The dissolution of an ordinance marriage in Ghana falls under the governance of the Matrimonial Causes Act, 1971 (Act 367) and the Marriages Act, 1884-1985 (CAP 127). These laws replaced the English Matrimonial Causes Act of 1857, which initially applied in Ghana during the colonial period.
Types of Dissolution
In English law, there were distinctions between separation and divorce, termed as divorce a mensa et thoro and divorce a vinculo matrimonii, respectively. However, under Ghanaian law, the primary focus is on divorce.
Legal Framework
- Marriages Act, 1884-1985 (CAP 127)
- Matrimonial Causes Act, 1971 (Act 367)
Grounds for Divorce
The Matrimonial Causes Act, 1971 (Act 367), stipulates that a divorce petition may be presented by either party to the marriage, based on the sole ground that the marriage has broken down beyond reconciliation. The petitioner must establish at least one of the following:
- Adultery by the other party: Proven through voluntary sexual intercourse with someone other than the spouse.
- Unreasonable Behaviour: The respondent's actions make it unreasonable for the petitioner to live with them. Behaviors may include cruelty, domestic abuse, reckless spending, or refusal of sexual intercourse.
- Desertion for at least two years: The respondent has intentionally abandoned the petitioner for a continuous period of at least two years.
- Separation for at least two years: The parties have not lived as husband and wife for a continuous period of at least two years, and both parties' consent to the divorce.
- Separation for at least five years: Similar to the above, but the continuous separation must be for at least five years, and the consent of the other party is not required.
- Irreconcilable Differences: If diligent efforts to reconcile differences have failed, a divorce may be sought based on irreconcilable differences.
a. ADULTERY – Section 2(1) (a) of Act 367
For adultery to be proven, there must be at least partial penetration. The Matrimonial Causes Act outlines considerations if the parties attempted reconciliation.
b. UNREASONABLE BEHAVIOUR – Section 2(1) (b) of Act 367
Behaviors constituting unreasonable behavior include domestic abuse, reckless spending, cruelty, refusal of sexual intercourse, or venereal disease transmission.
c. DESERTION – Section 2(1) (c) of Act 367
Desertion is the intentional permanent forsaking of one spouse by the other without consent and without reasonable cause. It must be continuous for at least two years.
d. YEARS SEPARATION WITH CONSENT – Section 2(1) (d) of Act 367
Continuous separation for at least two years, with both parties consenting to the divorce.
e. SEPARATION FOR AT LEAST FIVE YEARS – Section 2(1)(e) of Act 367
Continuous separation for at least five years, and the consent of the other party is not required.
f. RRECONCILABLE DIFFERENCES
Grounds for divorce based on diligent efforts to reconcile differences.
g. Presumption of Death and Dissolution of Marriage
A married person may petition the court to presume the other party is dead if absent for at least seven years, leading to the dissolution of the marriage.
h. Procedure for Divorce
- A divorce petition may be presented by either party to the marriage to the High Court or Circuit Court, subject to jurisdiction requirements.
- The Court must have jurisdiction if either party is a citizen, domiciled in Ghana, or has been ordinarily resident for at least three years.
- Restrictions prevent filing within the first two years of marriage, but exceptions can be made for substantial hardship or depravity on the part of the other party.
- The court may consider the interests of the children in the marriage.
Conclusion
The Matrimonial Causes Act, 1971 (Act 367) places the burden on the courts to determine if a marriage has irrevocably broken down. Once dissolution is established, the court may decide on matters such as maintenance, child custody, and property rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
