NYARKO VRS NYAKO (A8/168/22) [2023] GHADC 710 (24 November 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 24TH NOVEMBER, 2023. SUIT NO. A8/168/22 BEATRICE NYARKO :: PETITIONER H/NO. AN 19, LIBERTY RD GM-074-1634 ADENTA NEW SITE VRS. FRANCIS KWESI NYARKO :: RESPONDENT H/NO. AN 19, LIBERTY RD GM-074-1634 ADENTA NEW SITE JUDGMENT Introduction The marriage on trial originates from a Petition for Divorce filed on 12th July, 2022 by the Petitioner in this Honourable Court. The parties married customarily on 16th May 1998 and the marriage was converted to one under the ordinance on 27th June, 2003 under the BEATRICE NYARKO V. FRANCIS KWESI NYARKO Ordinance at the Accra Metropolitan Assembly, Accra During the pendency of the marriage, the parties had two issues by name; Emmanuel Nyarko and Christabel Nyarko who were 17 years old and 14 years old respectively at the time the action was initiated. The Petitioner prayed this Court per her Petition for the following reliefs; a. That the said marriage registered at the Accra Metropolitan Assembly be dissolved; b. Custody of the children should be granted to Petitioner; c. The Respondent should maintain the children with GH¢ 1,000.00; d. Respondent should be responsible for the educational and medical bills of the children; e. The property acquired during the marriage should be settled in favour of the Petitioner; f. Financial provision of GH¢20,000.00 should be settled in favour of the Petitioner; and g. Any other reliefs that this Honourable Court deems fit. Pleadings She asserted that after their marriage, the parties lived together until Respondent left the matrimonial home on 31st December, 2020. According to Petitioner, their marriage has broken down beyond reconciliation as a result of Respondent’s unreasonable behaviour. As such, she cannot be expected to live with Respondent as husband and wife. She added that the Respondent often insulted her and that he unceremoniously left their matrimonial home and has failed to maintain her and their children. Despite Petitioner’s efforts and that of their families to help the parties resolve their marital differences, all efforts have failed to yield any fruit. In his Answer to the Petition and Cross Petition filed on the 9th September, 2022, Respondent denied the allegations of unreasonable behaviour levelled against him by the Petitioner, stating that it was rather the Petitioner whose conduct has been unreasonable. BEATRICE NYARKO V. FRANCIS KWESI NYARKO According to him, he is a marine engineering technician and not a mechanical engineer as claimed by the Petitioner. According to him, he left the matrimonial home to his adopted mother’s house at Tema because his health required that he adheres to a recommended diet plan by his Dietician, which recommendation the Petitioner neglected. He stated further that the parties after their marriage stayed at Alafia junction, Darkuman however, Petitioner left the matrimonial home with their first child without his knowledge and refused to return despite entreaties on her to do so. To her, she did not like the environment at their initial home. Even though the parties during this period were living apart, the Respondent averred that he continued to maintain the Petitioner and their children. Petitioner asserted that it was during this period that he constructed the house at Adenta for which he is indebted to Fidelity Bank and some Microfinance institutions due to loans he took from them to build the house. It was after the construction that the Petitioner and the children joined him. It was his case that the Petitioner never visited the site at Adenta until the house was ready to be inhabited. According to Respondent, after they moved to their new home in Adenta, he has maintained the home financially and makes provisions for foodstuffs for the home. He further stated that even though the Petitioner was gainfully employed, she provided no support and he has been the one shouldering all the financial burden of the family. The Respondent averred that he enrolled Petitioner in school in order for her to better her grades to enter tertiary institution but she could not achieve the required grades so she ended up with a job at NAMARCA Hospital Supplies Limited. He stated that no family member of either of them has ever invited him to mediate their marital differences as alleged by the Petitioner. Respondent further stated that the Petitioner herself voluntarily BEATRICE NYARKO V. FRANCIS KWESI NYARKO agreed to resign from her employment because of the shared concern for the safety of their children who were attending school at an accident-prone area and even after she resigned, he provided resources for her to trade at home but she was unable to manage the business efficiently. According to him, the children and Petitioner’s behaviour of watching tv late into the night distorted his sleeping schedule and this compelled him to move to a different room since he had to wake up early for work and his concerns were rebuffed by Petitioner. Subsequently, Petitioner ceased communication with him and refused to be sexually intimate with Respondent after he was admitted and discharged from the hospital and diagnosed with diabetes. He added that even though he was staying with his adopted mother because his health required him to, he has been religiously maintaining the family and visits them every Sunday after church service. Respondent further stated that the Petitioner has no regard for his health condition and even when he collapsed as a result of his condition, Petitioner was unbothered about same and failed to visit him at the hospital. Petitioner refused to have sex with him after he was discharged for reasons unknown to him. He therefore cross petitioned as follows; a. The marriage be dissolved as being at the instance of the Petitioner herein; b. Respondent be granted custody of the two children or at least the 1st child who is 17 years old with reasonable access to the Petitioner; c. Respondent be declared the sole rightful owner of the matrimonial home; and d. Any other reliefs that the Honourable Court will deem fit. The Petitioner responded to Respondent’s Answer by way of a Reply and Answer to Cross Petition filed on 8th November, 2022. Like the Respondent, Petitioner denied the allegations of unreasonable behaviour levelled against her by the Respondent. She stated that Respondent could leave the matrimonial home and return to same as and when he BEATRICE NYARKO V. FRANCIS KWESI NYARKO desired with no sense of accountability to her. According to her, when Respondent fell sick, Petitioner tried everything she could to ensure that the Respondent ate his food as prescribed. However, Respondent continuously left the food untouched anytime she prepared same for him. According to the Petitioner, Respondent only visited them during the weekends after she consulted Rev. and Mrs Atta Benin. She averred that when she conceived their second child, she bore all the antenatal and delivery expenses at the hospital and Respondent only paid the outstanding bill when she was discharged. Petitioner asserted that it was during this period that the said Rev. and Mrs. Atta Benin assisted them with an amount of GH¢ 3,000.00 to build their matrimonial home. She stated that the Respondent collected money from her to buy roofing sheets for the house and she personally bought cements for the construction of the matrimonial home. Petitioner averred further that she contracted masons to finish the house before the parties moved in. Aside these, Petitioner asserted that she bought electrical wires for wiring the house, paints and nets for the house. She was also the one who contracted someone to construct the borehole used. She therefore stated that Respondent did not solely contribute to the construction of the matrimonial home. According to the Petitioner, her elder brother who is a reverend minister came all the way from Akosombo to Accra to assist the parties to reconcile their differences. Even though the Respondent was aware of his visit, he absented himself and failed to answer the numerous calls made on him. She stated further that the Respondent did not give her any money to trade whilst she was in the house. She vehemently denied all the allegations of unreasonable behaviour levelled against her by the Respondent. Issues BEATRICE NYARKO V. FRANCIS KWESI NYARKO The issues for the Court to determine are: 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Whether or not custody of the two children should be granted to the Petitioner or the Respondent. 3. Whether or not the Petitioner is entitled to the amount she prays for as alimony. 4. Whether or not Petitioner is entitled to a share of the property at Adenta. Resolution of Issues Issue 1. Whether or not the marriage between the parties 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. In order to prove that a marriage has broken down beyond reconciliation, a petitioner shall prove to the satisfaction of the Court at least one of the six facts specified in Section 2(1)(a)-(f) of Act 367 which are adultery, unreasonable behaviour, desertion, not living as man and wife for two years continuously with consent to divorce, not living as man and wife for five years continuously with no consent needed and irreconcilable differences. See Danquah vs Danquah (1979) GLR 371. The Court must be satisfied on all the evidence that the BEATRICE NYARKO V. FRANCIS KWESI NYARKO marriage has indeed broken down beyond reconciliation. See Kotei v. Kotei [1974] 2 GLR 172 and Adjetey vs Adjetey (1973) 1 GLR 216. It is trite that in civil cases, the general rule is that the party who in his/her pleadings or writ raises issues essential to the success of his/her case assumes the onus of proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323) as well as the cases of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882 @ 900; GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458. Both parties therefore bore the burden of producing sufficient evidence in respect of their respective claims on a balance of probabilities. From the pleadings and evidence adduced in court, the parties seek to rely on Sections 2(1) (b) and (f) of the Matrimonial Causes Act, 1971 (Act 367) which is to the effect that; “(1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts: (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.” The Petitioner testified by relying on her witness statement filed on the 24th of March, 2023 and same was adopted by the Court as her evidence in chief. She testified that the parties initially married under customary law and same was converted to an Ordinance marriage on the 27th of June, 2003 at the Accra Metropolitan Assembly. She tendered in evidence a copy of the marriage certificate as Exhibit ‘A’. Petitioner basically testified by repeating her averments on oath. She also testified that the Respondent is untruthful, a BEATRICE NYARKO V. FRANCIS KWESI NYARKO womanizer, abusive often left the matrimonial home, returning to same when he desired. She further stated that the Respondent has ceased eating her food. Petitioner’s testimony was that the marriage has broken down beyond reconciliation. She added that all efforts by their families to assist them resolve their differences, have proven futile due to Respondent’s unwillingness to cooperate. The Respondent per his witness statement filed on 24th March, 2023 and same adopted by the Court as his evidence in chief also testified that Petitioner has rather behaved in such a manner that he cannot reasonably be expected to live with. He also repeated most of his averments on oath. According to him, the Petitioner in the year 2006 left the matrimonial home without notice to him and it was through his diligent efforts that he found where she was staying. He testified that he had been maintaining the family adequately and due to the safety of the children, Petitioner agreed to disengage herself from work in order to care for the children whilst he found her an alternative source of livelihood. He stated that the Petitioner had been unconcerned about his health condition, notwithstanding the fact that he had been on admission at the hospital on some occasions and had been advised to adhere to a diet plan, hence it became necessary for him to move to his adopted mother’s house as she offered to assist him with his diet as prescribed. To prove his assertions, he tendered in evidence copies of documents showing his medical history as Exhibits ‘4’, ’5’, ’6’ and ’7’. He testified further that Petitioner had refused to be sexually intimate with him. Respondent testified that even whilst with his adopted mother, he continued to perform his duties as a father and visited the family every Sunday after church service but the Petitioner had never paid him a visit to even enquire how he is faring. The Cambridge Advanced Learner’s Dictionary (4th Edition) has defined behaviour generally as “the way that a person behaves in a particular situation or under particular BEATRICE NYARKO V. FRANCIS KWESI NYARKO conditions. Baker P in Katz v Katz [1972] 3 All ER 219 put it as follows: “behaviour is something more than a mere state of affairs or state of mind, such as for example a repugnance to sexual intercourse, or a feeling that the wife is not reciprocating the husband’s love, or not being as demonstrative as he thinks she should be. Behaviour in this context is action or conduct by one which affects the other. Such conduct may either take the form of acts or omissions or may be a course of conduct, and, in my view, it must have some reference to the marriage.” Unreasonable behaviour in marriage can several forms such as neglect, cruelty, nagging, drunkenness, threats or violence. In dealing with behaviour, the question, is whether the Petitioner can reasonably be expected to live with the Respondent and it is for the court to, and not the Petitioner, to answer it as it is an objective test. The Court must have regard to the personalities of the individuals before it and it must assess the impact of the Respondent’s conduct on the particular Petitioner in the light of the whole history of the marriage and their relationship. From the evidence adduced before this Court, both parties levelled allegations of unreasonable behaviour against each other as already stated earlier. From the evidence adduced, the conduct exhibited by both parties during the subsistence of the marriage amount to unreasonable behaviour in the opinion of the court. They have at one point or the other exhibited certain conducts which would not make them to be reasonably expected to stay with each other. These conducts such as the Respondent staying away from the matrimonial home and returning any time he pleases without the Petitioner knowing his whereabout, the Respondent not eating food cooked by the Petitioner and the Petitioner denying the Respondent sex are all unreasonable behaviour within the contemplation of Act 367. So much work and effort go into cooking and it is very important that the person for whom the food was prepared at least eats that which had been prepared. It is in my view BEATRICE NYARKO V. FRANCIS KWESI NYARKO disrespectful and inconsiderate of a spouse to refuse to eat food prepared for him or her by the other spouse. By so doing, you tell your partner that you do not appreciate the effort he or she puts into preparing the meal and making food available for the family. For this very reason, I find the conduct of Respondent inconsiderate as well as unreasonable. It is also trite law that a wilful refusal by one spouse to have sexual intercourse with the spouse entitles the party suffering to leave if in all the circumstances of the case it could properly be regarded as grave and weighty. Such conduct also amounts to a just cause for leaving even though it lacked the element of intent to injure. See; Opoku-Owusu v. Opoku-Owusu [1973] 2 GLR 349-354. Petitioner’s refusal to have sexual intimacy with the Respondent during the subsistence of the marriage is therefore unreasonable. Unreasonable behaviour is an objective test and this court is minded to conclude that both parties have behaved unreasonably and the Court is satisfied that unreasonable behaviour under section 2(1) (b) of Act 367 has been properly established. It is evident from the evidence adduced before this Court that efforts to solve the parties’ marital disputes have been fruitless. According to the evidence adduced by the Petitioner, when the Respondent left the house without informing her of his whereabouts, she consulted Reverend and Mrs. Atta Benin who through the assistance, Respondent returned home. On another occasion, Petitioner stated that his brother who is a Reverend Minister came all the way from Akosombo with the aim of helping the parties settle their disputes. She testified that even though Respondent was aware of his visit, he failed to show up and also refused to answer their calls. Respondent did not deny this piece of evidence nor did he impugn same under cross examination. Even after the initiation of this action, the Court referred the parties for Court connected ADR mediation but the parties were unable to settle their differences. Clearly, all attempts by well-meaning family members and loved ones have been unsuccessful. The BEATRICE NYARKO V. FRANCIS KWESI NYARKO Court therefore finds as a fact that the attempts at settlement of the parties’ differences have not been successful despite steps taken by their family and friends in that respect. It is important to also note that the parties have been living apart from each other for some time now. It will therefore not be in the interest of the parties to order them to resume staying together to continue their lives as a married couple having regard to the fact that they have both been living separately and also due to the irreconcilable differences. The Court is satisfied that the marriage between the parties has broken down beyond reconciliation thus entitling the Petitioner to her relief for the marriage to be dissolved. Issue 2. Whether or not custody of the two children should be granted to the Petitioner or Respondent In issues concerning the child, it is the best interest of the child which is the paramount consideration as stipulated by Section 2 of the Children’s Act, 1998 (Act 560). Also, Section 22 of Act 367 provides that: (1) In all proceedings under this Act, it shall be the duty of the court to inquire whether there are any children of the household. (2) The court may, either on its own initiative or on application by a party to any proceedings under this Act, make any order concerning any child of the household which it thinks reasonable and for the benefit of the child. (3) Without prejudice to the generality of subsection (2), an order under that section may— (a) award custody of the child to any person; (b) regulate the right of access of any person to the child; BEATRICE NYARKO V. FRANCIS KWESI NYARKO (c) provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage. The Petitioner has prayed for custody of the two children of the marriage to be given to her. The Respondent on the other hand has also made the same prayer for himself. According to the Petitioner, the Respondent has not been maintaining the children of the marriage adequately. Respondent on the other hand testified that he has been taking care of the children all this while and has been the one providing all their needs. In making decisions concerning custody or access, the Court ought to avert its mind to matters such as the age of the child, the importance of a young child being with his/her mother, the need for continuity in the care of the child, desirability of siblings to live together, among others. From the evidence adduced, the parties’ first child, Emmanuel Nyarko was 17 years old at the time the action was instituted on the 12th of July, 2022. Having regard to the date, the said child will be 18 years old now. Having attained the age of majority, he is at liberty to decide for himself which of the parties he desires to stay with. Even though I will not make orders for custody concerning the first issue, I will make orders for maintenance as he is still of school going age and needs to be catered for. Their second child, Christabel Nyarko is still a minor and needs to be protected by the law. The children are with the Petitioner and there is no evidence before me to suggest that she is morally depraved and would thus not be competent enough to take good care of the children. No evidence has been adduced that the children’s continuous stay with her would be inimical to their proper growth and development. Custody of Christabel Nyarko is therefore granted to Petitioner with the Respondent granted access every fortnight weekend. For the avoidance of doubt, the access includes the Respondent having the right to go for the child on Friday after school and returning her to the Respondent by 4pm on Sundays (fortnightly). Both parties are to have equal custody of BEATRICE NYARKO V. FRANCIS KWESI NYARKO the child during vacations. The presence of both parties ought to be felt by the child in her life, hence these orders. In respect of maintenance of the children, both parties have the responsibility of catering for the children and this duty is not to be borne by only one party. Both parties from the records are engaged in some form of work. The Court makes an order for the Respondent to maintain the children monthly at GH¢ 1,000.00. The Respondent is to be responsible for all the educational needs of the children. The health expenses and clothing needs of the children are to be borne by the Petitioner. Issue 3. Whether or not the Petitioner is entitled to the amount she prays for as alimony? The Petitioner also made a prayer for the award of alimony to her. The Court having so found that the marriage between the parties has broken down beyond reconciliation, shall move on to consider the payment of alimony. Under Section 20 of the Matrimonial Causes Act, 1971 (Act 367) the Court may amongst others, order either party to the marriage to pay to the other party such sum of money as part of financial provision as the court thinks just and equitable. In considering financial settlement, 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. 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. BEATRICE NYARKO V. FRANCIS KWESI NYARKO 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 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, the Petitioner is a Caterer whereas the Respondent is a Marine Mechanical Engineer. Due regard has been had to the occupation of the parties and the fact that the Respondent has been providing for and supporting the family during the subsistence of their marriage. There is no evidence on record that the Respondent is unemployed and needs funds to rent a premises or set herself up in business or that she has been made to enjoy a certain standard such that she would be at a great disadvantage with the dissolution of the marriage. I have however considered the BEATRICE NYARKO V. FRANCIS KWESI NYARKO fact that the parties have been married since 1998 (when the customary marriage was performed) and at least the Petitioner has supported the Respondent to the extent that at a point she had to stop working to focus on the children. Some compensation would suffice in the circumstance and I believe it would be in order for the Respondent to pay alimony of Five Thousand Ghana Cedis to the Petitioner, and I so order. Issue 4. Whether or not the Petitioner is entitled to a share of the property at Adenta Once it is established that certain properties are marital properties based on the facts before the Court, settlement would be made appropriately by the Court. Marital property has been defined to be property acquired by the spouses in the course of their marriage regardless of whether the other spouse has made a financial contribution or not (His Lordship Date-Bah JSC in Arthur v Arthur (supra)). See also the cases of Peter Adjei v Margaret Adjei (Civil Appeal No. J4/06/2021 dated 21st April 2021), Mensah v Mensah [2012] 1 SCGLR 391 and Arthur v Arthur [2013-2014] 1SCGLR 543. In Quartson v Quartson [2012] 2 SCGLR 1077 His Lordship Ansah, JSC noted as follows: “The Supreme Court’s previous decision in the Mensah v Mensah is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled. Its application and effect will continue to be shaped and defined to cater for the specifics of each case. The decision as we see it should be applied on a case by case basis, with the view to achieving equality in the sharing of marital property. Consequently, the facts of each case would determine the extent to which the decision in Mensah v Mensah applies.” The Supreme Court affirmed its ratio in the Mensah v Mensah case in the case of Arthur (No. 1) v Arthur (No.1) [2013-2014] SCGLR 543 and further held that properties acquired BEATRICE NYARKO V. FRANCIS KWESI NYARKO during the subsistence of marriage is presumed to be jointly acquired property. In Fynn v Fynn & Osei [2013-2014] SCGLR 727, the Court distinguished the right of an individual to acquire property from its earlier decisions in Mensah v Mensah and Quartson v Quartson and held that there are situations where, within the union, parties may acquire property in their individual capacities and that position is envisaged by Article 18 of the 1992 Constitution. Having considered all these decisions and others, His Lordship Appau, JSC, delivering the majority decision of the Court in the case of Peter Adjei v Margaret Adjei (2021) JELR 109034 (SC) also made this profound statement: “The combined effect of the decisions referred to supra is that; any property that is acquired during the subsistence of a marriage… is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on the equality is equity principle. This presumption of joint acquisition is, however, rebuttable upon evidence to the contrary… What this means, in effect is that, it is not every property acquired single- handedly by any of the spouses during the subsistence of a marriage that can be termed as a ‘jointly-acquired’ property to be distributed at all cost on this equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial, to have been jointly acquired, irrespective of whether or not there was direct, pecuniary or substantial contribution from both spouses in the acquisition. The operative term or phrase is; “property jointly acquired during the subsistence of the marriage”. So where a spouse is able to lead evidence in rebuttal or to the contrary, as was the case in Fynn v. Fynn (supra), the presumption theory of joint acquisition collapses… With the decisions in the Mensah, Quartson and Arthur cases (supra), it was no longer essential for a spouse to prove a direct, pecuniary or substantial contribution in any form to the acquisition of marital property to qualify for a share. It was sufficient if the property was acquired during the subsistence of the marriage. However, where such evidence exists, it is necessary that a spouse alleging such a contribution must render or offer it to quantify BEATRICE NYARKO V. FRANCIS KWESI NYARKO his/her share or portion in the property so acquired on the equity principle. The rationale behind this position was that the duties performed by the wife in the home like cooking for the family, cleaning and nurturing the children of the marriage, etc. which go a long way to create an enabling atmosphere for the other spouse to work in peace towards the acquisition of the properties concerned, was enough contribution that should merit the wife a share in the said properties. It must be emphasized, however, that it is not every wife to a marriage who diligently performs this marital role that the courts, since the days of RIMMER v. RIMMER [1952] 1 QB 63 @ p 73, per Denning LJ, have talked so much about. It is therefore necessary that such a contribution or non-contribution must be demonstrated in the evidence adduced at the trial. It is for this reason that the authorities regard this general principle of ‘joint acquisition’ as a presumption that could be rebutted by contrary evidence… This Court held that there are situations where, within the marital union, parties may acquire property in their individual capacities as envisaged under article 18 of the 1992 Constitution.” The Petitioner has prayed this Court to be settled with property acquired by the parties during the marriage. She denied that the Respondent solely built the house with loans. Her evidence was that Rev. and Mrs. Atta Benin assisted them with GH¢ 3,000.00 to build their matrimonial home but the foreman mishandled the money and could not complete the building. She stated that the Respondent took money from her to buy roofing sheets for the building and she personally also purchased cements on different occasions and stored them in a house opposite theirs. She further testified that she bought electrical wires for wiring, paints, nettings, brought in masons and hired people to construct the bore hole to be used in the house. She tendered in evidence proof of purchase of some bags of cements, paints and turpentine from Atala Limited (Achimota Branch) and City Paints Supply Limited respectively in the year 2009. BEATRICE NYARKO V. FRANCIS KWESI NYARKO The Respondent’s evidence also was that he acquired a parcel of land at Adenta in 2016 on which he constructed a two-bedroom apartment without any contribution from the Petitioner, but through his personal resources and loans from banks and other financial institutions, and he is yet to pay off some of the loans. He stated that the building project was completed in or around November 2011 and the Petitioner and the children moved in at the end of that month and he joined them later. He tendered in evidence Exhibit ‘1’, ‘2’ and ‘3’ as his proof of source of financing for the building. From the date of completion of the building and moving in of the children, being November 2011, it is impossible that the land was acquired in 2016 as testified by the Respondent. Again, Exhibit ‘1’ only shows Respondent’s membership of a Credit Union and nothing more. Exhibit ‘2’ cannot also in no way be related to the putting up of the Adenta property which was completed in 2011 as the cheque of GH¢ 35,000.00 issued to the Respondent was on 17th November 2020. The same applies to Exhibit ‘3’ which loan was in 2017. The Court therefore attaches no weight at all to these exhibits and nothing from the evidence bears proof to Respondent’s claim of sole ownership and constructing the house from loans he obtained. From the evidence adduced, it has been shown that the property was indeed jointly acquired by the parties during the marriage. The said property satisfies the operative term; “property jointly acquired during the subsistence of the marriage”. As a property jointly acquired by the couple during the subsistence of the marriage, upon divorce, such property without any rebuttal ought to be shared between them on the equality is equity principle. The Petitioner was also able to lead cogent evidence to show that she even partook in the construction of the property by providing building materials and financial assistance to Respondent. The two-bedroom self-contained apartment is therefore shared BEATRICE NYARKO V. FRANCIS KWESI NYARKO equally between the Petitioner and the Respondent. Both parties are thus, entitled to a room each in the said apartment. Conclusion Having inquired into the facts as alleged by both parties and from the evidence adduced by them, it is this Court’s humble opinion that the marriage between the parties has broken down beyond reconciliation. It would serve no useful purpose to ask the parties who have been living apart to come together by a refusal of the relief for dissolution of their marriage. The Court therefore grants the relief for dissolution of the marriage. In the light of the foregoing, I hold that: 1. The ordinance marriage celebrated between the parties on 27th July, 2003 is hereby dissolved. 2. Custody of the second child is granted to the Petitioner with the Respondent granted access every fortnight weekend and custody during vacations should be equally shared between the parties. 3. The Respondent is to maintain the two children monthly at GHȼ 1000.00; 4. The Respondent is to be responsible for all the educational needs of the children. 5. The health expenses and clothing needs of the children are to be borne by the Petitioner. 6. An amount of GHȼ 5,000.00 is awarded in favour of Petitioner against Respondent as alimony. 7. Petitioner is entitled to one of the self-contained bedrooms in the two-bedroom self-contained apartment acquired by the parties during the subsistence of the marriage and BEATRICE NYARKO V. FRANCIS KWESI NYARKO 8. Parties are to bear their own costs. [SGD] AMA ADOMAKO-KWAKYE (MS.) (MAGISTRATE) Legal Representation No legal representation for Petitioner. Siwuur Aryere, Esq. for Respondent. BEATRICE NYARKO V. FRANCIS KWESI NYARKO 20