June ‘17

On the 6th of September 2000, Dr. Fred Adjei and Miss Akosua Opoku, both
Ghanaian citizens tied the knot at the Presbyterian Church at Mampong
Akwapim under a Marriage Officer’s Certificate. The marriage was officiated
upon by Reverend Ansah.

The parties lived in Takoradi, Cape Coast and Kumasi. They finally settled in
Accra where they built their matrimonial home.

Dr. Adjei is the Medical Director at Military Hospital and wife Akosua is a
lawyer but stopped practicing when their last child was born. They have three
children, Adjeiwaa, twelve years, Oforiwaa, fourteen, and Prince , fifteen
years.

The marriage was a happy one until ten months ago when Akosua noticed a
change in the attitude of Fred. He stopped eating meals prepared by Akosua.
He claimed that a new canteen had been opened at the hospital and the meals
there were equally delicious.

He spent most of his time during the weekend on his laptop. When Akosua
confronted him, he became very angry and shouted on her. Thereafter, Fred
moved to the guest room and stopped talking to Akosua. Akosua became
confused and reported the situation to Fred’s parents. The parents attempt at
reconciliation proved futile.

Fred refused to attend church and other functions with Akosua. On one
occasion, when they met at a friend’s wedding, Fred openly scolded Akosua in
the presence of her colleagues.

About three months ago, when Akosua returned from work, she noticed a
notice on the kitchen table. The note stated as follows:

‘I am no longer in love with you. I am in love with another woman therefore I

have decided to leave the matrimonial home. Good bye. Signed Fred Adjei’

Akosua broke down hysterically. She drove to her mother’s house and showed
her the note. Akosua’s parents convened a meeting with Fred. Fred came to
the meeting drunk and uncontrollable. Akosua’s father asked him to leave, and
the meeting came to an end. Akosua has decided to petition for divorce. She
is no longer in love with Fred.

Akosua and Fred have been married for 16 years. At the time of the marriage,
Fred had solely acquired two blocks of flats in Kumasi. During the marriage,
the couple built a block of flats at Aburi. They built a beautiful house at Airport
Hills which they used as their matrimonial home until Fred moved out.

Fred has also cultivated a 100 acre farm at Suhum in the Eastern Region.

Akosua wants the matrimonial home and one of the block of flats at Kumasi.
She also wants to have custody of all the children. In addition to the above,
Akosua wants Fred to pay maintenance pending the hearing of the divorce
petition.

The matrimonial house is situated at 55 Jacaranda Avenue Airport Hills, Accra.

Fred is staying at H/N 22 Nii Koi Kwame Street, Shiashie, Accra.

Draft the divorce petition for filing at the High Court Accra.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
DIVORCE AND MATRIMONIAL CAUSES DIVISION
ACCRA AD – 2020

SUIT NO.

BETWEEN

AKOSUA OPOKU PETITIONER

No 55 Jacaranda Avenue
Airport Hills
Accra

AND
FRED ADJEI RESPONDENT
H/N 22 NII NOI KWAME STREET
SHIASHIE
Accra

PETITION OF AKOSUA OPOKU

TO: HIS LORDSHIP THE JUDGE

HIGH COURT
ACCRA

THE HUMBLE PETITION OF AKOSUA OPOKU shows:

1. That the Petitioner then a Spinster called Akosua Opoku and the
Respondent a Bachelor called Fred Adjei were married under the
Ordinance at a ceremony officiated by Reverend Ansah at the
Presbyterian Church at Mampong Akwapim on September 6th 2000.
2. That the parties after the marriage cohabited at Takoradi, Cape Coast ,
Kumasi and now living in Accra
3. That the Petitioner is a trained lawyer but currently not working and the
Respondent a Medical Director at the 37 Military Hospital
4. That both parties are citizens of Ghana and domiciled in Ghana
5. That there are three issues to the marriage, namely, Prince, Oforiwaa and
Agyeiwaa aged and 15,14 and 12 respectively.
6. That there has been no court proceedings concerning the marriage or the
children.
7. That the marriage between the petitioner and the respondent has broken
down beyond reconciliation
8. That the Respondent has behaved in such a way that the Petitioner cannot
be reasonably expected to continue to live with the Respondent and the
Respondent has caused the Petitioner much distress, anxiety and
embarrassment.

PARTICULARS OF UNREASONABLY BEHAVIOUR

i. That the Respondent spends most of his weekends on his laptop

ii. That the Respondent moved to the guest room and stopped talking
to the Petitioner
iii. That the Respondent has refused attending church and other
functions with the Petitioner
 iv. That the respondent openly scolds the Petitioner in the presence of
her colleagues
v. That the respondent has left the matrimonial home

9. All attempts by the family of the Petitioner to resolve issues between the
parties have proved futile.

WHEREFORE the Petitioner prays as follows:

i. That the marriage celebrated in fact between the parties be dissolved

ii. That the petitioner be granted custody of all the children of the
marriage namely, Prince, Agyeiwaa and Oforiwaa
iii. That the respondent be ordered to make to the petitioner such
maintenance pending suit and thereafter such periodical payments as
may be just
iv. That the respondent be ordered to pay in the alternative to the
petitioner a lump sum of x ghs.
v. That the following properties be settled in favour of the Petitioner
a. Ffsa
b. Daf

DATED AT ACCRA THIS …DAY OF ……………..

PETITIONER

THE REGISTRAR
HIGH COURT
ACCRA

AND TO THE ABOVE NAMED RESPONDENT

In 2011, Agya Nimo befriended Maame Esi. They started dating and soon
Maame Esi fell pregnant. Agya Nimo presented two bottles of schnapps to
Maame Esi’s family to acknowledge authorship of the pregnancy. Thereafter,
Agya Nimo left the town because he wanted to stay away from Maame Esi.
When the baby was born, Agya Nimo came to perform the naming ceremony.

Agya Nimo met Abena subsequently and fell in love with her. They lived
together and held out themselves in the community as husband and wife. They
opened businesses together and Abena gave birth to three children, Adwoa,
Akua and Kwame. Agya Nimo’s family treated Abena as a wife but Agya Nimo
never presented drinks to as for Abena’s hand in marriage

A few years later, Agya Nimo met Hannah, a University graduate and started
dating her. He decided to marry her under customary law when she also fell
pregnant. He performed all the customary rights. He continued however to
live with Abena but spent weekends with Hannah.

A few months ago, Agya Nimo was involved in a fatale accident on the Accra –
Tema motorway and died.

After the funeral, it was discovered that the Agya Nimo died intestate. The
head of Agya Nimo’s family Mr. Dickson, a Law Clerk, asserts that of the three
women , only Hannah was a wife and therefore only Hannah and him were
entitled to Letters of administration. He further argues that since no drinks
were presented to ask for their hands in marriage, they are not entitled to
benefit from the estate of Agya Nimo.

Do you agree with Mr. Dickson’s assertion? Give full and comprehensive
reasons for your answer supported by relevant case law.

Area of Law: Formal and informal customary law marriages

Issue : Whether or not Dickson’s assertion that Hannah is the only person validly
married to Agya Nimo is right

Whether or not Maame Esi, Abena and Hannah were validly married to Agya
Nimo under customary law.
The law on marriages in Ghana is regulated by the Marriages Act 1884-1985.
Customary Law Marriages is one of three forms of marriages recognized in
Ghana and is contained in Part 1 of the Act.

Customary Law has been defined by OLLENU J in the 1961 case of YAOTEY V
QUAYE as a union of a man’s family and the woman’s family. It imposes rights
and duties upon the two families. The woman’s family gains the right to perform
certain rites in certain eventualities and the man’s family also gains the right to
perform certain rites in certain eventualities.

Customary law marriages possess certain characteristics.

1. They are potentially polygamous. In GRAHAM V GRAHAM the court stated

that under customary law, the man is entitled to marry as many wives as
he can harmoniously live with and conveniently manage. In cases where
the man promises to marry no other woman in addition to the customary
law wife, the promise does not change the character of the marriage.
2. It is a union between two families according to Ollennu. Consent of both
families is relevant.
3. Some marriages are prohibited on grounds of consanguinity.
4. Ordinance marriages and customary law marriages are mutually exclusive
i.e. they can’t co-exist. Thus if a man is already married under Customary
Law, he can only marry the same woman under the Ordinance. He cannot
marry another woman under the ordinance.
5. A customary law marriage may be converted to an Ordinance marriage.
When this happens, the customary law marriage falls away automatically.
In GRAHAM V GRAHAM the court held that after the solemnization of the
marriage under the ordinance, the customary law marriage ceased to
exist.
6. A man married under the ordinance cannot enter into a valid customary
law marriage or a marriage under the ordinance with another woman.
The second marriage is null and void. The man could also be charged with
bigamy.
7. The existence of a customary law marriage is not a condition precedent to
the creation of a valid marriage under the Marriages Act 1884-1985. The
requirements for the creation of a valid ordinance marriage, as stipulated
in the Marriages Act are clear.

There are two types of customary law marriages recognized in Ghana. These
are the formal and informal marriages.
A formal marriage comes about when the family of a man approaches the
family of a woman and asks for the hand of the woman in marriage on behalf
of their son. A day is agreed upon for the formal ceremony to take place if the
woman agreed upon for the formal ceremony to take place if the woman
agrees to marry the man. On the appointed date the family of the man and
the family of the woman hold a meeting and the necessary rites are
performed according to custom. Drinks (Or its equivalent) and gifts are
presented by the man’s family to the woman’s family. The family enquires
from the woman if she agrees to take the man as her husband. If she answers
in the affirmative, her family accepts the drinks and gifts and the marriage is
concluded. The man and the woman become husband and wife.

The union is also that of families and gives rise to certain rights and
obligations such as the performance of funeral rites upon bereavement in the
man’s family or the woman’s family.

Informal marriages on the other hand are not characterized by a formal

ceremony but are deduced based on certain acts by the parties to the
marriage and or their families.

According to case law, informal marriages may be contracted in one of the

following ways;

1. When a man impregnates a woman and sends a drink to acknowledge

authorship and takes and additional step either by sending another drink
or living together with the woman as man and wife. Either of the
additional steps taken will result in the court holding that there is an
informal marriage between the parties. This was held in QUAYE V KUERVI.
2. A second form of informal marriage is created when that parties
themselves agree to live together as man and wife and actually do so in
the eyes of the community. In this case no drinks need to have exchanged
hands but the agreement of the parties alone will suffice.
Thus In GORLEKU V POBEE, the Court of Appeal decided that there was a
valid customary law marriage even though no marriage ceremony had
taken place between the deceased and the widow.
The court stated inter alia that there are two forms of marriage; one
involves the presentation of drinks and the other is devoid of formalities
like the presentation of drinks. In the case of the first, which is the ordinary
case the presentation of drinks and other items by the man’s family to the
woman’s family and their acceptance by the woman’s family, constitutes
the express consent of both families to the marriage. The second case
 involves the existence of a valid customary law marriage between a man
and a woman without the express consent of the families manifested by
the presentation and acceptance of drinks and other presents.
3. The third form of informal marriage is less conventional. In ASUMAR V
KHAIR, The Court of Appeal held that where the wife in a customary
marriage declines to co habit with her husband and another man tried to
seduce her and causes her to break off her marriage, if the family of the
woman obtains the husbands consent and refunds to him all his expenses
on the customary marriage, the new man becomes the lawful husband of
the woman.

The Intestate Succession Law 1985 [PNDC Law 111] provides for the sharing
property of a person who dies without making a Will. The law gives priority to
the Spouse and Children of the deceased. Section 18 of the Act defines a child as
including any person recognized by the deceased as his child or recognized by
law to be the child of the deceased. This will therefore include children born to
women who may not be legally married to the deceased.

Based on the law discussed above and the facts of the case, the respective
positions of the three women may be analysed as follows;

a. Agya Nimo dated Maame Esi and also acknowledged authorship of her
pregnancy. He however did not take an extra step as described in QUAYE
V KUERVI. Rather, he moved out of town in a bid to stay away from her.
He nevertheless acknowledges the child and named him. Per the
discussion on Customary Law Marriages, Maame is not a wife and may at
best be described as a concubine.
b. Agya Nimo never presented drinks for Abena’s hand in marriage.
However, they had children together, had businesses together and openly
lived together as husband and wife. Abena may thus be said to be in an
informal marriage with Agya Nimo.
c. Since customary law marriages are polygamous, Agya Nimo’s subsequent
formal marriage to Hannah whilst his marriage with Abena subsisted is
legal. Hannah is also therefore a wife of Agya Nimo.

To conclude, the law will legally recognize the marriages of Abena and Hannah.
The two women will thus share the benefits which would devolve to a spouse
under PNDC Law 111. All the children of Agya Nimo including the child of Maame
Esi will also benefit under the same law.
APPLICABLE LAW

• Three types of marriages in Ghana

o Customary, Ordinance, Mohammedan – regulated Marriages Act
1884 -1985
o CLM is under Part 1 of the Act
• Customary law marriage
o Definition of CLM – Ollenu
o Features of CLM
▪ Potentially polygamous
▪ Prohibition on grounds of consanguinity and affinity
▪ Can be converted to a monogamous / cannot co exist with
ordinance marriage
o Formal versus Informal
▪ Formal
• Express agreement between the parties
• Ceremony – exchange of drinks
▪ Informal – Various types
• Pregnancy plus additional steps
o Additional Drink or living together
o QUAYE V KUERVI
• No Drink : Agreement to live together
o GORLEKU V POBEE
o ESSILFIE V QUARCOO
• Payment of bride price by another man
o ASUMAH V KHAIR
o Intestate Succession Law
o Analysis
▪ Maame Esi – No marriage at best a concubine. Child will
benefit under PNDC L 111
▪

Paa Kwesi got married to Alberta Amanor under a marriage officer’s certificate
in the year 1999. They have three children. Jerry 6 years, John 8 years and
Regina 9 years. Alberta is a housewife and Paa is a secondary school teacher.
One day when Paa returned from work Alberta was no where to be found. Paa
became very angry and went from house to house looking for Alberta. Alberta
then emerged from a neighbour’s house.
When they got back home, Paa accused Alberta of sleeping with the
neighbour. He continued to beat Alberta until Alberta admitted that she slept
with the neighbour and begged for forgiveness. Paa reported Alberta’s
conduct to her parents. When Alberta was confronted by her parents she
explained that she admitted to sleeping with the neighbour and begged for
forgiveness because she wanted Paa to stop beating her. She explained that
she had gone to the neighbour’s house to to watch football. Paa claims that
she finds it intolerable to live with Alberta as a result of the adultery and has
come to see you for advise. He also wants custody of the children.

Area of Law: Dissolution of monogamous marriages based on Adultery and

Custody of children

Issues : Whether or not Paa can successfully divorce Alberta based on

the fact of adultery

Whether or not Paa can successfully petition for custody of the

children

Applicable Rules

The law that governs dissolution of marriages in Ghana is the Matrimonial

Causes Act, 1971, [Act 367].

Section 1 of the Act 367 provides that either party to a marriage may present a
petition for Divorce to the Court on the sole ground that the marriage has broken
down beyond reconciliation.

Section 31 of Act 367 provides that the Court shall have jurisdiction in any
proceedings under this Act where either party to the marriage is

a. A citizen of Ghana
b. Is domiciled in Ghana or
c. Has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.

Either party in this section means either the husband or the wife and this refers
to the petitioner.

It is important to note that there are restrictions on the time for filing a petition.
Section 9 of Act 367 provides that a petition for divorce shall not be presented to
the court within two years from the date of the marriage. A court may despite
this provision allow the presentation of a petition for divorce within two years
from the date of the marriage on grounds of substantial hardship suffered by the
petitioner or depravity on the part of the respondent.

Section 2 of the MCA provides that a petitioner may rely on one or more of six
facts to establish that a marriage has broken down beyond reconciliation.
Adultery is one of these six facts.

Adultery is defined in Section 43 of Act 367 as the voluntary intercourse of a

married person with one of the opposite sex other than his or her spouse.

For a Petitioner to succeed, Section 2.1.a of Act 367 provides that he must satisfy
the court that the respondent committed adultery and that by reason of that
adultery, the petitioner finds it intolerable to live with the respondent.

Thus, for adultery to succeed as a fact showing that a marriage has broken down
beyond reconciliation, the following must be established.

a. That there was penetration of the woman by the man. Partial penetration
is enough to constitute adultery. Lesser acts such as masturbation will not
constitute adultery. Thus, in DENNIS V DENNIS, Mrs. Dennis tried to have
sexual intercourse with another man but penetration could not take place.
The court held that there was no adultery.
b. The act of sexual intercourse must be voluntary. Thus, if there is proof that
consent was obtained through fear or force, there is no adultery.

The burden is on the party who alleges adultery to prove it. When adultery is
established the burden shifts to the respondent to prove either one of the
following defenses to exonerate himself.

They are;

i. That the sexual intercourse alleged did not take place

ii. If sexual intercourse took place it was not consensual

No other defenses are available to the respondent.

Adultery may be proved by direct evidence where the offending party is caught
in the act by the Petitioner or a witness who is willing to testify on the petitioner’s
behalf.
It may also be established by a confession from the offending party. It must be
noted that the confession from an adulterer if obtained by force, duress or any
other non-consensual process will not be accepted by the court. Thus, in
QUARTEY V QUARTEY and Another, the husband petitioned for divorce on the
ground that the wife had committed adultery. The wife denied the allegation and
stated that the confession she made was under duress. She further explained
that when she denied the accusations, the husband beat her and she only
admitted adultery to stop the husband from beating her. The court held that
adultery had not been proved.

Circumstantial evidence may also be elicited to prove adultery. The act of sexual
intercourse itself does not have to be proved. The presence of disposition and
opportunity on the part of the party alleged to have committed adultery may
lead a court to conclude that adultery has been committed. Thus, in ADJETEY V
ADJETEY sexual intercourse was not proved, however, the circumstance led to
court to arrive at one conclusion only – that adultery had been proved.

The facts of the case were that in 1967 the petitioner and the respondent lived
together in a rented house at Kanda estate. Whilst there the respondent put up
his own house at Teshie. When the building was nearly completed the
respondent and the petitioner decided to leave Kanda to live in the new house at
Teshie. On the day they moved the petitioner packed her belongings in one car
and the respondent in another. They left the house almost at the same time but
the petitioner never arrived at the destination, the Teshie house, till after two
months when her uncle took her to the respondent at Teshie. She remained in
the house for some three months and disappeared again. With the assistance of
the petitioner's father the respondent unsuccessfully looked for the petitioner.
Later the husband received information about his wife as a result of which he
traced her to the house of T.D. Baffoe at Kanda estate. Since the wife left she
has not returned to the matrimonial home. When the respondent (the husband)
was informed of where he could find his wife, he, accompanied by one Justice
Kwaku Agbekey, a police constable, went to the house of T.D. Baffoe, early one
morning at about 6 a.m. They saw the petitioner with only a cloth around her
chest preparing breakfast.

Additionally, adultery may be inferred if the petitioner has contracted a sexually

transmitted disease from the respondent.

Also, if it is proved that a child born by the respondent is not the child of the
petitioner, the respondent will be presumed to have committed adultery. Thus,
in HUME V HUME AND MCAULIFFE the court held that the wife of Mr. Hume had
committed adultery because tests showed that her husband could not be the
father of her child.

In addition to establishing adultery, the petitioner must show that as a result of

the adultery, he or she finds it intolerable to live with the respondent. The test
for intolerability is subjective and therefore not what a reasonable petitioner
would have thought what that petitioner personally feels about the adultery.

The reconciliation provision in Section 3 of Act 367 implies that where parties live
as husband and wife after the discovery of adultery for more than six months,
the petitioner will be taken to have forgiven the respondent and the petitioner
cannot subsequently claim to find it intolerable to live with the respondent.
However, if the living together as husband and wife is less than six months the
petitioner can rely on it.

Finally, it is important to note that Act 367 provides that although the court may
find the existence of one or more of the facts which a petitioner may rely on, the
court shall not grant the divorce unless it is satisfied on all the evidence that the
marriage has broken down beyond reconciliation.

Custody of Children

Kofi and Ama got married in the year 2015. They had a happy marriage until
10 months ago. Ama heard rumors that Kofi was having an affair with the
neighbour’s daughter. When Ama confronted Kofi, he became livid. He
stormed out of the house and did not return home until the next day. When
Ama returned from work, Kofi had packed all his belongings and left. Kofi left
a note on the kitchen table saying ‘Ama, I have impregnated the neighbour’s
daughter, Akosua. I am no longer interested in our marriage. I am not coming
back so find yourself another man. Ama is so angry that she wants to bring the
marriage to an end. She has come to see you for advice.

Area of Law: Dissolution of an ordinance marriage based on adultery.

Issue: Whether or not Ama can successfully petition for the dissolution of the
marriage based on Adultery
Applicable Rules

The law that governs dissolution of marriages in Ghana is the Matrimonial

Causes Act, 1971, [Act 367].

Section 1 of the Act 367 provides that either party to a marriage may present a
petition for Divorce to the Court on the sole ground that the marriage has broken
down beyond reconciliation.

Section 31 of Act 367 provides that the Court shall have jurisdiction in any
proceedings under this Act where either party to the marriage is

d. A citizen of Ghana
e. Is domiciled in Ghana or
f. Has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.

Either party in this section means either the husband or the wife and this refers
to the petitioner.

It is important to note that there are restrictions on the time for filing a petition.
Section 9 of Act 367 provides that a petition for divorce shall not be presented to
the court within two years from the date of the marriage. A court may despite
this provision allow the presentation of a petition for divorce within two years
from the date of the marriage on grounds of substantial hardship suffered by the
petitioner or depravity on the part of the respondent.

Section 2 of the MCA provides that a petitioner may rely on one or more of six
facts to establish that a marriage has broken down beyond reconciliation.
Adultery is one of these six facts.

Adultery is defined in Section 43 of Act 367 as the voluntary intercourse of a

married person with one of the opposite sex other than his or her spouse.

For a Petitioner to succeed, Section 2.1.a of Act 367 provides that he must satisfy
the court that the respondent committed adultery and that by reason of that
adultery, the petitioner finds it intolerable to live with the respondent.

Thus, for adultery to succeed as a fact showing that a marriage has broken down
beyond reconciliation, the following must be established.
 c. That there was penetration of the woman by the man. Partial penetration
is enough to constitute adultery. Lesser acts such as masturbation will not
constitute adultery. Thus, in DENNIS V DENNIS, Mrs. Dennis tried to have
sexual intercourse with another man, but penetration could not take
place. The court held that there was no adultery.
d. The act of sexual intercourse must be voluntary. Thus, if there is proof that
consent was obtained through fear or force, there is no adultery.

The burden is on the party who alleges adultery to prove it. When adultery is
established the burden shifts to the respondent to prove either one of the
following defenses to exonerate himself.

They are;

iii. That the sexual intercourse alleged did not take place
iv. If sexual intercourse took place it was not consensual

No other defenses are available to the respondent.

Adultery may be proved by direct evidence where the offending party is caught
in the act by the Petitioner or a witness who is willing to testify on the petitioner’s
behalf.

It may also be established by a confession from the offending party. It must be

noted that the confession from an adulterer if obtained by force, duress or any
other non-consensual process will not be accepted by the court. Thus, in
QUARTEY V QUARTEY and Another, the husband petitioned for divorce on the
ground that the wife had committed adultery. The wife denied the allegation and
stated that the confession she made was under duress. She further explained
that when she denied the accusations, the husband beat her and she only
admitted adultery to stop the husband from beating her. The court held that
adultery had not been proved.

Circumstantial evidence may also be elicited to prove adultery. The act of sexual
intercourse itself does not have to be proved. The presence of disposition and
opportunity on the part of the party alleged to have committed adultery may
lead a court to conclude that adultery has been committed. Thus, in ADJETEY V
ADJETEY sexual intercourse was not proved, however, the circumstance led to
court to arrive at one conclusion only – that adultery had been proved.

The facts of the case were that in 1967 the petitioner and the respondent lived
together in a rented house at Kanda estate. Whilst there the respondent put up
his own house at Teshie. When the building was nearly completed the
respondent and the petitioner decided to leave Kanda to live in the new house at
Teshie. On the day they moved the petitioner packed her belongings in one car
and the respondent in another. They left the house almost at the same time but
the petitioner never arrived at the destination, the Teshie house, till after two
months when her uncle took her to the respondent at Teshie. She remained in
the house for some three months and disappeared again. With the assistance of
the petitioner's father the respondent unsuccessfully looked for the petitioner.
Later the husband received information about his wife as a result of which he
traced her to the house of T.D. Baffoe at Kanda estate. Since the wife left she
has not returned to the matrimonial home. When the respondent (the husband)
was informed of where he could find his wife, he, accompanied by one Justice
Kwaku Agbekey, a police constable, went to the house of T.D. Baffoe, early one
morning at about 6 a.m. They saw the petitioner with only a cloth around her
chest preparing breakfast.

Additionally, adultery may be inferred if the petitioner has contracted a sexually

transmitted disease from the respondent.

Also, if it is proved that a child born by the respondent is not the child of the
petitioner, the respondent will be presumed to have committed adultery. Thus,
in HUME V HUME AND MCAULIFFE the court held that the wife of Mr. Hume had
committed adultery because tests showed that her husband could not be the
father of her child.

In addition to establishing adultery, the petitioner must show that as a result of

the adultery, he or she finds it intolerable to live with the respondent. The test
for intolerability is subjective and therefore not what a reasonable petitioner
would have thought what that petitioner personally feels about the adultery.

The reconciliation provision in Section 3 of Act 367 implies that where parties live
as husband and wife after the discovery of adultery for more than six months,
the petitioner will be taken to have forgiven the respondent and the petitioner
cannot subsequently claim to find it intolerable to live with the respondent.
However, if the living together as husband and wife is less than six months the
petitioner can rely on it.

Finally, it is important to note that Act 367 provides that although the court may
find the existence of one or more of the facts which a petitioner may rely on, the
court shall not grant the divorce unless it is satisfied on all the evidence that the
marriage has broken down beyond reconciliation.
In applying the rules to the facts in the instant case, it can be inferred that a
voluntary confession was obtained when Kofi confessed in writing to the adultery
he had committed with Akosua. It was obtained without duress or force and thus
will be admissible in court.

Ama’s request for a dissolution of the marriage following the divorce complies
with the intolerability test as the two did not live together as husband and wife
since the discovery of the adultery ten months ago.

In conclusion, my advice to Ama is that her petition for dissolution of her

marriage to Kofi based on adultery is likely to succeed.

Patrick met his High School sweetheart Monica in London in the year 2011. He
had gone to the UK to pursue a degree in Mathematics. Monica was in the UK
on a UN programme. They dated until Monica returned to Ghana in 2012. Soon
thereafter, Patrick also returned to Ghana.

In the year 2013, Patrick met Amelia and fell in love with her instantly. When
Amelia became pregnant, Patrick’s family went to see Amelia’s family to
formally accept responsibility for Amelia’s pregnancy.

Six months thereafter, Patrick was introduced to Jodi, the daughter of one of
his co-workers. He was smitten by her beauty and decided to ask for her hand
in marriage. Arrangements were made for the customary marriage. The
ceremony was grand. It was attended by all the chiefs in the region. Patrick’s
father was a chief. Soon Jodi gave birth to a set of twins.

In 2015, Patrick went to Nigeria on holiday where he met Abisola, a native of

Nigeria. They became inseparable during the three weeks Patrick was in
Nigeria. When Patrick returned to Ghana, he invited Abisola to come and visit
him. When Abisola arrived in Ghana she informed Patrick that he was pregnant
with his baby. She insisted that they get married immediately because in
Nigeria, when a girl becomes pregnant the man has to marry her immediately.
Patrick agreed and complied with all the requirements of the Marriages Act
1884-1985 CAP 127. The marriage ceremony took place on June 6 2016. On Sep
5 2018, Patrick was involved in a fatal accident on the Accra-Tema Motorway.
After the funeral it was discovered Patrick died intestate.

Abisola insists that she is the only lawful wife of Patrick and that under the
Intestate Succession Act, she is the only one entitled to benefit from Patrick’s
estate. Patrick left behind a small poultry farm at Obuasi and two small
buildings at Prestea.
Monica, Amelia and Jodi have teamed up against Abisola claiming that they
are all entitled to a portion of Patrick’s estate.

What are the legal rights of Monica, Amelia, Jodi and Abisola?

Area of Law: Customary law marriage and ordinance marriages

Issue: Whether not Monica, Amelia, Jodi and Abisola were validly married to
Patrick and can benefit from his estate.

The institution of marriage in Ghana is governed by the Marriages Act 1884 -

1985. Under the Act three types of marriages are recognizable in Ghana. They
are the Customary marriage, Mohammedan marriage and then the Ordinance
marriage. The law governing these marriages are contained in parts 1, 2 and 3
of the Act respectively.

A Customary Law Marriage may be formal or informal.

It is formal when the family of a man approaches the family of a woman and
asks for the hand of the woman in marriage on behalf of their son. A day is
agreed upon for the formal ceremony to take place if the woman agrees to marry
the man. On the appointed date, the families of both parties hold a ceremony
usually hosted by the woman’s family characterized by customary rites and
exchange of gifts especially drinks. The family enquires from the woman if she
agrees to take the man as her husband. If she agrees, the drinks and gifts are
accepted and the marriage is concluded. The man and woman become husband
and wife.

Informal marriages on the other hand are not characterized by a formal

ceremony but are deduced based on certain acts by the parties to the marriage
and or their families.

According to case law, informal marriages may be contracted in one of the

following ways;

1.When a man impregnates a woman and sends a drink to acknowledge

authorship and takes and additional step either by sending another drink or
living together with the woman as man and wife. Either of the additional steps
taken will result in the court holding that there is an informal marriage between
the parties. This was held in QUAYE V KUERVI.
2.A second form of informal marriage is created when that parties themselves
agree to live together as man and wife and actually do so in the eyes of the
community. In this case no drinks need to have exchanged hands but the
agreement of the parties alone will suffice.

Thus In GORLEKU V POBEE, the Court of Appeal decided that there was a valid
customary law marriage even though no marriage ceremony had taken place
between the deceased and the widow.

The court stated inter alia that there are two forms of marriage; one involves the
presentation of drinks and the other is devoid of formalities like the presentation
of drinks. In the case of the first, which is the ordinary case the presentation of
drinks and other items by the man’s family to the woman’s family and their
acceptance by the woman’s family, constitutes the express consent of both
families to the marriage. The second case involves the existence of a valid
customary law marriage between a man and a woman without the express
consent of the families manifested by the presentation and acceptance of drinks
and other presents.

3.The third form of informal marriage is less conventional. In ASUMAR V KHAIR,

The Court of Appeal held that where the wife in a customary marriage declines
to co habit with her husband and another man tried to seduce her and causes
her to break off her marriage, if the family of the woman obtains the husbands
consent and refunds to him all his expenses on the customary marriage, the new
man becomes the lawful husband of the woman.

Institution of marraiges is governed by the MArraiges Act. Under the Act, there
are three types of marraiges .

• Customary
Formal, Informal

• Ordinance
• Mohammedan

A Customary Law marriage by be formal or informal. In a formal ceremony, there

is a formal ceremony by the families of the parties who

Informal marriage is by conduct where there is no formal ceremony and

exchange of gifts between the two families. The most important is the
agreement between the parties to live as husband and wife and actually living
as husband and wife in the eyes of society and conducting themselves as such.
Customary law marriage is potentially polygamous

Presence of the 4 essentials

• YOATEY V QUAYE
• QUAYE V KUERVI

Features of a Monogamous marriage

Cannot co exist with a Customarily law marriage

If Abisola was married under customary – then the ordinance marriage will be
void but her customary law marriage will stand.

Article 22 of the Constitution 1992, provides that 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.
Sections 2,3,5 and 14 of PNDC Law 111 read together provides that when a
person dies without a Will, he is deemed to have died intestate and his estate
will be administered according to PNDC Law 111. The law gives priority to
Spouses and Children and provides a set formula for the distribution of property.

Since the law provides rights of succession to spouses, therefore, to determine

legal rights of Monica, Amelia, Jodi and Abisola, it will have to be established
whether each of them was validly married to Patrick.

Justice Ollenu defined customary law marriage in YAOTEY V QUAYE as follows; A

customary law marriage is a union of the man’s family and the woman’s family.
It imposes rights and duties upon the two families. The woman’s family gains the
right to perform certain rites in certain eventualities and the man’s family also
gains the right to perform certain rites in certain eventualities.
There are two types of customary law marriages. Formal marriages in which a
ceremony no matter how small typically involving the presentation of drinks to
the woman’s family by the man’s family accompanied with a formal request for
the woman’s hand in marriage. In informal marriages, no ceremony is conducted
however the woman is acknowledged as a wife by the man’s family. The
acknowledgement alone would create a valid marriage even if the man had not
presented drinks to the woman’s family.
Justice Ollenu in YAOTEY V QUAYE went ahead to establish 4 essentials which
when present will indicate that there is a valid marriage whether formal or
informal.
They are ;
1. Agreement by the parties to live as man and wife
2. Express or implied consent of the man’s family that the woman should be
his wife.
3. Express of implied consent of the woman’s family that the man should be
his husband.
4. Consummation by co habitation.
Over time, it has been established that the agreement between the parties is the
most important of all the essentials. Family consent for both parties and
consummation need not be established to prove the validity of a customary law
marriage.
Whilst formal customary law marriages are easy to ascertain, informal
customary law marriages are more difficult to prove. In the 1934 case of QUAYE
V KUERVI, the man sent drinks to acknowledge responsibility for the girl’s
pregnancy. Thereafter the two lived together as husband and wife even though
no drinks had been presented by the man’s family to the woman’s family asking
for her hand in marriage. It was held that there was a valid customary marriage
between the couple.
In YAOTEY V QUAYE supra, Justice Ollenu held that there was an informal
marriage because the evidence showed that the family of Yaotey had
acknowledged the defendant as Yaotey’s wife even though no drinks had
exchanged hands.
In the 1992 case of ESSILFIE V QUARCOO, it was held that an informal customary
law marriage existed because there was evidence that when the defendant
impregnated the deceased, his family sent drinks to acknowledge responsibility.
Thereafter, the defendant and the deceased lived together in the deceased’s
house for seven years. The court also established that the mother of the
deceased had been visiting the couple in their house and on the death of the
deceased’s father, at the request of the plaintiff’s family, the defendant
performed rites required of a son in law. The deceased on her beneficiary forms
filed by her employers indicated that she was married.
In IN RE DICKSON ALIAS APPIAH; ABOAGYE AND ANOTHER V QUAYSON, the court
held that the two women involved were wives not concubines. They had lived
with the deceased, had children for him and the deceased had shown to the
whole world that they were his wives.
In GORLEKU V POBEE, the Court of Appeal decided that there was a valid
customary law marriage even though no marriage ceremony had taken place
between the deceased and the widow.
The court stated inter alia that there are two forms of marriage; one involves the
presentation of drinks and the other is devoid of formalities like the presentation
of drinks. In the case of the first, which is the ordinary case the presentation of
drinks and other items by the man’s family to the woman’s family and their
acceptance by the woman’s family, constitutes the express consent of both
families to the marriage. The second case involves the existence of a valid
customary law marriage between a man and a woman without the express
consent of the families manifested by the presentation and acceptance of drinks
and other presents.

Ghanaian law subscribes to the definition of monogamous marriages given by

Lord Penzance in HYDE V HYDE as follows; The voluntary union for life of one
man and one woman to the exclusion of all others.

The main requirements contained in the definition are as follows.

1. The marriage must be for life. This means the marriage must exist
between the parties until it is dissolved or annulled by a court of
competent jurisdiction or by death of at least one of the parties
2. The marriage must have been contracted voluntarily. It will be void if
proved that the marriage was contracted otherwise.
3. The marriage must be to the exclusion of all others. This requirement gives
a marriage its monogamous character. While a marriage is subsisting,
neither of the parties can enter into another valid marriage. Section 74.1
of the Marriages Act also provides that a Marriage is not valid where
either of the parties at the time of the celebration of the marriage is
married under the applicable customary law to a person other than the
person with whom the marriage is celebrated.
4. The marriage union must be between a man and a woman.

Applying the rules to the facts provided, the status of the four women regarding
their relationship with the deceased will be resolved in seriatim.
Monica per the facts available was not married to Patrick under Customary law
or the Ordinance. The facts do not indicate that there was a ceremony between
her family and that of Patrick’s. The facts also do not show that Monica and
Patrick were in an informal marriage as shown in the cases discussed above. She
was at best a concubine. She is therefore not entitled to any benefits under PNDC
L 111.

Amelia and Patrick had child together. Whilst the facts indicate that Patrick’s
family went to see Amelia’s family to formally accept responsibility of the
pregnancy, there is no evidence that they went beyond this point. Patrick did not
hold her out as his wife, and there was nothing done beyond accepting the fact
that Amelia had gotten pregnant. Amelia can thus not be called a wife of Patrick.
QUAYE V KUERVI

Jodi, per the facts was in a formal customary marriage with Patrick. There was a
ceremony celebrated by the families of the couple for this purpose. Jodi is thus a
wife of Patrick and for the purposes of succession can benefit from Patrick’s
estate.

Customary law marriages are potentially polygamous thus the marriage to Jodi
did not bar Patrick from taking on another wife. However, Patrick’s marriage
with Abisola was under the Ordinance – CAP 127. As stated above, Section 74.1.b
a marriage procured under the Ordinance where one of the parties is in a
subsisting marriage is void. Patrick’s marriage with Abisola is therefore void per
Section 74.1.b.

In conclusion, Jodi is the only woman validly married to Patrick and can benefit
as a spouse. Per PNDC L 111 however, children can also benefit. Therefore, also
Amelia and Abisola will not personally benefit, their children will benefit from
Patrick’s estate to the extent that PNDC Law 111 allows

The four essentials of a customary law marriage as enunciated by Ollenu J in

the case of YAOTEY V QUAYE and reiterated in RE CAVEAT BY CLARA SACKITEY
have become obsolete. Discuss.

A Customary Law Marriage has been defined by Ollenu J in YAOTEY V QUAYE as

a union of the man’s family and the woman’s family. It imposes rights and duties
upon the two families. The woman’s family gains the right to perform certain
rites in certain eventualities and the man’s family also gains the right to perform
certain rites in certain eventualities.
Unlike ordinance marriages under the Marriages Act 1884-1985 CAP 127,
Customary Law Marriages are difficult to prove because of the lack of
documentation. Therefore, the courts relied on evidence of custom to establish
the existence of a customary law marriage. The problem was that it was not clear
what amounted to a marriage under customary law. For example, whilst some
Judges were of the view that if drinks had not been presented there was no
marriage, others posited that presentation of drinks was not a requirement for
a valid marriage under customary law. This confusion led to a lot of injustice as
the result of a dispute depended on the position of the Judge and not the law.

Ollenu J therefore sought to resolve this confusion by streamlining the principles

relating to a valid customary law marriage. According to Ollenu, when these four
essentials were present then the court must rule that there was a valid
customary law marriage.

These four essentials enumerated below must apply to all the tribes in Ghana.

i. Agreement by the parties to live together as man and wife and living
as husband and wife – To be determined by the court
ii. Consent of the family of the man that he should have the woman to be
his wife. Consent in this instance may be actual where the family of the
man goes to the family of the woman to formally ask for her hand or it
may be constructive where the family of the man recognizes the
woman as the wife and admitting her and her family to performance
of customary rites for her family. Eg funeral rites.
iii. Consent of the family of the woman that she should have the man for
her husband. Similarly, this consent may also be express or implied. It
is express where there has been a formal request by the man’s family
for the hand of the woman or implied where there is no formal request
but the family of the woman recognize the man as her husband and in
recognition of that relationship allows his family to perform certain
rites on certain occasions. Eg funeral rites.
iv. Consummation by co-habitation

Writers such as SARBAH, RATTRAY and DANQUAH confirm the existence of

informal marriages

The implications of the four essentials are as follows;

The agreement of the parties to live together as man and wife enunciated in the
first essential means that no one may be forced to marry another person and
that parties to a marriage contract must voluntarily agree to live as husband and
wife.

This element of principle is supported by Article 35[4] of the 1992 Constitution

which provides that the state shall cultivate among all Ghanaians respect for
fundamental human rights and freedoms and the dignity of the human person.

In addition, Section 14 of the Children’s Act, Act 560 provides that a person shall
not force a child to be betrothed, a subject of a dowry transaction or to be
married. The Criminal Offences Act, Act 29 in Section 109 makes it an offence to
compel another to marry against his or her will.

A child between 16 and 18 needs consent from a parent or guardian

This principle was also applied in AKORNINGA V AKAWAGRE. In this case, the
daughter of the appellant was married under frafra custom to one Agambire
Atedoku who died whilst she was pregnant by him. After she gave birth, the
deceased’s brother refused to marry her per custom. The family also refused to
maintain her and the baby. The appellant’s daughter subsequently returned to
her father’s home and later left for Kumasi where she met and married another
man and had an issue. Five years after this issue and eleven years after the she
had left her husband’s family, the younger brother of the deceased claimed that
under frafra law, she was his wife and that her children where that of his late
brother and therefore his.

The plaintiff thus lodged a complaint against the defendant before the Yorugu
Chief for the return of ‘his wife and children’. The chief upheld the claim. This
decision was affirmed by the Circuit Court which resulted in an appeal. The Court
of Appeal held that the claim of the respondent to be the husband of the
appellant’s daughter with or without her consent was inequitable and clearly
against the general law of the land because it sought to treat her as a chattel
instead of a human being who had equal rights to those of the husband.

The second and third essentials will be discussed together since they both require
the consent of the families of the parties. Consent here may be expressly given
as in a marriage ceremony or impliedly given. In the latter, the family
acknowledges the other party as the spouse of their family member without
expressly agreeing to a marriage.

In BADU V BOAKYE, the parties lived together as husband and wife but because
drinks had not been formally presented the Judge held that there was no
marriage.
In DJARBENG V TAGOE, the plaintiff sued the defendant for inter alia, damages
for breach of promise to marry. The evidence was that the parties entered into a
relationship which resulted in the plaintiff getting pregnant. Five months later,
the defendant left for the United Kingdom to pursue further studies. The plaintiff
claimed that before the defendant left, she promised to marry her. This promise
was repeated several times by the defendant in letters to the plaintiff and also
by the defendant’s father to the plaintiff. Justice Ampiah however held that there
was no evidence to show that the promise had received family approval and
therefore there was no binding promise by the defendant to marry the plaintiff
customarily.

The above cases although having received some criticisms indicate the
importance of express family consent as contained in the second and third
elements of Ollenu’s four essentials.

The following cases bring out the essence in implied consent.

In IN RE DICKSON ALIAS APPIAH; ABOAGYE AND ANOTHER V QUAYSON the court

held that the two women involved were not mere concubines. They had lived
with the deceased and had children for him and the deceased had shown to the
whole world that they were his wives. The fact that none of the man’s family
joined in a marriage ceremony did not matter.

In QUAYE v KUERVI, the man sent drinks to acknowledge responsibility for the
girls’ pregnancy. Thereafter, the two lived together as husband and wife even
though no drinks had been presented by the man’s family to the woman’s family
asking for the woman’s hand in marriage. The court held that this was a valid
customary marriage.

In ESSILFIE V QUARCOO, following the death of a woman, her mother and her
sister jointly applied for letter of administration to administer her estate. The
defendant, claiming to be husband of the deceased and father of the deceased’s
two children, caveated. The deceased’s mother and sister argued that there was
no marriage between the deceased and her ‘husband’ thus her property
devolved solely on them. Evidence was led to show that when the defendant
impregnated the deceased, his family sent drinks to acknowledge responsibility.
Thereafter, the defendant and the deceased lived together in the deceased house
for seven years before she died giving birth to her second child. The court also
established that the mother of the deceased, the first plaintiff had been visiting
the couple in their house and that on the death of the deceased’s father and at
the request of the plaintiff’s family, the defendant performed the custom
required of a son in law. When the woman died, the defendant at the request of
the plaintiff’s family provided the shroud and the grave used in burying her.
Furthermore, the deceased on her beneficiary nomination forms filed with her
employers indicated that she was married.

The court held that where customary rites have not been performed and the
parties have consented to live in the eyes of the world as man and wife and their
families have consented that they should do so and the parties actually live as
man and wife then a valid customary marriage is proved.

In ASUMAH V KHAIR, the man had married the woman by performing all the
necessary marriage rites. The couple however never lived together as husband
and wife. A friendship developed between the woman and another man. The new
man refunded the marriage fees and all other expenses to the woman’s father
to be given to the woman’s husband. The new man, Khair, and the woman lived
together as husband and wife. The girl’s father brought an action against Khair
for seducing his daughter claiming damages from him. The Court of Appeal held
that where the wife in a customary marriage declines to co habit with her
husband and another man tried to seduce her and causes her to break off her
marriage, if the family of the woman obtains the husbands consent and refunds
to him all his expenses on the customary marriage, the new man becames the
lawful husband of the woman.

The four essentials of a customary law marriage enunciated by Ollenu have been
criticized on a number of levels. Kofi Oti Adinkrah in his article ESSENTIALS OF A
CUSTOMARY MARRIAGE: A NEW APPROACH goes to the extent of referring to
Ollenu’s essentials as obsolete. I shall proceed to discuss a few of the criticisms.

One of the criticisms of the essentials is that a strict adherence to them may
result in injustice as in the case of DJARBENG V TAGOE AND BADU V BOAKYE
discussed above. In these cases, the court held that the marriages were not valid
because the consent of the family was not proved. These cases have been
individually criticized and will not apply in modern times.

Another criticism of the essentials is that Ollenu stated that the four essentials
were applicable throughout Ghana. This has been criticized since in some parts
of the country drinks are not even presented as a prelude to a marriage as part
of their custom. There are many areas in Ghana where livestock are presented
instead of drinks. In addition, the types of drinks are not specified. The quantities
of drinks are also not specified. A strict adherence to the essentials may also
result in some confusion as to the type of drinks to be sent to the family of the
woman and the quantity required.

Related to this criticism, Ollenu J also failed to define ‘the family’ as comprising
the nuclear family only or the extended family. It is also not clear on who in the
family should receive the drinks. Is this the father, mother or head of family in
the wider sense? If the designated person refuses the drinks whilst other persons
in the family decide otherwise does this make the marriage valid or invalid? In
essence whose consent is required to ensure the marriage is valid? These
questions cast a shadow on the relevance of the four essentials.

Ollenu J also mentioned that all four essentials have to be present for a
customary law marriage to be declared valid. Critics of the essentials have
argued that apart from the first essential which is the agreement of the parties
to live together as husband and wife, the remaining three do not have to be
present to declare a customary law marriage valid.

Ollenu J has also been cited for not defining consummation in the four essentials.
It is unclear if the cohabitation mentioned is a necessary condition to hold that
consummation has occurred. In SOWA V SOWA, the parties had never lived
together however it was held they were in a valid marriage.

The criticism briefly discussed above severely challenge the legs on which the
four essentials stand on however the following can be concluded on.

There are two types of customary marriages, informal and formal marriages.

The consent of the families of the parties though desirable is not a prerequisite
for the creation of a valid customary marriage.

The most important essential is the agreement of the parties to live together as
husband and wife. The other three essentials are merely desirable and do not
translate into legal requirements. The acquisition of joint property, having
children, having joint bank accounts and performing rites are funerals can prove
that parties are husband and wife.

Still relevant - helped to stabilize the law on customary marriages.

Kofi and Ama were Kofi met Ayele at a disco, fell in love with her and decided
Two years later, Kofi went on a course in the USA and discovered that his
former girlfriend was living just two blocks away. They returned to Ghana
together AMA

Ayeele had been living in London, England, for the past

Area of Law: Requirements of a valid Ordinance marriage

Issue: Kofi can marry Daavi

• In Ghana marriages are regulated by the Marriages Act 1884- 1985

• There are three kinds of marriages allowable under the law – CLM,
Mohammedan and Ordinance Marriage.
• Ordinance marriages are in Part 3 : Features of Ordinance Marriage
• To create a valid marriage, you must meet both Substantive and
Procedural Requirement
• Procedural Requirements:
• Marriage Officer’s Cert, Registrar’s Cert or Special license : Focus on
Marriage Officer’s License
• Location and Officiating Minister must be licensed
• Notice – Banns :
• Caveat must be removed
• Issued with the cert which is valid for three months.
• Analysis
• NO Notice
• Location and Officiating Minister were not licensed
• NO special license obtained
• Marriage to Ayele was thus not valid
• He can thus marry another woman

Aka and Papa were married under the Ordinance and lived in a house already
built by Aka.

What defects will make marriage under the Marriage Ordinance void

Page 7X of Purple book

Kaku and Adwuba were married

Area of Law : Features Customary Law Marriages

Issue : Kaku can marry the American lady in addition to Adwuba

• Marriages in Ghana are regulated by the marriages Act – 1884-1985.

• Three types of marriages are recognized by law in Ghana [CLM, Ordinance
and Mohammedans]
• Definition of CLM
• They can be either formal or informal
• Features of CLM
• Prohibited on grounds of consanguinity and affinity
• Potentially polygamous – marry more under customary law
• Mutually exclusive with Ordinance marriages
• Conversion – convertible to Ordinance. If conversion fails the CLM survives.
• Analysis
•
•

Jane and Joe were friends for two years. In Jan 1999 Joe’s family went to see
Jane’s family and performed the knocking ceremony. They presented a bottle
of schnapps and 10k ghs to ask for Jane’s hand in marriage to Joe. Jane and Joe
thereafter lived openly as though they were man and wife for three years.
When Jane got pregnant, Joe insisted that she terminates the pregnancy. Jane
refused to do so.

Joe quickly married Nancy, a newly qualified lawyer, under the Ordinance
hoping that will compel Jane to terminate the pregnancy. Jane subsequently
gave birth to a baby boy whom Joe has refused to acknowledge as his child.
Jane is livid and wants to institute legal action against Joe.

i. What cause of action can Jane commence against Joe if any?

ii. In your opinion, will Joe have any defence to such an action?

MARIAN OBENG MINTAH V FRANCIS AMPENYIN

A marriage contract begins with the exchange of promises between a man and
a woman. The marriage contract may be expressly made as when a proposal is
made and accepted. It may also be implied. It is implied where the agreement to
marry is inferred from the behaviors of the parties towards each other.

If the promises are seriously made, a legally binding contract that can be sued
upon would have been created. The promises given to each other forms the
consideration for the contract.

The cause of action available to Jane is therefore Breach of Promise to marry.

This is because Joe reneged on his promise to follow through with his marriage
proposal which in essence was contract. The following Ghanaian cases are
examples of where the court ordered damages for the breach of promise to
marry.

In AFRIFA V CLASSPETER, an Ashanti businessman [Afrifa] met a School mistress

[Class Peter] and proposed to her. They became formally engaged with the
consent of Class Peter's family to whom Afrifa presented gifts of money, drinks,
a ring and a Bible. On the evidence the nature of the proposed marriage was to
be Christian and monogamous. The parties set up home together and in
anticipation of the marriage ceremony, Class Peter gave up her employment.
Between 1969 and 1972 Afrifa fixed several dates for the wedding, but each was
postponed at his instance. In the meantime, he freely consorted with other
women and had a child with one of them. Class Peter became aware of Afrifa's
infidelities, and finally followed him to a rendezvous where she caught him in the
arms of another woman. She accordingly left the joint home and sued for
damages in the circuit court for breach of promise to marry. She was awarded
¢2,000.00 damages.

Afrifa appealed, urging that he was already customarily married according to Ga

custom and was not therefore in breach. In the alternative it was argued that
since Class Peter had not sued when the marriage was first postponed she had
waived any rights that the breach gave her; and further, by creating a scene
when she discovered her fiancé with a girlfriend she had herself induced the
breach or had introduced the element of frustration. His appeal was dismissed.

In DONKOR V ANKRAH, the plaintiff was the concubine of the defendant for three
years. In January 1997, the defendant’s family went to the plaintiff’s family and
performed the knocking ceremony. He presented a bottle of schnapps and 1,000
Ghana Cedis to ask for the plaintiff’s hand in marriage. They then lived openly as
man and wife. The plaintiff became pregnant in May 2000 and refused the
defendant’s demand for her to have an abortion. The defendant then quickly
married another woman. The plaintiff brought an action against the defendant
claiming inter alia, damages for breach of promise to marry. The court held that
he was in breach and ordered him to pay damages to the plaintiff.

There are two types of breaches. Anticipatory and Non Performance Breach.

When a man and a woman agree to marry on a specific date or upon the
occurrence of an event and one of the parties withdraws before the date or the
occurrence of the event, the party that withdraws will be in breach and this type
of breach will be anticipatory.

Where the breach is anticipatory, the law allows the aggrieved party to
immediately sue the party in breach for damages without having to wait for the
due date or the event to occur.

On the other hand, if the date passes or the event occurs and the marriage does
not take place, the breach is referred to as a non-performance breach.

Promise to marry must be within a reasonable time. In ANING V KINGFUL, the

defendant promised to marry the plaintiff within three months after giving her a
Bible and a ring. The plaintiff waited for eight years but the marriage never took
place. The court held that the defendant was in breach for failing to marry the
plaintiff within reasonable time.

REMEDY – Damages

What does that court consider in deciding damages- DONKOR V ANKRAH

There are a number of defenses available to the defendant in a breach of promise

to marry action.

The first is fraudulent misrepresentation. If the defendant is able to convince the

court that he entered into the contract as a result of fraudulent
misrepresentation on the part of the plaintiff, the action will fail and the court
will not award damages. JEFFERSON V PASKELL – where the plaintiff was induced
to live to with the defendant as H and W by deception that a ceremony at the
Registry had taken place, the court held that the plaintiff was entitled to
judgment.

GRAHAM V ACKAH – European woman leaving gh [illegality]

CHARLOTE MENSAH V LOMOH -

The defendant can also rely on the bad character of the plaintiff as a defense. If
his defense if proven he will not be liable for damages. Bad character is not at
large, it relates to character of laow moral standing which the defendant
discovered after the marriage.

Infidelity on the part of the woman after the exchange of promises may also be
relied on by the defendant to successfully rebut the charge of breach of promise
to marry. In Ghana, infidelity on the part of the man will only be a defense if the
promise was in respect of a monogamous marriage. BENCH V MERRICK

Insanity may be a defense if the party relying on it is able to prove that as a result
if the insanity, he is unable to perform his part of the contract. A defendant can
also rely on the plaintiff’s insanity if it has rendered the plaintiff incapable of
performing his or her marital duties.

Bodily infirmity may also be relied on as a defense if there is proof that the
infirmity has rendered the defendant absolutely incapable of performing his or
her marital duties. Here the infirmity must render the defendant absolutely
incapable of performing his or her marital obligations. HALL V WRIGHT.

Where parties after making the promises agree to withdraw then and to release
each other from them, one of them cannot subsequently bring an action to claim
damages. The defendant can rely on the fact that they released each other from
the agreement as a defense.

Illegality – where it is later discovered that continuing with the marriage will
result in an illegality. -

From the facts available, Joe cannot rely on any of the above to absolve himself
from liability.

Eno Ama could not have children of her own. Sixty years ago, she approached
her younger sister who was then pregnant to allow her to adopt her unborn
child. A meeting consisting of the sister and the father of the unborn child, the
grand parents of the unborn child and the Head of Family was convened. Eno
Ama provided two bottles of schnapps and made it clear that her sister and he
child’s father had agreed to allow her to adopt the unborn child.

The child Akosua, was handed over to Eno Ama the very day that she was born.
Thereafter, she lived with Eno Ama until she reached the age of puberty and
got married. Eno Ama’s sister did not play any part in Akosua’s life. When
Akosua got married, the dowry and drinks were presented to Eno Ama as the
mother. Eno Ama died a few months ago. Akosua incurred all the funeral
expenses. She paid for the grave, shroud, drinks, food etc. It has been
discovered that Eno Ama died intestate. During her lifetime, Eno Ama acquired
several properties including four houses and five plots of land. Akosua’s
biological mother and father died several years ago.

Akosua’s Head of Family, who was present at the ceremony where the yet to
be born Akosua was adopted now claims that she was not lawfully adopted
that she never was the child of Eno Ama. Therefore, she does not qualify to
inherit Eno Ama.

Akosua is distraught and has come to you for advice.

Area of Law: Adoption under Customary Law

Issue: Whether or not Akosua was validly customarily adopted by Eno Ama and
thus entitled to benefit from her estate.

The requirements for adoption under customary law were stated in the case of
TANOR AND ANOTHER V AKOSUA KOKO as follows;

I. There must be consent obtained from the parents of the person to be

adopted by the person seeking to adopt.
II. The consent may be express or implied from the prevailing circumstances
at the time the adoption took place.
III. The intention to adopt must be clearly and publicly expressed by the
adopter in the presence of witnesses.

The ruling in TANOR V AKOSUA KOKO followed that of PLANGE V PLANGE. In this
case, the plaintiff and her deceased husband’s marriage was not blessed with
any children. The couple decided to adopt the plaintiff’s niece, Alice who was
then four years old. The consent of Alice’s natural father to the proposed
adoption was duly obtained. After the couple had collected Alice from her
mother at Keta, a ceremony of adoption was performed in the presence of Alice’s
natural father, the plaintiff's aunt and the plaintiff and the deceased husband.
After the pouring of libation, Alice was renamed after the deceased husband and
Alice's natural father handed her to the deceased husband. After being adopted,
Alice stayed with the plaintiff and her husband until the husband sent her to a
boarding school. The husband was solely responsible for paying the school fees
of Alice who grew up to know the deceased husband and the plaintiff as her
father and mother respectively.

On the death intestate of the husband, the plaintiff applied in the High Court for
a declaration that, she and the deceased husband, had validly adopted Alice
under customary law as their daughter and that under the Marriage Ordinance,
Cap. 127 she and Alice had a major interest in the estate and she was therefore
the proper person to be granted letters of administration to administer the
estate. The defendant, the brother of the deceased husband, and the co-
defendant, the sister, caveated. The defendant denied knowledge of Alice's
adoption by his deceased brother but he admitted having "seen" Alice with his
brother for fifteen years or more. There was also evidence that, some years after
the adoption, the deceased in a reply to a question by his sister, the co-
defendant, said that Alice was his daughter and that he had adopted her. In his
judgment the trial judge held that on the facts, there had not been a valid
customary adoption of Alice because, inter alia, a valid customary adoption
could only be performed by the head of the family with the consent and
concurrence of the principal members of the family and at a joint meeting of the
two transacting families." He therefore held that Alice was not an issue of the
marriage under the Ordinance and that the plaintiff had only a one-third interest
in the estate. On appeal by the plaintiff, the Court of Appeal held that there was
a valid customary adoption as all the requirements in TANOR V AKOSUA KOKO
were proved. The trial judge thus erred in holding otherwise.

These principles were re-iterated by the Court of Appeal in the case of AGBEKO
V KUDZORDZIE. The facts of this case were that Esther Kudzordzie was a
customarily adopted child of one Mercy Agbeko who died intestate. Esther was
thus entitled to inherit the deceased in accordance with the provisions of the
Intestate Succession Act, 1985, PNDC Law 111.

The deceased had no children and had approached her sister and her sister’s
husband and asked if she could adopt Esther when she was six months old. The
sister and her husband agreed to the request. Mercy Agbeko provided two
bottles of schnapps in the presence of Esther’s parents and grandparents.
Thereafter, Esther was brought up by Mercy. At her wedding, Mercy was the one
who stood in as Esther’s mother and received the traditional gifts of cloth and
‘duku’ meant for the mother of the bride even though Esther’s biological mother
was present.
At the death of Mercy, Esther played the role of a child bought the coffin for the
burial and provided refreshments at the funeral ceremony. Esther’s biological
father also confirmed that there were witnesses at the adoption ceremony.

The Court of Appeal held based on the facts above that the requirements of a
customary law adoption had been complied with and that the plaintiff had been
lawfully adopted.

In QUASHIE AND OTHERS V BOAHEMA AND ANOTHER the Court of Appeal held
that an unborn child may be adopted under Customary Law.

EFFECT OF ADOPTION –

The child becomes the child of the Adopter and can benefit from the estate of
the Xx

Applying the law to the instant case, it can be stated that there was a valid
adoption ceremony for Akosua with witnesses held when she was unborn. This
was followed with Eno Ama thanking the biological parents of Akosua for
consenting to the adoption. Per the facts, the requirements of a valid customary
adoption have been satisfied as indicated in TANOR V AKOSUA KOKO.

Akosua is therefore likely to succeed in an action for a declaration that she is

entitled to benefit from the estate of Eno Ama who died intestate.

In the year 2002 George and Alice married under customary law. In the year
2005, they converted their marriage to an Ordinance marriage. The parties
filed for divorce after 10 years of marriage. During the ten years, the parties
acquired several landed properties and cars. They also had huge sums of
money at various banks. The husband’s work took him out of the country most
of the time during the marriage. It was the wife who supervised the building
of all the six houses acquired in the name of the husband. In addition to this,
the wife took care of their four children and the husband’s mother who was
old and suffered from dementia. She took care of her mother in law for five
years until she passed away.

The husband who is the petitioner is claiming all the buildings. He asserts that
all the buildings were acquired from proceeds from his practice and that the
respondents made no contribution towards their acquisition.

Advise both the petitioner and the respondent.

Area of Law : Spousal Property

Issue: Whether or not George can claim all the property acquired during the
marriage

The law governing property acquired during marriages has undergone

considerable development since the 1950s

In QUARTEY V MARTEY, the parties had been customarily married for about 25
years before the demise of the husband. The wife claimed a portion of her
husband’s estate when he died intestate. The claim was dismissed by Ollenu J on
the ground that in the absence of strong evidence to the contrary, any property
a man acquired with assistance or joint effort of his wife was the individual
property of the husband and not the joint property of the husband and wife

Similarly, in BENTSI ENCHILL V BENTSI ENCHILL the court held that property
purchased by a spouse with his own money belonged to that spouse to the
exclusion of the other. The whole beneficial interest vested in him and the wife
will have no interest in it in the absence of an express agreement.

In MENSAH V BERKOE, the parties were married under customary law in 1965.
The wife joined the husband in the UK in the same year and stayed with him till
1972 when they returned to Ghana. The wife filed a petition for divorce and a
claim for money she received as wages during the period she worked in the UK
and which was taken away from her by her husband. The Court ordered the
husband to refund the money to her. The implication here was that the money
belonged solely to the wife.

The position that property acquired by a spouse during marriage belonged solely
to that spouse as indicated in the cases discussed above no longer holds. As time
went by, the courts realized that this position was inequitable.

In order to correct the injustice suffered by spouses, especially women who

ended up with no property after a divorce, the courts adopted the principle that
where there was substantial contribution by the other spouse towards the
acquisition of a particular property, the courts will hold that such a spouse would
have acquired a beneficial interest in the property. That property was thus joint
property and upon divorce should be shared either equally or equitably.

The Court in REINDORF V REINDORF explained that substantial contribution

could be in cash or kind. It also said that the ordinary incidents of commerce do
not apply in ordinary relations between a husband and wife. Consequently, if a
spouse is unable to show receipts indicating her proportion of contribution, the
court will still hold that there had been substantial contribution if the party was
able to prove her contribution by other means. In this case, the court held that
because the three houses in question were acquired solely by the wife with
proceeds from her trade, the buildings were not joint property and the husband
had not acquired any beneficial interest in them. Otherwise put, if a spouse failed
to make a contribution to the acquisition of property, that spouse got nothing
upon divorce.

Thus, in ABEBRESE V KAAH, the husband purchased a plot of land. The wife
contributed half of the purchase price. The husband bought the cement whilst
the wife bought timber and contributed to the purchase of other items like sand
and iron sheets. In addition, she supervised the workers and also helped her
children carry water to the site. When the house was completed, the family
moved in. During their stay, they were visited by a relative of the husband in
whose presence the husband gifted the house to the wife and children. They
thanked him by providing a bottle of schnapps.

The husband later died intestate. The Customary Law successor applied for and
was granted letters of administration in respect of the husband’s estate. The
successor sold the house to a third party who then wrote to the wife asking her
to quit immediately.

The wife successfully sued for a declaration that the sale of the house was null
and void. The Court said that the wife’s contribution was far in excess of what
was contemplated in QUARTEY V MARTEY. In the view of the court, the wife had
established her joint interest in the property and it would be contrary to good
conscience to hold otherwise. The evidence was also clear that the husband had
during his lifetime made an oral gift inter vivos of his share of the property to this
wife and children.

In ANANG V TAGOE, the court held that where the property was registered in the
name of one spouse and there was evidence that the other spouse had made
substantial contribution, the spouse In whose name the property was registered
would be taken to be holding it in trust for both spouses.

In BERCHIE BADU V BERCHIE BADU, the husband built on a plot of land belonging
to his wife. After the dissolution of the marriage, the judge ruled that the house
was the sole property of the wife because the land belonged solely to her. On
appeal, it was decided that the property did not belong solely to the wife simply
because the land on which the property stood belonged to her and that the
doctrine of ‘QUID PLANTATUR SOLO SOLO CEDIT had never found niche in
matrimonial relations, particularly in the acquisition of a matrimonial home.

In DOMFE V ADU, the parties were married under customary law and jointly
operated a business which had grown to be a successful one out of which they
had acquired several properties. In 1980, the husband without any dispute or
quarrel dissolved the marriage and refused to give the wife any share of the
property they had acquired. The wife brought an action to claim an equal share
of the property. In support of her case, she claimed that she provided the initial
capital for the business amongst other things. The business was however
registered in the name of the husband. The trial judge held that whilst the
husband was the legal owner, the substantial contribution made by the wife
entitled her to half share of the business and properties under the law of trusts.
The husband appealed against the decision unsuccessfully.

In YEBOA V YEBOA, the court held that the wife’s contribution went beyond mere
assistance. She paid the original deposit for the plot, spent money on alterations
and also contributed indirectly in time and effort towards the building of the
house. The building was joint property and the wife was entitled to equal share.

In ACHIAMPONG V ACHIAMPONG, the wife planned to purchase a house from

the State Housing Corporation before she got married. After the marriage, her
husband persuaded her to abandon the plan as he was going to purchase one
himself. They agreed that the wife should use her savings on the upkeep of the
house instead of both of them paying for two separate houses. The house upon
completion became the matrimonial home. The wife, later obtained a loan and
used it to construct two more rooms, a store, a garage, terrazzo floors and a
fitted kitchen. Upon the dissolution of the marriage, the wife claimed a beneficial
interest in the house. The court held that the wife had a beneficial interest in the
house in equal shares.

The 1992 Constitution has also had an influence in how the property of spouses
are distributed. Article 22.3.b provides that assets which are jointly acquired
during marriage shall be distributed equitably between the spouses upon
dissolution of the marriage.

Thus, in the 2011 case of GLADYS MENSAH V STEPHEN MENSAH, the courts
decided to do away with the principle of substantial contribution.
When the marriage between Gladys and Stephen was dissolved, the question
arose as to whether Gladys was entitled to a share of the matrimonial home or
not.

The court in its holding stated that the sharing of spousal property should no
longer be dependent on the substantial contribution principle and that property
acquired during the marriage is joint property even if the other spouse did not
make any contribution. The court held that if a wife takes care of the children of
the household, prepares food for the husband, does his laundry and takes care
of the household, property acquired by the husband will be shared equally upon
divorce unless it was inequitable to do so. The court in essence declared
household chores usually performed by women to be tantamount to substantial
contribution. The court further explained it can safely be argued that the
acquisition of property was facilitated by the massive assistance provided by the
other spouse.

The Supreme Court in the same case provided guidance as to the proportions in
which joint property should be distributed. It provided that Joint property should
be shared on a fifty-fifty basis however if this will not be fair based on the
prevailing circumstances then the property should be shared on an equitable
basis.

The court further explained that equitable sharing should amount to what is just,
reasonable and accords with common sense and fair play. In this case, based on
the facts, the court shared the property on the fifty-fifty basis.

The court in effect stated that substantial contribution had given way to
equitable distribution of spousal property.

The Supreme Court in BOAFO V BOAFO [2005 – 2006] re-iterated the principles
espoused in MENSAH V MENSAH discussed above.

In QUARTSON V QUARTSON however, the court followed the heels of MENSAH V

MENSAH but did not follow the Equality is Equity principle because it did not find
it appropriate to do so. In this case, the respondent was a seafarer who stayed
away from home for long periods. Whilst away, he sent several sums of money
for the construction of the matrimonial home. The appellant did not dispute the
fact that the house was constructed solely from the funds of the respondent. She
however invited the court to hold that her contributions in kind namely her
diligent supervision of the construction of the matrimonial home entitled her to
at least an equal share of the matrimonial home. The respondent on the other
hand claimed the matrimonial home as self-acquired property.

The trial court dismissed the petitioner’s prayer. This was affirmed on appeal. On
a further appeal to the Supreme Court, the Court stated that the decision in
MENSAH V MENSAH is not to be taken as a blanket ruling that affords spouses
unwarranted access to property when it is clear on the evidence that they are
not so entitled and that it should be applied on a case by case basis, with a view
to achieving equality in the sharing of marital property. Consequently, the facts
of each case will determine the extent to which the ruling applies.

In ARTHUR V ARTHUR, the petitioner entered into a customary marriage with the
respondent and converted it to an Ordinance marriage. The respondent was a
footballer who practiced his profession outside Ghana. While the petitioner lived
with the respondent in France, in addition to her housework, she drove the kids
to and from school and also served as his driver. The petitioner could not work
as a result of her responsibility. In addition to a property in Weija built with the
finances of the respondent, he had also purchased a house for the petitioner and
also contributed to the purchase of a house for the petitioner’s mother.

The trial courts in considering all the above facts held that the property is not be
shared equally but equitably in favour of the respondent. The Supreme Court on
appeal stated that there is a presumption in Ghanaian law in favour of the
sharing of marital property on an equal basis in all appropriate cases between
spouses after divorce. Where there are special circumstances justifying a
departure from equal sharing, the court should share the marital property in
such proportions as may be fair.

The factors which the Court will consider in determining what is fair in order to
distribute property acquired during marriage was outlined in the Court of Appeal
case of OBENG V OBENG 2013 GMJ 158. These include;

i. The income of the parties

ii. The earning capacities of the parties
iii. Other financial resources which each of the parties has or is likely to
have in the foreseeable future
iv. Standard of living enjoyed by the parties before the breakdown of the
marriage
v. The Age of the parties
vi. Duration of the marriage
Applying the law to the facts of the case, it is clear that the court will consider all
the property acquired during the subsistence of the marriage as joint property.
Depending on certain factors , the court may either apply the equality is equity
principle or decide to share the property equitable but not necessarily equally.

1. He who acquires it owns It

QUARTEY V MARTEY
BENTSI ENCHILL V BENSTI ENCILL
MENSAH V BERKOE
2. Substantial Contribution
ABEBRESEH V KAAH
REINDORF V REINDORF
BERCHIE BADU V BERCIE BADU
YEBOAH V YEBOAH
DOMFEH V ADU
ACHEAMPONG V ACHEAMPONG
3. Joint Property
Fifty -Fifty / Equitable Sharing
Article 22
MENSAH V MENSAH
BOAFO V BOAFO
4. Fifty-Fifty cannot be blanket
QUARTSON V QUARTSON
ARTHUR V ARTHUR
5. Factors for Equitable Distribution
OBENG V OBENG
6. FYNN V FYNN
Does not change the position of the SC on Joint Property. Decision was to
avoid the plaintiff benefiting from a likely fraudulent deal

George and Mary met at a wake keeping in the year 2010. They started dating
soon thereafter. In 2011, when Mary became pregnant, the couple decided to
marry. They married under the ordinance at Akropong on 16 June 2011. The
marriage was a happy one until April 2017 when George confessed to Mary
that he had had an affair with the neighbour’s teenage daughter and that the
teenager was pregnant with his child. Mary was livid. She was extremely hurt
by George’s infidelity and immediately instructed her lawyers to file a petition
for divorce and to ask for custody of Grace who is only nine years and the
youngest of three children of the marriage. The rest of the children are twins
– Freddie and Robbie aged twelve. Mary plans to re locate to Australia and
intends to take Grace with her.

i. Explain the grounds that could be relied upon to establish that the
marriage is broken down beyond reconciliation
ii. Who in you view should be given custody of the children and why?

The law that governs dissolution of marriages in Ghana is the Matrimonial

Causes Act, 1971, [Act 367].

Section 1 of the Act 367 provides that either party to a marriage may present a
petition for Divorce to the Court on the sole ground that the marriage has broken
down beyond reconciliation.

Section 31 of Act 367 provides that the Court shall have jurisdiction in any
proceedings under this Act where either party to the marriage is

g. A citizen of Ghana
h. Is domiciled in Ghana or
i. Has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.

Although the Act mentions either party in this section, practically, this refers to
the petitioner.

It is important to note that there are restrictions on the time for filing a petition.
Section 9 of Act 367 provides that a petition for divorce shall not be presented to
the court within two years from the date of the marriage. A court may despite
this provision allow the presentation of a petition for divorce within two years
from the date of the marriage on grounds of substantial hardship suffered by the
petitioner or depravity on the part of the respondent.

A petitioner may rely on one or more of six facts to establish that a marriage has
broken down beyond reconciliation. Adultery is one of these six facts.

Adultery is defined in Section 43 of Act 367 as the voluntary intercourse of a

married person with one of the opposite sex other than his or her spouse.
For a Petitioner to succeed, Section 2.1.a of Act 367 provides that he must satisfy
the court that the respondent committed adultery and that by reason of that
adultery, the petitioner finds it intolerable to live with the respondent.

Thus, for adultery to succeed as a fact showing that a marriage has broken down
beyond reconciliation, the following must be established.

e. That there was penetration of the woman by the man. Partial penetration
is enough to constitute adultery. Lesser acts such as masturbation will not
constitute adultery. Thus, in DENNIS V DENNIS, Mrs. Dennis tried to have
sexual intercourse with another man but penetration could not take place.
The court held that there was not adultery.
f. The act of sexual intercourse must be voluntary. Thus, if there is proof that
consent was obtained through fear or force, there is no adultery.

The burden is on the party who alleges adultery to prove it. When adultery is
established the burden shifts to the respondent to prove either one of the
following defenses to exonerate himself.

They are;

v. That the sexual intercourse alleged did not take place

vi. If sexual intercourse took place it was not consensual

No other defenses are available to the respondent.

Adultery may be proved by direct evidence where the offending party is caught
in the act by the Petitioner or a witness who is willing to testify on the petitioner’s
behalf.

It may also be established by a confession from the offending party. It must be

noted that the confession from an adulterer if obtained by force, duress or any
other non-consensual process will not be accepted by the court. Thus, in
QUARTEY V QUARTEY and Another, the husband petitioned for divorce on the
ground that the wife had committed adultery. The wife denied the allegation and
stated that the confession she made was under duress. She further explained
that when she denied the accusations, the husband beat her and she only
admitted adultery to stop the husband from beating her. The court held that
adultery had not been proved.

Circumstantial evidence may also be elicited to prove adultery. The act of sexual
intercourse itself does not have to be proved. The presence of disposition and
opportunity may lead a court to conclude that adultery has been committed.
Thus, in ADJETEY V ADJETEY sexual intercourse was not proved, however, the
circumstance led to court to arrive at one conclusion only – that adultery had
been proved.

The facts of the case were that in 1967 the petitioner and the respondent lived
together in a rented house at Kanda estate. Whilst there the respondent put up
his own house at Teshie. When the building was nearly completed the
respondent and the petitioner decided to leave Kanda to live in the new house at
Teshie. On the day they moved the petitioner packed her belongings in one car
and the respondent in another. They left the house almost at the same time but
the petitioner never arrived at the destination, the Teshie house, till after two
months when her uncle took her to the respondent at Teshie. She remained in
the house for some three months and disappeared again. With the assistance of
the petitioner's father the respondent unsuccessfully looked for the petitioner.
Later the husband received information about his wife as a result of which he
traced her to the house of T.D. Baffoe at Kanda estate. Since the wife left she
has not returned to the matrimonial home. When the respondent (the husband)
was informed of where he could find his wife he, accompanied by one Justice
Kwaku Agbekey, a police constable, went to the house of T.D. Baffoe, early one
morning at about 6 a.m. They saw the petitioner with only a cloth around her
chest preparing breakfast.

Additionally, adultery may be inferred if the petitioner has contracted a sexually

transmitted disease from the respondent.

Also, if it is proved that a child born by the respondent is not the child of the
petitioner, the respondent will be presumed to have committed adultery. Thus,
in HUME V HUME AND MCAULIFFE the court held that the wife of Mr. Hume had
committed adultery because tests showed that her husband could not be the
father of her child.

In addition to establishing adultery, the petitioner must show that as a result of

the adultery, he or she finds it intolerable to live with the respondent. The test
for intolerability is subjective and therefore not what a reasonable petitioner
would have thought what that petitioner personally feels about the adultery.

The reconciliation provision in Section 3 of Act 367 implies that where parties live
as husband and wife after the discovery of adultery for more than six months,
the petitioner will be taken to have forgiven the respondent and the petitioner
cannot subsequently claim to find it intolerable to live with the respondent.
However, if the living together as husband and wife is less than six months the
petitioner can rely on it.

Finally, it is important to note that Act 367 provides that although the court may
find the existence of one or more of the facts which a petitioner may rely on the
court shall not grant the divorce unless it is satisfied on all the evidence that the
marriage has broken down beyond reconciliation.

Custody of Children

The law concerning all matters relating to children are contained in the
Children’s Act, Act 560 of 1998 and the Courts Act, Act 459 of 1993.

Section 22 of the Matrimonial Causes Act imposes a duty on a court during

divorce proceedings to inquire from the parties whether there are any children
of the household.

The court may on its own initiative or an application by a party to the

proceedings, make any of the following orders concerning a child of the
household which it thinks reasonable and for the benefit of the child;

i. Award the custody if a child to any person

ii. Regulate the right of access of any person to the child
iii. Make an order providing for the education and maintenance of the
child out of the property or income of either or both of the parties.

Section 45 of the Children’s Act provides that in an application for custody, the
court should consider the best interest of the child and the importance of a young
child being with the mother. Subject to this consideration, the courts must also
consider the following;

a. The age of the child

b. That it is preferable for a child to be with his parents except where his
rights are persistently being abused by his parents
c. The view of the child if the views have been independently given
d. That it is desirable to keep siblings together
e. The need for continuity in the care and control of the child
f. Any other matters that the court may consider relevant.

The following principles are applied by the courts to ensure that the welfare and
interest of the child remain supreme.
In BECKLEY V BECKLEY, the wife was a Russian citizen whilst the husband was a
Ghanaian Doctor who had previously trained in Russia. On the issue of custody,
whilst the court recognized the general rule that children of tender age ought to
be looked after by their mother, it also recognized the peculiar circumstances
this that case. The mother was a stranger in Ghana with no permanent place of
residence. She depended on charity of some Russian friends for shelter. She was
unemployed whilst the husband was gainfully employed as a Doctor. Custody
was thus given to the husband despite the court recognizing the general rule that
custody of a child of tender age ought to be looked after by the mother.

In BRAUN V MALLET, the court emphasized that the welfare and happiness of
the infant is of paramount consideration. It also stated that the affection of a
mother for her child must be taken in to account and poverty per se was no
reason for depriving a mother of custody when her character had not been
impeached. In this case, it was held that it would be wrong to take the child away
from the German environment with which he was familiar or the tender affection
of his mother, the plaintiff. Custody was thus given to the mother.

In OFORI V OFORI, the court held that there was no good reason for disturbing
the education of the children of the marriage who had been born in the United
States and lived there with their mother ever since. This case shows the courts’
reluctance to uproot children from the environment they are used to.

In ATTU V ATTU, the court held that the mother should have custody of the
children because they had become deeply rooted in a foreign land with a
different environment and social background. The court made this decision in the
interest of the children’s welfare.

In GRAY V GRAY, the mother who was the petitioner lived in Accra whilst the
father lived in Winneba. Before the divorce both parties lived with the children
in Winneba. It was held that in view of the children’s education at Winneba, it
would seriously disturb the children’s progress as well emotional balance to
move them to Accra where the mother was. The father was therefore granted
custody until further notice.

In OPOKU OWUSU V OPOKU OWUSU, the husband was Ghanaian and the wife
a German. After the marriage they co habited in Germany and later in Ghana.
They had four children. On the issue of custody after divorce was granted, the
husband prayed for custody of all four children. The wife prayed for custody of
the only daughter and the youngest child aged four years. It was held that the
children were Ghanaians, had lived in Ghana most of their lives and would not
easily fit into the German community if taken there by the wife. It was also
desirable to keep them together and not split them up. Custody was thus granted
to the husband.

• Children of tender care to the mother - BECKLEY

• Poverty alone should not be the final determinate - BRAUN V MALLET
• The welfare of the infant is paramount consideration – BRUAN V MALLET
• The courts are reluctant to uproot children from the environment that they
are used to – OFORI V OFORI, ATTU V ATTU, GRAY V GRAY
• Courts are reluctant to separate siblings – OPOKU OWUSU
• In appropriate cases the view of the child may be sought -

It is the discretion of the court who gets custody of the child.

Discuss the circumstances under S 2(1)(a) of the MCA in which a court would
disregard adultery of a spouse in determining whether a party finds it
intolerable to live with the respondent.

Before the passing of Act 367 adultery simplicita was a ground for divorce. Now
it is no longer a ground for divorce. There is another requirement to prove which
is that the petitioner finds the respondent intolerable to live with. A person’s
adultery nature does not necessarily imply that the marriage no longer serves its
purpose. Once there is still ardent affection between husband and wife and the
desire that the marriage should continue, why not? The phrase ‘the petitioner
finds it intolerable to live with the respondent’ is independent from the phrase
‘the respondent has committed adultery’ and needs to be probed.

Section 2(1)(a) of the Matrimonial Causes Act, 1971, Act 367 provides that for
purposes of showing that a marriage has broken down beyond reconciliation,
the petitioner shall satisfy the court that the respondent has committed adultery
and that by the reason of that adultery the petitioner finds it intolerable to live
with the respondent.

This means that the court must decide whether the particular petitioner finds it
intolerable to live with the respondent. The test is specific to the petitioner and
not what a reasonable petitioner would have found in the situation. The test is
therefore subjective and not objective.
Section 3 of the same act provides the litmus test for establishing intolerability.
Simply put, the section provides that if a couple have lived together for more
than six months after the petitioner has become aware of the respondent’s
adultery, then a petition for dissolution of marriage based on adultery will not
succeed. If however the period of living together is less than six months, then the
petitioner can rely on the fact of adultery for a dissolution.

What constitutes unreasonable behavior in a marriage and what effect if any

can it have in maintaining or ending the relationship under S 2(1)(b) of Act 367

Section 2(1)(b) of the Matrimonial Causes Act, 1971, Act 367 provides that for
the purposes of showing that a marriage has broken down beyond reconciliation,
the petitioner shall satisfy the court that the respondent has behaved in a way
that the petitioner cannot reasonably be expected to live with the respondent.

This section requires the petitioner to prove the conduct constituting

unreasonable behavior on the part of the respondent and the fact that he or she
cannot be reasonably expected to live with the respondent as a result of the bad
behavior.

Unreasonable behavior has been defined in English Law as conduct that gives
rise to injury to life, limb or health or conduct that gives rise to a reasonable
apprehension of such danger. According to this definition therefore, actual injury
does not have to be established. Mere apprehension of such injury is enough so
far as it has led to the breakdown of the marriage beyond reconciliation.

The conduct must be grave and weighty and must make living together
impossible.

Threats of actual personal violence may amount to cruelty and the courts will
not wait for the harm to take place before taking steps.

Actual or presumed intention to harm is irrelevant. Thus, A cannot threaten B,

his wife with a gun and argue subsequently that he did not intend to harm her.
Thus, in GOLLINS V GOLLINS, the House of Lords stated that if the conduct can
be called cruel, it does not matter whether it springs from a desire to hurt or
selfishness or sheer indifference.

Examples of unreasonable behavior are provided in the following cases.

In ARTHUR V ARTHUR and SHELDON V SHELDON , it was held that willful refusal
of intercourse or persistent demands for inordinate sexual acts or malpractices
may amount to unreasonable behavior.

In DOWDEN V DOWDEN an inability to have sexual intercourse as a result of

impotence was held not to amount to unreasonable behaviour.

In KNOTT V KNOTT, H V H and STANWICK V STANWICK the courts established

that coitus interruptus knowing that it has an effect on the spouse’s health,
persistent drunkenness and addition to gambling and nagging and insults are all
tantamount to unreasonable behaviour.

In OPOKU OWUSU V OPOKU OWUSU a Ghanaian man married a German woman

in West Germany in 1959. The couple moved to Ghana and had four children. In
1969 the wife refused to have sexual intercourse with the husband because of
the husband’s frequent demands for sex. The who had had ten pregnancies in
the last eleven years and was in constant fear of having another unwanted child.
It became impossible for the parties to live together and the wife left the
matrimonial home as a result. The court held that one spouse was not bound to
submit to the demands of the other if they were unreasonable and inordinate or
were likely to lead to a breakdown of health. Thus, the spouse who suffered as a
result of an unreasonable insistence on sexual intercourse would be entitled to
leave the other.

In HAPEE V HAPEE, the Petitioner was a native of the Netherlands and the
husband of the respondent who was Ghanaian. The petitioner complained that
the respondent frequently heaped insults on him in public. After filing a petition
for dissolution, the respondent went to his office and harassed him by asking him
to leave Ghana. Once when the petitioner was in a meeting with his solicitor, the
respondent went there and created a scene and demanded her marriage
certificate from the petitioner. The respondent threatened to kill the petitioner if
he did not leave the country. In addition, the respondent wrote to the head office
of the petitioner’s employers in Paris reporting that the petitioner had stolen
property belonging to the Company. Investigations proved that the allegation
was false. The respondent again wrote a letter to the Freemasons Lodge at
Sekondi of which the petitioner was a member and castigated him as an unfit
person to be considered for the post of Master of the Lodge. The complaint was
dismissed as baseless. On another occasion, the respondent smashed the
windscreen of the Petitioner’s vehicle. She was convicted and sentenced for
causing damage. Sometime in 1969, the respondent caused the petitioner to be
forcibly removed form an aircraft which was about to take off for the
Netherlands. It turned out that this was done unlawfully. The court held that the
actions of the respondent were unreasonable and ordered a dissolution of the
marriage.

Section 4 of MCA deals with the reconciliation provision in respect of

unreasonable behavior. Simply put, if the parties have lived together as husband
and wife for more than six months following the occurrence of the behavior
considered as unreasonable, the petitioner cannot rely on such an occurrence.
However if the behavior occurs within six months of the complaint and petition
then the petitioner can rely on it as a fact to establish that a marriage has broken
down beyond reconciliation.

In FULLER V FULLER, the wife left the husband to live with another man with the
three children. The husband became ill. His Doctor informed the wife that the
husband had only one year to live and should not be left on his own. The wife
allowed the husband to come and live in her new household as a lodger paying
rent. He had a separate bedroom but he had meals prepared by the wife together
with the family. The wife did his washing. For four years the husband lived at the
wife’s house.

The court held that the parties did not live as husband and wife.

In OFORI V OFORI, the couple lived in the USA. They visited Ghana on holiday.
While in Ghana, the husband petitioned for a divorce on the ground that the wife
was rude and extravagant. Proceedings for divorce commenced but the couple
returned to the US before they were completed.

Upon their return to the US, they lived together as husband and wife for three
months before the wife left the matrimonial home with the kids.

The court held that the period of cohabitation was less then six months and
therefore the husband could rely on the past unreasonable conduct.

In ANSAH V ANSAH the court made the following observation;

‘The reconciliation of the parties’ differences in November 1972 did not bar the
petitioner from bringing the instant action for divorce having regard to the
provisions of Section 4 of Act 367. It was clear that notwithstanding the
reconciliation promoted between the parties, they never lived together as
husband and wife. There was no co habitation and they continued to live apart
since 1972. The alleged reconciliation did not restore the parties to their former
position. The fact that the husband sent her money did not alter the position. The
petitioner was therefore not barred from seeking on the ground of unreasonable
behavior of the respondent before the reconciliation.

Ruby Appiah a 36-year-old Ghanaian lady travelled to Senegal en route to

Europe to seek greener pastures. Whilst in Dakar, she met Akuettey Mensah,
40 years old born of a Ghanaian father and a Senegalese mother. Akuettey
Mensah was at the time a Research Assistant in a French Research institute in
Dakar where he also worked towards his Doctorate degree. They both
worshipped in a local Pentecostal church patronized mostly by Ghanaians,
Nigerians Sierra Leoneans and a few Senegalese. They fell in lover and soon
got married in their Pentecostal Church.

The church was not registered under the appropriate state institution for the
celebration of marriages. However, the church believed in the doctrine of one
man one wife.

The marriage was blessed with three children, Akua, Nii Lantey and Alphonse
aged 14,12 and 10 respectively.

While awaiting the acceptance or otherwise of his Doctoral theses, Akuettey

Mensah decided to come to this fatherland to find work relying on his Masters’
Degree. He convinced his wife and they agreed to move their whole family to
Ghana. They shipped their two cars and a quantity of household goods to
Ghana. They went to live to live in H/N A5, Korle Gonno, owned by the
deceased grandfather of Akuettey Mensah which house was bequeathed to
his father and three other siblings. Life in the family house was so unbearable
that Ruby demanded that they find their own accommodation. Meanwhile
Akuettey Mensah’s numerous applications for a job were given the familiar
response of being under consideration. Matters came to a head when the
doctoral thesis were rejected, and this frustrated A Mensah the more.
Frustrated further by the nagging demands of Ruby for relocation and against
the backdrop of no immediate prospect of a job, A Mensah became very
aggressive and regularly descended on Ruby and the children. One on such
occasion, A Mensah’s anger drove him to mercilessly assault Ruby and the
children and locked them out into the cold and discomfort outside and at the
mercy of rampaging mosquitoes in the area. He also warned the other
occupants not to grant them shelter. They were only rescued when A Mensah’s
Uncle arrived from Pokuase and upon his intervention there were allowed to
come into the room. Since these events, Ruby is so terrified of A Mensah, a
situation that causes her blood pressure to shoot up such that she can no
longer be in the relationship.
Ruby reported the situation to her parents who met A Mensah’s Ghanaian
parents a couple of times to try to resolve the impasse. It became obvious that
the could not see eye to eye any longer and Ruby has decided to seek
separation. Ruby has consulted you for assistance for divorce ensuring that she
is granted custody of the children. One of her principal reasons for seeking
custody is that being an akan woman, the children belong to her.

a. Prepare the divorce petition for filing at the appropriate court stating
whatever entitlements that are due Ruby under the circumstance
b. What reasons or grounds can justifiably move the court to grant the
custody of the children?

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
[DIVORCE AND MATRIMONIAL DIVISION]
ACCRA – AD 2020

SUIT NO.

IN THE MATTER OF THE MATRIMONIAL CAUSES ACT 1971 [ACT 367]

AND
IN THE MATTER OF A PETITION FOR DISSOLUTION OF THE MARRIAGE
BETWEEN

RUBY APPIAH……………………………………………………………….PETITIONER
H/NO A5 WETSE KOJO ST
KORLE GONNO

AND

AKUETEY MENSAH………………………………………………………RESPONDENT
H/NO A5 WETSE KOJO ST
KORLE GONNO

PETITION OF RUBY MENSAH

TO: HIS LORDSHIP, THE JUDGE

HIGH COURT,
ACCRA.
THE HUMBLE PETITION OF MRS RUBY APPIAH sheweth:

1. That the Petitioner then a Spinster, called Ruby Appiah and the
Respondent, a bachelor called Akuettey Mensah were married at the
Pentecostal Church in Senegal.
2. That after the marriage, the parties co habited in Dakar, Senegal and later
at H/N A5, Korle Gonno in Accra
3. That the Petitioner is a housewife Respondent is currently unemployed
4. That the petitioner and the respondent are both citizens of Ghana
5. That there are three issues to the marriage ,Akua, Nii Lantey and Alphonse
who are 14, 12 and 10 years respectively.
6. That there have been no court proceedings concerning the marriage or the
children of the marriage
7. That the marriage has broken down beyond reconciliation
8. That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent and the respondent
has caused the petitioner much anxiety, distress and embarrassment.
PARTICULARS OF UNREASONABLE BEHAVIOUR
I. That the Respondent has become aggressive towards the Petitioner
and the children
II. That the Respondent regularly descends on the Petitioner and the
children
III. That the respondent mercilessly assaulted the petitioner in front of
the children
IV. That the respondent on one occasion locked the petitioner and their
children out of the house and left them at the mercy of the cold
weather and rampaging mosquitoes
V. That the Respondent warned the neighbours not to grant the
Petitioner and children shelter when he locked them out of the
house
VI. The Petitioner is deeply traumatized by the treatment of the
Respondent and has caused her blood pressure to rise
9. That all attempts by the family at reconciliation have proved futile.

WHEREFORE the petitioner prays as follows

i. That the marriage celebrated in fact between the parties be dissolved
ii. That the petitioner be granted custody of all the children of the
marriage namely, Akua, Nii Lantey and Alphonse
 iii. That the respondent be ordered to make to the petitioner such
maintenance pending suit and thereafter such periodical payments as
may be just
iv. That the respondent be ordered to pay in the alternative to the
petitioner a lump sum of x ghs.
v. That the following properties be settled in favour of the Petitioner
CARS
Household goods as required by the petitioner

DATED AT ACCRA THIS 15TH DAY OF MARCH 2020

Signature [Petitioner]

THE REGISTRAR
HIGH COURT
ACCRA

AND TO THE ABOVE NAMED RESPONDENT

Custody of Children

The law concerning all matters relating to children are contained in the
Children’s Act, Act 560 of 1998 and the Courts Act, Act 459 of 1993.

Section 22 of the Matrimonial Causes Act imposes a duty on a court during

divorce proceedings to inquire from the parties whether there are any children
of the household.

The court may on its own initiative or an application by a party to the

proceedings, make any of the following orders concerning a child of the
household which it thinks reasonable and for the benefit of the child;

i. Award the custody if a child to any person

ii. Regulate the right of access of any person to the child
iii. Make an order providing for the education and maintenance of the
child out of the property or income of either or both of the parties.
Section 45 of the Children’s Act provides that in an application for custody, the
court should consider the best interest of the child and the importance of a young
child being with the mother. Subject to this consideration, the courts must also
consider the following;

a. The age of the child

b. That it is preferable for a child to be with his parents except where his
rights are persistently being abused by his parents
c. The view of the child if the views have been independently given
d. That it is desirable to keep siblings together
e. The need for continuity in the care and control of the child
f. Any other matters that the court may consider relevant.

The following principles are applied by the courts to ensure that the welfare and
interest of the child remain supreme.

In BECKLEY V BECKLEY, the wife was a Russian citizen whilst the husband was a
Ghanaian Doctor who had previously trained in Russia. On the issue of custody,
whilst the court recognized the general rule that children of tender age ought to
be looked after by their mother, it also recognized the peculiar circumstances
this that case. The mother was a stranger in Ghana with no permanent place of
residence. She depended on charity of some Russian friends for shelter. She was
unemployed whilst the husband was gainfully employed as a Doctor. Custody
was thus given to the husband despite the court recognizing the general rule that
custody of a child of tender age ought to be looked after by the mother.

In BRAUN V MALLET, the court emphasized that the welfare and happiness of
the infant is of paramount consideration. It also stated that the affection of a
mother for her child must be taken in to account and poverty per se was no
reason for depriving a mother of custody when her character had not been
impeached. In this case, it was held that it would be wrong to take the child away
from the German environment with which he was familiar or the tender affection
of his mother, the plaintiff. Custody was thus given to the mother.

In OFORI V OFORI, the court held that there was no good reason for disturbing
the education of the children of the marriage who had been born in the United
States and lived there with their mother ever since. This case shows the courts’
reluctance to uproot children from the environment they are used to.

In ATTU V ATTU, the court held that the mother should have custody of the
children because they had become deeply rooted in a foreign land with a
different environment and social background. The court made this decision in the
interest of the children’s welfare.

In GRAY V GRAY, the mother who was the petitioner lived in Accra whilst the
father lived in Winneba. Before the divorce both parties lived with the children
in Winneba. It was held that in view of the children’s education at Winneba, it
would seriously disturb the children’s progress as well emotional balance to
move them to Accra where the mother was. The father was therefore granted
custody until further notice.

In OPOKU OWUSU V OPOKU OWUSU, the husband was Ghanaian and the wife
a German. After the marriage they co habited in Germany and later in Ghana.
They had four children. On the issue of custody after divorce was granted, the
husband prayed for custody of all four children. The wife prayed for custody of
the only daughter and the youngest child aged four years. It was held that the
children were Ghanaians, had lived in Ghana most of their lives and would not
easily fit into the German community if taken there by the wife. It was also
desirable to keep them together and not split them up. Custody was thus granted
to the husband.

Darkoa’s sister died in the year 2017 survived by three children aged 8, 6 and
4 years. Darkoa’s parents are long dead and she has no surviving siblings. Her
late sister, Asantewa, had her three children with three men none of whom
although alive married her or is concerned to care for the children and Darkoa
is the one caring for them. Meanwhile, Darkoa has relocated to Germany. She
wants to take her later sister’s children with her.

Advise her.

Area of Law: Adoption ; Specifically Statutory Adoption

Issue: Whether or not Darkoa can successfully adopt the children of her late sister

Children’s Amended Act, 2016, Act 973

LI 2360

• Who can be adopted

• Under 18
• In need of care
 • Relinquished
• Abandoned
• Nationality of the child does not matter
• Who can adopt
• Section 66, 67
• Procedure for adoption
• Application to adopt S 84
• Adoption Agency
• SWD
• Social Study Report
• Child Study Report
• Home Study Report
• Matching minimum of one month
• Consent – S 68[2]
• Court order required for adoption – 65
• Periodic visits by the Agency
•

The laws of Ghana recognize two types of Adoption. These are Customary Law
Adoption and Adoption under the Children’s Act 1998, Act 560. An adoption in
Ghana is currently only possible under the Children’s Act.

Under the Children’s Act, Section 65 provides that an application may be made
to a High Court, Circuit Court or Family Tribunal in the area where the applicant
or the adoptee resides at the time of the adoption.

An application to adopt may be made to the HC, CC or Family Tribunal within the
jurisdiction of the applicant or where the child resides.

The application under Section 66 of Act 560 may be made jointly by

i. Husband and wife

ii. Mother or father alone or jointly with the spouse
iii. By a single person subject to certain conditions except it shall apply to
only citizens of Ghana.

It must be emphasized that in all the above due regards to the interests of the
child is paramount.

Section 67 provides the following restrictions.

 i. The applicant or one of them if joint must be 25 and not more that 65
and at least 21 years older than the child
ii. Where the applicant is a relative of the child the applicant should be
21 years older than the child but not more than 65 years – Relative here
means grand father/mother/ uncle/ aunt – blood relative
iii. Foreign applicant should not be more than 50 years

Section 68

68. Consent of parents and guardians

(1) An adoption order shall only be made with the consent of the parents or
guardian of the child.

(2) The Court may dispense with the consent of a parent or guardian of the child
if satisfied that the

parent or guardian has neglected or persistently ill-treated the child, or that the
parent or guardian cannot be found or is incapable of giving consent or that the
consent is unreasonably withheld

(4) A parent or guardian of a child the subject of an application for adoption who
has given consent

for the adoption order is not entitled to remove the child from the care and
possession of the applicant except with the permission of the Court and in the
best interest of the child.

Section 68 – when a child is 14 his consent is required . Consent of the Spouse of

the Adopter is also required.

Analysis

Sheik Danjuma hailed from Sokoto in Northern Nigeria. He travelled to the

then Gold Coast where he settled down as an Islamic scholar in Bamboi in the
then Northern Region, now Savannah Region. He married four wives as his
religion permitted. His first wife was a Sokoto muslim woman whose parents
has also settled in the Bamboi area as cattle herders. He married her according
to Sokoto custom. Of his three remaining wives, one was a local Atole woman,
the next a Gonja woman and the other a Bono woman. All three local women
had converted to the Islamic faith. They were respectively married according
to the customs and traditions of the areas the hailed from.
Sheik Danjuma was not only a renowned Islamic Scholar. He was also a
reputable cattle dealer and owner with ranches in Wenchi, Techiman, Agogo
in the Ashanti Region and Akosombo, Tema and Afram Plains. His ranches
together held over thirty thousand cattle at any given time. After a short illness
however in 2004, Sheik Danjuma died on August 10 2004. His estate became
the subject of heated controversy amongst his four wives and twenty children.
Sheik Danjuma’s Sokoto wife and her children sought the intervention of the
National Chief Imam for the distribution of the deceased’s estate in
accordance with Islamic sharia law. The contended that their late husband and
father being such a renowned and reputable scholar, the estate should of
necessity be distributed in accordance with sharia law, not least as a mark of
acknowledgment of what he stood for, taught and preached in his lifetime.
Muslim cleric’s involvement in this estate dispute have consulted you on the
matter.

State and explain the applicable law; what entitlements are available to the
contending parties and the appropriate forum to deal with the issues.

• Intestate Succession Act

• Domicile of Choice
• OMANE V POKU
• Forum – Type of Court and Geographical location

Randy and Mansa married under Part 3 of the Marriages Act 1884-1985 in the
year 2020. The marriage was blessed with four children - two boys and two
girls.

The marriage was a happy one until Randy started coming home late. Mansa
became suspicious and each time she complained Randy became extremely
angry.

About three years ago Mansa was returning from her mother’s house when
she saw Randy embracing Akua, the neighbour’s daughter. Mansa confronted
both of them and this resulted in a fight between Mansa and Akua.

From that day on Randy refused to eat at home. He left the house and came
in as he pleased. He also refused to communicate with Mansa but would leave
the house-keeping money on the kitchen table every morning.
Mansa eventually arranged a meeting with their church pastor but Randy
refused to attend. She showed no interest whatsoever in Mansa.

One day Mansa tried to speak to Randy about his conduct but Randy became
so angry that he slapped Mansa several times, pushed her to the ground and
kicked her as she lay on the ground bleeding from the nose. He then got into
his car and drove off.

Mansa packed all her belongings and left the matrimonial home with the
children to live with her mother.

Approximately one month after the departure, Randy became seriously ill with
paralysis and was admitted in hospital for one month. When he was
discharged, Mansa was prevailed upon by family and friends to return to the
matrimonial home to nurse Randy. Mansa reluctantly returned to the
matrimonial home to assist Jamal the houseboy. She stayed for five months to
care for Randy and returned to her mother’s house as soon as Randy
recovered.

It has been more than two years since Mansa left the matrimonial home.

Randy is furious and now claims that he wants the marriage dissolved because
Mansa has deserted him.

Advise Randy

Area of Law: Dissolution of an ordinance marriage based on the fact of desertion

[constructive desertion]

Issue: Whether or not Randy can successfully petition for the dissolution of his
marriage based on the fact Desertion.

The law that governs dissolution of marriages in Ghana is the Matrimonial

Causes Act, 1971, [Act 367].

Section 1 of the Act 367 provides that either party to a marriage may present a
petition for Divorce to the Court on the sole ground that the marriage has broken
down beyond reconciliation.

Section 31 of Act 367 provides that the Court shall have jurisdiction in any
proceedings under this Act where either party to the marriage is

a. A citizen of Ghana
 b. Is domiciled in Ghana or
c. Has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.

Although the Act mentions either party in this section, practically, this refers to
the petitioner.

It is important to note that there are restrictions on the time for filing a petition.
Section 9 of Act 367 provides that a petition for divorce shall not be presented to
the court within two years from the date of the marriage. A court may despite
this provision allow the presentation of a petition for divorce within two years
from the date of the marriage on grounds of substantial hardship suffered by the
petitioner or depravity on the part of the respondent.

Section 1[2] of Act 367 provides that the sole ground for granting a petition for
divorce is that the marriage has broken down beyond reconciliation. Section 2
provides that a petitioner may rely on one or more of six facts to establish that a
marriage has broken down beyond reconciliation. Desertion is one of these six
facts.

Desertion has been defined as the unjustifiable withdrawal from cohabitation

without the consent of the other spouse and with the intention of remaining
separated permanently.

Section 2.1.c of Act 367 requires the petitioner to establish that the respondent
has deserted the petitioner for a continuous period of at least two years
immediately preceding the presentation of the petition. The separation must be
continuous for a period of at least two years and must exist at the time the
petition is filed. If separation has ended at the time of the presentation of the
petition, the petition will fail.

For a petition for dissolution of marriage based on desertion to succeed, the

following elements must be established.

There must be de facto separation. This means a total and actual withdrawal
from the performance of all marital obligations or a complete cessation of
cohabitation.

A refusal to perform one or two of the marital obligations is not enough. Thus in
HOPES V HOPES the spouses slept in separate rooms. The wife did not do any
mending or washing for the husband but he continued to have meals with the
family and shared the rest of the house with them. The court held that there was
insufficient separation of the household for there to be desertion. In BULL V BULL
the wife left her husband but later returned to live with him. Though she refused
to have sexual intercourse with him, she cooked his meals and occasionally
mended his clothes. The Courts ruled that there was no desertion.

A line must be drawn between living under one roof and living as one household.
Desertion may be successful if a couple lives under one roof but separately as
different households

There must be animus deserendi on the part of the party who has withdrawn
from his or her marital obligations. This is the intention to bring cohabitation
permanently to an end. Thus, if the intention is only for a temporal separation
the animus will be absent.
The respondent must have capacity to form the intention to bring co habitation
to an end. Therefore, if a spouse becomes insane and withdraws from his or her
marital obligations, he or she cannot be accused of desertion.
The third element that must be present is the lack of consent from the other
spouse. If a spouse withdraws from the performance of his or her marital
obligations without the consent of his or her spouse, that conduct may amount
to desertion. Thus a spouse cannot complain of desertion when he has consented
to a separation.
Whether or not consent has been given is a question of fact for the court to
decide.
Consent may be express or implied and it should be freely and voluntarily given.
In NUTLEY V NUTLEY, it was held that once consent has been withdrawn,
desertion sets in. Desertion may also be held even if the parties have not
cohabited before or consummation has not taken place.
The final element is the want of reasonable cause. A spouse will be in desertion
if he or she does not have a good reason for withdrawing from co habitation. If
there is a good reason, he or she will not be in desertion. Therefore, a wife who
leaves the matrimonial home to avoid physical abuse from the husband will not
be in desertion.
The party who physically leaves the matrimonial home is not necessarily the
deserting spouse. A party may be compelled to leave the matrimonial home or
to permanently bring co-habitation to an end as a result of the behavior or
conduct of the other spouse. Such desertion is referred to as constructive
desertion. The spouse whose conduct compels the other to leave is the deserting
spouse.
In HUGHES V HUGHES the court held that for the conduct of the wife to amount
to desertion, the court has to be satisfied that it was an unjustifiable withdrawal
from cohabitation and that she had the intention of remaining separated
permanently from him. Where a spouse has agreed that the other spouse could
leave, he could not complain that the other was guilty of desertion as separation
was by consent.
BARNES V BARNES – CONSTRUCTIVE DESERTION
Section 5 of the Matrimonial Causes Act, Act 367 deals with reconciliation
provision in respect of desertion. The section provides as follows;
For the purposes of Section 2 (1) (c.), in determining whether the period for which
the respondent has deserted the petitioner has been continuous, the court shall
disregard any period or periods not exceeding six months in the aggregate during
which the parties resumed living as husband and wife.
Thus, for desertion to succeed as a fact showing that a marriage has broken
down beyond reconciliation the respondent must have deserted the petitioner
for a continuous period of at least two years immediately preceding the
presentation of the petition.
If the parties resume living together and the period or periods of living together
is or are less than six months, that period should be discarded when considering
whether the petitioner has been deserted for a continuous period of two years.
However, if the parties resumed living together for more than six months or for
two or more periods exceeding six months the chain would have been broken
and desertion would have come to an end.
In the instant case, Mansa left the matrimonial home only because of the
physical assault from Randy. In such a situation, Randy is in constructive
desertion. The period which they were separated is over two years.
Randy is not likely to be successful in a petition for dissolution of the marriage.

In 1993, Kwesi Addo, a Doctor and Araba Baidoo, a nurse, celebrated their
marriage under the Marriages Act, 1971, CAP 127 at the RGD, Accra. Both
parties cohabited at No. 19 Flower Street, Kaneshie, Accra until 1995 when
Kwesi travelled to the UK for further studies accompanied by Araba and their
young daughter Daisy. Kwesi returned home to Ghana in 1996. Araba who had
by then been employed in a well-paying nursing job agreed with Kwesi to stay
back and continue to work in the UK for a few years. Araba returned to Ghana
in 2014 only to find that Kwesi was living with Janet in the house that he had
acquired in East Cantonments. Araba later learnt that three children had been
born to Kwesi and Janet over the years. When Araba confronted Kwesi, he
retorted that he had contracted a second marriage with Janet under CAP 127.
Kwesi asked Araba and Daisy to go and live in the house at Kaneshie. All efforts
by family, friends and pastors to settle the dispute between Kwesi and Araba
proved futile. A last minute intervention by Kwesi’s mother was unsuccessful.
In 2015, Kwesi filed a Petition for dissolution of the marriage on the grounds
that the marriage had broken down beyond reconciliation. During the
pendency of the proceedings for the dissolution of the marriage, Kwesi passed
away on Jan 1 2017. At the funeral, Kwesi’s family refused to allow Araba to
perform the final funeral rites as a wife. It was a funeral that Araba first learnt
that Kwesi had contracted a second customary marriage with Yayera with
whom he had a 6 month old baby. Araba was told to stay in the background
while Janet and Yayera were accorded the position as Kwesi’s wives.

After the funeral rites, Kwesi’s family filed an application before the Probate
and Administration Division of the HC, Accra for the grant of an Order of LA of
the Estate of Kwesi Addo in favour of Jane who was referred to as Kwesi’s wife
and Amarh Addo who was referred to as Kwesi’s customary successor. No
mention was made of Araba and Daisy in the affidavit in support of the
application for LA. Araba has been informed that the application for LA is due
for hearing in a week’s time. Araba and Daisy have consulted you at your Law
Firm for legal advice.

i. What is the legal status of the marriage between Kwesi and Araba
and Kwesi and the other two women, Janet and Yayera on the other
hand
ii. What legal interventions or remedies are available to an aggrieved
party or parties in the circumstance.
iii. Who are the proper persons to apply for LA with respect to the Estate
of Kwesi Addo
iv. Draft the appropriate court process you would file on behalf of the
party/parties you consider to be vindicated on the facts.

Kwesi and Araba were married under the Ordinance in 1993. Although Kwesi
filed a petition for the dissolution of the marriage on the grounds that it had
broken down beyond reconciliation, the petition was pending when he passed.
As such at the time of his death, there was a valid marriage between himself and
Araba.

Since the marriage between Kwesi and Araba is subsisting, the marriages
contracted by Kwesi with Janet under the Ordinance and Yayera under
customary law are void.

ARTHUR V JOHN HECTOR ANSAH

Araba for this purpose may file a caveat requesting the court that nothing is done
until she is heard.

The proper person to apply for LA is the Spouse and Child. In order of priority per
Section 5 of PNDC Law 111.

IN THE SUPERIOR COURT OF JUDICATURE,

IN THE HIGH COURT OF JUSTICE
ACCRA, AD 2020
SUIT NO……
IN THE MATTER OF THE ESTATE OF KWESI ADDO (DECEASED)
AND
IN THE MATTER OF AN APPLICATION FOR THE GRANT OF LETTERS OF
ADMINISTRATION BY JANET AND AMARH ADDO
AND
IN THE MATTER OF CAVEAT BY ARABA ADDO

AFFIDAVIT OF INTEREST
I , ARABA ADDO of House No. [ ] Accra, do make oath and say as follows;
1. That I am the deponent and caveatrix herein
2. That I married the deceased in Accra in 1993 under the Marriages Act CAP
1
3. That the claimant claims to be the wife of the deceased herein
 4. That on XX/XX/XX I filed a Notice of Caveat and the said process was
served on the Registrar of the High Court, Accra
5. That the deceased during his lifetime was husband to the
deponent/caveator herein and one child who is a minor
6. That I am informed that Janet Addo of House No. [] has applied for
Letters of Administration for the estate of the deceased.
7. That I am told by my lawyer and verily believe same to be true that as
survivors of the deceased we have a legitimate interest in his estate
8. That I pray the court to stay all processes to grant letters of LA to anyone
until I am heard

WHEREFORE I swear to this affidavit showing our interest

SWORN AT ACCRA THIS xx DAY OF FEB 2019

DEPONENT …………………..

BEFORE ME
COMMISSIONER FOR OATH

IN THE SUPERIOR COURT OF JUDICATURE,

IN THE HIGH COURT OF JUSTICE
CAPE COAST, AD 2018
SUIT NO……
IN THE MATTER OF THE ESTATE OF KWESI ADDO (DECEASED)
AND
IN THE MATTER OF AN APPLICATION FOR THEGRANT OF LETTERS OF
ADMINISTRATION
CAVEAT
Order 66 Rule 11[1]
In the matter of the Estate of Kwesi Addo, deceased.
LET nothing be done in the matter of Kwesi Addo, deceased, of East
Cantonments, Accra who died on [ …date] within the jurisdiction of this Court
without warning being given to MRS ARABA ADDO whose address for service is
………
Dated at this day of 2007

….…………………….
Caveatrix

THE REGISTRAR
HIGH COURT
ACCRA

Robert a medical student met Crystal, an employee of the UN in the US in 1988.

After a short courtship, the couple returned to their home country Ghana and
celebrated a customary marriage in 1989. They returned to the US and lived
and cohabited in SF where they had four daughters. During their marriage,
Robert was unable to pass his examinations and eventually left medical
school. Crystal was the primary bread winner for the family as Robert was
unable to secure permanent employment. During the pendency of the
marriage, Crystal was able to obtain loans from her employers and acquired
two residential properties in the US. The deeds on the properties were
registered in the joint names of Robert and Crystal. In the year 2000, Robert
persuaded Crystal to secure a loan of 50k US in her name to enable him to
purchase machines and vehicles for a construction business he intended to
establish in Ghana. Upon Crystal’s insistence, Robert signed an undertaking
agreeing to refund the 50k US to Crystal. Upon his return to Ghana, Robert sold
the machines and refused to refund the 50k US. Robert refused to return to
the US and has since been domiciled in Ghana. After two years, Crystal
travelled to Ghana with the intention of getting Robert to refund the money.
On her arrival, she discovered that Robert has purchased three houses in the
Airport Residential Area, Accra. Apparently, Robert had sold the properties in
the US on the blind side of Crystal and transferred the sale proceeds to Ghana.
A fierce argument ensued between the two parties during which Robert
violently assaulted Crystal. The assault case is still pending at the DVU of the
Police.

Crystal has decided to file a petition for the immediate dissolution of her
marriage to Robert and to claim for the properties in the US. Crystal further
wants a claim for the refund of the 50k US for which Robert has breached her
trust by converting the funds into houses. She has consulted you for legal
advice.

i. What are the legal rights of Crystal with respect to the properties
acquired by herself and the property Robert acquired in Ghana as
well as the 50k US? Discuss
ii. Spousal property is to be shared on a fifty-fifty basis or equitable basis
where appropriate
iii. Crystal owns the property in US – and therefore that in Ghana
iv. Robert holds the property in Ghana in trust for Crystal.
Crystal can sue for the 50k US
v. Do the Ghana courts have jurisdiction to determine a petition for
dissolution of marriage in which some properties are situated
outside Ghana and others in Ghana? Discuss
Spousal Property
Two houses in US – She can bring an action for part of the proceeds
of the house
MENSAH V MENSAH V QUARTSON V QUARTSON
Trust
House at Airport – Husband is holding in trust for the wife

What are the grounds for the dissolution of marriage contracted under
customary law?

a. On the part of the woman seeking dissolution

 b. On the part of the man seeking dissolution
Identify and discuss six grounds for dissolution on the part of the woman
and six grounds on the part of the man

The grounds on which a woman may divorce her husband under customary law
are as follows;

1. Persistent beating by the man

2. Heavy drinking
3. Failure to maintain the woman
4. Indiscriminate flirting
5. Impotence
6. Sexual excesses
7. When the man called the woman a Prostitute/Witch
BIFDEM-N
The grounds on which a man may divorce his wife under customary law are as
follows;
1. Wife is disrespectful and arrogant towards him /his parents
2. Woman commits adultery
3. Woman is lazy
4. Flirting with other men
5. Inability to bear children
6. Where the wife is a Witch
7. Where the woman is a thief
8. Where the woman nags and is quick tempered
9. Where the woman deserts the man for a period between 1 and 2 years
FLADD- N -BWT
Section 41 MCA
Procedure for divorce under Customary Law.

Lazarus Alhassan, a devout Catholic and wealthy businessman celebrated a

marriage under the marriage ordinance with Beatrice Azure on 26th Dec 1973.
Their union was blessed with four children – Faith, Hope, Daniel and Lucas. The
marriage was dissolved by an order of the HC, Wa in 2002. Soon after the
divorce, Lazarus met Amina, a young rich business woman and quickly
performed the customary marriage rites. Three children were born in quick
succession to the couple who lived in a sprawling mansion at Wa. After ten
years of marriage, Amina deserted the matrimonial home to live in Accra.
Auntie Tina, a sister of Lazarus came to live in the matrimonial home to assist
Lazarus to care for his children. After about one year, the children who are all
under 18 left Wa to Accra where they stayed with their mother. Lazarus
continued to maintain the children after they left Wa. Lazarus fell seriously
sick in 2016 and Auntie Tina quickly arranged for a lawyer Abongo to prepare
a Will in accordance with Lazarus’s instructions. Lazarus signed the Will which
was witnessed by Auntie Tina and Mohammed, a law clerk of Lawyer Abongo.
The Will was duly read and probate obtained from the HC, Wa. In his Will,
Lazarus had devised his 3 bedroom house in Wa, 2 beroom apartment at
Cantonments, Accra, 4 plots of land at Tamale, 10 acre rice farm at Wa and
shares in Fan Milk to Faith, Hope, Daniel and Lucas in equal shares. Amina and
the 3 children of Lazarus were not mentioned in the Will. Lazarus had also
bequeathed his mansions at Wa and Accra, Toyota Prado and MB vehicles
together with his shares at GCB and all monies standing to his credit in his bank
accounts to Auntie Tina. The will did not contain any residuary clause.

Amina has filed a Writ before the HC against the executors and Auntie Tina
claiming for an order for variation of the last will and testament of Lazarus
Alhassan on grounds that as a spouse and a dependant, she is entitled under
Article 22 of the Constitution to be given adequate provision out of the estate
of Lazarus. She is also claiming that her children are dependants and that
Lazarus was responsible for their upkeep and maintenance so they are entitled
to compensation from the specific devices made in the estate. Faith and her
siblings have filed a defence resisting the claim that the specific devices should
be the subject of compensation. Amina states that she is now facing hardship
so there should be reasonable provision made from the Estate in favour of
herself and her children. She further states that Auntie Tina is not entitled to
the properties devised under the Will.

a. The Executors and Auntie Tina have consulted you regarding the court
action filed against them accusing Amina and her children of having
deserted Lazarus when he was on his sick bed. They say Amina and the
children are not entitled to any portion of the Estate. Advise them.
• Article 28
• Article 22
• Section 13 Wills Act:
• HUMPHREY BONSU
 b. Lucas a second-year law student barges into your office one evening
asking ‘Lawyer who are the proper persons entitled to benefit from my
father’s Estate? What share of the Estate is each person entitled to?
Discuss
• Intention of the Testator should be paramount
• Where a Will is made, it must be respect unless the Will is made
in violation of Article 22 and 28 and also Section 13 of the Wills
Act
• Where there is no Will PNDC L 111 will distribute accordingly

Kwabena Manu and Ama Donkor married under the Ordinance CAP 17. In
1977, Kwabena Manu bought a house at Mamprobi and leased it out to the
Fire Service.

Out of the proceeds of the lease of this property and Kwabena Manu’s
lucrative accountancy practice, four additional houses were acquired in
subsequent years. Ama Donkor did not study beyond the MSLC which she
obtained in 1961 and she remained a housewife throughout the period of the
marriage.

The couples have had a good life. They spent a week at the Akosombo Hotel
for their honeymoon at the time that the hotel was acclaimed one of the
leading and most luxurious hotels in Ghana. Thereafter, they often went on a
Mediterranean cruise in the luxury ship Queen Elizabeth every year.

They have four children, all adults now who live comfortably abroad and
occasionally send their parents gifts. They enjoy the services of two maid
servants, a garden boy, day and night watchmen and two drivers. Apart from
a fleet of cars, their house is also exquisitely and lavishly furnished. Kwabena
Manu is wealthy

Late last year, K Manu was installed as Nifahene of his hometown. He has been
persuaded upon by his people to marry a girl from his village, a stunning black
beauty who just graduated from IPS , Legon.

Ama Donkor is dead set against the relationship but K Manu spends all his time
with his new bride and has openly told Ama Donkor to go to hell. Ama Donkor
is contemplating a divorce but not sure if she can support herself financially.

Ama has approached you for advice on her chances in a divorce proceeding.
Advise Ama Donkor.
 • Section 24
• Section 19

Area of Law : Dissolution of a monogamous marriage based on the fact of

unreasonable behavior and Financial provision pending a divorce suit

Issues;

Whether or not Ama Donkor can successfully bring an application for the
dissolution of her ordinance marriage based on the fact of unreasonable
behavior.

Whether or not

The law that governs dissolution of marriages in Ghana is the Matrimonial

Causes Act, 1971, [Act 367].

Section 1 of the Act 367 provides that either party to a marriage may present a
petition for Divorce to the Court on the sole ground that the marriage has broken
down beyond reconciliation.

Section 31 of Act 367 provides that the Court shall have jurisdiction in any
proceedings under this Act where either party to the marriage is

a. A citizen of Ghana
b. Is domiciled in Ghana or
c. Has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.

Although the Act mentions either party in this section, practically, this refers to
the petitioner.

It is important to note that there are restrictions on the time for filing a petition.
Section 9 of Act 367 provides that a petition for divorce shall not be presented to
the court within two years from the date of the marriage. A court may despite
this provision allow the presentation of a petition for divorce within two years
from the date of the marriage on grounds of substantial hardship suffered by the
petitioner or depravity on the part of the respondent.
Section 2 of the MCA provides that a petitioner may rely on one or more of six
facts to establish that a marriage has broken down beyond reconciliation.
Unreasonable behavior is one of these facts.

Section 2(1)(b) of the Matrimonial Causes Act, 1971, Act 367 provides that for
the purposes of showing that a marriage has broken down beyond reconciliation,
the petitioner shall satisfy the court that the respondent has behaved in a way
that the petitioner cannot reasonably be expected to live with the respondent.

This section requires the petitioner to prove the conduct constituting

unreasonable behavior on the part of the respondent and the fact that he or she
cannot be reasonably expected to live with the respondent as a result of the bad
behavior.

Unreasonable behavior has been defined in English Law as conduct that gives
rise to injury to life, limb or health or conduct that gives rise to a reasonable
apprehension of such danger. According to this definition therefore, actual injury
does not have to be established. Mere apprehension of such injury is enough so
far as it has led to the breakdown of the marriage beyond reconciliation.

The conduct must be grave and weighty and must make living together
impossible.

Threats of actual personal violence may amount to cruelty and the courts will
not wait for the harm to take place before taking steps.

Actual or presumed intention to harm is irrelevant. Thus, A cannot threaten B,

his wife with a gun and argue subsequently that he did not intend to harm her.
Thus, in GOLLINS V GOLLINS, the House of Lords stated that if the conduct can
be called cruel, it does not matter whether it springs from a desire to hurt or
selfishness or sheer indifference.

Examples of unreasonable behavior are provided in the following cases.

In ARTHUR V ARTHUR and SHELDON V SHELDON , it was held that willful refusal
of intercourse or persistent demands for inordinate sexual acts or malpractices
may amount to unreasonable behavior.

In DOWDEN V DOWDEN an inability to have sexual intercourse as a result of

impotence was held not to amount to unreasonable behaviour.
In KNOTT V KNOTT, H V H and STANWICK V STANWICK the courts established
that coitus interruptus knowing that it has an effect on the spouse’s health,
persistent drunkenness and addition to gambling and nagging and insults are all
tantamount to unreasonable behaviour.

In OPOKU OWUSU V OPOKU OWUSU a Ghanaian man married a German woman

in West Germany in 1959. The couple moved to Ghana and had four children. In
1969 the wife refused to have sexual intercourse with the husband because of
the husband’s frequent demands for sex. The who had had ten pregnancies in
the last eleven years and was in constant fear of having another unwanted child.
It became impossible for the parties to live together and the wife left the
matrimonial home as a result. The court held that one spouse was not bound to
submit to the demands of the other if they were unreasonable and inordinate or
were likely to lead to a breakdown of health. Thus the spouse who suffered as a
result of an unreasonable insistence on sexual intercourse would be entitled to
leave the other.

In HAPEE V HAPEE, the Petitioner was a native of the Netherlands and the
husband of the respondent who was Ghanaian. The petitioner complained that
the respondent frequently heaped insults on him in public. After filing a petition
for dissolution, the respondent went to his office and harassed him by asking him
to leave Ghana. Once when the petitioner was in a meeting with his solicitor, the
respondent went there and created a scene and demanded her marriage
certificate from the petitioner. The respondent threatened to kill the petitioner if
he did not leave the country. In addition, the respondent wrote to the head office
of the petitioner’s employers in Paris reporting that the petitioner had stolen
property belonging to the Company. Investigations proved that the allegation
was false. The respondent again wrote a letter to the Freemasons Lodge at
Sekondi of which the petitioner was a member and castigated him as an unfit
person to be considered for the post of Master of the Lodge. The complaint was
dismissed as baseless. On another occasion, the respondent smashed the
windscreen of the Petitioner’s vehicle. She was convicted and sentenced for
causing damage. Sometime in 1969, the respondent caused the petitioner to be
forcibly removed form an aircraft which was about to take off for the
Netherlands. It turned out that this was done unlawfully. The court held that the
actions of the respondent were unreasonable and ordered a dissolution of the
marriage.

Section 4 of MCA deals with the reconciliation provision in respect of

unreasonable behavior. Simply put, if the parties have lived together as husband
and wife for more than six months following the occurrence of the behavior
considered as unreasonable, the petitioner cannot rely on such an occurrence.
However, if the behavior occurs within six months of the complaint and petition
then the petitioner can rely on it as a fact to establish that a marriage has broken
down beyond reconciliation.

In FULLER V FULLER, the wife left the husband to live with another man with the
three children. The husband became ill. His Doctor informed the wife that the
husband had only one year to live and should not be left on his own. The wife
allowed the husband to come and live in her new household as a lodger paying
rent. He had a separate bedroom but he had meals prepared by the wife together
with the family. The wife did his washing. For four years the husband lived at the
wife’s house.

The court held that the parties did not live as husband and wife.

In OFORI V OFORI, the couple lived in the USA. They visited Ghana on holiday.
While in Ghana, the husband petitioned for a divorce on the ground that the wife
was rude and extravagant. Proceedings for divorce commenced but the couple
returned to the US before they were completed.

Upon their return to the US, they lived together as husband and wife for three
months before the wife left the matrimonial home with the kids.

The court held that the period of cohabitation was less then six months and
therefore the husband could rely on the past unreasonable conduct.

In ANSAH V ANSAH the court made the following observation;

‘The reconciliation of the parties’ differences in November 1972 did not bar the
petitioner from bringing the instant action for divorce having regard to the
provisions of Section 4 of Act 367. It was clear that notwithstanding the
reconciliation promoted between the parties, they never lived together as
husband and wife. There was no co habitation and they continued to live apart
since 1972. The alleged reconciliation did not restore the parties to their former
position. The fact that the husband sent her money did not alter the position. The
petitioner was therefore not barred from seeking on the ground of unreasonable
behavior of the respondent before the reconciliation.

Thirty three years ago when the Intestate Succession Law was enacted, it was
hailed as being an innovation, revolutionary and radical, the first of its kind in
the history of Ghana. Over the years, some provisions of the Law have
however proved to be inimical, militating especially against the inheritance
rights and interests of the spouses and children of the deceased, identify and
discuss briefly six merits and six demerits of the ISL and its present state with
examples.

PNDC L 111

DEMERITS

1. The provisions on the fractional distribution of the estate of the deceased

have been difficult to implement.
2. The specific portion of the estate to devolve on the spouse irrespective of
the number of spouses involved fixed by the current law creates a problem
3. No provision was made for polygamous marriages where the deceased is
survived by a number of spouses so they are all compelled to share the
same fraction that the law stipulates for the surviving spouse.
4. The requirement that the matrimonial home be shared between the
surviving spouse and children of the deceased, some of whom may not be
children of the surviving spouse has often resulted in acrimony
5. Silent on the issue of joint acquisition of property and how this should
affect the fraction of the estate that the surviving spouse is entitled to.
The surviving spouse may therefore lose out on any investment made in
the property
6. No provision is also made in the existing law for dependent parents.
Likewise there is no provision for children of the deceased who are still in
school.

MERITS

1. Spouse and children of the deceased are prioritized over the extended
family
2. Household chattels remain in the nuclear family
3. No discrimination between Widows and Widowers in terms of succession
4. Applicable throughout Ghana irrespective of the type of marriage and
cultural context
5. Protection against injustice is given to the immediate family
6. All Children are catered for – whether born out of wedlock or not
7. Law makes provision for surviving parents
8. Recognizes the customary successor
Ohemaa met Romeo in the year 2008. They dated for 2 years before getting
married under a marriage officer’s certificate in the year 2010. They have three
children, Princess 8 years, Destiny 6 years and Trinity 4 years.

Romeo is a neurosurgeon and practice has been very lucrative. He has been
able to acquire three houses, three cars and a huge cocoa farm in the Ahafo
region. In the year 2018, Ohemaa suspected that Romeo was having an affair
with the neighbour’s wife. When she confronted Romeo, he confessed and
apologized profusely. Ohemaa is livid and wants to bring the marriage to an
end. She wants custody of all the three children.

She also wants the properties acquired by Romeo during the marriage to be
shared on a 50/50 basis. Advice Ohemaa.

Areas of Law :

• Dissolution of a monogamous marriage based on Adultery

• Custody of Children
• Distribution of Spousal Property

Issue:

• Whether or not Ohemaa can successfully petition for divorce on the fact
of adultery
• Whether or not Ohemaa would be entitled to the custody of the children
upon divorce
• Whether or not Ohemaa is entitled to a half of the property acquired
during her marriage with Romeo upon their divorce.

Applicable Law:

Adultery

In Ghana, the law governing the dissolution of marriages is the Matrimonial

Causes Act, 1971, Act 367. Section 1 of the Act 367 provides that either party to
a marriage may present a petition for Divorce to the Court on the sole ground
that the marriage has broken down beyond reconciliation.

The main ground for divorce is that the marriage has broken down beyond
reconciliation. Section 2 of the Matrimonial Causes Act provides that a Petitioner
to a divorce can rely on one of six facts to prove that a marriage has broken down
beyond reconciliation.
Adultery is defined in Section 43 of Act 367 as the voluntary intercourse of a
married person with one of the opposite sex other than his or her spouse.

Thus, for adultery to succeed as a fact showing that a marriage has broken down
beyond reconciliation, the following must be established.

a. That there was penetration of the woman by the man. Partial penetration
is enough to constitute adultery. Lesser acts such as masturbation will not
constitute adultery. Thus, in DENNIS V DENNIS, Mrs. Dennis tried to have
sexual intercourse with another man but penetration could not take place.
The court held that there was no adultery.
b. The act of sexual intercourse must be voluntary. Thus, if there is proof that
consent was obtained through fear or force, there is no adultery.
c. It must be between a biological man and a biological female.

The burden is on the party who alleges adultery to prove it. When adultery is
established the burden shifts to the respondent to prove either one of the
following defenses to exonerate himself. The standard of proof is between
beyond reasonable doubt and balance of probability to the satisfaction of the
court as established in ADJETEY V ADJETEY. The standard must be slightly higher
than the balance of probability but lower than the reasonable doubt standard
as it is not a criminal offense.

The defendant may put up either of the following defences.

They are;

vii. That the sexual intercourse alleged did not take place
viii. If sexual intercourse took place it was not consensual

No other defenses are available to the respondent.

Adultery may be proved by direct evidence where the offending party is caught
in the act by the Petitioner or a witness who is willing to testify on the petitioner’s
behalf.

It may also be established by a confession from the offending party. It must be

noted that the confession from an adulterer if obtained by force, duress or any
other non-consensual process will not be accepted by the court. Thus, in
QUARTEY V QUARTEY and Another, the husband petitioned for divorce on the
ground that the wife had committed adultery. The wife denied the allegation and
stated that the confession she made was under duress. She further explained
that when she denied the accusations, the husband beat her and she only
admitted adultery to stop the husband from beating her. The court held that
adultery had not been proved.

Circumstantial evidence may also be elicited to prove adultery. The act of sexual
intercourse itself does not have to be proved. The presence of disposition and
opportunity on the part of the party alleged to have committed adultery may
lead a court to conclude that adultery has been committed. Thus, in ADJETEY V
ADJETEY sexual intercourse was not proved, however, the circumstance led to
court to arrive at one conclusion only – that adultery had been proved.

Additionally, adultery may be inferred if the petitioner has contracted a sexually

transmitted disease from the respondent.

Also, if it is proved that a child born by the respondent is not the child of the
petitioner, the respondent will be presumed to have committed adultery. Thus,
in HUME V HUME AND MCAULIFFE the court held that the wife of Mr. Hume had
committed adultery because tests showed that her husband could not be the
father of her child.

Standard of Proof for adultery is between the balance of probabilities and

beyond reasonable doubt. This is because it is not a crime and thus does not
require the same level of proof but it s serious enough to require higher bar of
proof than the balance of probabilities required in civil matters. This principle
was stated in the above mentioned case – ADJETEY V ADJETEY

For a Petitioner to succeed, Section 2.1.a of Act 367 provides that he must satisfy
the court that the respondent committed adultery and that by reason of that
adultery, the petitioner finds it intolerable to live with the respondent.

In addition to establishing adultery, the petitioner must show that as a result of

the adultery, he or she finds it intolerable to live with the respondent. The test
for intolerability is subjective and therefore not what a reasonable petitioner
would have thought what that petitioner personally feels about the adultery.

The reconciliation provision in Section 3 of Act 367 implies that where parties live
as husband and wife after the discovery of adultery for more than six months,
the petitioner will be taken to have forgiven the respondent and the petitioner
cannot subsequently claim to find it intolerable to live with the respondent.
However, if the living together as husband and wife is less than six months the
petitioner can rely on it.
Finally, it is important to note that Act 367 provides that although the court may
find the existence of one or more of the facts which a petitioner may rely on, the
court shall not grant the divorce unless it is satisfied on all the evidence that the
marriage has broken down beyond reconciliation.

Custody of Children

The law concerning all matters relating to children are contained in the
Children’s Act, Act 560 of 1998 and the Courts Act, Act 459 of 1993.

Section 22 of the Matrimonial Causes Act imposes a duty on a court during

divorce proceedings to inquire from the parties whether there are any children
of the household.

The court may on its own initiative or an application by a party to the

proceedings, make any of the following orders concerning a child of the
household which it thinks reasonable and for the benefit of the child;

i. Award the custody if a child to any person

ii. Regulate the right of access of any person to the child
iii. Make an order providing for the education and maintenance of the
child out of the property or income of either or both of the parties.

Section 45 of the Children’s Act provides that in an application for custody, the
court should consider the best interest of the child and the importance of a young
child being with the mother. Subject to this consideration, the courts must also
consider the following;

a. The age of the child

b. That it is preferable for a child to be with his parents except where his
rights are persistently being abused by his parents
c. The view of the child if the views have been independently given
d. That it is desirable to keep siblings together
e. The need for continuity in the care and control of the child
f. Any other matters that the court may consider relevant.

The Courts have thus applied the above principles in the deciding who obtains
custody of children in Ghana.

As earlier stated, the interest of the child is always paramount. In OPOKU

OWUSU V OPOKU OWUSU, the Court stated that its duty was to the children
irrespective of the wishes of the parents.
Children of tender age are therefore normally given to the mother unless there
are overriding circumstances require the court to do otherwise. Thus in BERKELY
V BERKELY, the court granted custody of the child to the husband because the
wife was a stranger in Ghana, had no fixed address, was unemployed and lived
off her friends whilst the husband was a medical doctor whose mother was
available to look after the child. The Courts view was that it would normally grant
custody of the child of tender age to the mother unless the character of the
woman was impeached.

In the interest of the child, Courts are reluctant to remove a child from his
environment. Thus in RE DANKWA, custody of the child was given to the father
even though the child was of tender age. The court was of the view that even
though the child was snatched from the mother at the age of two, the child had
stayed with the father for so long that it will not be in her interest and welfare
to be removed.

In OPOKU OWUSU V OPOKU OWUSU the court stated that it was desirable to
keep brothers and sisters together and not separate them. Although the wife
requested custody of the child who was of tender age, custody of all four children
was given to the father.

In BRAUN V MALLET, the court stated that poverty alone is not a reason for
depriving a mother of the custody of her child. Custody may be refused only if a
mother’s character has been impeached.

The first is that the Court would

• Governed by Children’s Act, Act 560

• In divorce proceedings the petitioner can ask for custody of children under
Section 22 of MCA
• Interest and well being of the child will be considered by the court before
custody is granted
• Guiding principles for custody of children
o Court will normally grant custody of children of tender age to the
mother unless the character of the woman is impeached –
BERKELEY V BERKELY
o The courts are reluctant to separate siblings – OPOKU OWSU V
OPOKU
 o Poverty per se is not a yardstick in deciding who should have
custody – BRAUN V MALLET

Courts are reluctant in uprooting children from the environment – RE

DANKWA

Distribution of Spousal Property

The law regarding the sharing of spousal property has changed over the years
from one spouse getting nothing as in the case of MARTEY V QUARTEY to the
sole acquisition principle as in the cases of BENTSI ENCHILL V BENTSI ENCHILL,
MENSAH V BERKOE to the substantial contribution principle.

Substantial contribution – joint property which must be shared on a 5o – 5o basis

or equitably– BOAFO V BOAFO. Substantial contribution was still in place in this
case.

In ’11, the SC decided that once property is acquired during the subsistence of
the marriage, it is joint property regardless of contribution.

MENSAH V MENSAH – Substantial contribution can no longer be the basis for

sharing spousal property.

The chores performed at home should be regarded as contribution because it

facilitates the husband’s ability to focus. The court went further to state that if it
is joint property that the XX applied in Boafo v Boafo will apply. 5o – 5o basis or
equitably.

The principle in MENSAH V MENSAH as applied in ARTHUR V ARTHUR and

QUARTSON V QUARTSON.

When the Court decides the share equitably then certain factors must be taken
into consideration.

How do you arrive at percentages? OBENG V OBENG

- Age of the parties

- Duration of the marriage
- Lifestyle
Analysis

Adultery :

Romeo voluntarily confessed to Adultery which is one of the ways in this Adultery
can be proved. There is no evidence of coercion. Therefore Ohemaa can
successfully divorce Romeo based on the fact of Adultery.

Custody of Children: Children should be given to Ohemaa because the children

are of tender age and the character of the mother has not been impeached. The
siblings should not be separated.

Spousal Property: Based on the facts, it will not be fair for the property to be
shared fifty-fifty. Based on the fact that Ohemaa has 3 children, been married
for ten years , paved the way for Romeo to acquire all that property the property
should be shared based on what amounts to fair play. The recommendation will
be then a Seventy – Thirty in favour of Romeo.

The Court may still consider giving some property to the other spouse under
Section 20 of the MCA.

Conclusion/Advise

The Court will grant Divorce on the fact of Adultery

The Court will award Custody of Children to Ohemaa. Necessary orders for the
maintenance of children

The Court will make an order for an equitable share of the joint property to be
conveyed to Ohemaa. The Court may also order property not jointly acquired to
be given to Ohemaa.

Note the difference in application when it comes to money/property under

Section 20

An Adoption order extinguishes the rights, duties, liabilities and obligations of

the natural parents of a child. Fully comment.

When a person adopts a child, all rights, duties, obligations and liabilities of the
parents or guardians in relation to the custody of the child are extinguished and
vested in the adopter as if the child were born to the adopter in lawful wedlock.
If the adopters are spouses, they stand to each other and to the child as lawful
father and mother respectively of the child.
This is contained in Section 75 of the Children’s Act, Act 560.

The Rights of children have been amply stipulated under the Children’s Act.
What are these Rights and how are they protected by the State?

The Rights of children are contained in Part One of the Children’s Act, Act 560.
Sections 2 to 14 detail out the Rights as specified by the Act.

Section 2 provides that the best of interest of the child shall be paramount in any
matter concerning a child and shall be the primary consideration by any Court,
person, institution or other body in any matter concerned with the Child.

Section 3 states that a person shall not discriminate against a child on the
grounds of gender, race, age, religion, disability, health status, custom, ethnic
origin, rural or urban background, birth or any other status.

Section 4 prohibits the deprivation of a child’s right to name, nationality, the

right to know natural parents and extended family.

Section 5 provides that no person shall deny a child the right to live with his
parents and family an grow up in a caring and peaceful environment unless it is
proved in Court that living with his parent would lead to significant harm to the
child or will not be in the child’s interest.

Section 6 provides that a child may not be deprived of his welfare whether the
parents of the child are married or not at the time of the child’s birth or whether
the parents of the child continue to live together or not. Every child has the right
to life, dignity, respect, leisure, liberty, health, education and shelter from his
parents.

Section 7 provides that no person shall deprive a child of a reasonable provision

out of the estate of a parent whether or not the child was born in wedlock.

Section 8 prevents anyone from depriving a child of access to education,

immunization, adequate diet, clothing, shelter, medical attention or any other
thing required for his development. The Section also provides that a child may
not be denied medical treatment by reason of religious or other beliefs.

Section 9 provides that a child may also not be deprived the right to participate
in sport or in positive cultural or artistic activities or in other leisure activities.
Section 10 emphasizes the rights of disabled children and provides that no person
shall treat a disabled child in an undignified manner. A disabled child has a right
to special care, education and training wherever possible, to develop his
maximum potential and to be self-reliant.

Section 11 gives a child the right to express his or her opinion, the right to be
listened to and to participate in decisions that affect the children’s well-being if
the child is capable of forming views.

Section 12 protects a child from exploitative labour

Section 13 provides that no person shall subject a child to torture or other cruel
inhuman or degrading treatment or punishment including any cultural practice
which dehumanizes or is injurious to the physical and mental well-being of a
child.

Section 14 provides that no person shall force a person to be betrothed or to be

a subject of a dowry transaction or to be married.

Bianca and Paul were High School sweet hearts. After High School they went
their separate ways. Bianca got married but divorced after five years. After the
divorce, she met Paul who had also just divorced his wife of three years. They
immediately started dating again. After a couple of months dating, they set a
date for the customary law marriage. The families met and all the necessary
customary rites were performed.

Bianca soon had a child and she was named Blessing. Paul’s former wife never
gave birth. Bianca had one child from the previous marriage.

After ten years of marriage, the couple decided to marry under the Ordinance.
They wanted to exchange their vows on the top of Mount Afajato. They invited
a few friends to the ceremony. The pastor from the village, Leklebu was the
Officiating Minister. Paul and Bianca were invited to sign a Marriage Register
at the Pastor’s house the next day after a church service.

The couple lived happily ever after. They had three more children in addition
to Blessing. Paul was a hard worker. He had a variety of businesses and soon
became wealthy. He acquired a lot of landed property including farms and
houses.

Unfortunately, Paul became afflicted with a deadly disease. All attempts

Doctors both at home and abroad proved futile and he passed away. Paul’s
brothers have managed to find out that the right procedure was not followed
when Paul and Bianca got married under the Ordinance. They claim that
Bianca was not a proper wife. She cannot therefore claim under the Intestate
Succession Law.

Bianca is confused and has come to you for advise.

Area of Law : Customary and Ordinance Marriage

Issue: Whether or not Bianca can benefit from the estate of Paul

Sections 2,3,5 and 14 of the Intestate Succession Law, PNDC Law 111 read
together provides that when a person dies without a Will, he is deemed to have
died intestate and his estate will be administered according to PNDC Law 111.
The law gives priority to Spouses and Children and provides a set formula for the
distribution of property.

Since the law provides rights of succession to spouses, therefore, to determine

legal rights of Bianca, it will have to be established whether she was validly
married to Paul.

Justice Ollenu defined customary law marriage in YAOTEY V QUAYE as follows; A

customary law marriage is a union of the man’s family and the woman’s family.
It imposes rights and duties upon the two families. The woman’s family gains the
right to perform certain rites in certain eventualities and the man’s family also
gains the right to perform certain rites in certain eventualities.
There are two types of customary law marriages. Formal marriages in which a
ceremony no matter how small typically involving the presentation of drinks to
the woman’s family by the man’s family accompanied with a formal request for
the woman’s hand in marriage. In informal marriages, no ceremony is conducted
however the woman is acknowledged as a wife by the man’s family. The
acknowledgement alone would create a valid marriage even if the man had not
presented drinks to the woman’s family.
Conversion is the changing of a polygamous marriage to a monogamous
marriage. This means Customary Law and Mohammedan Marriages may be
converted into a monogamous marriage. This may be done via legislation or a
change in domicile.
In order to create a marriage under the ordinance, the law requires that certain
requirements are complied with. These are broken down into Procedural
Requirements and Substantive Requirements. However, for the purposes of this
case where the parties are already married under Customary Law, the focus will
be on procedural requirements only.
Section 41 of the Marriages Act (CAP 127) provides that a marriage may be
solemnized under the authority of a registrar’s certificate, a marriage officer’s
certificate or a special license.
Essentially, the Act provides two options of certificates under which parties may
marry. The Special License is not a certificate. It is granted by the Principal
Registrar and allows the couple to celebrate a marriage without the publication
of banns or the giving of notice. Under section 55(2) of CAP 127, a special license
may be obtained to celebrate a marriage in a place other than a licensed place
of worship or a Registrar’s Office if the Registrar so authorizes.
In addition to the above, Section 74[2] of the Marriages Act provides that a
marriage is void if both parties knowingly and willfully acquiesce in its
celebration
• In a place other than the officer of a registrar of marriages or licensed
place of worship except authorized by the Principal Registrar’s License.
• Under a false name or names
• Without a Registrar or Marriage Officer’s certificate or a License from the
Principal Registrar
• By a person who is not a recognized minister of a recognized denomination
or a Registrar of Marriages.
There are also other circumstances which would render a marriage under
the ordinance void.
They are ;
i. If Banns were not published in accordance with the provisions of the
Marriage Act. Section 49 and 50 provide for the publishing of banns
and the procedure required. These are mandatory provisions and
will therefore render a marriage void if not complied with
ii. Per Section 56[2] a marriage certificate cannot be issued if a caveat
is entered and it is not removed. This presupposes that if a caveat is
not removed a marriage cannot take place. A marriage therefore
celebrated where a caveat was entered but not removed will
therefore be void.
 iii. If a marriage is not celebrated within three months of the date of
when the notice was given to the registrar of marriages. This is
provided for in Section 54 of the Marriages Act.
iv. If the marriage was celebrated under an expired license issued by
the Principal registrar of marriages under Section 55 of the Act.

In a l

Desertion has been defined as the unjustifiable withdrawal from cohabitation

without the consent of the other spouse and with the intention of remaining
separated permanently.

Fully discuss the above statement.

Section 2 of the Matrimonial Causes Act provides that a Petitioner to a divorce

can rely on one of six facts to prove that a marriage has broken down beyond
reconciliation. Desertion is one of these facts.
Desertion has been defined as the unjustifiable withdrawal from cohabitation
without the consent of the other spouse and with the intention of remaining
separated permanently.
Section 2[1][c] of the Matrimonial Causes Act requires a petitioner to establish
that the respondent has deserted the petitioner for a continuous period of at
least two years immediately preceding the presentation of the petition.
Desertion may either be a physical withdrawal from a place or a withdrawal from
a state of things. It must amount to a total repudiation of marital obligations.
The separation must be continuous for a period of at least two years and must
exist at the time the petition is filed. If the separation has ended at the time of
the presentation of the petition, the petition will fail.
For Desertion to succeed, the following elements must be established.
i. De facto separation
ii. Animus Deserendi
iii. Lack of consent from the other spouse
iv. Want of reasonable excuse
De facto separation means a total and actual withdrawal from the
performance of all marital obligations, complete cessation of cohabitation.
A refusal to performance a few of the marital obligations is not enough. Thus,
if a wife refuses to prepare meals for her husband but fulfils the rest of her
marital obligations, the courts will hold that desertion has not been
established.
In HOPES V HOPES, the spouses slept in separate rooms. The wife did not do
any mending or washing for the husband but he continued to have meals with
the family and shared the rest of the house with them. The court held that
there was insufficient separation of the household for there to be desertion.
In BULL V BULL, the wife left her husband but later returned to live with him.
Though she refused to have sexual intercourse with him, she cooked his meals
and mended his clothes occasionally. The court held that there was no
desertion.
It is important to note that a withdrawal is not only a withdrawal from a place
but also a withdrawal from a state of things. Thus, spouses may be living
under the same roof but may not be cohabiting.
There must be animus deserendi on the part of the party who has withdrawn
from the performance of his/her martial obligations.
Animus deserendi represents the intention to bring cohabitation permanently
to an end. If the intention of the party is only to bring cohabitation to a
temporal end, then the animus will be absent.
The respondent must have the capacity to form the required intention.
Therefore, if the spouse becomes insane and withdraws from his/her marital
obligations he or she cannot be accused of desertion.
Desertion begins when factum and animus come together. Either of the two
alone is not enough. The fact of withdrawal and the intention to bring
cohabitation permanently to an end must come together for desertion to
succeed.
For a physical withdrawal or a withdrawal from the state of things to amount
to desertion, it must be without the consent of the other spouse. Thus, a
spouse cannot complain of desertion when he /she has consented to a
separation. Whether or not consent has been given is a question of fact for
the court to decide based on the circumstances of the case.
Consent may be express or implied and it should be freely and voluntarily
given.
In NUTLEY V NUTLEY, it was held that Desertion sets in once consent for a
separation is withdrawn.
A party will be in desertion if he/she does not have a good reason for
withdrawing from cohabitation.
If a spouse has a good reason for bringing cohabitation to an end, he/she will
not be in desertion. For example, if a wife leaves the marital home to avoid
persistent physical abuse, she will not be in desertion. Thus, for desertion to
lie, there must be a lack of a reasonable excuse for the party leaving the
marital home.

All four elements of Desertion must be present to prove the fact of desertion.
There is a type of desertion that needs a special mention. This is Constructive
Desertion.
A spouse may be compelled to leave the matrimonial home or bring
cohabitation permanently to an end as a result of the conduct of the other
spouse. A typical example of constructive desertion is where a husband’s
controlling and domineering character drives his wife away. Here it is the
husband who is in desertion and not the wife because his conduct drove the
wife away.
In Constructive Desertion, factum and animus must also be established. The
petitioner must therefore prove that the respondent intended to expel
him/her from the household and to thereby bring cohabitation permanently
to an end.
In DICKINSON V DICKINSON, the husband brought his mistress into the
matrimonial home and the wife therefore left the home. It was held that the
husband was in constructive desertion.
In BARNES V BARNES, the petitioner returned to the matrimonial home in
May 1968 after giving birth to the only issue of her marriage with the
respondent. The respondent informed her that he was married to another
 woman and therefore she must leave. When the petitioner resisted, the
responded beat her and threw her things out of the matrimonial home. The
court took the view that that respondent was in constructive desertion.
The reconciliation provisions in respect of Desertion are contained in Section
5[1] which provides that in determining whether the period for which the
respondent has deserted the petitioner has been continuous, the Court shall
disregard any period or periods not exceeding six months in the aggregate
during which the parties resumed living as man and wife.

Francis and Lizzie got married on 3oth June ‘o5. The marriage was rocky from
day one. Francis is a very cruel and difficult person. He would often lock Lizzie
up in the matrimonial home while he went to work, Lizzie was not allowed to
touch any food item in the house without permission from Francis. Lizzie was
psychologically affected by the actions of Francis and as a result was unable to
fall pregnant. Her Doctor explained this to her. After four years of marriage,
Lizzie decided to leave the Matrimonial home. She went to stay with her Aunt
at Mataheko.

Francis is furious and has come to see you to file a petition for divorce on
grounds of Lizzie’s departure from the matrimonial home.

Beatrice and Mark got married in 2000 under the Marriage Ordinance. They
have three daughters, Dora, Mildred and Hilda.

Mark is a business man and Beatrice is a Primary School teacher.

Mark is a wealthy man and owns a number of houses in Accra and Kumasi.
Mark, Beatrice and the children live in one of the houses in an upmarket area
in Accra. The children attend the French School at Dzorwulu.

Mark insisted that Beatrice should have a fourth child. Mark is the chief of a
small town in the Ashanti Region and wants a son to succeed him. Beatrice has
refused to fall pregnant a fourth time. She has been warned by her Doctors
that a fourth pregnancy will be life threatening. Mark became very unhappy
and threatened to apply for a divorce. The relationship became very sour and
Mark depended on the house help Nancy for meals.

Beatrice eventually moved to her Mother’s house at Amasaman. One day

when Beatrice came to fetch some of her clothes, she found Mark and Nancy
in the bedroom. Both of them were half naked and Nancy’s hair was in a mess.
Beatrice burst into tears and quickly ran back to her mother’s house. The next
day Mark came to her and apologized profusely. He also informed Beatrice
that Nancy was pregnant with his child. Beatrice became extremely distraught
and decided to leave Mark for good. She has also vowed to take custody of the
children

Advise Beatrice.

Area of Law : Dissolution of a monogamous marriage and Custody of Children

Issues: Whether or not Beatrice can successfully dissolve her marriage with Mark
based on the facts of unreasonable behaviour and adultery.

The law that governs dissolution of marriages in Ghana is the Matrimonial

Causes Act, 1971, [Act 367].

Section 1 of the Act 367 provides that either party to a marriage may present a
petition for Divorce to the Court on the sole ground that the marriage has broken
down beyond reconciliation.

Section 31 of Act 367 provides that the Court shall have jurisdiction in any
proceedings under this Act where either party to the marriage is

a. A citizen of Ghana
b. Is domiciled in Ghana or
c. Has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.

Either party in this section means either the husband or the wife and this refers
to the petitioner.

It is important to note that there are restrictions on the time for filing a petition.
Section 9 of Act 367 provides that a petition for divorce shall not be presented to
the court within two years from the date of the marriage. A court may despite
this provision allow the presentation of a petition for divorce within two years
from the date of the marriage on grounds of substantial hardship suffered by the
petitioner or depravity on the part of the respondent.

Section 2 of the MCA provides that a petitioner may rely on one or more of six
facts to establish that a marriage has broken down beyond reconciliation.
Unreasonable behaviour and adultery are two of such facts.

Section 2(1)(b) of the Matrimonial Causes Act, 1971, Act 367 provides that for
the purposes of showing that a marriage has broken down beyond reconciliation,
the petitioner shall satisfy the court that the respondent has behaved in a way
that the petitioner cannot reasonably be expected to live with the respondent.

This section requires the petitioner to prove the conduct constituting

unreasonable behavior on the part of the respondent and the fact that he or she
cannot be reasonably expected to live with the respondent as a result of the bad
behavior.

Unreasonable behavior has been defined in English Law as conduct that gives
rise to injury to life, limb or health or conduct that gives rise to a reasonable
apprehension of such danger. According to this definition therefore, actual injury
does not have to be established. Mere apprehension of such injury is enough so
far as it has led to the breakdown of the marriage beyond reconciliation.

The conduct must be grave and weighty and must make living together
impossible.

Threats of actual personal violence may amount to cruelty and the courts will
not wait for the harm to take place before taking steps.

Actual or presumed intention to harm is irrelevant. Thus, A cannot threaten B,

his wife with a gun and argue subsequently that he did not intend to harm her.
Thus, in GOLLINS V GOLLINS, the House of Lords stated that if the conduct can
be called cruel, it does not matter whether it springs from a desire to hurt or
selfishness or sheer indifference.

What are the essentials of a Customary Law Marriage? Critically examine these
essentials.

Write your comments on the following;

a. What defects will make a marriage under the Marriage Ordinance void?
 A void marriage is a marriage which is so defective that the law regards it
as being nonexistent.
It is a marriage that does not comply with the substantive and procedural
requirements stipulated under Part three of the Marriages Act 1884 –
1985.
The substantive requirements are as follows;
1. A marriage should be prohibited on grounds of affinity and
consanguinity. Section 74 of the Marriages Act provides that ..
2. The capacity to enter into a marriage must be present on both sides.
This means the parties must twenty-one years and over. Section 59 of
the Marriages Act provides an exception that ‘where either party to an
intended marriage who is not a widower or a widow, is under 21, the
written consent of the father, or if the father is dead or is of unsound
mind or is absent from the Rep., of the mother, or if the mother is dead,
or is of unsound mind or is absent from the Rep, of the guardian of the
minor. A justice of the HC or the AG may give consent in appropriate
cases’.
3. The parties to a marriage must understand the nature of the contract
and must freely enter into it.

The Procedural requirements have been outlined under Part 3 of the Marriages
Act, as follows;

A marriage should be celebrated under the authority of

i. A registrar’s certificate
ii. A marriage officer’s certificate
iii. A special license from the Principal Registrar of Marriages.
Section 74(1) states that if a person goes through a marriage ceremony
while still married to another person under customary law or under the
ordinance, then the marriage ceremony under this part of the Act is void
Section 74(2) states as a marriage is void if both parties knowingly and
willfully acquiesced and celebrated it
•In a place other than the office of a registrar of marriages
•In a place other a licensed place of worship, except authorised by the
principal registrar’s license
•Under a false name or names
•Without the registrar’s certificate of notice
•Without the marriage officer’s certificate, or
•Without a license from the principal registrar
 •By a person who is not a recognised minister of a recognised
denomination or body, or a registrar of marriages.
In addition to the above a marriage will be void in the following
circumstances
•If Banns were not published in accordance with the provisions of the
Marriages Act
•If Caveat was entered but was not removed s57
•If the marriage was not celebrated within the 3 months of the date when
notice was given to the registrar of marriages
•If the marriage was celebrated under an expired license issued by the
principal registrar of marriages.

With the aid of decided cases, comment fully on the following;

i. Registrar’s Certificate
ii. Marriage Officer’s Certificate
iii. Special License

Section 41 of the Marriages Act 1884-1985 provides that a marriage under

the ordinance may be solemnized under the authority of
a. A Registrar’s Certificate
b. A Marriage Officer’s Certificate or
c. A Special License.

To obtain a Registrar’s certificate, an application which also serves as notice is

made by one of the parties to the Registrar of Marriages for a certificate to marry
at the office of the Registrar of Marriages.

The notice is then published in the Marriage Notice Book and a copy fixed on the
door of the registrar’s office or on the notice board outside his office until the
expiry of three months after the grant of the certificate.

The parties must also on affidavit state the following;

i. One of the parties has resided in the District where the marriage is to
be celebrated for at least fifteen days before the grant of the
certificate.
 ii. The parties to the marriage are above twenty one years and parental
consent has been obtained where either of the parties is below twenty
one
iii. The parties are not prohibited from marrying one another on grounds
of kindred and affinity
iv. None of the parties is already married under customary law to any
other person other than the person named in the notice.

Upon receipt of the affidavit sworn by one of the parties before the Registrar or
a Magistrate, the Registrar shall issue the certificate will shall be valid for three
months.

Where the marriage does not take place within three months after the date of
the notice, the notice an all proceedings consequent upon the notice becomes
void. A fresh notice shall be given before the parties can lawfully marry under a
registrar’s certificate.

Under the Marriage Officer’s certificate, each party is required at least four days
before the time required for the publication of banns to deliver to the Marriage
Officer in their respective districts a completed copy of Form E as set out in the
Fifth Schedule of the Marriages Act.

Where both persons have for fifteen days previously to giving the notice resided
in the same town or village, and are members of the same religious
denomination, a single notice in the Form F set out in the Fifth Schedule is
sufficient, and banns of marriage need be published only in the place of worship
of the religious denomination at that town or village, and one marriage officer’s
certificate in the Form J set out in the Fifth Schedule is sufficient authority for the
solemnisation of the marriage.

On the receipt of the notice of intended marriage, the marriage officer personally
publish the banns of marriage between the parties named in the notice at the
town or village where the person giving the notice resides, in the place of worship
of the religious denomination to which that person belongs, or the marriage
officer may authorize another person in writing to publish the banns.

Where the parties do not attend the same church, separate notices shall be
required and Banns shall be published in respect of each of the notices and a joint
certificate may be issued.

Banns shall be published on three Sundays if no caveat has been entered or has
been entered by duly removed. The Marriage officer shall within three moths of
the last date of the last publication of Banns grant the Marriage Officer’s
Certificate.

If the marriage is not solemnized within three months of the last publication of
Banns, the publication and all the related proceedings are void. Banns shall be
published all over again.

A Special license is applied for when a couple seeks to do away with the giving of
notice of the intended marriage between then or the publication of banns.

When the Principal Registrar is satisfied on affidavit that no lawful impediment

to a proposed marriage exists and that the necessary consent has been obtained,
the registrar may dispense with the giving of notice and with the issue of the
certificate of the registrar of marriages and the marriage officer and grant a
special license authorizing the celebration of the marriage between the parties
named in the license by the registrar or by a recognized minister of a religious
denomination or body.

The parties upon receipt of the Special License may take it to either a registrar of
marriages or a marriage officer for the marriage to be solemnized.

A Principal Registrar may also authorize the celebration of the marriage in a

place other than a licensed place of worship or registrar’s office.

In SETSE v SETSE, the court ruled it did not have jurisdiction over the
petitioner’s prayer for restitution of her conjugal rights. The court ruled
that the marriage was not a marriage under the Ordinance properly so
called. No banns were published and no Marriage Return was sent to the
Principal Registrar of Marriages in respect of the ceremony that took
place.

Similarly in CARR V CARR, the Court held that since the mandatory
provisions of Section 31 of the Marriages Act were not complied with
before the marriage between the petitioner and the respondent was
solemnised, there was no marriage under the Ordinance and therefore the
court had no jurisdiction to entertain the petition
In BADU B BOAKYE,

My husband beats me

I am 9

Ayitey and Oye met at a poolside party at Shangri La Hotel in 2001. Whilst
dating, Oye won a visa lottery to USA. A couple of days before Oye’s departure,
Ayitey asked Pastor Ralph, the youth pastor of International Christian Church
to bless his relationship with Oye and pray that Oye does not forget him when
he gets to the promised land.

They invited a couple of friends to Ayitey’s house where Pastor Ralph asked
Ayitey and Oye to kneel down before him. The Pastor asked if they were
willing to take each other as husband and wife. They both responded in the
affirmative. He blessed them by putting his hands on their heads and quoted
a few readings from the Bible. Thereafter he pronounced them Husband and
Wife. Hymns were sung and gathering dispersed. Four days later, Oye left for
the USA.

Soon after Oye’s departure, Ayitey started dating the daughter of the
Honorable DCE of Makola District, Gloria. Ayittey was so smitten by Gloria’s
looks and her powerful family. Six months after dating, he sought the hand of
Gloria in marriage from Honorable. Ayitey was given a list of alcoholic drinks,
six pieces of wax print cloth, jewellery and underwear and he presented all on
the day of the engagement.

It was the biggest social event in the district. All the prominent people in the
district were present and expensive gifts were exchanged. Soon after the
engagement, Ayitey realised that Oye was too much for him. She was naughty,
extravagant and refused to cook. Her mother came to their home daily
checking whether Ayitey was taking care of her baby.

Ayitey decided to properly marry his first love Monica under the Marriages Act
to stop both Oye and Gloria from laying claim to him. Ayitey clandestinely
arranged a wedding between him and Monica. All the procedures for a valid
marriage under the Marriage Act were meticulously followed. Unfortunately
for Ayitey, both Oye and Gloria heard about the planned marriage. They
threatened Ayitey that they would disrupt the planned marriage which was
scheduled to take place in a couple of weeks.
Advise all the parties.

My Dear Lawyer,

My name is Mrs. Winifred Osei Bonsu. I am married to Joe Osei Bonsu. We got
married at the Presbyterian Church Aburi on the 16th of June 2005. Reverend
Anahoma celebrated the marriage. Before the marriage, I was single and my
maiden name was Winifred Obeng. I lived with my parents at Amonokrom. Joe
was a bachelor and also lived with his parents.

Joe is an Architect and has his own Consulting Firm. I am a seamstress by trade
but gave up work when we had our first child Violet who is physically
challenged. After the marriage, we resided at Tarkwa for four years, Axim for
three years and Bolgatanga for one year before we moved to Accra.

We have three children, Violet, Nancy and David. Violet is fifteen years old,
Nancy twelve years and David is eight.

I am a Ghanaian and have resided in Ghana ever since I was born thirty-six
years ago. Joe was born and bred in the UK. He returned to Ghana when he
was twenty-four years old. He is forty years old now and resides at House
Number 22/4 Kerk St, Little Legon, Accra. I left the matrimonial home about
six months ago and live with my mother at House Number AK 46, King George
Avenue, Jamestown, Accra.

Lawyer, live has not been the same since we moved to Accra about three years
ago. Joe has suddenly become very controlling towards the children and me.
He started coming home late from work and when I complained he slapped
me around. I heard that Joe was having an affair with one of his co workers
and when I confronted him all hell broke loose. He beat me up mercilessly and
when the kids came crying to me, he shoved all of us into the garden and
locked the door after him. It was late at night and we had mosquito bites all
over out bodies. He let us in only after his best friend arrived at the house
unexpectedly. Joe refused to give me housekeeping money and shouted on
the children at the least opportunity. When I told him that I would want to
work again, he got extremely angry. He spat on my face and threw my
belongings outside. He accused me of being a prostitute and a cheap woman.
I have gotten to a stage that the mere presence of Joe causes my blood
pressure to rise. I am terrified of him.

I discovered about eight months ago that the lady at work was pregnant with
Joe’s child. When I confronted him, he rudely admitted that the child was his
and retorted that I could leave if I wanted to. That was when I packed my
belongings and left the matrimonial home for my mother’s house with the
children. Joe’s parents and my parents met a couple of times to try and settle
our differences. On each occasion, Joe came in drunk and very disruptive and
the meeting had to be called off.

Joe has three cars, a Nissan Sentra saloon car, a KIA Sorento and a Suzuki. He
also has a huge banana plantation. Joe acquired these properties from the
money he made when he worked briefly in Saudi Arabia with a foreign
company during the Guld War and also from his Architectural Practice.

I used the Suzuki to drop the kids at school and rto run other errands but Joe
took it when I left the matrimonial home.

Lawyer, I can no longer continue with the marriage. In fact I do not love Joe
any longer. Please apply for a divorce for me and ensure that I get custody of
the children, I also need financial support for the children and myself.

Prepare the divorce petition for filing at the Accra High Court.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
DIVORCE AND MATRIMONIAL DIVISION
ACCRA – AD 2020

SUIT NO.

WINIFRED OSEI BONSU……………………………………………………………….PETITIONER

AK 46 KING GEORGE AVE
JAMESTOWN, ACCRA

Versus

JOE OSEI BONSU…………………………………………………………………………RESPONDENT

22/4 KERK ST
LITTLE LEGON, ACCRA

PETITION OF WINIFRED OSEI BONSU

TO: HIS LORDSHIP, THE JUDGE

HIGH COURT,
ACCRA.

THE HUMBLE PETITION OF WINIFRED OSEI BONSU sheweth;

1. That the Petitioner then a Spinster, called Winifred Obeng was married to
the respondent, Joe Osei Bonsu at a ceremony celebrated by Reverend
Anahoma at the Presbytarian Church in Aburi on June 16th 2005.
2. That after the marriage, the parties co habited in Tarkwa, Axim,
Bolgatanga and Accra.
3. That the petitioner is unemployed and the respondent is an Architect
4. That the petitioner and the respondent are both citizens of Ghana
5. That there are three issues to the marriage, Violet, Nancy and David who
are 15, 12 and 8 years respectively.
6. That there have been no court proceedings concerning the marriage or the
children of the marriage
7. That the marriage has broken down beyond reconciliation
8. That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent and the respondent
has caused the petitioner much anxiety and distress.
PARTICULARS OF UNREASONABLE BEHAVIOUR
I. That the respondent slapped the petitioner when she complained of
his coming home late
II. That the respondent mercilessly assaulted the petitioner in front of
the children when she complained about his affair
III. That the respondent on one occasion locked the petitioner and their
children out of the house and left them at the mercy of the cold
weather and rampaging mosquitoes
IV. That the respondent refused to give the petitioner money for the
upkeep on the house
V. That the respondent shouted on the children at the least
opportunity
VI. That the respondent on one occasion spat on the respondent, threw
out her belongings and called her a prostitute
9. That all attempts by the family at reconciliation have proved futile.

WHEREFORE the petitioner prays as follows

i. That the marriage celebrated in fact between the parties be dissolved
ii. That the petitioner be granted custody of all the children of the
marriage namely, Violet, Nancy and David
 iii. That the respondent be ordered to make to the petitioner such
maintenance pending suit and thereafter such periodical payments as
may be just
iv. That the respondent be ordered to pay in the alternative to the
petitioner a lump sum of x ghs.
v. That the following properties be settled in favour of the Petitioner
Two the of the three cars [Suzuki and KIA]
Half of the Banana Plantation

DATED AT ACCRA THIS 15TH DAY OF MARCH 2020

Signature [Petitioner]

THE REGISTRAR
HIGH COURT
ACCRA

AND TO THE ABOVE NAMED RESPONDENT

BIGAMY AND SIMILAR OFFENCES

S 262 – This is the offence creating section and makes Bigamy a Misdemeanour.

S 263 – Defines Bigamy : A person commits bigamy who, knowing that a

marriage subsists that person and another person goes through the ceremony of
marriage, whether in Ghana or elsewhere, with another person. This section
further provides that a person shall not be convicted of bigamy if at the time of
the subsequent marriage, the former spouse has been continually absent from
that person for seven years and has not been heard of by that person as being
alive within that time. The person must also have informed the other party
before the subsequent marriage of the fact that he or she has a spouse who has
not been seen or heard of for seven years
S 264 – An unmarried person who goes through a marriage ceremony whether
in Ghana or elsewhere with another person whom that person knows to be
married to another person commits a misdemeanor whether the other party to
the ceremony does or does not have the guilty knowledge as to be convicted of
bigamy.
S 265 – makes an exception when both marriages are contracted under
customary law. However, under S 265[2] , if either of the marriages [subsisting
or new marriage] is a monogamous one, the person contracting the marriage
will be guilty of bigamy.

S 266 – A person who whether in Ghana or elsewhere goes through a marriage

ceremony or a purported marriage ceremony knowing that the marriage is void
and the other person believes it to be valid commits a misdemeanour.

S 267 – A person who personates any other person in marriage or marries under
a false name or description with intent to deceive the other party to the marriage
commits a misdemeanour.

S 268 – A person who is not duly qualified to perform or witness as a marriage

officer at marriage ceremony , knowing that any of the matters required by law
for the validity of a marriage has not happened/been performed so that the
marriage is void or unlawful on any ground, commits a misdemeanour.

S 269 – A person who in a declaration, certificate license, document or statement

required by law to be made or issued for the purposes of a marriage declares,
enters, certifies or states a material matter which that person knows to be false,
commits a misdemeanour.

S 270 – A person who endeavours to prevent a marriage by pretense commits a

misdemeanour.

S 271 – A person who is under duty to fill up the certificate/ counterfoil and to
transmit same to the Registrar of Marriages and willfully fails to do so commits
a criminal offence and is liable to a fine not exceeding twenty-five penalty units.

Kiki and Kaka were married under the customary law of Ghana, lived together
and had two children. Kiki got a scholarship to travel and Kaka and the children
joined him in the US. Kiki has met an American lady and wishes to marry her
in addition to Kaka and send Kaka and the children back home to Ghana.

Kaka as come to see you with his proposal. Advise him.

Area of Law : Effect of Customary law marriage

Issue : Whether or not Kiki can marry the American in addition to Kaka

Baba and Mama were married under the customary

Benedicta has been married to Kokuvi for two years. The marriage was
contracted

Benedicta has come to you for advise. She does not want Kokuvi involved with
another woman.

Advise her.

Area of Law : Breach of promise of marry under part 3 of the Marriages Act.

Issue : Whether or not the conduct of Kokuvi amounts to a promise to marry

under the Part 3 of the Marriages Act

• Marriage contract begins with an exchange of promises

• Serious offer + Serious acceptance
• No consideration required. Once promises are seriously made, a contract
that can be sued upon is created.
• Where the party does not honour/ does not intend to honour a promise he
or she will be in breach
• Types of Breach
• Anticipatory / Non Performance
• Anticipatory – breach committed before the date promised
• Non Performance – Promised date arrives and promise is not performed.
• ACHIAMPONG V ACHIAMPONG
• CLASS PETER
• ANING V KINGFUL
• Reliefs – Only Damages is available to a plaintiff in an action for breach of
promise to marry
• DONKOR V ANKRAH
o Number of years of marriage
o Issue between the parties - children
o Change in ‘value’
o How well known they are as a couple in the community
 • Defences
o Misrepresentation
o Mutual Release
o Insanity
o Infidelity [ on the part of the woman]
o Bodily Infirmity
o Bad Character

JJ married Jane in a lavish wedding blushing virgin. Thoroughly sticks and

whacks Jane until she becomes unconscious. Police Station

Advise him as to his rights and liabilities in this situation.

Area of Law : Nullity – Void Marriages

Issue : Whether or not the marriage between JJ and Jane is Void

Applicable Law

• Definition and Characteristics of Marriage

• Man and Woman
• Voluntary
• For life / until set aside by a court
• Capacity – consent required for persons between 18 – 21
• Exclusion of others
• Substantive Requirements
• Procedural Requirements
•

What constitutes a valid mohammedan marriage

• Marriages in Ghana –
• Mohammedan marriage is one of them
• Procedure
 • Proposal and Acceptance resulting in an agreement
• Must happen simultaneously in the presence witnesses
• Proposal and acceptance should be before a Mohammedan priest
• Reading/Reciting of scriptures
• Mohammedan pronounces the couple as married
• Registration within one week
• Husband, Wife’s ‘Wali’, two witnesses and the Mohammedan Priest go
the DCE
• Priest will pronounce that they are validly married and the entries are
correct
• Where for good reason they parties are not able to register within a week
they can file application at the HC for extension of time.
• A marriage not registered within a week is invalid and a party of that
marriage cannot benefit in the event of death of one party – S27 of
Marriages Act
•

Highlight any differences and similarities between mohammedan marriage

and customary marriage

• Differences
• Mandatory registration
• Limited number of wives
• Procedure of Mohammedan is specified and universal
• No informal Mohammedan marriage
• Failure to follow procedure results in an invalid marriage
• Validity – Registration gives Mohammedan validity. Customary law no
validity
• Similarities
o Polygamous
o Polyandry not accepted
o Recognized under Marriages Act
o Divorce under S41 of MCA
o Succession is under Law 111

State and explain seven marriages prohibited under customary law

• Consanguinity
 • Same sex marriages
• Affinity
• Polyandry
• Under age
• Woman who has not completed mourning rights
• Bethrothal
• Forced marriage

What is desertion?

With the aid of relevant case law, discuss the elements and main requirement
of desertion

Ama filed a petition against Kojo sometime in Jan 2017. The main averments
in her petition were as follows;

On 1st November 2000 the Petitioner formerly a spinster was lawfully married
under Akyem customary law to Kojo [thereinafter called the Respondent] and
the said marriage has never been dissolved or annulled. The customary
marriage was subsequently registered in accordance with law. After the said
customary marriage,

Ama claims the marriage has broken down beyond reconciliation

Ama has been married to Kofi for two years

They In 2000 Gladys Dewhurst a spinster met Eric Mensah then a bachelor at
a Night Club in London.

married under the Marriages Act 1884-1985 at the Aburi Presby Church on
June 16th 2002.The marriage ceremony was officiated upon by Rev Victor
Ansah. Both Gladys and Eric were Ghanaians.

Gladys is a Legal Secretary and Eric is a Legal Practitioner.

In 2005, Gladys gave birth to triplets, Parebea, Ohenewa and Oforiwa. They
are now nine years old.

The couple initially lived in Cape Coast but later moved to Accra where Eric set
up his own law practice. Eric put up a beautiful house in Abelempe in Accra
where the couple lived. The residential address is HN 23 Broadway Avenue,
Abelempe, Accra.

In 2012, Gladys heard rumours that Eric was having an affair with his secretary,
Monica. Glady became furious and confronted Eric. Eric denied the allegation
but his attitude towards Gladys and the children changed drastically
thereafter.

Eric would shout on Gladys in public and in the presence of the children
without provocation. He would come home late from work and refuse to east
meals prepared by Gladys.

On one occasion, Eric pushed Gladys so hard that she fell and broke her arm.
She was hospitalized for two weeks. When Gladys returned home she was
informed by the children that while she was in hospital the neighbour’s
daughter Abena moved in to live with them and that Abena spent the night
with their father.

Glady confronted Abena about Abena. Eric initialy denied the allegation but
later confessed to Gladys that he had sex with Abena but only on two
occasions

Eric continued to be disrespectful towards Gladys. One morning Eric showed

up at Glady’s workplace and publicly accused her of stealing from her
employers. Eric subsequently wrote a letter to the Rev Minister of Gladys’
church accusing her of practicing witchcraft.

Eric stopped giving house-keeping money. He refused to pay the utility bills on
the house. Consequently electricity and water supplies were disconnected.

Eric finally stopped communicating with Gladys. He moved to the guest room
and spent most of his time on his laptop/

Gladys tried on several occasions to speak to Eric about their problems but Eric
would not listen to her. All attempts by the families of both Eric and Gladys to
resolved their differences proved futile.
Gladys finally left the matrimonial home when Eric rushed towards her with a
kitchen knife. Gladys is now living with her uncle in Dansoman, HN 23,
Jacaranda View together with the children.

Through hard work, Eric has been able to acquire the following moveable and
immovable properties.

An orange farm at Ayensu in the Ashanti Region

An Ostrich farm at Ada

A Tilapia farm at Sogakope

A block of flats at Oyarifa

The matrimonial home in Accra

A KIA Sorento car with registration number GG 1313

A four wheel drive Nissan Pick Up with registration number PG 7776

Gladys has decided to petition for divorce and to ask for the custody of the
three children. She also wants the KIA Sorento, the matrimonial home and the
orange farm.

DRAFT THE DIVORCE PETITION FOR GLADYS.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
DIVORCE AND MATRIMONIAL DIVISION
ACCRA – AD 2020

SUIT NO.

GLADYS MENSAH………………………………………………………………. PETITIONER

HN 23 JACARANDA VIEW
DANSOMAN, ACCRA

Versus

ERIC MENSAH…………………………………………………………………………RESPONDENT
HN 23, BROADWAY EVE
ABELEMPE, ACCRA
PETITION OF GLADYS MENSAH

TO: HIS LORDSHIP, THE JUDGE

HIGH COURT,
ACCRA.

THE HUMBLE PETITION OF GLADYS MENSAH sheweth;

1. That the Petitioner then a Spinster, called Gladys Dewhurst was married
to the respondent, Eric Mensah, then a bachelor at a ceremony celebrated
by Reverend Victor Ansah at the Presbyterian Church in Aburi on June 16th
2002.
2. That after the marriage, the parties co habited in Cape Coast and later in
Accra.
3. That the petitioner is a Legal Secretary and the respondent is a Legal
Practitioner.
4. That the petitioner and the respondent are both citizens of Ghana
5. That there are three issues to the marriage, Oparebea, Ohenewa and
Oforiwaa, who are triplets and aged 9.
6. That there have been no court proceedings concerning the marriage or the
children of the marriage
7. That the marriage has broken down beyond reconciliation
8. That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent and the respondent
has caused the petitioner much anxiety and distress.
PARTICULARS OF UNREASONABLE BEHAVIOUR
I. That the respondent shouts on the petitioner in public in the
presence of the children without provocation
II. That the respondent refused to eat meals prepared by the petitioner
III. That the respondent on one occasion pushed the respondent so
hard that she fell and broke her arm
IV. That the respondent on one occasion went to the petitioner’s office
and accused her of stealing from her employers
V. That the respondent wrote to the Reverend Minister of Gladys’
church and accused her of practicing witchcraft
VI. That the respondent stopped giving her house keeping money and
also refused to pay the utility bills and consequently the electricity
and water supplies were disconnected.
 VII. That the respondent stopped communicating with the petitioner
and moved to a guest room
VIII. That the respondent on one occasion attacked the petitioner with a
kitchen knife
9. The respondent has committed adultery and the petitioner finds it
intolerable to live with the respondent
PARTICULARS OF ADULTERY

I. The respondent confessed to having sex with the neighbour’s daughter

on two occasions

10.That all attempts by the family at reconciliation have proved futile.

WHEREFORE the petitioner prays as follows

i. That the marriage celebrated in fact between the parties be dissolved
ii. That the petitioner be granted custody of all the children of the
marriage namely, Oparebea, Ohenewa and Oforiwaa.
iii. That the following properties be settled in favour of the Petitioner
KIA Sorento with registration number
Orange Farm situate at ……….
Any other order that this honourable court may deem fit

DATED AT ACCRA THIS 15TH DAY OF MARCH 2020

Signature [Petitioner]

THE REGISTRAR
HIGH COURT
ACCRA

AND TO THE ABOVE NAMED RESPONDENT

On July 20,1990 at the Sunyani Metropolitan Assembly offices, Yaw Peese and
Akosua Dompo both natives of Pewobaabida in Ahafo District of the Brong
Ahafo Region had a big society wedding. Akosua was residing at Plot No. BA
10, Sekyere Street, Tanoso and Yaw was residing at No. 10, African Bungalows,
Fiapre prior to the marriage.
It was officiated by Mr. William Sekyi, the Registrar of Marriages. The parties
thereafter lived at Berekum for six years and moved to Tema for the next four
years. They left for Newark, New Jersey, United States of America (USA) in the
year 2000 when Akosua won the American Diversity Lottery. In the course of
their stay in the USA, Yaw went back to school and graduated as a Petroleum
Engineer and Akosua furthered her studies and became a lawyer. They have
since the year 2010 returned to Ghana and lived in Accra. Mr. Peese is the
Senior Petroleum Engineer at Star Oil Company Limited.

Before the marriage and upon Mr. Peese's insistence the parties made a
gentleman’s agreement not to have any children. However, in the face of the
persistent demands of Akosua during the subsistence of the marriage, to have
a child Mr. Peese relented and they had a baby girl named Krischaris Awurama
Peese 14 years later. When the child was four years old Akosua went to court
for an order of maintenance praying the court to order Mr. Peese to employ
an additional servant to take exclusive care of her because as she put it" the
girl is entitled to the best care money can buy". She however discontinued the
case upon the exhortation of friends and the "sweet talk" of Mr. Peese.

Mr, Peese's case is that since 2011 he and Akosua have not lived together as
man and wife. He complained that Akosua on a number of occasions heaped
abuses on him in public and ridiculed him about his education and bad English.
Akosua on a number of occasions went to his place of work and harassed him
and asked him to leave Ghana and go back to USA.

On another occasion while Mr. Peese was with his lawyer in the latter's office.
Akosua went to create a scene, demanding her marriage certificate from him.
It was with great difficulty that she was taken from the lawyer's office but not
before she had violently kicked and badly scratched the face of Mr. Peese.

On another occasion Akosua went to the flat of Mr. Peese and threatened to
kill him with a very sharp kitchen knife which she suddenly pulled out from her
long skirt. It was only through Police intervention that she left the flat but
again only after a couple of dirty slaps to the face of Mr. Peese. She boasted
when she was leaving, "if knife won't do African Juju will".

Indeed, since they separated, Akosua has made life continuously unbearable
for Mr. Peese in many other respects. She wrote a letter to the Head Office of
his employers In London reporting that he had stolen certain property
belonging to the company. The Head Office referred the matter to Ghana to
be investigated but the investigation found no truth in the letter.
 Again she wrote a letter to the Freemason's Lodge at Accra of which Mr. Peese
was a member. She castigated Mr. Peese as an unfit person to be considered
for the post of Master of the Lodge. The complaint was dismissed as baseless.

On one occasion Mr. Peese was in an aircraft ready to fly out of the country
for holidays. That was at Kotoka International Airport, Accra. The engines had
started when the steps to the door of the aircraft were put back into position.
The door was opened and into the aircraft entered Akosua and two policemen.
She identified Mr. Peese to the policemen who arrested him, took him out of
the aircraft and escorted him to the Airport police station. The aircraft left
however with Mr. Peese's luggage. Mr. Peese was kept at the police station
for over two hours after which he was asked to leave the station.

Mr. Peese went to the Accra office of his company to complain of the incident
and while there a bailiff appeared in the company of Akosua with an
absconding warrant. He was then taken to the High Court Accra, where he was
granted bail.

It may be noted that at the time Mr. Peese was pulled out of the aircraft by
the police at Akosua instigation, there was no absconding warrant for his
arrest. The arrest was therefore illegal. Apparently Akosua sought police
assistance to detain Mr. Peese while the court proceedings for absconding
warrant were in progress, Mr. Peese later sued the police for damages for
wrongful arrest and false imprisonment and the police settled the claim.

In spite of her seemingly venom pre-disposition to violence, Akosua has had a

lucrative law practice and was the wealthier of the two spouses. The couple
owned four (4) houses at East Legon, which they rented out for a substantial
rent paid in US Dollars. They also owned a house at West Hills Estates which
was used as the matrimonial home. The house was exquisitely furnished with
all modern gadgets one would expect in an upper middle-class home. They
lived there in the days of bliss gone by until Mr. Peese moved into his present
flat at Dansoman. In addition, they owned a Range Rover Evoque vehicle,
Toyota Landcruiser Vehicle, Nissan Maxima and Honda Acura saloon vehicles.
They also had a 450-acre cocoa plantation at Berekum. Mr. Peeses' present
addresss is No.44, Ankonam Road Dansoman, Accra and Akosua lives at No.
22, Glory Road, West Hills Estate.

Mr. Peese has come to see you. He says he is tired of the issues in his marriage
and wants to get out of It all.
Draft the necessary Process for Mr. Peese to be filed at the High Court, Accra.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
DIVORCE AND MATRIMONIAL DIVISION
ACCRA – AD 2020

SUIT NO.

YAW PEESE ……………………………………………………………….PETITIONER

44 Ankonam Road
Dansoman

Versus

AKOSUA PEESE
…………………………………………………………………………RESPONDENT
22 Glory Road
West Hills Estate
PETITION OF YAW PEESE
TO: HIS LORDSHIP, THE JUDGE
HIGH COURT,
ACCRA.

THE HUMBLE PETITION OF YAW PEESE sheweth:

1. That the petitioner then a bachelor was married to Akosua Dompo then a
spinster on July 20, 1990 at a ceremony officiated by Mr. William Sekyi at
the Sunyani Metropolitan Assembly Offices.
2. That after the said ceremony, the parties co habited at Berekum, Tema,
Newark,NJ in the USA and Accra.
3. That the petitioner is a Petroleum Engineer and the respondent is a lawyer
4. That both the petitioner and respondent are citizens of Ghana

5. That there is one issue in the marriage – a daughter called Krischaris

Awurama Peese aged XX
6. That there has been no previous proceeding concerning the marriage
7. That the marriage has broken down beyond reconciliation
8. That the respondent has behaved in such a way that the petitioner cannot
be reasonably expected to live with the respondent and the respondent
has caused the petitioner much distress, anxiety and embarassment.
PARTICULARS OF UNREASONABLE BEHAVIOUR
I. That the respondent on a number of occasions heaped abuses on
the petitioner in public and ridiculed him about his education and
bad English
II. That the respondent on a number of occasions went to the place of
work of the petitioner and harassed him and asked him to leave
Ghana and back to the USA
III. That on one occasion, the respondent disrupted a meeting between
the petitioner and his lawyer at the lawyer’s office demanding her
wedding certificate and violently scratched the petitioner’s face
IV. That on one occasion, the respondent threatened the petitioner
with a knife in his apartment, slapped him in the face and also
verbally threatened him with juju
V. That the respondent wrote a letter to the Head Office of the
petitioner’s employers claiming that he had stolen certain property
belonging to the company which turned out to false after
investigation
VI. That the respondent wrote to the Freemason’s Lodge castigating
the petitioner as an unfit person to be considered for the post of
Master of the Lodge which turned out to be false after investigation
VII. That on one occasion, the respondent facilitated the arrest and
detention of the petitioner who was aboard a plane on a business
trip. The arrest and detention was prior to her obtaining an
absconding warrant from the court. The Police later settled the
claim for wrongful arrest and false imprisonment.
9. That all attempts at reconciliation has proved futile
WHEREFORE the petitioner prays for the following;
i. That the marriage celebrated in fact between the parties be dissolved
ii. That the petitioner be granted custody of all the children of the
marriage namely,
iii. That the following properties be settled in favour of the Petitioner
Toyota Landcruiser
Nissan Maxima
Honda Acura
2 houses at East Legon
Any other order that this honourable court may deem fit
DATED AT ACCRA THIS 15TH DAY OF MARCH 2020

Signature [Petitioner]

THE REGISTRAR
HIGH COURT
ACCRA

AND TO THE ABOVE NAMED RESPONDENT

Paul Bediako and Mary Opoku met at a church service sometime in 2000. They
immediately started dating. After a couple of months of dating, they set a date
for the customary law marriage. The families met and all the necessary
customary rites were performed. Mary gave birth to two children, Frederick and
Jennifer.

After five years of marriage, the couple decided to convert their marriage to
Ordinance marriage. They went to see the Pastor of their church and explained
their intentions to him. They planned to celebrate the marriage at Bojo beach.
The pastor announced in church the following Sunday that Paul and Mary
intended to marry and invited members of the church to Bojo beach-for the
celebration the following Sunday.

On the day of the celebration the families and friends of Paul and Mary met at
Bojo beach. Mary wore a beautiful wedding gown and a tiara and Paul had on a
tuxedo. The Pastor gave a long sermon amidst the singing of hymns. Paul and
Mary took their wedding vows and exchanged their wedding rings. Prayers were
said and the pastor pronounced them husband and wife. Mary thereafter
changed her name from Miss Mary Opoku to Mrs. Mary Bediako. '

Paul has impregnated his secretary Alice. Alice's father is livid and has instructed
Paul to marry his daughter. Paul is confused and is not sure whether he can go
ahead and marry Alice in addition to Mary.

Paul has come to you for advice.

Area of Law: Conversion of a Customary Marriage

Issue : Whether or not the marriage between Paul and Mary was successfully
converted to a Monogamous marriage.

Part Three of the Marriages Act 1884-1985 [CAP 127] lays down the procedure
for contracting a monogamous marriage. The same procedure is followed for the
conversion of a customary law marriage to a monogamous marriage.

The mandatory requirements as provided in the Act are as follows;

A marriage must be celebrated under a certificate issued by a Registrar of

marriages, a Marriage Officer or under a Special License issued by the Principal
Registrar.

If the marriage is planned to be celebrated in a church, banns must be published

in the churches of both parties on three consecutive Sundays. If the parties attend
different churches, the banns must be published in the two churches separately.

If the marriage is to be celebrated under a registrar’s certificate, a notice must

be displayed on the Notice Board of the Registrar for twenty-one days.

In addition to the requisite license and notice, there are other critical mandatory
requirements.

Section 56 [2] of the Marriages Act provides that if a caveat is entered, it must
be removed before the marriage is celebrated.

The marriage must be officiated by a Minister of a recognized church licensed to

officiate such ceremonies.

The marriage must not be celebrated under an expired license.

The marriage must not be celebrated under false names.

The above requirements are mandatory and failure to comply with any of them
will render the marriage null and void.

The features of a customary law marriage are as follows;

Customary law marriages are potentially polygamous in nature. This means a

man may marry as many women as he can harmoniously live with and
conveniently manage.
Customary law marriages and ordinance marriages are mutually exclusive. This
means that the two types cannot co exist. Thus is a man is married to one woman
under customary law, he cannot marry another woman under the Ordinance. He
can only marry his customary law wife under the Ordinance by converting the
polygamous marriage to a monogamous one. If he desires to marry any other
woman under the Ordinance he must divorce the customary law wife first.

When the customary law marriage is successfully converted, it falls away and its
place is taken by the monogamous marriage.

Per the facts of the case, some of the mandatory provisions of the Act were not
complied with and these are enumerated as follows;

The requirement for publication of Banns for marriages celebrated in church is

that is must be done for three consecutive Sundays per Section 50[2]. This was
not complied with per the facts.

Per the facts, the marriage was celebrated under a Marriage Officer’s Certificate
however the venue was not a church but a beach which required a Special
License.

In SETSE v SETSE, the court ruled it did not have jurisdiction over the petitioner’s
prayer for restitution of her conjugal rights. The court ruled that the marriage
was not a marriage under the Ordinance properly so called. No banns were
published and no Marriage Return was sent to the Principal Registrar of
Marriages in respect of the ceremony that took place.

Similarly, in CARR V CARR, the Court held that since the mandatory provisions of
Section 31 of the Marriages Act were not complied with before the marriage
between the petitioner and the respondent was solemnised, there was no
marriage under the Ordinance and therefore the court had no jurisdiction to
entertain the petition

The marriage between Paul and Mary was therefore not successfully converted.
Since they were previously married under customary law, that previous marriage
will subsist in the absence of a successful conversion. Since customary law
marriages are polygamous, Paul is allowed to marry additional women.
My Dear Lawyer,

My name is Mrs. Christina Yeboah. I am married to Francis Yeboah. We got

married at the Presbyterian Church Tarkwa on the 16th of June 2005. Reverend
Acqua celebrated the marriage. Before the marriage, I was single and my
maiden name was Regina Offei. I lived with my parents at Amonokrom. Francis
was a divorcee and also lived with his parents. Francis is an Architect and has
his own Consulting Firm. I am a trained nurse but gave up work when we had
our first child Violet who is physically challenged. After the marriage we
resided at Tarkwa for four years, Axim for three years and Bolgatanga for one
year before we moved to Accra. We have three children, Violet, Jojo and Lily.
Violet is fifteen years old, is twelve years old and Lily is eight years old. I am a
Ghanaian and have resided in Ghana ever since I was born thirty six years ago.
Francis was born and bred in Australia. His parents are neurosurgeons and
have lived in Australia for more than thirty five years. Francis returned to
Ghana when he was twenty four years old. He is forty years old now and
resides at House Number 22/4 Grace Street, Little Legon, Accra. I left the
matrimonial home about six 2 months ago and live with my mother at House
Number A/K 46, King George Avenue, Abelempe, Accra. Lawyer, life has not
been the same since we moved to Accra about three years ago. Francis has
suddenly become very controlling towards the children and myself. He started
coming home late from work and when I complained he slapped me around. I
heard that he was having an affair with one of his co-workers, Amelia. When I
confronted him, all hell broke loose. He beat me up mercilessly the following
day and when the kids came crying to me, he shoved all of us into the garden
and then locked the door. It was late at night and we had mosquito bites all
over our bodies. He let us in only after his best friend arrived at the house
unexpectedly. Francis refused to give me house- keeping money and shouted
on the children at the least opportunity. When I refused to give him sex he got
extremely angry and locked me in the bathroom for several hours. On one such
occasion, he spat on my face and threw my belongings outside. He accused me
of being a prostitute and a witch. I discovered about eight months ago that the
lady at work was pregnant with Francis’ child. When I confronted him, he
rudely admitted that the child was his and retorted that I could leave if I
wanted to. That was when I packed my belongings and left the matrimonial
home for my mother’s house with the children. Francis’ parents and my
parents met a couple of times to try and settle our differences. On each
occasion Francis came in drunk and very disruptive and the meeting had to be
called off. 3 Francis has three cars, a Nissan Sentra saloon car GH 1235 Y, a Kia
Sorento , Q 6667 S and a Suzuki 4 x 4 GF 7272 X. He also has a huge banana
plantation at Ofinso. Francis acquired these properties from the money he
made when he worked briefly in Saudi Arabia with a foreign Company during
the Gulf War and also from his Architectural Practice. I used the Suzuki 4 x 4 to
drop the kids at school and to run other errands but Joe took it when I left the
matrimonial home. Currently, I use taxis to drop off and fetch the children
from school. Lawyer, I can no longer continue with the marriage. In fact I do
not love Francis any longer. Please apply for a divorce for me and ensure that
I get custody of the children. I also need financial support for the children and
myself. Please lawyer, also kindly ask for half of the banana plantation for me.

Prepare the Divorce Petition for filing at the Accra High Court.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
ACCRA – AD 2020

SUIT NO.

CHRISTINA YEBOAH……………………………………………………………….PETITIONER
A/K 46, King George Avenue, Abelempe

Versus

FRANCIS YEBOAH…………………………………………………………………………RESPONDENT
22/4 Grace Street, Little Legon

PETITION OF CHRISTINA YEBOAH

TO: HIS LORDSHIP, THE JUDGE

HIGH COURT,
ACCRA.

THE HUMBLE PETITION OF CHRISTINA YEBOAH SHOWS:

1. That the Petitioner then a Spinster, called Regina Christina Offei was
married to the respondent, Francis Yeboah, a divorcee under Part 3 of the
Marriages Act [CAP 127] at a ceremony celebrated by Reverend Acquah at
the Presbyterian Church in Tarkwa on June 16th 2005.
2. That after the marriage, the parties co habited in Tarkwa, Axim,
Bolgatanga and Accra.
3. That the petitioner is unemployed and the respondent is an Architect
4. That the petitioner and the respondent are both citizens of Ghana
5. That there are three issues to the marriage, Violet, Jojo and Lily who are
15, 12 and 8 years respectively.
6. That there have been no court proceedings concerning the marriage or the
children of the marriage
7. That the marriage has broken down beyond reconciliation
8. That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent and the respondent
has caused the petitioner much anxiety and distress.
PARTICULARS OF UNREASONABLE BEHAVIOUR
I. The respondent started coming home late
II. That the respondent slapped the petitioner when she complained of
his coming home late
III. That the respondent has become very controlling towards the
petitioner and the children.
IV. That the respondent mercilessly assaulted the petitioner in front of
the children when she complained about his affair
V. That the respondent on one occasion locked the petitioner and their
children out of the house and left them at the mercy of the cold
weather and rampaging mosquitoes
VI. That the respondent refused to give the petitioner money for the
upkeep of the house
VII. That the respondent shouted on the children at the least
opportunity
VIII. That the respondent on one occasion spat on the respondent and
threw out her belongings
IX. The respondent locked the petitioner in the bathroom after the
petitioner refused to give the respondent sex
X. That the respondent called the petitioner a prostitute and a witch
XI. That the respondent came to family meeting drunk . ..

9. That the respondent has committed adultery and the petitioner finds it
intolerable to continue to live with the respondent

PARTICULARS OF ADULTERY

I. That the respondent has confessed to the petitioner of sleeping with

another women
II. The respondent admitting to impregnating another woman
 10.That all attempts by the families of the parties at reconciliation have
proved futile.

WHEREFORE the petitioner prays as follows

I. That the marriage celebrated in fact between the parties be dissolved
II. That the petitioner be granted custody of all the children of the
marriage namely, Violet, Jojo and Lily
III. That the respondent be ordered to make to the petitioner such
maintenance pending suit and thereafter such periodical payments as
may be just
IV. That the respondent be ordered to pay in the alternative to the
petitioner a lump sum of x ghs.
V. That the following properties be settled in favour of the Petitioner

a. Half of the Banana Plantation at Offinso

b. Suzuki [regisitration] [colour]

Signature [Petitioner]

DATED AT ACCRA THIS 15TH DAY OF MARCH 2020

THE REGISTRAR
HIGH COURT
ACCRA

AND TO THE ABOVE NAMED RESPONDENT

ANSWER AND CROSS PETITION:

The facts simply are that Mr. Yeboah admits paragraphs1 to 7 and says the
petitioner is disrespectful, rude, a prostitute, a witch, short-tempered,
alcoholic, gambler and a thief.

He wants the marriage dissolved.

He wants custody of all the children and the petition is not entitled to any of
the reliefs sought.

We will use these facts to prepare the answer and cross petition to Mrs.
Yeboah's petition.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
AD 2020
SUIT NO.

CHRISTINA YEBOAH……………………………………………………………….PETITIONER
A/K 46, King George Avenue, Abelempe

Versus

FRANCIS YEBOAH…………………………………………………………………………RESPONDENT
22/4 Grace Street, Little Legon

ANSWER AND CROSSPETITION

ANSWER
THE RESPONDENT IN ANSWER TO THE PETITION SAYS AS FOLLOWS;

1. That the Respondent admits paragraphs 1 – 7 of the Petition

2. That the Respondent admits to paragraph 9 of the petition
3. That the Respondent denies paragraph 8 of the petition

CROSS PETITION

That the respondent avers as follows;

4. That the petitioner has behaved is such a way that the respondent cannot
reasonably be expected to live with the petitioner and the petitioner has
caused the respondent much anxiety, distress and embarrassment.
PARTICULARS OF UNREASONABLE BEHAVIOUR

i. That the petitioner used disrespectful words towards the respondent

ii. That the petitioner is rude towards the respondent
iii. That the petitioner is a Prostitute
iv. That the petitioner is a witch
v. That the petitioner is short tempered
vi. That the petitioner is an alcoholic
vii. That the petitioner is a gambler
viii. That the petitioner is a thief

WHEREFORE the Respondent prays as follows:

i. That the marriage between the parties be dissolved
ii. That the respondent be granted custody of all three children
iii. That the petitioner is not entitled to any of the reliefs sought

……………………………………………………..
Respondent
DATED AT XXXXX

AND TO THE ABOVE NAMED PETITIONER

My Husband Beats Me

I am 29 and he is 34. We have been together for the past nine years and we
have two children. Unfortunately my man is not the caring and loving type. I
have advised him several occassions to change his attitude towaeds me but
things are the same. He doesn’t care for the kids and it was such a difficult time
that he tried to perform the customary marriage rites but I refused to have it
done.

My parents advised that since we have kids I should allow him to perform the
marriage rites. They also convinced me that he will by all means change for the
better so I agreed to the proposal however, he has not changed but has
changed for the worse. Now when I complain about his behaviour he beats me
up. Nana, her has a good job but has made it clear to me that as long as my
parents like him, he can do whatever he likes to me and that nobody is going
to break the marriage. Besides he has performed the marriage rites. As a result
of this, I have lost interest in the marriage totally.

When I told my parents about it, they rejected my decision. I am not happy as
far as this marriage is concerned. I am confused and have decided to end my
life NAA Abuasi.

The above appeared in the Nana Ama advises you column of THE MIRROR,
Saturday November 13, 1999 at page 10. instead of NAA ending her life, she
came to see you for legal advise. Advise her as to all the legal possibilities open
to her.

What are your comments on the Customary Marriage and Divorce

[Registration Law 1985] PNDC 112 [as amended by PNDC Law 263 as it relates
to the registration of customary divorces only?

Juliana is married under the ordinance for 4 years. My husband did not acquire
any assets during the marriage. Before the marriage, he had acquired 4 houses.
Juliana’s husband just informed her that he wants out of the marriage because
he had impregnated the other woman and plans to marry her. I want to leave
the marriage too but I want to know if I will get some of his assets if the
marriage is dissolved. Lawyer please advise.

Area of Law : Property Settlement

Issue: Whether or not Juliana is entitled to property acquired solely by her
husband upon the dissolution of marriage
The law that governs property settlement is Section 20 of the Matrimonial
Causes Act, 1971, Act 367.
The law provides that the court may order either party to the marriage to pay to
the other party such sum of money or to convey to the other party such movable
or immovable property as settlement of property rights in lieu thereof or as part
of financial provision as the court thinks just and equitable. The Section further
provides that payments and conveyances may be paid in gross or in installments.
The grant of financial provision under Section 20 is not based on ownership or
contribution but on the needs of the parties. This means that whether or not a
spouse makes contribution to the acquisition of a particular property is
immaterial. The courts will consider the needs of the spouses and decide.
The courts have interpreted Section 20 clearly in several cases. The
interpretations are summed up as follows;
1. The section gives a court the discretion to order the wife or the husband to
pay an amount of money to the other.
2. The section does not contain the pre-condition under Section 19 that the
Court should consider the standard of living of the parties and their
circumstances
3. The court has the power to order one of the parties to transfer his or her
property to the other
4. The Court has the property to determine which property to settle on a party
5. The court has the power to order both payment of money and transfer of
property
6. The property here may consist of a sum of money or immovable property
such as a building or a piece of land
7. The court may order that money be paid all at once or by installments
8. Section 20 gives the courts wide discretion with regard to financial provisions
and property settlement
9. An order in respect of financial provision dies with the demise of the person
making payments or the person receiving payments
10.A court may only order lump sum payment if the party who has to pay has
sufficient assets to satisfy the order.
11.The Court does not only have the power to vest immovable property as
settlement of property rights or in lieu thereof but also as part of financial
provision.
In OPAREBEA V MENSAH, the Court of Appeal explained that to ascertain and
determine a claim made under Section 20 of Act 367 the court must examine the
needs of the party making the claim and not contributions of the parties. In
considering the amount payable under this section, the court does not take into
account the conduct of either the wife or the husband. It looks at the realities
and takes into account the standard of living to which the wife is accustomed
during the marriage.
In AIKINS V AIKINS, the court stated that it was entitled under Section 20 of Act
367 to order lump sum payment where the husband had capital assets sufficient
for that purpose. The Court should not hesitate to order lump sum payment
which one made could not be varied in the light of changing circumstances such
as subsequent remarriage of the wife.
On the facts of the case, the husband was ordered to make a lump sum payment
to his wife.
Similarly, in RIBEIRO V RIBEIRO, the Supreme Court stated that under Section 20
of Act 367, the court has to grant financial provision where married couples were
divorced. The basic consideration is not based on proof of ownership of
contribution towards acquisition of the properties to be awarded by on the needs
of the parties.
In BERCHIE BADU V BERCHIE BADU the court explained that when a court is
exercising its divorce jurisdiction under Section 20 of the Matrimonial Causes Act,
the Court is armed with sufficient powers to make provisions for the wife on the
breakdown of the marriage. In the exercise of the court’s discretion under this
section, the overriding consideration is that the order should be just and
equitable.
The courts have explained in several cases that a party seeking reliefs under
Section 20 should specifically plead for them. A Court cannot suo motu, make
orders in favour of a party when the party has not pleaded them either in a
petition, a cross petition or even through a witness statement.
Ocran JSC as he then was, stated in GIHOC REFRIGERATION AND HOUSEHOLD
PRODUCTS V HANNA ASSI that the courts are not in the business of conferring
unsolicited remedies on those who had not invoked the court’s jurisdiction.

Bantu married Salamatu 12 years ago under Mohammedan law. They have 4
children. Bantu passed away 2 months ago. He left behind 2000 heads of cattle
and two buildings. The marriage was not registered. Salamatu wants to know
if she is entitled to any of Bantu's assets. Bantu died intestate. Advise
Salamatu.

Area of law: Intestate succession under Mohammedan marriages / Effect of non-

registration on Mohammedan Marriages

Issue : Whether or not Salamatu is entitled to any of Bantu’s assets/ Whether or

not the non- registration of Salamatu’s marriage to Bantu invalidates the
marriage / Whether or not the non- registration of Salamatu’s marriage prevents
her from benefitting from Bantu’s assets

The law governing Mohammedan marriages in Ghana is contained in Part two

of the Marriages Act 1884-1985.

Mohammedan marriage has been defined as a contract of the legalization of

intercourse and the procreation of children. It is an institution ordered for the
protection of society and in order that human beings may guard themselves from
foulness and chastity.

The essential requirements of a Mohammedan marriage are that there should

be a proposal made or on behalf of one of the parties to the marriage

There must be an acceptance by or on behalf of the other. The proposal and

acceptance should take place in the presence of and to the hearing of two male
or one male and two female witnesses who must be sane and adult
Mohammedans.

Both the proposal acceptance must be expressed at one meeting.

A muslim marriage celebrated after the commencement of the Marriages Act

shall be registered otherwise the marriage is null and void

Section 27 of the Marriages Act 1884-1985 provides that a marriage contracted

or divorce effected after the commencement of this Part by person professing
the Mohammedan faith is not valid unless registered under this part.

The District Chief Executive of each District shall be the registrar of

Mohammedan marriages and divorces for that district.

The District Chief Executive shall keep a Mohammedan Marriage and divorce
register. It is the duty of the registrar to register Muslim marriages and divorces.

The requirement is that the marriage shall be registered before the expiry of one
week after the celebration of the marriage.

A High Court may order the registration of a marriage after the expiry of one
week upon an Ex Parte application by the bridegroom or bride’s wali. The
application shall be supported by an affidavit stating the reason for the delay.

The validity of a Mohammedan marriage may be proved by the production of

the register in which the marriage or divorce is entered or an extract from the
register certified and signed personally by the District Chief Executive or the
certificate of the marriage or divorce.

Ghanaian case law has confirmed that a Mohammedan marriage which is not
registered within the stipulated one week will be declared null and void. dzame

In the case of RE REGISTRATION OF MARRIAGE BETWEEN BYROUTHY AND

AKYERE: EX PARTE ALI, Justice Koranteng Addo stated categorically that
registration gives a Muslim marriage its validity.

In JABEILLE AND ANOTHER V ASHKA V ANOTHER, a validly solemnized Muslim

marriage was declared void because it was not registered within seven days.

• Creation of a valid moslem marriage

• Procedure for registering a muslim marriage
• BARAKE V BARAKE
• AKYERE V
• S19 of PNDC Law 111

Mr. And Mrs. Ababio got married in the year 2010 under the marriage officers
certificate at the Presbyterian church at Akropong. The marriage was
officiated by Rev. Frederick Obeng. They now have 3 children- Mildred is 10
years old Kelsa is 4 years and Michael is 5 years. After marriage the couple
lived in Kumasi and Obuasi before moving to Accra. They bought a house at
dzorlwulu where they lived. Both Mr. and Mrs. Ababio are Ghanaians. John
Ababio is a building contractor and Dora Ababio is a nurse. Two years ago John
started proceedings at the high court regarding the paternity of Michael. He
later decided to withdraw the matter upon the advice of family and friends.
Since then however life has not been the same. John has blatantly admitted to
Dora that he is sleeping with his secretary. John then started insulting Dora in
public and at home in the presence of the children. As time went on john
stopped talking to Dora. Dora’s maiden name is Asiedu.
On one occasion John bit Dora finger in a scuffle which was subsequently
amputated. On another occasion John locked Dora up in the bathroom for
several hours.
Dora reported john’s conduct to DOVSU and john was invited for counselling
but he refused to attend the meeting. John left the bedroom that he shared
with Dora and moved to the guest room. Only last week john beat up Dora
mercilessly. Dora then finally decided to bring the marriage to an end. She
wants custody of the children, she also wants John to give her 50% of the
properties he has acquired during the marriage. John has 4 houses at various
locations in Accra.
Dora also knows that john has investments in some companies in Ghana
including mtn. Dora now resides with her mother together with the children
at house number 55 Jackaranda avenue lakeside estates, Ashaley-Botwe in
Madina. John still lives at the matrimonial home at house number 16 Fred &
Fred avenue at Dzorlwulu
Draft the relevant documents for filing at the high court.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
[DIVORCE AND MATRIMONIAL CAUSES DIVISION]
ACCRA – AD 2020

SUIT NO.

IN THE MATTER OF THE MATRIMONIAL CAUSES ACT 1971 [ACT 367]

AND
IN THE MATTER OF A PETITION FOR DISSOLUTION OF THE MARRIAGE

BETWEEN

DORA ABABIO……………………………………………………………….PETITIONER
H/NO 55 JACKRANDA AVE
LAKESIDE ESTATES
ASHALEY BOTWE- MADINA
ACCRA
AND

JOHN ABABIO………………………………………………………RESPONDENT
H/NO 16 FRED & FRED AVE
DZORWULU
ACCRA

PETITION OF MRS DORA ABABIO

TO: HIS LORDSHIP, THE JUDGE

HIGH COURT,
ACCRA.
Not necessary

THE HUMBLE PETITION OF MRS DORA ABABIO shows:

1. That the Petitioner then a Spinster, called Dora Asiedu and the
Respondent, a bachelor called John Ababio were married under the
Marriages Act, CAP 127, at a ceremony celebrated by Rev. Frederick
Obeng at the Presbyterian Church in Akropong in the year 2010.
2. That after the marriage, the parties co habited in Kumasi, Obuasi and later
in Accra
3. That the Petitioner is a Nurse and the Respondent is a Building Contractor
4. That the petitioner and the respondent are both citizens of Ghana
5. That there are three issues to the marriage, Mildred, Kelsa and Michael
who are 10, 4 and 5 years respectively.
6. That two years ago, the Respondent commenced proceedings in court
about the paternity of the third child, Michael but subsequently withdrew
the action
7. That the marriage has broken down beyond reconciliation
8. That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent and the respondent
has caused the petitioner much anxiety, distress and embarrassment.
PARTICULARS OF UNREASONABLE BEHAVIOUR
I. That the Respondent insults the Petitioner in public
II. That the Respondent insults the Petitioner at home in front of the Children
III. That the Respondent does not communicate with the Petitioner
IV. That the Respondent refused an invitation by DOVSU to settle the matter
V. That on one occasion the Respondent bit the Petitioner’s finger in a scuffle
which resulted in the Petitioner’s finger being amputated
 VI. That on one occasion, the Respondent locked up the Petitioner in the
bathroom for several hours.
VII. That the Respondent moved out of the bedroom he shared with the
respondent to the guest room
VIII. That on one occasion, the Respondent beat up the Petitioner mercilessly

9. That the respondent has committed adultery and the petitioner finds it
intolerable to continue to live with the respondent

PARTICULARS OF ADULTERY

I. That the respondent has confessed to sleeping with his secretary

10.That the following properties were acquired during the subsistence of the
marriage;
i. Five houses at various locations in Accra
ii. Investments in some companies including MTN

11.That all attempts at reconciliation have proved futile.

WHEREFORE the petitioner prays as follows

i. That the marriage celebrated in fact between the parties be dissolved
ii. That the Petitioner be granted custody of all the children of the
marriage namely, Mildred, Kelsa and Michael
iii. That the respondent be ordered to make to the petitioner such
maintenance pending suit and thereafter such periodical payments as
may be just
iv. That the respondent be ordered to pay in the alternative to the
petitioner a lump sum of x ghs.
v. That the following properties be settled in favour of the Petitioner
a. 2 Houses located in ………… and ……. In Accra
b. 50% of all investment shares
c. Household goods as required by the petitioner

DATED AT ACCRA THIS…… DAY OF ………..2020

Signature [Petitioner]

THE REGISTRAR
HIGH COURT
ACCRA

AND TO THE ABOVE NAMED RESPONDENT

Effectiveness of PNDC L 112

• Procedural requirements are too cumbersome, time consuming and

expensive
• Registration per se does not prove the existence of a valid marriage. More
evidence is needed to establish the validity if the marriage
• Majority of people cannot afford the fees charged/ People are unwilling
to incur the servies involved in registration
• Benefits are too obscure
• Requirement of parental support may be difficult if the parents do not
support the marriage
• Precise time and place of a marriage required in the Statutory Declaration
may be a challenge in informal marriages

Procedure of Registration of Customary Law Marriages

• Names of the parties to the marriage

• Place of residence
• The fact that there are no prohibitions – Eg. Consanguinity and Affinity
• Evidence of support from the parents of the applicants or persons standing
in loco parentis

Voidable Marriage

Voidable marriages are governed by Section 13 of the MCA.

A voidable marriage is a defective marriage that remains valid until annulled by

a decree issued by a court of competent jurisdiction.

A marriage is voidable under the following circumstances

• Lack of consummation due to a willful refusal to consummate

 • Where either party was of unsound mind or subject to recurrent attached
of insanity at the time of the marriage
• Where the respondent was at the time of the marriage pregnant with
another man’s child
• Where the respondent was at the time of the marriage suffering from an
infectious and incurable venereal disease

My Dear Lawyer,
My name is Mrs. Christina Yeboah. I am married to Francis Yeboah. We got
married at the Presbyterian Church Tarkwa on the 16th of June 2005. Reverend
Acqua celebrated the marriage. Before the marriage, I was single and my
maiden name was Christina Offei. I lived with my parents at Amonokrom.
Francis was a divorcee and also lived with his parents.
Francis is an Architect and has his own Consulting Firm. I am a trained nurse
but gave up work when we had our first child Violet who is physically
challenged. After the marriage we resided at Tarkwa for four years, Axim for
three years and Bolgatanga for one year before we moved to Accra.
We have three children, Violet, Jojo and Lily. Violet is fifteen years old, Jojo is
twelve years old and Lily is eight years old.
I am a Ghanaian and have resided in Ghana ever since I was born thirty six
years ago. Francis was born and bred in Australia. His parents are
neurosurgeons and have lived in Australia for more than thirty five years.
Francis returned to Ghana when he was twenty four years old. He is forty years
old now and resides at House Number 22/4 Grace Street, Little Legon, Accra. I
left the matrimonial home about six months ago and live with my mother at
House Number A/K 46, King George Avenue, Abelempe, Accra.
Lawyer, life has not been the same since we moved to Accra about three years
ago. Francis has suddenly become very controlling towards the children and
myself. He started coming home late from work and when I complained he
slapped me around.
I heard that he was having an affair with one of his co-workers, Amelia. When
I confronted him, all hell broke loose. He beat me up mercilessly the following
day and when the kids came crying to me, he shoved all of us into the garden
and then locked the door. It was late at night and we had mosquito bites all
over our bodies. He let us in only after his best friend arrived at the house
unexpectedly.
Francis refused to give me house- keeping money and shouted on the children
at the least opportunity. When I refused to give him sex he got extremely angry
and locked me in the bathroom for several hours. On one such occasion, he
spat on my face and threw my belongings outside. He accused me of being a
prostitute and a witch.
I discovered about eight months ago that the lady at work was pregnant with
Francis’ child. When I confronted him, he rudely admitted that the child was
his and retorted that I could leave if I wanted to. That was when I packed my
belongings and left the matrimonial home for my mother’s house with the
children.
Francis’ parents and my parents met a couple of times to try and settle our
differences. On each occasion Francis came in drunk and very disruptive and
the meeting had to be called off.
Francis has three cars, a Nissan Sentra saloon car GH 1235 Y, a Kia Sportage Q
6667 S and a Suzuki 4 x 4 GF 7272 X. He also has a huge banana plantation at
Ofinso. Francis acquired these properties from the money he made when he
worked briefly in Saudi Arabia with a foreign Company during the Gulf War
and also from his Architectural Practice.
I used the Suzuki 4 x 4 to drop the kids at school and to run other errands but
Francis took it when I left the matrimonial home. Currently, I use taxis to drop
off and fetch the children from school.
Lawyer, I can no longer continue with the marriage. In fact I do not love Francis
any longer. Please apply for a divorce for me and ensure that I get custody of
the children. I also need financial support for the children and myself. Please
lawyer, also kindly ask for half of the banana plantation for me.

Agya Nimo left the town. Abena and fell in love with her gave birth to three
children but never presented drinks University graduate customary law
continued to spent the weekends with fatal accident intestate Dickson asserts
that only Hannah is a wife further argues not entitled to

Area of Law – Customary Law Marriage

Issues
Applicable Law :
• Definition of CLM
• Distinction between formal and informal
• Why do we recognize informal marriages – To avoid injustice especially to
women.
• YAOTEY V QUAYE - 4 Essentials of a Customary marriage.
• Other Writers have also attested to the existence of CLM
o Fanti Customary Law
o Rattray
o JB Danquah
• How CLMs are contracted, ASUMAR V KHAIR, QUAYE V KUERVI,
• Analysis

Paa became very angry and went from house to house he also wants custody
of the children.

Dissolution of Monogamous marraiges based on the fact of adultery

Invalid

State the main conditions of Adoption under Custormaty Law and under the
Act