15 Feb Navigating The Weight Of Marriage Separation And Divorce In Ghana: Your Legal Options
By virtue of colonization, English statutes on some specific subject matters were applicable in Ghana until otherwise provided for in an Act of Parliament. Therefore, the Matrimonial Causes Act of England, such as the Matrimonial Causes Acts of 1857 and 1950, had the force of law in Ghana until 1971 when the Matrimonial Causes Act, 1971 (Act 367) was promulgated. These statutes distinguished between separation and divorce as divorce a mensa et thoro, and divorce a vinculo respectively, which were created by the ecclesiastical courts. Even though the Matrimonial Causes Act, 1857 abolished the jurisdiction of the ecclesiastical courts over divorce petitions and vested it in the civil courts, the Act maintained divorce a mensa et thoro as a decree the court could make.[1]
In essence, the Courts of Ghana had jurisdiction to pronounce a decree for judicial separation pursuant to the English statute.[2]
Divorce a mensa et thoro signifies that, though separated, the couple are still in the eyes of the law husband and wife and therefore cannot remarry.[3] Thus, it is a legal process by which parties to a marriage seek a court order to separate from each other without dissolving the marriage. This is referred to as Judicial Separation[4].
The grounds on which an order of judicial separation can be obtained are the same as the five facts that need to be proved to obtain a dissolution of marriage, namely: adultery by the respondent which the petitioner finds intolerable to live with, unreasonable behaviour, desertion for a period of at least two years.
The legal effect of this step is that, it gives the court the power to make the same financial orders as it could make in a divorce and the spouses are no longer obliged to cohabit with each other.[5] In effect, once a decree for judicial separation was made, one spouse could not prove that the marriage had broken down beyond reconciliation on the fact of desertion within that time of separation. However, it did not bar the couple from seeking a divorce at a later date.
Since 1971 when Act 367 was enacted to govern matrimonial causes in Ghana, judicial separation has ceased to be a relief granted by the courts of Ghana. Section 44 of Act 367 provides that all English statutes relating to matrimonial causes that had the force of law in Ghana cease to apply. This position was affirmed in the case of Knudsen v Knudsen[6].
Therefore, any agreement to separate from each other cannot be put before the court in Ghana for enforcement. In essence, a party to a marriage who unilaterally leaves his or her matrimonial home for at least two years may be guilty of desertion which can be competent fact to prove that the marriage has broken down beyond reconciliation.
It therefore leaves parties, who contracted their marriage under Part III of the Marriages Act, 1884-1985 (CAP 127), and seek to terminate their marriage in Ghana, with only one option: divorce a vinculo. Divorce a vinculo means a “dissolution of the marriage,” and the effect of this proceeding is that the parties are free to remarry after the court makes an order to dissolve the marriage.
In Ghana, any marriage contracted under Part III of CAP 127, be it under a registrar’s certificate or in a recognized place of worship by a licensed reverend minister, shall only be dissolved by an order of the Court. Until the court decrees that the marriage be dissolved and the marriage certificate be cancelled, a party to the marriage is barred from marrying another person or risk being found guilty of bigamy.
Dissolution is commenced by way of petition for divorce to the Court.[7] Either spouse may invoke the jurisdiction of the Court to dissolve the marriage, provided that either of them is a citizen or is domiciled in Ghana, or has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings.[8] However, the court shall not entertain any petition of divorce presented to it within two years from the date of the celebration of the marriage, unless under special circumstances of depravity or substantial hardship occasioning the petitioner.[9]
Marriage would be dissolved in this regard solely on the ground that the marriage has broken down beyond reconciliation.[10] Thus, there must be no reasonable possibility of reconciling the parties. To prove that a marriage has broken down beyond reconciliation, the petitioner must successfully prove adultery, unreasonable behaviour, desertion, separation for two years with consent of the respondent or separation for five years.[11]
In jurisdictions such as the UK, India and majority of the states in the United States, judicial separation affords couples an alternative to divorce. The probable policy rationale may be to enable the spouses, reconsider their positions, have a taste of ‘the single life’ and attempt in a less emotional and urgent atmosphere to place their lives and their future back together. In light of this, a call for the reconsideration of judicial separation in Ghana is worth exploring.
This publication may provide a summary of legal issues but is not intended to give specific legal advice. If you require legal advice, please speak to a qualified lawyer, which may include a qualified member of our legal team at B&P ASSOCIATES (info@bpaghana.com).
AUTHORS:
Fawzya Medhat Khalil (Senior Legal Associate)
Prince Benson Mankotam (Legal Associate)
[1] Matrimonial Causes Act, 1857, section 7
[2] Happee v Happee and Another [1971] 1 GLR 104
[3] Ibid at note 2, @107
[4] Mitchell v Mitchell [1983] 3 All ER 621
[5] Gold, A (2014). Judicial separation – an alternative to divorce, https://www.lexology.com/library/detail.aspx?g=c0ac54fa-f2b6-4c44-aebd-9cb07fc4bb08
[6] [1976] 1 GLR 204
[7] Matrimonial Causes Act, 1971, section 1
[8] Ibid at note 7, section 31
[9] Ibid at note 7, section 9
[10] Ibid at note 7, section 1(2)
[11] Ibid at note 7, section 2