THINKING ABOUT DIVORCE IN GHANA? UNDERSTANDING THE LEGAL PROCESS IN GHANA

Divorce is not simply a matter of two people deciding their marriage is over after a disagreement or an agreement.

Where a marriage is legally recognized, its dissolution generally requires a legal process before the appropriate court. But what exactly must a spouse prove? Can one spouse obtain a divorce if the other refuses? What happens to the children? What about the family house and other property acquired during the marriage? Can a spouse hide or sell assets during the proceedings? This article explains the basic legal process for divorce in Ghana under the Matrimonial Causes Act, 1971 (act 367) and answers some of the questions people commonly ask.

What are the legal grounds for Divorce?

Under section 1 of Act 367, there is one legal ground for divorce, The marriage must have broken down beyond reconciliation. The petitioner must establish one or more facts recognised by the law as evidence that the marriage is broken beyond reconciliation

These include:

• Adultery — where the respondent has committed adultery and, as a result, the petitioner finds it intolerable to continue living with them.
• Unreasonable behaviour — where the respondent has behaved in a way that makes it unreasonable to expect the petitioner to continue living with them.
• Desertion — where the respondent has left the petitioner for a continuous period of at least two years.
•  Living apart for at least two years — where the spouses have not lived together as husband and wife for at least two years and the respondent agrees to the divorce, subject to the requirements of the law.
•  Living apart for at least five years — where the spouses have not lived together as husband and wife for at least five years.
• Failed attempts at reconciliation — where the parties have made genuine and diligent efforts to resolve their differences but have been unable to reconcile.

Importantly, proving one of these facts does not automatically end the marriage. The court must still be satisfied that the marriage has broken down beyond reconciliation.

Can I still proceed with divorce even if my spouse does not agree?

YES

Either party may present a petition for divorce. Where the statutory requirements are satisfied and the court is satisfied that the marriage has broken down beyond reconciliation, the divorce may be granted even where the other spouse does not want the marriage to end.

However, this does not mean that the court grants a divorce simply because one spouse says, “I don’t want to be married anymore.” The legal requirements must still be established.

Can cheating alone be grounds for a divorce?

Not necessarily.

Adultery is one of the facts that may establish that a marriage has broken down beyond reconciliation. But the legal requirement is more specific.

Under section 2 of Act 367, the petitioner must establish that the respondent committed adultery and that, because of the adultery, the petitioner finds it intolerable to live with the respondent.

What happens if the innocent spouse discovers the adultery, decides to forgive and the couple continues living together?

This is where the law becomes more interesting. The fact that the spouses continued living together after the adultery does not automatically mean that the adultery can never be relied upon for a divorce. However, where the parties continue living together after the innocent spouse becomes aware of the adultery, the circumstances and duration of that continued cohabitation may affect the petitioner’s ability to rely on that adultery as the basis for the divorce. This means that “my spouse cheated” is not, by itself, the complete legal test. The court will consider the statutory requirements, including the circumstances surrounding the adultery and what happened between the spouses afterwards.

So, if a spouse discovers that their partner has cheated, chooses to continue living with them for a period in an attempt to reconcile the marriage, and the reconciliation ultimately fails, the legal position should be assessed carefully rather than assuming that the adultery either automatically remains valid or automatically becomes irrelevant.

What counts as unreasonable behaviour?

Unreasonable behaviour is another commonly relied-upon fact. The question is whether the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

Depending on the circumstances, this may include allegations such as:

• persistent violence;
• serious neglect;
•  abusive or humiliating conduct;
•  extreme financial irresponsibility;
• abandonment of marital responsibilities;
• serious interference with family life; or
•  other conduct making continued cohabitation unreasonable.

The particular facts must be proved in court

Can one file for divorce immediately after marriage?

Generally, NO.

Section 9 provides that, subject to an exception, a petition for divorce cannot ordinarily be presented within two years of marriage. There is, however, an important exception. The court may allow a petition within the two-year period where the petitioner establishes substantial hardship or depravity on the part of the respondent. The court must also consider the interests of any child in the household and whether there is a reasonable possibility of reconciliation. So, the two-year rule is not absolute

How does the divorce process begin in Ghana?

Divorce proceedings begin with a petition for divorce filed before the appropriate court. The petition sets out matters such as:

• the identity of the parties;
• details of the marriage;
• the facts relied upon establishing the breakdown of the marriage;
•  information concerning the children;
•  relevant financial and property circumstances; and
•  the orders or reliefs being requested.

The respondent must then be properly served and given the opportunity to respond. The exact procedural steps will depend on the court and the circumstances of the case. The important point is that filing a petition does not dissolve the marriage itself.

What if the other spouse does not respond?

A divorce may proceed as an undefended divorce where the respondent does not properly contest the proceedings. However, this does not mean that the petitioner automatically wins simply because the respondent does not appear. The court must still be satisfied that the statutory requirements for divorce have been established.

Act 367 also provides for the transfer of certain undefended matrimonial actions from the High Court or Circuit Court to a District Court.

What if a spouse fights the divorce?

The respondent may defend the petition and challenge the allegations made by the petitioner. The respondent may also seek relief based on the respondent’s own allegations concerning the breakdown of the marriage.

The result is that a divorce case can become contested, requiring the parties to present evidence and, where necessary, call witnesses. This is why a divorce petition should not simply contain emotional accusations. The facts relied upon should be carefully pleaded and supported by appropriate evidence.

Does the court try to save the marriage?
YES

Divorce law in Ghana does not completely ignore reconciliation.  Section 8 of Act 367 requires the petitioner or counsel to inform the court of efforts made to achieve reconciliation. Where the court believes there is a reasonable possibility that the marriage can be saved, it may adjourn the proceedings to allow attempts at reconciliation, including through family representatives or a mutually acceptable conciliator.  This does not mean that a person can be forced to remain in a marriage indefinitely. The purpose is simply to ensure that where genuine reconciliation remains possible, it is not unnecessarily ignored.

What happens to the children?

Divorce does not end a parent’s responsibility towards the children. The court may make orders concerning:

• custody;
• access;
•  education; and
•  maintenance.

Section 22 gives the court broad powers to make orders concerning a child of the household where it considers the order reasonable and beneficial to the child.  The central consideration is therefore the welfare and interests of the child, rather than simply which parent wants custody.

Does the mother automatically get custody?

NO.

There is no simple rule that the mother automatically gets custody because she is the mother, or that the father automatically gets custody because he is the father. The court considers the circumstances and what is in the best interests of the child.

Issues such as the child’s age, education, living arrangements, stability, relationship with each parent, financial support, health and general welfare may all become relevant. The court may also regulate the other parent’s right of access.

Can a husband claim maintenance?

YES

Maintenance and financial provision are not automatically limited to wives. Act 367 permits the court to make financial provision and maintenance orders where appropriate, having regard to the circumstances and standard of living of the parties. 

Therefore, a financially dependent husband may, in appropriate circumstances, seek financial provision just as a financially dependent wife may.

What happens to family property?

This is often one of the most contentious parts of divorce proceedings. Divorce does not simply mean: “Everything is automatically divided 50/50.”

The court has power under Act 367 to make property settlement and financial provision orders where it considers them just and equitable.

This may involve:

• houses;
•  land;
•  vehicles;
•  bank accounts;
•  businesses;
•  shares;
•  investments; and
•  other assets.

Section 20 permits the court to order one spouse to pay money or convey movable or immovable property to the other spouse as part of a property settlement or financial provision. The Constitution also provides that spouses have equal access to property jointly acquired during marriage and that jointly acquired assets should be distributed equitably upon dissolution of the marriage.  The exact outcome, however, depends on the facts of the case.

What if my spouse tries to hide or sell the property?

This is an important issue to raise with a lawyer as soon as possible.

A spouse who knows that property may become subject to a financial or property claim may be tempted to transfer, sell or conceal assets. Act 367 gives the court power to restrain dispositions of assets and, in appropriate circumstances, rescind a disposition made with the intention of defeating the other spouse’s financial provision or property settlement. The court may also make orders to preserve property while the proceedings are pending. 

Therefore, if you believe your spouse is selling property, transferring land, moving money, transferring shares, hiding assets or otherwise attempting to defeat your claim, tell your lawyer immediately. Do not wait until the asset has disappeared.

Can the court stop a parent from taking the children away?

YES, in appropriate circumstances. Act 367 gives the court power to make orders concerning children and to restrain the removal of a child from the jurisdiction. The court may also order the return of a child to the jurisdiction. 

This can become particularly important where there is a genuine concern that one parent may take the child outside Ghana without the other parent’s consent or contrary to an existing court arrangement.

What about customary marriage?  

Divorce involving a customary marriage requires particular care. Act 367 principally applies to monogamous marriages, but section 41 provides a mechanism for the Act to apply to marriages other than monogamous marriages upon application by a party.

In doing so, the court may consider the peculiar incidents of the marriage and, where appropriate, the personal law of the parties. The Act expressly recognises certain customary-law considerations when dealing with divorce.

Therefore, a customary marriage should not simply be treated as though it were an ordinary monogamous marriage without considering the applicable law and circumstances.

Can the couple agree on everything and avoid the court battle?

An agreement between spouses can make the process considerably less contentious.

The parties may reach agreement concerning matters such as:

• custody;
• access;
• child maintenance;
•  property;
•  financial provision; and
•  other arrangements.

However, agreement between the spouses does not dissolve the marriage itself. The appropriate court process must still be followed, and the court must make the necessary orders. In other words, “We both agree to divorce” is not the same thing as “we are legally divorced.”

Can divorce proceedings be private?

YES.

Section 39 of Act 367 allows the court, where appropriate, to direct that matrimonial proceedings be heard in private and to exclude persons other than specified participants such as court officers, parties, witnesses and lawyers. This is particularly important because divorce cases may involve highly personal information concerning relationships, children, finances, health and allegations of misconduct.

When does the marriage actually end?

The marriage is not dissolved merely because

• the parties have separated;
• they have agreed to divorce;
• a petition has been filed; or
•  they have stopped living together.

Under section 37 of Act 367, a decree of divorce takes effect from the date on which the court gives judgment. The necessary documentation should then be obtained to properly evidence the dissolution.

Does divorce affect a will?

YES, it can.

This is an issue many people overlook. Section 38 of Act 367 provides that a gift to, or appointment in favour of, one spouse in the Will of the other is invalidated where the marriage has been terminated by divorce or annulment, unless the Will expressly provides otherwise.  After a divorce, it is therefore sensible to review:

• your will;
•  life insurance nominations;
•  pension nominations;
•  bank arrangements;
•  trusts;
•  company or shareholding arrangements; and
•  property ownership.

Divorce should not be treated as the end of the legal process without considering its wider consequences.

A Simple Divorce Roadmap

For someone considering divorce, the process can broadly be understood as:

1. Speak to a lawyer.

Explain the type of marriage, the circumstances of the breakdown, children, property and financial issues.

2. Determine the legal basis for the divorce.

Identify the facts that establish that the marriage has broken down beyond reconciliation.

3. Gather the evidence.

Collect relevant documents and identify witnesses where necessary.

4. Consider the issues beyond the divorce itself.

Think about custody, access, maintenance, property, financial provision and preservation of assets.

5. Prepare and file the petition.

6. Serve the respondent.

7. Deal with the respondent’s response, if any.

8. Proceed to settlement or trial where necessary.

9. Obtain the court’s judgment and the appropriate documentation.

10. Deal with the consequences of the divorce.

Implement property, custody and maintenance orders and review your estate planning.

The Biggest Misconception About Divorce

One of the biggest misconceptions is that divorce is simply about ending the marriage.

In reality, a divorce can affect almost every part of a person’s life.

Who will live with the children? Who will pay their school fees? Who keeps the family home? What happens to jointly acquired property? What happens to the business? Can one spouse sell the property? Will maintenance be payable? What happens to the Will?

These questions can be just as important as the divorce itself.

Conclusion

Under the Matrimonial Causes Act, 1971 (Act 367), the court must be satisfied that the marriage has broken down beyond reconciliation. The process may also involve important questions concerning children, custody, maintenance, property, financial provision and the preservation of assets.

The law also recognises that not every divorce needs to become a bitter courtroom battle. Where reconciliation remains possible, the court may facilitate it; where the parties can reach appropriate arrangements, the proceedings may become less contentious. But whether a divorce is amicable or highly contested, one principle remains the same:

Ending a marriage legally is only one part of the process. Understanding what happens to the children, property, finances and other legal interests is equally important.