Once head-over-heels in love, Roland Kofi Mensah and Sandra Araba Mensah married and welcomed two beautiful children into their lives. They had an enviable ten (10) years of marriage and even celebrated their 10th wedding anniversary in Bali, with close family and friends. However, their relationship was not so picture perfect behind closed doors, thus, as time passed it deteriorated, leading to a decision to divorce and go their separate ways. They had a very contentious divorce in the High Court, Accra, Ghana. The fault-based system and acrimony, which characterizes the Ghanaian judicial system, required them to apportion blame, unearthing painful memories, secrets and allegations that permanently injured their once-happy relationship. Now, in sharp contrast to what was once blissful, they only maintain a co-parenting relationship, devoid of any friendship.
Under the laws of Ghana, divorce is fault based, thus a petitioner is required to adduce sufficient evidence that the marriage has broken down beyond reconciliation before a divorce would be granted. Had Mr. and Mrs. Mensah pursued a no-fault divorce, the process could have been less adversarial and concentrated on an amicable separation without blame. A no-fault approach might have preserved their relationship, allowing for more cordial co-parenting, a healthier environment for their children and increase the tendency for the parties to reconcile.
In Ghana, the current law on the dissolution of a monogamous marriage is fault based and it compels couples to apportion blame on one party for the breakdown of the marriage. This article recommends a reformation of the existing laws on divorce by proposing the implementation of the no-fault divorce. It begins with a brief overview of the current law on divorce in Ghana which brings to the fore the current complexities and pitfalls associated with the Matrimonial Causes Act 1971 (Act 367). This article, then provides the reader with what a no-fault divorce is; its pros and cons; and concludes with recommendation for the amendment of the Matrimonial Causes Act 1971 (Act 367) to include provisions for a no-fault divorce.
OVERVIEW OF THE LAW ON DIVORCE IN GHANA
Marriage is an institution profoundly entrenched in the social culture of Ghana. Marriage may be defined as “the legal relationship between a husband and a wife”[1]. In Matthew 19:5, the Bible says “… For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’?”. Thus, within the Christian context, marriage is monogamous; a contractual union between one man (a bachelor) and one woman (a spinster). This Christian view is made evident in the oft quoted case of Hyde v. Hyde[2] where Lord Penzance defined marriage as “the voluntary union for life of one man and one woman to the exclusion of all others”. In many African societies, marriage is seen as a highly respected institution or union and often recognized as a rite of passage such as birth, puberty rite and death rites.[3] There are various types of marriages recognised under the Ghanaian law. These are ordinance (monogamous) marriage, customary marriage and marriage under the Mohammedan Ordinance. The institution of marriage is so sacred that the Bible admonishes us not to put asunder what God has put together,[4] however, some irreconcilable differences often cause the parties to the marital contract to seek divorce, notwithstanding their intention of staying married for life.
Divorce is the legal procedure that ends the marriage contract. It terminates the marital relationship between the spouses as well as extingui sh the associated rights, obligations and duties.[5] The Law governing divorce or dissolution of monogamous marriage in Ghana is the Matrimonial Causes Act 1971 (Act 367). The Rules of Order 65 of the High Court ( Civil Procedure) Rules 2004 (C.I 47)[6] provides on the practice and procedure of the High Court and Circuit Court in matrimonial causes and matters specifically divorce. Furthermore, the matrimonial jurisdiction of the District Court in dealing with divorce is regulated by Order 32 of the District Court Rules, 2009 (C.I. 59).
Pursuant to Act 367 [7], either party to a marriage may petition the Court for divorce and the Court may be inclined to grant same on the sole ground that the marriage has broken down beyond reconciliation[8].
PITFALLS OF THE FAULT-BASED DIVORCE PER THE MATRIMONIAL CAUSES ACT 1971 (ACT 367)
A party to a marriage can bring a petition for divorce only after two years of marriage or seek leave to bring the petition earlier if that party can prove substantial hardship or depravity by the other spouse/party.[9] This requirement often leaves spouses who want out feeling entrapped.
The Law[10] necessitates the assignment of fault in divorce, thus in proving to the Court that marriage has broken down beyond reconciliation, the petitioner must satisfy the Court of one or more of the following six (6) facts:
“(a) that the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph despite the refusal;
(e) that the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or
(f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences”[11]
Notwithstanding the existence of one or more of the aforementioned facts, the Act enjoins the Court to satisfy itself that on all the evidence adduced, the marriage has indeed broken down beyond reconciliation.[12] Thus, the singular act of adultery by Mr. Roland Kofi Mensah with his masseuse at the Happy End Guaranteed Spa at Weija, does not establish that the marriage has broken down beyond reconciliation. His wife, Mrs. Sandra Araba Mensah must divulge her husband’s wrongdoing/fault and further prove that she finds it intolerable to live with him. This fault-based requirement causes acrimony between the couple and makes the legal battle contentious.
The fault-based requirements of Act 367 have also led to prolonged legal battles which are complex and expensive. Thus, the writer cannot help but concur with Lord Denning M.R’s position in Cleary v. Cleary[13] that, it is not true that the Matrimonial Causes Act has made divorce “cheap and easy”.
Furthermore, the fault-based law per Act 367, promotes hostility and adversity for children contrary to the requirement of the Children’s Act 1998 (Act 560) as amended, that the welfare of children should be a primary consideration in any court or divorce process.[14]
Act 367 promotes conflicts and stress on the parties involved in the divorce process and also fails to focus on the important issues such as custody of children and distribution of marital property during the divorces process.
The procedure for divorce in either the High Court or Circuit Court per C.1 47 as amended,[15] may be summarised as follows:
- Petition for Divorce.[16]
- Leave to petition within two (2) years of marriage.[17]
- Entering of appearance.[18]
- Answer from Respondent.[19]
- Reply to the answer, if need be, by Petitioner.[20]
- Discovery of documents.[21]
- Setting down proceedings for Trial.[22]
- Trial.
- Judgment and the decree.
The solution to resolve all these issues associated with the Act 367 and its fault-based system is to introduce the No-Fault Divorce Law.
UNDERSTANDING NO-FAULT DIVORCE
No-fault divorce allows couples to divorce without the assignment of blame or fault on either party.[23] A no-fault divorce is generally grounded on the claim of irreconcilable differences or irretrievable breakdown of the marriage. It promotes smoother negotiation/settlement, less confrontation, a faster hearing and better relationships post the divorce, than a fault-based divorce.[24] Several countries such as the United Kingdom, United States of America, Australia, Russia, Sweden and Germany have no-fault divorce laws.
In the United Kingdom, the decision of the Supreme Court in the case of Owens v. Owens[25] where a petition for divorce was denied due to insufficient evidence adduced by the petitioner, highlighted the limitations of their fault-based divorce law. The United Kingdom has since introduced the Divorce, Dissolution and Separation Act 2020, which is a legislation that supports no-fault divorce.
BENEFITS OF NO-FAULT DIVORCE
Reduced conflicts and stress
No-fault divorce does not require one party to prove the other’s fault or wrongdoing, thus, it can result in a less contentious and more civil divorce process. This could lead to reduced emotional strain on both parties and any issues or children involved as well as foster cooperation between the parties.[26]
Speedy and simpler divorce procedure.
In a no-fault divorce, the procedure for getting the divorce itself is generally simpler because there is no need to adduce evidence to prove fault or wrongdoing by the other party.[27] This expedites court proceedings and reduces the cost of obtaining divorce.
Better for children
No-fault divorce involves less conflict in the divorce process, thus children are likely to fare better psychologically as they are not exposed to the contentious atmosphere that can result from a fault-based divorce.[28]
Encourages fair settlements
Parties are not required to apportion or prove blame or fault, thus the divorce process may be more focused on practical issues, like distribution of marital assets and custody of children, instead of on blame and emotional accusations.
Fosters peace and maintains relationships
No-fault divorce reduces animosity and belligerent conflict in the divorce process thus fostering peace between the parties and maintaining a cordial relationship between them post the divorce. This promotes a healthy cooperating relationship in instances where the parties have issues/children.
DRAWBACKS OF NO-FAULT DIVORCE
The main concerns with no-fault divorce laws are the following:
Lack of accountability
In a no-fault divorce process, there is no need to apportion or prove blame or fault, thus there may be a lack of accountability by a party/spouse whose behaviour contributed to the breakdown of the marriage.
Potential to increase divorce rates
Due to how easy and simple it is to get a no-fault divorce; it is likely to lead to an increase in divorce rates.
Notwithstanding the concerns discussed above, couples who have tried to reconcile but failed and have done all they possibly could to save their marriage but continue to fail, should be allowed to terminate the marriage, rather than being entrapped and unhappy.
THE WAY FORWARD
1. An amendment or complete reformation of the Act 367 the current law on divorce, to include the option of no-fault divorce law to reflect changing societal norms and align with international standards.
2. Judicial training and introduction to the no-fault divorce approach/ law
3.Incusion of the option of Judgment on admission for parties who do not intend to contest the divorce.
4. Enhancing procedures for registration of marriage and divorce petitions
4. Free marriage guidance and counseling to curtail the rate of divorce
CONCLUSION
Upon evaluation of the fault-based divorce laws and the no-fault divorce proceedings, it is evident that, there should be a transformation in Ghana’s current law on divorce, the Matrimonial Causes Act 1971 (Act 367). This law requires the courts in Ghana to find and prove fault before the dissolution of a marriage contract even when the parties have hitherto agreed to terminate the marriage. The requirement to prove fault or wrongdoing under Act 367 has led to contentious and lengthy legal battles and often diminishes the parties attention from important issues such as custody of children and distribution of marital property during the divorces process. It also promotes hostility and adversity for the issues or children, if any.
In contrast, the option of no-fault divorce represents the progression towards a more compassionate legal framework that maximises fairness and acknowledges the autonomy of parties to a marriage contract. It allows couples to terminate the marital relationship if the marriage is inundated with problems that have caused irreconcilable differences, without the requirement of proving misconduct or fault to the court or the public. It is faster, simpler, better for children and focuses on the important issues such as custody and distribution of marital property. Most importantly, it promotes a continued cordial relationship between the couple post the divorce process due to it no-fault approach.
Therefore, Ghana has to rethink its current law on divorce. The adoption and implementation of the No-Fault Divorce would positively impact the family unit and family law generally, as well as foster the amicable dissolution of failed marriages in Ghana.
[1] Oxford Advanced Learners Dictionary (2000). Oxford: University Press
[2] (1866) LR 1 P & D 130
[3] Oladele Kwaku Aribike, ‘Marriage Registartion & Divorce in Ghana’ (Aridola Consult, 2018) 4
[4] Matthew 19:6
[5] Mavis Ekua Enyamah Kwainoe,‘Marriage and Divorce: Perspectives from the
Bench’. (Wisconsin Journal of Arts and Sciences, 6(2) 2024). 31–46
[6] High Court ( Civil Procedure (Amendment) Rules 2014 (C.I 87)
[7] Act 367 s.1(1)
[8] Act 367 s.1(2)
[9] Act 367 s.9
[10] Act 367
[11] Act 367 s.2(1)
[12] Act 367 s.2(3)
[13] [1974] 1 WLR. 73 at p.77 CA
[14] Act 560 as amended, s.2
[15] Ibid (n 6)
[16] Act 367 s. 65 r.2
[17] Act 367 s. 65 r.3
[18] Act 367 s. 65 r.10
[19] Act 367 s. 65 r.12
[20] Act 367 s. 65 r.13
[21] Act 367 s. 65 r.18
[22] Act 367 s. 65 r.21
[23] Sam Roy, ‘Understanding No Fault Divorce: Benefits, Challenges, and Impact on Families’(BlueNotary 14 January 2025) https://bluenotary.us/no-fault-divorce/ accessed 4 February 2025
[24]Bobby Dale Barina, ‘What are the Pros of a No-Fault Divorce?’https://www.bobbybarinalaw.com/what-are-the-pros-of-a-no-fault-divorce/accessed 4 February 2025
[25] [2 018] UKSC 41
[26] Ibid (n23)
[27] Ibid (n 25)
[28] Amato PR, ‘Research on Divorce: Continuing Trends and New Developments’ (2010) 72(3) Journal of Marriage and Family 650-666
