This is a brief article to enlighten you, if you are contemplating exiting the beautiful union of marriage. Whatever your religious beliefs, divorce is considered a no no.
For Christians, Malachi 2:16 “For the Lord God of Israel says That He hates divorce,….” establishes the position on divorce and this runs through other religions as well. After the vows and some years, you either learn to adapt to your spouse via your religious principles or you have the onerous task of changing your partner to be the kind of partner you want(Good Luck with that). No religion encourages divorce.
In all this there’s a thin line, if either party opts to leave the marriage, it will be a sad end to hopefully what would have been which never was.
The next 5 questions are questions often asked by your lawyer to establish your case.
1. What kind of marriage did you contract?
Marriages in Ghana fall under the Matrimonial Causes Act, 1971 (Act 367).
Marriages in Ghana are of three types
PART I Customary Marriage,
PART II MOHAMMEDAN MARRIAGE
PART III & MARRIAGE UNDER THE ORDINANCE.
Irrespective the marriage contracted, the Courts of Ghana are the body mandated by law to dissolve marriages in Ghana. Some people are of the view that it's only ordinance marriage that is subject to the Court. This view is erroneous as all 3 marriage types are subject to documentation and registration as per ACT 367, which can only be reversed by the appropriate body mandated to do so.
Custody and sharing of property are the main pressure points when considering dissolving any of these marriages. This means where both families attempt to dissolve a marriage, it may not be as thorough and conclusive as when same is done by the Courts.
3. What are the grounds of Divorce?
Either party has the Right to file a divorce petition per section 1(1) of CAP 127.
In Ghana, there is only one ground for divorce i.e. that the marriage has broken down beyond reconciliation – section. 1(2) OF CAP 127.
However, to show that the marriage has broken down beyond reconciliation, the Petitioner must satisfy the court of the following:
Adultery of the Respondent.
Intolerable behaviour by the Respondent.
Desertion by the Respondent for a continuous period of 2 years before the petition.
The parties have not lived together as husband and wife for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent consents to the grant of the decree.
The parties have not lived as husband and wife for a continuous period of at least 5 years immediately preceding the presentation of the petition.
The parties to the marriage have, after diligent effort, been unable to reconcile their differences.
Evidence if any?
Here, you are inclined to share the evidence with your lawyer, be it oral or documentary evidence. Your lawyer will know what to do thereafter.
3. Are there any issues of the marriage?
Hold it right there! By issues we are referring to children of the marriage not the wahala (we will get there soon).
4. Do you want custody of the issues?
You need to know your preference before seeing your lawyer. As a general rule, minors are preferred to be with their mothers per the Childrens Act. That notwithstanding, where it can be demonstrated by the father that the best interest of the child will be met if custody is granted him, the court is minded to acknowledge same. (as I said this is just an article and not a full legal opinion)
5. Do you have any property together?
This is the million dollar question. For persons with no property or issues, they may have a swift divorce (operative word is may). Where there is property involved, one must be able to list same to the lawyer.
Please note that property acquired during the pendency of the marriage used to be strictly subject to 50:50 sharing.
On the contrary, the case of Fynn v. Fynn decided by the Supreme Court in Ghana recognizes the right of a spouse to acquire property in his/her individual capacity. A Court is not minded to side with a spouse when it is clear on the face of the evidence that they are not entitled to it. The courts have ruled also that a gift received by a spouse during a marriage does not become a matrimonial property.
We hope we have assisted you in knowing what your lawyer will expect from you on your first visit. If you are armed with this, the process will be quite straightforward.
We wish you well and hope you reconsider your relationship with renewed vows and possibly post marital counselling if need be.
(Please note: These questions are not thorough but superficial questions and the kind of answers expected. Please seek professional legal counsel because far more questions will be asked according to the uniqueness of your case).