The Marriages Act, 1884-1985 (CAP 127) and the Matrimonial Causes Act 1971 (Act 367) govern the contraction and the eventual dissolution of a marriage in Ghana. The law on the dissolution of marriage, that is, Act 367, requires that a divorce petition may be presented to the Court by either party to the marriage for a divorce. The person who petitions the Court for divorce must prove that the marriage has broken down beyond reconciliation. The sole ground for divorce is proof that the marriage has broken down beyond reconciliation.
The Petitioner, in proving that the marriage has broken down beyond reconciliation, must establish at least one of the following as mentioned in Section 2 (1) (a – f) of the Matrimonial Causes Act 1971 (Act 367):
- Adultery by the other party
- Unreasonable behaviour.
- Desertion for a continuous period of at least two years
- Separation for at least two (2) years
- Separation for at least five (5) years
- Irreconcilable differences
One of the above grounds needs to be proven by the Petitioner to demonstrate that the marriage has broken down beyond reconciliation.
Also, another ground for divorce cited in Section 15 of the Matrimonial Causes Act, 1971 (Act 367) is the presumption of death. To rely on that ground, the following must be considered:
- A married person may present a petition to the Court to have it presumed that the other party to the marriage is dead and to have the marriage dissolved.
- The Court may, if satisfied that reasonable grounds for applying the presumption exist, make a decree of presumption of death and dissolution of marriage.
In proceedings under this section, the fact that for seven years or more, the other party to the marriage has been continually absent 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.
Processes For Divorce Under the Matrimonial Causes Act, 1971 (Act 367)
The process is through issuing a Divorce Petition in the appropriate Court invoking the jurisdiction of that Court. Section 1 (1) states that a Petition for divorce may be presented to the Court by either party to a marriage. However, to avoid doubt, the Court means the High Court or the Circuit Court, as stated in Section 43 of Act 367, subject to the Chief Justice’s power to transfer action under Section 40 of Act 367.
The processes are:
- The Petitioner files a petition at either the High Court or Circuit Court.
- The Petition filed will be served on the Respondent by the Registrar of the Court through a Court bailiff.
- The Petition must be issued in Court in triplicate.
- A Court fee is paid for issuing a Divorce Petition.
- Once served, the Respondent may file an appearance in person or through a Lawyer.
- After filing an appearance, the Respondent, if minded, may file an Answer to the Petition.
- When an Answer filed is served on the Petitioner, the latter, if minded, will file a Reply.
- The exchange of documents ends when the Petitioner files a Reply or refuses to file the same, and the time stipulated lapses.
Conclusion
It must be emphasized that an Act of Parliament circumscribes the grounds and basis for the dissolution of marriage in Ghana. A party cannot, therefore, manufacture her ground to necessitate the issuance of a divorce petition in Court. As such, parties intending to secure the dissolution of marriage must ensure that their basis for the divorce falls within the limit stated by the law.
Legal Notice
The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon. Specific legal advice about your particular circumstances should always be sought separately before acting based on this publication.
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