Judicial Divorce in Ghana: the Causes, Procedures and Related Issues

Understanding the institution of marriage

There is a growing concern among Ghanaians about the increasing rate of divorce cases in the country particularly among the youth. Meanwhile, the level of perception and comprehension among the ordinary Ghanaians about the law governing divorce and the court procedures are very low. Most people become conscious of these only when they decide to end up the relationship in divorce and do not know what to do next. The article is not intended to give solution to the divorce problems but an attempt to enlighten the reading public on the law, court procedures and other related issues of interest. Fundamentally, it is important to understand what marriage is, the reasons for which people marry and the general causes of divorce today.

General concepts of marriage: The reasons for marriage within different societies and cultures is attributed to the basic social and personal functions it performs such as – procreation, provision for sexual gratification, care of children and their education, socialization, economic production and consumption, provision for affection, status and companionship [for Biblical reasons why one should marry, read Genesis 2:18; 1 Corinthians 7: 1, 2; Genesis 1: 26-28].

In 2000, The Netherlands became the first country in the world to legalize same-sex marriage and several other countries extended legal rights to “same-sex” partners. This development has distorted the existing concept of marriage and has since remained a controversial issue for not only the religious bodies but also for the national laws, particularly in Africa. Most African societies consider “same-sex” marriage as anti-social, anti-procreation and indecently unnatural.

Until modern times, marriage was rarely a matter of free choice and states could decree against marriage between couples at any time. For example, in the third century the oppressive Roman Emperor, Glaudius II, decreed that young men were not to engage in marriage in order that they dedicate their lives to military service and were allowed only to engage in “heathen fertility festival” where they could pick partners for the day. Meaning at that time “pre-marital sex” or “fornication” was encouraged by the State. Opposition to this decree led to the execution of the Catholic priest called Valentinus (14 February 270 AD). 

Endogamy, the practice of marrying someone from within one’s own tribe or family, is the oldest form of marriage and still practiced in some parts of the world. In Ghana incest (sexual activity between people who are very closely related in a family) is prohibited.

A male of not less than sixteen years of age who has carnal knowledge of a female whom he knows is his grand-daughter, daughter, sister, mother or grand-mother commits a criminal offence and is liable on conviction to a term of imprisonment of not less than three years and not more than twenty-five years (Section 105 (1) of the Criminal Offences Act of Ghana)[see the case, R v Carmichael (1939-40, 31 COX CC 409]. Also, a person commits bigamy who, knowing that a marriage subsists between that person and another person, goes through the ceremony of marriage, whether in Ghana or elsewhere, with any other person (Section 263 (1) of the Criminal Offences Act of Ghana). In other words it is an offence for marring another person when one is still legally married to someone else, [see the case, R v Wheat & Stocks (1918-21) 26 COX CC 717].

Based on the various concepts across different societies and cultures, New Encyclopaedia Britannica (vol. 7, 2003) generally defines marriage as “a legally and socially sanctioned union between one or more husbands and one or more wives that accords status to their off-springs and is regulated by law, rules, customs, norms, beliefs and attitudes that prescribe the rights and duties of the parties”.

The Biblical perspective: Marriage is defined as an institution ordained and ordered by God (Al Janseen, 2001). The Bible talks about ‘marriage’ in Genesis 2; 24: “therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh” (see also Mathew 19:4-5). For Biblical reasons why one should marry, see 1 Corinthians 7: 1-40. From the scriptural perspective therefore God intended man and woman to be joined together in marriage and not joined outside of marriage.

Legal definition: marriage is the legal relationship between a husband and a wife. According to the Ghanaian Matrimonial Causes Act (1971), “except as otherwise provided in section 41 of this Act ‘marriage’ means a monogamous marriage and does not include a potentially polygamous marriage”.

According to the decision in Hyde v. Hyde (1866) LR 1 P&D 130, marriage is a “voluntary” union for “life” between “a man and a woman” to the exclusion of all others. This definition therefore has certain features and the first is that, the union is “voluntary” one. This implies that marriage is a consensual relationship between two individuals and therefore implicitly excludes such forced unions as betrothal and other forced marriages. The Criminal Offences Act of Ghana (compulsion of marriage) identifies causing someone to marry under duress or against that person’s will as misdemeanour (Section 109). The Ghanaian courts will even decline to recognise a customary marriage under any immoral circumstances such as abduction from lawful care or in violation of the person’s human rights.

The element of ‘life’ signifies the potentially perpetual character of the marriage as opposed to its indissolubility [see, Nachimson v Nachimson (1930) P 217], where the court in response to an argument that a marriage which could be unilaterally dissolve under Russian law of such a flimsy nature as not to be considered marriage held, that the original character of the marriage should be distinguished from its mode of avoidance.

The element of “one man marrying one woman” being the only permissible parties to the marital arrangement at any given time clearly appear to be a western phenomenon and does not appear generally applicable in the Ghanaian context. This is explained further in the next section.

Marital Processes and types of marriage in Ghana

The marriage process itself varies among ethnic groups. Also, the type of marriage consummated by a couple often depends on a host of factors, including their socioeconomic status (e.g., formal education, occupation, income, wealth, place of residence), and their family, religious and ethnic backgrounds. Ghanaian family law recognizes a plurality of marital forms. Throughout the country there are three types of marriages, all recognized as legal. These are:

Marriage under the Marriage Ordinance (Cap 127)

(i)       Civil marriage (requires registration with witnesses)   

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(ii)    Church marriage (performed on behalf of civil authority)

Marriage under the Mohammed Ordinance (Cap129)
Marriage under customary law (customary rights depending on tribe)

In Ghana, the factor of monogamy only endorses marriages celebrated under the Marriage Ordinance (cap 127). This is because marriages celebrated under Cap 129 and customary law are polygamous in character and therefore involved multiple parties as opposed to single parties. In order words the Marriage Ordinance does not protect multiple marriages under Mohammed Ordinance and customary law though it recognizes them as legal marriages (see, section 265(1) of the Criminal Offences Act of Ghana). The Church does not recognize customary marriage until it is blessed by the pastor or registered under the Marriage Ordinance.

As a marriage form, the incidence of polygamy varies from somewhere between 20 to 50 percent in the whole of sub-Saharan Africa (Timaues and Reynar 1998). In Ghana during the late 1970s, about one-third of all married women were in polygamous unions (Aryee1985; Gage and Njogu 1994). By the late 1990s, the proportion of women in plural marriages had declined to about 23 percent. With the spread of charismatic churches in Ghana today the tendency of monogamous marriage has increased as more customary marriages are being crystallized into registered marriages.

The 1992 Constitution adopts no official customary or traditional marriage. It recognizes all forms provided the practices are not indecent, immoral or abuse the fundamental human rights of the individuals involved. Article 270(1) provides recognition of institution of chieftaincy, together with its traditional councils under customary law and Article 272 states that National House of Chiefs shall undertake progressive study and codification of customary law to establish unified rules and evaluate such laws with aim of “eliminating those customs and usages that are outmoded and socially harmful”.

Divorce procedures in the court

What is judicial divorce? It is the legal ending (break-up) of a marriage which has broken down beyond reconciliation through a court process. By law all marriages performed under the Marriage Ordinance can be broken only by judicial divorce and not by any other means.

It is possible to terminate customary law marriage by application to court under Matrimonial Causes Act, in which case grounds for divorce include those recognised in personal law of the parties in addition to those enumerated in the Act. Under the Act, divorce may only be granted if court concludes irreparable breakdown. Courts hearing suits for divorce among Muslims are directed to apply Matrimonial Causes Act directing guidance by justice, equity and good conscience in determination of post-divorce reliefs and custody.

In accordance with the Matrimonial Causes Act, 1971 (Act 367) a petition for divorce may be presented to the court by either party to a marriage andthe sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.

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 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 that 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 man 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.

Any of the partners in a marriage legally has a right to institute divorce petition in the law court for dissolution of the marriage they have contracted.

However, unlike civil and criminal suits where the procedures is not a  simple one, marriage procedure is not a simple one,  marriage petitions are dealt with and dissolved within the shortest possible time in most cases. Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides that, “the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond RECONCILIATION”.

There is no doubt that a breakdown of a marriage beyond reconciliation is a subjective one but it needs to be examined critically and a court of law needs to have the highest conviction of its existence before granting the relief.

A closer look may be taken at the English Family Law Act 1996 which reformed the old family law basically with the view of inducing exacerbation of bitterness between married couples and promote reconciliation. As a result the Act mandatorily provide a 9 months period for reflection and consideration after the 14th day of instituting your divorce petition so to say. And within this period a lot of counseling and mediation takes place between the married couples and independent third parties who act as mediators and counselors.

It is after this stage which normally constitutes a “cooling period” that the court would be convinced inter alia that the marriage has broken down beyond reconciliation.

To every rule there is an exception and it would undoubtedly be  true that this procedure would not work in all cases but at least if one marriage saved, is through this process, it would do more good to the nation than harm considering the fact that the family is the most important social institution in a nation.

Most divorce petitions in Ghana are instituted during the period when there is much heat, tension and bitterness between the couples. It would therefore serve a good purpose if the “cooling period” of a considerable number of months is adopted in practice by the courts to help satisfactorily determine if the marriage has broken down beyond reconciliation. Emphasis should be made that attempts at reconciliation by families and friends of the couples should be made distinct from the “cooling period” the court will grant for counseling and mediations between the couple.

Why marriages do not survive “better or worse”?

There is no single and simple answer to this question and the reasons for divorce vary from a couple to another. This is because the secret of a successful marriage remains a secret. Certificates are signed in the presence of witnesses, vows are made to obey God’s law of marriage (sealed by God) and yet couples end up in divorce, unable to fulfil the marriage vow “for better or worse”. It is important therefore to know that chains do not hold a marriage together and it takes a loose rein to keep a marriage tight. If you made a list of the reasons why any couple got married, and another list of the reasons for their divorce, you would have a lot of overlapping. It is not marriage that really fails but rather the married couples that fail to be committed. A break down of marriage always precedes a break up of the marriage. In other words, before a break up in marriage (divorce) there must be a break down of the relationship. The law does not prescribe any particular code of conduct for marriage couples. But judicial divorce will be granted in accordance with the Matrimonial Causes Act, 1971.  

Though Ghana is nowhere near countries like USA, China or Russia there is increase in the number of reported cases of judicial divorces among married couples, especially the youth who married under counselling and guidance of the churches. More Ghanaians now marry young especially through the support of the Churches with wedding procedures now much simplified and cheaper. Though, these marriages were celebrated under the divine rule that “what therefore God hath joined together, let not man put asunder” (Mark 10:9) greater number of the marriages end up in the courts of law.

We can identify some major causes of increased judicial divorce in Ghana which I will categorize here as:

(i)                Marital problems: These are problems which arise after entering into the marriage. Such problems include economic difficulties, mistrust, unexpected weakness, unfaithfulness (adultery), interference from extended family, mistrust for one another and domestic violence. Some men divorce because they found a better woman. Women, because they realize that they do not love the man and in the divorce, they will get a pile of financial compensation (a house, car or money). In the urban areas, as the women become more independent financially and with divorce procedures now much simplified, the divorce rate has soared up among urban dwellers.

The women in the rural areas will tell you that the reason for a high divorce rate is mostly because the men, out of poverty and frustration, easily take to excessive drinking, they become rude and irresponsible, they don’t value women or they hit the women. The men will tell you that the women refuse to satisfy them with their desires, they are barren, they had information about the woman’s premarital affairs or are still having contact with a former husband in the same community or they are too quarrelsome to be tolerated.  

Nobody tries to save a marriage under those circumstances, not even the churches that bless the marriage. Nobody works at something that they consider not to be working. The couples simply give up and move on.

(ii)             Pre-marital mistakes: Marriage itself, to many people, is a mistake every man and woman should make. According to Stephen Leacock, (Literacy Lapses, 1910) “many a man in love with a dimple makes the mistake of marrying the whole girl”. The premarital mistakes occur during the period when the couples are in love or courtship before the marriage celebration.

The commonest pre-marital mistakes are that: people fall in love with a personality but must live with a character. Women hope men will change after marriage but they do not and men hope women would not change but they do (Bettina Arndt, Private Lives, 1986). Women seem to be all right on bargaining till it comes to picking out a husband. Partners often complain – I never knew until we got married. Keeping vital information from one another and disclosing them in the marriage can go a long way to destroy the love, trust and stability of the marriage. Such information includes chronic sicknesses, actual age, family secrets and past life history. Any information that could have changed a partner’s decision to enter into the marriage, if he or she had known of it earlier, is vital to the survival of the marriage. Some couples also mistakenly believe (without any adequate psychological and spiritual preparations) that they could manage their tribal difference, educational inequality and divergence in their religious beliefs when they marry and only to find that it is impossible.

Marriage out of sympathy or as a gratitude to return kindness lacks good reason and the tendency of the marriage not working is very high. I think the most reasonable basis of marriage is love and the couples must work at it to be sustained. Though, a Russian proverb says that for a marriage to work out for life the husband must be a dumb and the wife a blind. 

(iii)           Improper/inadequate marriage counselling and education on marriage and divorce. Counselling is mostly centred on Biblical scriptures with little or no emphasis on the changing socio-economic realities and practices. Before and during marriage, couples are not properly educated on the legal implications of their actions or rights and obligations under the marriage laws. They need to be aware of special provisions in the Criminal books relating to brothels (section 273); bigamy and similar offences (section 262-272); assault (section 84); and sexual offences (section 97-111). Knowledge of the consequences of our actions in marriage relationship will safeguard a lot of mistakes couples make.

Conclusion – tips

As Robert Anderson said “in every marriage more than a week old, there are already grounds for divorce”.

According to Doug Larson, more marriages might survive if the partners realize that sometimes the better comes after the worse. A perfect marriage is one in which “I am sorry” is said often enough. Couples must continue to measure their marriage success instead of failures and stand up for what both partners believe in. They must carefully listen to one another. We often hear from women – my husband does not listen when I am talking to him.

Never should gender balance and economic empowerment of women be translated to mean a change in the status quo of a wife’s responsibility and submissiveness. However, submissiveness of a wife does not mean a master-servant relationship or enslavement of wife. Successful marriage requires transparency, effective communication, trust and loyalty (i.e. putting the interest of a partner before your own). According to Barnett R. Brickner, “success in marriage does not come merely through finding the right mate, but through being the right mate”.  

Like an old wine, marriage gets better with age once you learn to keep a cork in it. What counts in avoiding a break down of marriage is not so much how compatible you are, but how you deal with incompatibility. There should be a total absence of domestic violence in marriage. A Hindu proverb says “never strike your wife even with a flower”.

 


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