Divorce In Ghana: What You Need To Know

17 May Divorce In Ghana: What You Need To Know

• What are the jurisdiction criteria for divorce in Ghana?

In Ghana, the dissolution of marriages is governed by the Matrimonial Causes Act, 1971 (Act 367) (“the Act”). The Act applies to monogamous marriages.[1] Notwithstanding this, the Court may apply the provisions of the Act to non-monogamous marriages subject to the requirements of justice, equity, and good conscience.[2]

Section 1(1) of the Act allows either party to a marriage to present a petition to the court for a divorce. Under section 31, the Courts in Ghana can hear a divorce matter where either party is:

1. is a citizen of Ghana; or
2. is domiciled in Ghana; or
3. has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the divorce proceedings.

A divorce petition can only be filed after two years of the marriage unless the Petitioner can establish substantial hardship suffered by him or her or depravity on the part of the Respondent.[3] Thus, a spouse who desires to file for a divorce must wait until two years after the celebration of the marriage unless he or she can prove either of these two exceptional facts.

 

• What are the Grounds for Divorce in Ghana?

The Court shall only grant a divorce petition where it is satisfied that the marriage has broken down beyond reconciliation.[4] If at any stage of the proceedings for divorce, it appears to the court that there is a reasonable possibility of reconciliation, the court may adjourn the proceedings for a reasonable time to enable attempts to be made at reconciliation.[5]

To prove that a marriage has indeed broken down beyond reconciliation, a Petitioner may rely on one or more of the following six facts[6];

1. Adultery

Adultery has been defined as the voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse.[7] To rely on the fact of adultery, the Petitioner must prove two key elements: sexual intercourse and voluntary consent to the sexual intercourse. The Petitioner must satisfy the court that he or she finds it intolerable to live with the Respondent as a result of the adultery. The test adopted is thus subjective. That is, whether the particular Petitioner finds it intolerable to live with the Respondent and not what a reasonable Petitioner would have found intolerable. Where adultery has occurred and there is evidence that the parties to the marriage, in a bid to reconcile, lived together as a husband and wife would for more than six months after the fact of adultery had been made known to the Petitioner, the Petitioner cannot subsequently claim that they find it intolerable to live with the Respondent.[8]

2. Unreasonable behaviour

Unreasonable behaviour is conduct that gives rise to injury to life, limb or health or conduct that gives rise to a reasonable apprehension of such danger. Thus, actual injury need not be established. Mere apprehension of such injury is enough so far as it has led to the breakdown of the marriage beyond reconciliation. The Petitioner must prove that he or she cannot reasonably be expected to live with the Respondent as a result of the unreasonable behaviour. The test is objective and a question of fact for the court to determine.

3. Desertion

Desertion is the unjustifiable withdrawal from cohabitation without the consent of the other spouse and with the intention of remaining separated permanently. The Petitioner must establish that the Respondent has deserted him or her for a continuous period of at least two years immediately preceding the presentation of the petition. Desertion may result from a physical withdrawal from a place or a withdrawal from a state of things. The withdrawal must amount to a total repudiation of marital obligations.

4. Separation for two years

The Petitioner must prove 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 that the Respondent consents to the grant of a decree of divorce; provided that such consent is not unreasonably withheld. Mere separation is not enough. There must be a complete repudiation of marital obligations and no consortium. Where the Court is satisfied that consent has been unreasonably withheld, the Court may grant a petition for divorce under this fact notwithstanding the refusal.

5. Separation for five years

The Petitioner may prove 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. The consent of the Respondent is immaterial. Where the Court is satisfied that the parties have not lived together as a couple for a continuous period of five years, the petition will be granted.

6. Inability to reconcile differences

The Petitioner must establish to the satisfaction of the court that the parties have after diligent efforts been unable to reconcile their differences.

Additionally, where the marriage to be dissolved is not a monogamous marriage, the court shall have regard to any facts recognised by the personal law of the parties as sufficient to justify a divorce, subject to the requirements of justice, equity, and good conscience including[9]:

1. wilful neglect to maintain a wife or child;
2. impotence;
3. barrenness or sterility;
4. intercourse prohibited under that personal law on account of consanguinity, affinity, or other relationship;
5. persistent false allegations of infidelity by one spouse against another.

 

• How are the finances (capital and spousal maintenance) considered in Divorce proceedings?

The starting point in property considerations and settlement in the dissolution of marriages is the 1992 Constitution of the Republic of Ghana (“the 1992 Constitution”).

Article 22(1) provides that a spouse shall not be deprived of a reasonable provision out of the estate of a spouse irrespective of whether the spouse died having made a will. Article 22(3) further provides that spouses shall have equal access to property jointly acquired during the marriage and those assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon divorce.

The proportion or mode of distribution of jointly acquired properties between spouses upon divorce is determined by the court on a case-by-case basis. However, as guided by the provisions of Article 22(3), jointly acquired properties must be distributed equitably. The courts have held that “Equal sharing was what would amount to a ‘just and equitable’ sharing. The question of what is ‘equitable’, in essence, what is just, reasonable, and accords with common sense and fair play, is a question of fact purely dependent on the circumstances of each particular case. The proportions are, therefore, fixed in accordance with the equities of any given case.”[10] The Ghanaian courts have thus adopted the ‘equality is equity’ principle in the sharing of jointly acquired marital property.

With respect to properties individually acquired by a spouse during marriage, the 1992 Constitution guarantees the right of an individual to own property.^[11] The legal position is that an individual owner of property will be entitled to the unrestrained use of his self-acquired property. In effect, self-acquired properties are ordinarily not within the scope of marital property to be distributed upon divorce.

However, in granting a decree of divorce under the Act, the private or self-acquired property of a spouse is not exempt from the scrutiny of the court. The court may order the transfer of the private property of one spouse to the other as part of financial provision.

 

• How are children’s arrangements and maintenance considered?

All matters relating to children are governed by the Children’s Act, 1998 (Act 560) (“the Children’s Act”) as amended by the Children’s (Amendment) Act, 2016 (Act 937), the Courts Act, 1993 (Act 459) and the Matrimonial Causes Act, 1971 (Act 367).

Section 1 of the Children’s Act defines a child as a person below eighteen (18) years.

 

Child Arrangements under Ghanaian Law

In any application regarding custody of a child, the paramount consideration is the welfare and best interest of the child, irrespective of the wishes of the parents.^[12] In the case of Tafa Awoonor v Celestine Perfect Agbi^[13], the court reiterated this principle and held that in an application for custody, the paramount consideration was the welfare and best interest of the child.

Following an application for custody, the Courts are minded to consider the best interest of the child and the importance of a young child being with her mother in arriving at a decision.^[14]

The Court would also consider:

1. the age of the child;
2. that it is preferable for a child to be with her parents except where his rights are persistently being abused by either or both of them;
3. the views of the child if independently given;
4. that it is desirable to keep siblings together;
5. the need for continuity in the care and control of the child; and
6. any other relevant matter.^[15]

The Court may award the custody of a child to any person and may regulate the right of access of any person to the child.^[16] Ultimately, the best interest of the child is always the principal consideration.

Child Maintenance Under Ghanaian Law

Under Ghanaian law, a parent, guardian or any other person who has custody of a child may apply to the Family Tribunal for a maintenance order.^[17] The application for maintenance may be made against any person who is liable to maintain the child or contribute towards the child’s maintenance.^[18]

The principal considerations by the Court in the making of a maintenance order are:

1. the income and wealth of both parents of the child or the person legally liable to maintain the child;
2. any impairment of the earning capacity of the person with a duty to maintain the child;
3. the financial responsibility of the person with respect to the maintenance of other children;
4. the cost of living in the area where the child is resident;
5. the rights of the child under the Children’s Act; and
6. any other relevant matter.^[19]

A maintenance order may be in the form of a periodic payment or lump sum payment for the maintenance of a child.[20]  The earnings or property of the person liable to make such payment may be attached.[21]  The attachment order would be applicable in all cases of failure to pay maintenance.[22] Where the court has reason to believe that a person ordered to make a payment may be unwilling or unlikely to pay, the court may order that party to give reasonable security for any payments ordered.^[23]

A maintenance order issued by a Family Tribunal is valid until the child attains the age of eighteen (18) years or dies before that age.[24] This notwithstanding, a maintenance order may continue in force even after a child has attained eighteen (18) years if the child is engaged in a course of continuing education or training after that age upon an application by a parent or anyone who has custody of the child.[25]

However, a maintenance order shall lapse before the child attains the age of eighteen (18) years if the child is gainfully employed before that age.[26]

 

• Can Orders made in other jurisdictions with respect to Divorce Proceedings be registered and enforced in Ghana?

Generally, the registration and enforcement of foreign orders in Ghana are governed by the Courts Act, 1993 (Act 459) (the “Courts Act”) and the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575).

Presently, Ghana is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction 1980 or any international treaty or convention recognizing the enforcement of foreign judgments or orders. Judgments or orders are generally enforced on the basis of reciprocity. For a judgment or order to be recognized and enforceable in Ghana, the country in which the order or judgment is made must have a reciprocal arrangement with Ghana. The order or judgment must first be registered at the High Court as the court of first instance.

Pursuant to the provisions of the Courts Act, for a foreign judgment to be registered and enforceable, it must meet the following requirements:

1. It must be a judgment of a superior court of a foreign country;
2. It must be final and conclusive between the parties; and
3. It must be a sum of money payable (debt) under the judgment, not a sum payable in respect of taxes or other charges of a similar nature or in respect of a fine or penalty.[27]

Given the above, child orders made in other jurisdictions do not meet the criteria for enforceability in Ghana. A fresh application consistent with Ghanaian law would have to be made to the Family Court for custody of the children.

Ghana is however a signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (“the 1993 Hague Convention”) and has ratified the provisions of the Convention by the passage of the Children’s (Amendment) Act, 2016 (Act 937). The provisions of Act 937 are aimed at safeguarding and promoting the best interest of children in inter-country adoption processes. The Central Adoption Authority of Ghana, (“the Authority”) as established pursuant to Act 937 has the mandate of ensuring that inter-country adoptions comply with the 1993 Hague Convention. The Authority has therefore developed a mechanism for cooperation with other Authorities in countries receiving intercountry adoption placements. Thus, a foreigner seeking to adopt a child in Ghana can successfully do so subject to compliance with due process laid down in Act 937.

[1] Matrimonial Causes Act, 1971 (Act 367), Section 41(1)

[2] Ibid, Section 41(2)

[3] Ibid, Sections 9(1) and (2)

[4] Ibid, Section 1(2)

[5] Ibid, Section 8(2)

[6] Ibid, Section 2(1)

[7] Ibid, Section 43

[8] Ibid, Section 3

[9] Ibid, Section 41(3)

[10] Boafo v Boafo [2005-2006] SCGLR 705

[11] 1992 Constitution of Ghana, Article 18(1); Fynn v Fynn [2013-2014] 1 SCGLR 727

[12] Children’s Act, 1998 (Act 560), Sections 2 and 45(1)

[13] Civil Appeal No. H1/05/2021 delivered by the Court of Appeal on 26^th November 2021

[14] Children’s Act 1998 (Act 560), Section 45(1)

[15] Ibid, Section 45(2)

[16] Matrimonial Causes Act, 1971 (Act 360), Sections 22(2) and (3)

[17] Children’s Act, 1998 (Act 560), Section 48(1)

[18] Ibid, Section 48(3)

[19] Ibid, Section 49

[20] Ibid, Section 51(2)

[21] Ibid

[22] Ibid, Section 51(3)

[23] Matrimonial Causes Act, 1971 (Act 360), Section 23

[24] Children’s Act, 1998 (Act 560), Section 53(1)

[25] Ibid, Section 54(1) and (2)

[26] Ibid, Section 53(2)

[27] Courts Act, 1998 (Act 459), Section 81