some money to live on while she re-organized her life. The court further said that the award of alimony or financial provision to a wife upon dissolution of a marriage, is therefore dependent on the circumstances of each case and must be just and equitable as required by section 20(1) of ACT 367,”. See also the case of Obeng v Obeng (2013) 63 GMJ at page 158 It is mandatory that a judge who exercises the discretion under sections 19 and 20 of Act 367 to award a party financial provision take into account the circumstances of the parties. These circumstances may include the financial standing of each party as borne out of the evidence led at trial, the ages of the parties and ability to remarry, the balance of dependence that existed among the parties during the marriage, the employment status and the professional standing of each party, the income earning capacity of each party, the duration of the marriage, the contribution of each party towards maintaining the marriage, sacrifices made or opportunities forgone due to the marriage, among others. From the record, both parties are gainfully employed and in their prime. They both have the ability to remarry. This marriage has lasted 10 years although the last three years has been rocky leading to the breakdown of the marriage. Respondent has had custody of the children and continues to have custody of the children of the marriage per the consent judgment of the parties adopted by the court supra. There are some ancillary expenses that would necessarily be born by the Respondent. Respondent further is saddled with the cost of accommodating the children until they attain majority. The court therefore is of the opinion that Respondent is entitled to financial provision but not in the sum claimed. Respondent is awarded financial provision of GHc30,000 to be paid for by Petitioner herein forthwith. There shall be no order as to cost. PARTIES PRESENT EMMANUEL YEBOAH FOR PETITIONER PRESENT. NII KWEI AMASAH FOR RESPONDENT PRESENT (SGD) H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT JUDGE) 13