BIMPONG VRS ABLAKWA (C5/134/2023) [2023] GHACC 848 (22 December 2023)

IN THE CIRCUIT COURT 3 HELD AT ACCRA ON THURSDAY THE 22ND DAY OF DECEMBER, 2023 A. D. BEFORE HER HONOUR SUSANA EDUFUL (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/134/2023 SALOMEY OWUSU BIMPONG PETITIONER VRS CEPHAS ABLAKWA RESPONDENT PARTIES PRESENT AND REPRESENTED JUDGMENT The Parties to this suit got married under the Marriages Ordinance (CAP 127) on January 18, 2014 at the Presbyterian Church of Ghana. Nii Okaiman-Accra. The parties have one child of the said marriage. The Petitioner is seeking the dissolution of the marriage on the grounds of unreasonable behaviour and Adultery on the part of the Respondent. The Petitioner prayed to the court as follows; 1. That the marriage celebrated between the parties be dissolved. 2. That custody of the child of the marriage be granted to the Petitioner and the Respondent be given reasonable access. Where access is defined as: the child spending weekends with the Respondent. 3. That the Respondent be made to maintain the child of the marriage. The Respondent filed his answer to the petition and cross-petition but did not contest the grant of divorce by this court save that the grounds of unreasonable behaviour and adultery is on the part of the Petitioner. The Respondent also prayed; a. That the Respondent be given custody of the child of the marriage b. That the Respondent be given 50% each of all the properties listed under paragraph 15 above herein: Section 1(2) of the Matrimonial Cause Act, 1971 (Act 367) provides the sole ground on which a petition of divorce shall be granted. This sole ground is that the marriage has broken down beyond reconciliation. Section 2(1) of the Matrimonial Causes Act 1971, (Act 367) gives the criteria which must be established for the court to be satisfied that the marriage has broken down beyond reconciliation as follows: a. That the Respondent has committed adultery and by the 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 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; or 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; f. That the parties have after diligent effort been unable to reconcile their differences. Section 2(3) of Act 367 also provides that “although the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition of divorce unless it is satisfied on all the evidence that the marriage has broken down beyond reconciliation. This implies that the ability of a party to establish one or more of the criteria envisaged in Section 2(1) of Act 367 does not lead to an automatic grant of a petition of divorce. The Court must be satisfied that the establishment of the criteria has led to the breakdown of the marriage and the parties cannot be reconciled. It is said that he who alleges must prove therefore the onus is on the Petitioner to prove all the averments made in her petition. The Respondent having cross- petitioned and the cross-petition being in the nature of a petition by itself is also bound to prove all the averments contained in the cross-petition. Sections 10 and 14 of the Evidence Act, 1975(NRCD 323) provide that the burden placed on the Petitioner can only be discharged where sufficient evidence is led to enable a finding of fact to be made in the Petitioner’s favour. This same burden is placed on the Respondent in respect of the cross-petition. Majolagbe v Larbi (1959) GLR190. No party can rely on the weakness of their opponent’s case to prove their own case. ISSUES The main issues for determination are as follow: 1. Whether or not the marriage between the parties has broken down beyond reconciliation? 2. Whether or not the Petitioner is entitled to custody of the issues of the marriage? The parties have filed terms of settlement on the ancillary relieves for adoption by the court as Consent Judgment. In support of her petition, the Petitioner stated in evidence that the parties were married under ordinance on January 18, 2014 in Accra. She did not tender exhibit in evidence. That the parties have one child. According to the Petitioner, parties have been separated for about 2 years prior to the presentation of the petition. The Petitioner led evidence to establish the ground of unreasonable behaviour and adultery on the part of the Respondent. On the issue of unreasonable behaviour the Petitioner narrated the incidence of assault and abuse both physical and verbal emanating from some misunderstanding between them. These acts of violence and misunderstanding on the part of the Respondent led her to vacate the matrimonial home in 2020. The Petitioner narrated the incidence of the Respondent having amorous relations with other women to establish adultery on the part of the Respondent. She however admitted having a relationship with another man and having a child with the said man. The Respondent’s evidence is that, the breakdown of their marriage relationship is as a result of unreasonable behaviour of the Petitioner and adultery. The Respondent tendered the following exhibits in evidence: the Marriage Certificate of the parties, the birth certificate of Curtis-David Bubuney Ablakwa and photographs of the child. The Respondent narrated misunderstanding between the parties to prove the ground of unreasonable behaviour on the part of the Petitioner. He also narrated the fact that the Petitioner has a child with another man to prove adultery on the part of the Petitioner. The Petitioner admits that whilst the marriage was subsisting she had a child with another man. The mandate of this court in determining whether or not the Petitioner is entitled to a decree of divorce, is to determine whether the said marriage between the parties has broken down beyond reconciliation. The court finds from the evidence that, both parties have lost love and affection in the marriage and do not want to continue in the marriage. Also from the evidence of both parties that the Petitioner has committed adultery, as she admits having a child with another man whilst this marriage subsisted. Consequently, the court finds that the breakdown of the marriage is due to adultery on the part of the Petitioner as provided under section 2(1)(c) of the Matrimonial Causes Act, 1971 (Act 367). Even though it is the court’s desire to maintain the sanctity of the marriage bond, some situations warrant the granting of divorce. In my opinion and on the strength of the evidence before this court, the parties should not be compelled to stay in the relationship. In the circumstances, I hold that the marriage between the parties have broken down beyond reconciliation. A decree of divorce is granted. Issues 2 Whether or not the Petitioner or the Respondent is entitled to custody and maintenance of the child? The Petitioner is praying the court to grant custody of the child of the marriage to her with reasonable access to the Respondent and that the Respondent should be made Responsible for the maintenance of the issues of the marriage. The Respondent has also cross-petitioned for custody of the child. Both parties have prayed for the grant custody of the child of the marriage. Under section 45(1) of the Children’s Act 1998 (Act 560), “A Family Tribunal shall consider the best interest of the child and the importance of a young child being with the mother when making an order for custody or access.” Under section 45(2) (e) of Act 560, the Family Tribunal shall take into consideration the continuity in the care and control of the child. In Beckley V Beckley 1974 1 GLR 393 HC Abban J, as he then was, held that “the general rule is that children of tender age ought to be looked after by their mother unless there are circumstances pointing to the contrary....” In Attu v Attu (1984-86) GLR 745, Brobbey J held that “in divorce proceedings, where the custody of the child is concerned, the welfare of the child is of paramount consideration. See also Wiredu J. in Daaboa Dagarti v. Dornipea 1982-83 GLR 85. Section 2(2) of the Children’s Act, 1998 Act 560 states that, “the best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child.” I have weighed the option of the grants of the child being with the mother the Petitioner given the age of the child and that of continuity in the care and control of the child who is with the Respondent. Given the evidence of both parties on the issue, the court gives more weight to the evidence of continuity in the care and control of the child who is with the Respondent as it is in the best interest of the child to remain in an environment he is accustomed with. The Respondent’s evidence is that the child has been in his custody and care since the Petitioner left the matrimonial home. The court is of the opinion that it is the best interest of the child to remain with the Respondent for continuity, care and control. Custody of the child Curtis-David Bubuney Ablakwa aged 7 is granted to the Respondent. The Petitioner is to have reasonable access to the child. The reasonable access is defined as: The Petitioner can have access to the child on section 3 of the Matrimonial Causes (Act 367) states: Section 3 of the Matrimonial Causes Act, 1971 (Act 367) states: “Without prejudice to the generality of subsection (2), an order under that subsection may; (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” Section 6 of the Children’s Act, 1998 (Act 560) states: “6(1) No parent shall deprive a child of his welfare whether- (a) The parents of the child are married or not at the time of the child’s birth, or (b) The parents of the child continue to live together or not. 6(3) Every parent has the rights and responsibilities whether imposed by law or otherwise towards his child which include the duty to – (c) Provide good guidance, care, assistance and maintenance for the child and assurance of the child’s survival and development. (d) (d) Except where the parents has surrendered his rights and responsibilities in accordance with law. Having considered the statue on the issue of maintenance of a child, the court is of the opinion that it is equitable that both parents are made jointly responsible for the maintenance of the child. The parties are to assess the cost of maintenance of the child and share same equally. DECISION 1. The court hereby declare that the marriage celebrated between the Petitioner, Salomay Owusua Bimpong and Cephas Ablakwa Respondent herein on January 18, 2014 at the Presbyterian Church Ghana, Nii Okaiman Accra has broken down beyond reconciliation and same is hereby dissolved. The marriage certificate CTK/01/2014 is accordingly cancelled. A decree of divorce is issued. 2. That the custody of the child, Curtis-David Bubuney Ablakwa is to be granted to the Respondent with Reasonable access to the Petitioner. Reasonable access is defined to mean that the Petitioner will have access to the child during all the schools vacation if she chooses to do so. 3. That both parties are jointly responsible for the upkeep and maintenance of the child of the marriage in equal share. The cost of maintenance of the child should be accessed for the parties to contribute equal amount towards the child’s upkeep. 4. The court makes no order as to cost. The parties have filed terms of settlement on June 9, 2023 on the ancillary relief(s). The court hereby adopts the terms of settlement filed as stated below as consent judgment; a. That the Petitioner and the Respondent have agreed that their single storey building at Amrahia along the Dodowa road be divided into four units of the apartments of two bedrooms each be gifted to their son, Curtis David Bubuney Ablakwa and to be held in trust by the Petitioner until he turns 18 years of age. b. That the Respondent withdraws his claim to the other properties mentioned in paragraph 18, and 24 of his answer to the reply and cross-petition filed on March 21, 2023. LEGAL REPRESENTATION MICHEAL ADU GYAMFI FOR THE PETITIONER HENRY OPPONG-DWAMENA FOR THE RESPONDENT H/H SUSANA EDUFUL (MRS) (CIRCUIT COURT JUDGE) 8