BALASU VRS NETTEY (A4/148/22) [2023] GHADC 1178 (13 August 2023)

IN THE DISTRICT COURT HELD AT THE ADENTA ON THE 13TH DAY OF AUGUST, 2023 BEFORE HER HONOUR PRISCILLA SOPHIA YEBOAH SITTING AS

AN ADDITIONAL MAGISTRATE SUIT NO: A4/148/22 BERNICE BALASU …. PETITIONER v. ERIC NERQUAYE NETTEY …. RESPONDENT _______________ _______________

JUDGMENT On the 15th of February 2022, the Petitioner in the instant case filed a Petition for divorce at the registry of this honorable court seeking the sole relief of dissolution of the customary marriage between the Petitioner and the Respondent plus other corollary reliefs such as: i. ii. iii. iv. v. vi. An order for custody of all 4 children of the marriage. An order for maintenance of all 4 children of the marriage by the respondent Compensation in the of ghc150,000 by respondent An order for equal share in all assets acquired during the marriage. An award of the marital home to the petitioner solely Any orders that the Court may deem fit. Background: The background of this case per my records and as narrated by the Petitioner are as follows; The Petitioner and the Respondent both Ghanaians got married on the 3rd of March 2012 in accordance with Ewe custom at La T junction, in Accra. The marriage was however not converted into ordinance marriage. After the marriage, the parties cohabited at several places until they moved to their own residence at Malejor, Accra where the parties currently reside at the time of the instant petition. There are 4 issues to the marriage namely (Ann Amaris 4 years old, Bernice Bethel Nettey 10 years old, Channah Blessing Nettey 6 years and Jayden Caleb Nettey)

PROCEEDINGS AT TRIAL Per the record of this honorable court, all court processes were duly served on the Respondent. The Respondent, however, failed to file any processes in relation to the instant petition and maintained a steady absence from the court throughout the entire proceedings in this matter. On 1st September 2022, the Petitioner filed his witness statement, and the same was served on the Respondent by substitution as previously done to commence trial but this also did not compel the Respondent to attend court. The case was subsequently set down for trial on the 30th of March 2023 and the witness statement of the defendant was duly adopted as her evidence in chief. Summary of Petitioner’s case: Petitioner pivots the instant petition on grounds of unreasonable behavior on the part of the Respondent. The instance cited as unreasonable behavior by the petitioner includes: • That the respondent has a habit of either staying out late or for weeks as a married man without any explanation to the petitioner. • That respondent has not been maintaining the family • Respondent abuses the Petitioner emotionally which has caused a great deal of mental and emotional anguish. • That the respondent pays the children’s fees as and when he likes • While on admission to deliver their last born respondent never visited the petitioner • That for over 2 ½ years the respondent has deserted

their matrimonial bed room and sleeps in the with the explanation that petitioner was doing her juju. • Respondent has stopped eating petitioners food because he believes petitioner want to poison him. • When petitioner goes out to work so as to put food on the table respondent will often lock her out. • That respondent has refused to allow the petitioner work after compelling the petitioner to stop work as a cook. • Further the order by ADR for respondent to pay ghc500 to the petitioner every month has not been complied by the respondent. • That respondent attempted to dissolve the marriage by presenting the customary drinks but the petitioner’s family rejected same. • Petitioner contends that in view of the above treatment meted out to her by the respondent her only remedy is to seek the order in court for the dissolution of the marriage. ISSUE (S) The issues presented to this court for determination are • whether or not the said marriage between the Petitioner and Respondent by virtue of it being a customary marriage can be brought under the matrimonial causes act. • Whether the Petitioner has satisfied this Court that the marriage has broken down beyond reconciliation. • Whether the petitioner is entitled to the reliefs sought.

APPLICABLE LAWS Section 2 (1) (e) of the Matrimonial Causes Act, 1971 (ACT 367) sets out the only ground for dissolution of marriage as that the marriage has broken down beyond reconciliation. Proof of the Breakdown of Marriage is as below (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; a. That the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent; b. That the respondent has behaved in a way that the petitioner cannot reasonably be expected to Live with the respondent; c. That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; d. That the parties to the marriage have not lived as husband 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 the 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 despite the refusal; 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; or f. That the parties to the marriage have, after diligent effort, been unable to reconcile their differences.” The above rule still imposes a duty on the parties to establish that their marriage is beyond salvage. (2) Notwithstanding proof of one of the facts showing that the marriage had broken down the court had the discretion to refuse to grant the decree of dissolution on the ground that the marriage had not in fact broken down beyond reconciliation. The discretion given to the court was not a discretion to grant but a discretion to refuse a decree of dissolution. The burden was not on the petitioner to show that special facts or grounds existed justifying the exercise of the court's discretion; once he or she came within any one of the provisions specified in sections 2 (1) (e) and (f) of Act 367 the presumption was in his or her favor. Section 41(1) of Act 367 states that the Act is applicable to all monogamous marriages. Further, Section 41(2) of the Act also, permits persons who are married under customary law or under the marriage of Mohammedans to seek divorce and other matrimonial reliefs under the Act. However, on application by a party to a marriage other than a monogamous marriage, the Court shall apply the provisions of this Act, to that marriage, and in so doing, subject to the requirement of

justice, equity, and good conscience the Court may: (a) Have regard to the peculiar incidents of that marriage in determining appropriate relief……etc (b) Guarded by the provision under s. 41(2) which allows the provisions of this Act to be applicable to customary law marriage, the Petitioner as in monogamous marriages is still required to prove the break-down of the marriage beyond reconciliation thus the sole ground for divorce. That notwithstanding, this sole ground must be evidenced by proof of one of the following: 1. Adultery 2. Unreasonable Behaviour 3. Desertion 4. Separation with consent for two (2) years 5. Five years of Separation (3) Inability to reconcile differences a

ANALYSIS It is important to note that the Respondent was never been present in court either personally or through a representative or availed himself to respond to any of the processes filed in this matter despite having notice of all proceedings of this court. It is therefore my humble opinion that the Respondent without any regard to the due processes of this court, has waived his right to be heard in this matter leaving this honorable court to assess this matter on the exclusive evidence available as provided by the Petitioner. It is thus why in accordance with Order 25 of the District Court Act, (C. I. 59) after all processes had been served on the Respondent and the Respondent had failed to respond to same, the Court ordered the Petitioner to prove her claim. The Petitioner on the 30th of March gave evidence in support of her claim by tendering her witness statement and additional witness statement plus exhibits in support and the same were adopted by this Court as her evidence in chief to buttress her claim. She called her sister Mary Balasu as her witness. She also testified on the same 30th March 2023 and corroborated the plaintiff’s evidence on that very day. Her sister whose witness statement was adopted by the Court confirmed the Petitioner’s story and added that one- day Petitioner fell ill and because the respondent failed to attend to the Petitioner, PW1 had to

abandon all that she was doing to convey her sister to the hospital and even when the doctors called respondent to come to the hospital he failed to do so. PW1 further stated that it took her intervention for Petitioner to report the Respondent’s physical abuse at her to the police and that the Respondent’s explosive anger and cruelty make it impossible for the Petitioner to continue living with the Respondent and therefore support the call by the Petitioner for divorce.

EVALUATION I have considered the facts and evidence before me that this presents a proper case under Section 2(1)(B) of the Matrimonial Causes Act, 1971 (ACT 367) Having regard to the peculiar incidents of the marriage, It suffices to state that for the purpose of showing that this marriage has broken down beyond reconciliation, the Petitioner has satisfied this court on the balance of probabilities that indeed the respondent did behave unreasonably and the petitioner cannot by the evidence adduced be expected to live with the respondent due to the psychological and emotional stress suffered. Also subject to the requirement of justice, equity, and good conscience I decree that the marriage has broken down beyond reconciliation. In this circumstance, the customary marriage is accordingly dissolved and the marriage certificate with certificate number RGM.095/96 is hereby cancelled. Reliefs sought The following were the corollary reliefs sought by the petitioner. i. ii. iii. iv. v. vi. An order for custody of all 4 children of the marriage. An order for maintenance of all 4 children of the marriage by the respondent Compensation in the of ghc150,000 by respondent An order for equal share in all assets acquired during the marriage. An award of the marital home to the petitioner solely Any orders that the Court may deem fit. Since the respondent has notice of the reliefs sought and does not oppose I grant the ff: 1. Custody of the children is granted to the petitioner because the children are very young and the respondent does not oppose nor has he suggested a better option to the Court.

2. Since the children are 4 and also in the interest of justice and good conscience shall award a monthly upkeep money of ghc2,000 to the petitioner to support the children’s upkeep and also on the basis that the Petitioner is a housewife.

3. Petitioner failed to disclose the matrimonial assets acquired in the marriage. I don’t know the asserts in question nor do I have proof that any such asserts still exist. I cannot make a vague order so therefore the request for an equal share of matrimonial asserts shall fail.

4. Award of the matrimonial property to the petitioner. In the interest of justice and equity, I shall instead order a split of the matrimonial home by 50%. This is important because the petitioner deserves to have shelter for herself and the children and also due to her sacrifices and contribution in the marriage 5. Finally, I order the respondent to pay ghc20,000 as financial settlements to the petitioner to enable the petitioner establish herself in a trade. Cost of ghc5,000 is also awarded in the petitioner’s favour. SGD:

HER

HONOUR

PRISCILLA YEBOAH (SITTING AS ADDITIONAL MAGISTRATE)

ADENTA DISTRICT COURT 2