Legal Literacy

Divorce under the Matrimonial Causes Act (Act 367) 1971

09.Dec.2019

Divorce can be a very traumatising experience for most people who go through it, but when the marriage turns sour, divorce is inevitable.

The Matrimonial Causes Act,1971 (Act 367) governs divorce in Ghana. Unfortunately, many people are under the illusion that it is only marriages celebrated under the ordinance (commonly referred to as “wedding”), that can be dissolved in a Court of law. The fact of the matter is that the law recognises and governs all forms of marriages in Ghana, including Customary ones (commonly referred to as “engagement”), and Islamic marriages. The legal situation in Ghana is such that most marriages recede into customary marriages if they do not meet the test of Marriage under the monogamous law or the Islamic law, which is referred to as Mohammedan Marriage. This means that parties married customarily can petition the court to have their marriages dissolved and apply for ancillary reliefs such as maintenance, custody, and the like, just as those married under the ordinance can do.

In most cases, parties married under customary law go back to their families to have their marriages dissolved. Where this mode of dissolution is chosen any agreements reached with regard to alimony, maintenance, or any other ancillary relief, unless they qualify as arbitration settlements cannot be enforced by law. This means that those agreements can be, and in many cases are, blatantly disregarded since there are no sanctions attached to it. However, anyone who has had a brush with the law knows that other orders of the court cannot be take in vain. In the circumstances, it is my opinion that couples are better off dissolving their marriage under the Matrimonial Causes Act. Find some essential pointers/guidelines below.

The party who requests fort eh divorce is called the petitioner and the other party is called the respondent. The petitioner must have cogent reasons for wanting a divorce and the court will only grant the divorce if it is satisfied that the marriage has broken down beyond reconciliation.

Also, a court will only grant a divorce after the parties have been married for a minimum period of two years. Where the parties have been married for less than two years, the petitioner may have to do one of two things, viz: seek leave from the court to go ahead with the divorce proceedings, or apply for an annulment.

An annulment of a marriage means that the marriage never existed in law. A court will annul a marriage under the following circumstances: 

  • If the marriage has not been consummated by reason of the wilful refusal of the respondent since it was celebrated.
  • That at the time of the marriage either party to the marriage was of unsound mind or subject to recurrent attacks of insanity.
  • That the respondent was at the time of the marriage, suffering from an incurable venereal disease in a communicable form or;

In order to show that the marriage has broken down beyond reconciliation, the Act provides that the petitioner must satisfy the court of the existence of certain circumstances including any of the following:

  • The respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent.
  • That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.
  • 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.