Wilma Akuya Osei
Lawyer|| Administrator|| Founder and Managing Counsel, The Pocketlaw Project
Marriage is a special kind of contract. It gives the persons who have validly contracted it a state recognized status (social and legal position) that comes with certain rights and duties. For instance, the responsibility to support a spouse’s wellbeing, the right to take certain decisions in respect of spouses when they are unable to do so by themselves and marital property rights. To enjoy this status, a marriage, whether customary, Mohammedan or civil must be contracted according to the specific requirements that the law imposes. In the same manner, when married persons decide that they no longer want to stay in a marriage, they must go through the lawful processes recognized by law to dissolve the marriage.
Depending on the type of marriage that was contracted, a marriage may be dissolved under customary law, by Mohammedan law or by civil law (i.e. by a court). In addition, the Matrimonial Causes Act, 1971 (Act 367) provides that, ALL marriages, including customary and Mohammedan marriages can be dissolved by the courts if a party to the marriage so chooses. Keep in mind though, that a customary marriage or Mohammedan marriage that has been registered under the law HAS to be notified to the registrar of marriages or the District Chief Executive respectively, even if it was dissolved under custom or Mohammedan law. You may want to check the blog on marriages.
Does it matter who initiates divorce proceedings?
A question is often asked whether the spouse who initiates divorce proceedings suffers any penalties or loses their rights to any legitimate entitlements. The answer is ABSOLUTELY NOT.
Divorce is always based on certain justifications and therefore once proved, a person’s claims arising from divorce are not subject to whether he or she initiated the divorce process. In other words, the fact that Mrs. W initiates divorce proceedings does not mean she cannot claim financial provision (alimony) or claim her share of property acquired during the marriage. This principle is applicable to all types of marriage under the law by virtue of Article 22 of the 1992 Constitution of Ghana, the Matrimonial Causes Act and the Lands Act, 2020 (Act 1036) among others. Therefore, even if the marriage of a person married under customary or Mohammedan law is dissolved under customary or Mohammedan law and the person feels that their rights to property, financial provision, custody arrangements etc. have not been properly taken care of, they are at liberty to apply to the court for redress.
Article 22 of the 1992 Constitution provides;
22. Property rights of spouses
A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.
Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.
With a view to achieving the full realization of the rights referred to in clause (2) of this article, a) spouses shall have equal access to property jointly acquired during marriage; b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.
Dissolution of a civil marriage
A marriage celebrated under Part 3 of the Marriages Act (otherwise called marriage under Ordinance or a civil marriage) can only be dissolved by a court. Any party to the marriage, whether the husband or wife can apply to the court for a divorce. The application to the court is called a Petition. In trying to preserve marriages however, the law states that a Petition for divorce should not be presented to a court within the first 2 years of a marriage except under the specific circumstances of substantial hardship or the depravity (extreme immoral behaviour) of a spouse.
In court, the only authority to decide on the dissolution of the marriage is the court (represented by the judge). What this means is that, even if the parties agree mutually that they want a divorce, they must prove to the judge that they are entitled to an order for divorce.
The court will grant a divorce only if it finds that the marriage has broken down without any hope of reconciliation. To do that, the persons seeking divorce and all the evidence put before the court must show that certain things have happened in the marriage and that those things lead to the conclusion that the marriage has broken down without reconciliation. The court is also required to facilitate reconciliation of the parties if there is any possibility of that happening, so it is not uncommon for the court to order a court assisted mediation of the marital conflict. If this does not work, the parties may return to complete the court process.
The following are what the court will look at to decide whether the marriage has broken down without reconciliation. A party seeking divorce must prove at least one of them.
That one party’s adultery has made it unbearable for the other party to continue to live with him/ her.
That one party’s behaviour is so unreasonable that the other party cannot be expected to live with him/ her.
That one party has deserted the other one for at least 2 years prior to the time when the Petition was presented to the court. Desertion is not always by physically moving away. It also includes wilfully neglecting or failing to do the things that the party being complained about is normally expected to do in the marriage, such that the marital relationship can be said to be non-existent.
That the parties to the marriage have not lived together as married people for at least 2 years immediately before presentation of the Petition to the court and that they both consent to the termination of the marriage.
That the parties to the marriage have not lived together as a couple for at least 5years immediately before presentation of the Petition to the court.
That the parties have been unable to reconcile their differences after strenuous efforts.
The thing to note is that none of these factors are absolute in and of themselves. In other words, they come with some qualifications. The way the parties have conducted themselves even after these things have happened may render a factor relevant or irrelevant. A lawyer will be able to advise on that when provided with the fuller details. Additionally, the dissolution of marriage is not the only matter that is dealt with in divorce proceedings at the courts. Since marital relations are associated with other matters such as custody of, access to and maintenance of children and spouses; property rights and other domestic issues, all these are matters that can be properly brought before the court in a divorce proceeding and the courts are authorised by law to determine how they should be settled.
Dissolution of marriage under customary law
As customary marriages are contracted according to local custom, the procedure for divorce may differ from locality to locality. However, the general practice as gleaned from anecdotal evidence involves representation of the family of the one seeking a divorce to the family of the spouse. More often, a presentation of drinks or return of dowry to indicate termination of the marriage. Where the man initiates divorce, he may be asked to pay a ‘send-off’ which is by way of compensation to the wife for her toils in marriage. Under customary marriage, some studies suggest that where the wife is the one seeking a divorce, there will be no question of compensation to her. Also, property distribution hardly features in customary dissolution of marriages except that where there are minor children, the man would be expected to continue with their upkeep and education. As varied as custom may be, it would be refreshing to hear from the experience of readers on the practices in different traditional areas.
Dissolution of marriage under Mohammedan law
The law on Mohammedan marriage and divorce is very strict. To be valid as a Mohammedan marriage, a marriage contracted under Mohammedan law must be registered within a week of it being contracted. Many marriages contracted under Mohammedan law are not registered within the period prescribed by law and are therefore treated like customary marriages, the dissolution of which also follow custom.
Where the marriage was registered as required under the law, then the fact of the dissolution of that marriage must be registered at the office of the District Chief Executive within one month of the dissolution.
Dissolution of customary or Mohammedan marriage by court
As has been indicated, customary and Mohammedan marriages can be dissolved by the courts. The procedure is the same as the one for the dissolution of civil marriages. However, the courts are required to consider the relevant customs or law applicable to the marriage and apply same where they do not conflict with legislation. Nevertheless, because customary and Mohammedan marriages are potentially polygamous by nature, adultery is not a justification for the grant of an order for the dissolution of a customary or Mohammedan marriage.
Dissolution of marriage on the presumption of death
Sometimes the long absence of one spouse from the marriage can give rise to the dissolution of a marriage in his or her absence. This is the 7year rule based on the presumption of death provided for in the Matrimonial Causes Act (Act 367). By this law, when a married person has been continually absent for at least 7years “from the petitioner and the petitioner has no reason to believe that the other party has been living within that time shall be evidence that the other party is dead until the contrary is proved.” In such a situation, a person can petition the court for an order for the presumption of death of his/ her spouse and upon that basis for the dissolution of the marriage.
Abandoning a marriage without taking steps to properly dissolve it:
Some people think just ‘moving on’, marrying another person, leaving the matrimonial home or cutting off contact with a spouse without taking steps to dissolve an existing marriage properly, is sufficient to end the marriage but this is not the case. ‘Moving on’ does not erase the fact that there is an existing marriage that is legally recognized. Thus, when a party to a marriage strongly believes that their marriage is no longer sound, it is best to get a divorce sooner than later. Not doing so can be very costly because for as long as people are validly married, they are legally bound not only to the rights attached to that association, but by the duties arising therefrom as earlier indicated.
For instance, when property is acquired while the marriage is in existence, the law presumes that each spouse has an equal share in it. This can be a source of distress in the future, not only for the persons in that marriage but for children, other spouses, concubines and even the larger family who either invest in a relationship or have otherwise legitimate interests in property.
When all is said and done, it is not over until it is really over.
Yours truly,
Ms. Wilma
