MENSAH v. MENSAH [1972] 2 GLR 198
HIGH COURT, ACCRA
Date: 13 APRIL 1972
BEFORE: HAYFRON-BENJAMIN J.
CASES REFERRED TO
(1) Philipps v. Philipps (1878) 4 Q.B.D. 127; 48 L.J.Q.B. 135; 39 L.T. 556; 27 W.R. 436, C.A.
(2) Buchler v. Buchler [1947] P. 25; [1947] 1 All E.R. 319; [1947] L.J.R. 820; 176 L.T. 341; 111 J.P.
179; 63 T.L.R. 100; 91 S.J.99, C.A.
(3) Gollins v. Gollins [1964] A.C. 644; [1963] 3 W.L.R. 176; 107 S.J. 532; [1963] 2 All E.R. 966, H.L.
(4) Jamieson v. Jamieson [1952] A.C. 525; [1952] 1 T.L.R. 833; 116 J.P. 226; [1952] 1 All E.R. 875;
1952 S.C. (H.L.) 44, H.L.
NATURE OF PROCEEDINGS
PETITION by a wife for divorce based upon breakdown of the marriage beyond reconciliation. The facts are fully set out in the judgment.
COUNSEL
Dr. W. C. Ekow Daniels for the petitioner.
E. K. Narter-Olaga for the respondent.
JUDGMENT OF HAYFRON-BENJAMIN J.
This is a wife’s petition for divorce on the ground that the marriage has broken down beyond the
possibility of reconciliation. The parties were married in England on 23 July 1966 and lived and
cohabited together there and later on in Accra. Both parties are lawyers, the petitioner presently being a law officer at the office of the Attorney-General. The respondent is a legal practitioner at Accra. There is no issue of the marriage.
The petition itself is just a reproduction of the general provisions of the Matrimonial Causes Act, 1971
(Act 367), and I would not have hesitated to strike it out in its entirety if the respondent had not asked for better particulars. The relevant portions of the petition state:
“(7) That the said 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 him. (9) That the parties to the marriage have after diligent effort been unable to reconcile their differences.
(10) That since 1967 there have been differences between the parties which have remained unresolved and hence contributed to the breakdown of the marriage.[p.201] of [1972] 2 GLR 198
(11) That as a result of the conduct of the respondent complained of and as a result of the failure to
reconcile the said differences, the petitioner left the matrimonial home on or about 20 March 1971,
has remained separate and apart from the respondent and has not returned since and has no intention of ever resuming cohabitation with respondent. (12) That there is no possibility of reconciliation between the petitioner and the respondent.”
The petitioner for these reasons is asking the court to dissolve the marriage. Before examining the
respondent’s answer and the evidence in the case, I must remark that the Matrimonial Causes Act, 1971 (Act 367), may have affected the grounds for divorce, but it has certainly not relaxed the rules of
pleading. The general rule stated by Cotton L.J.in Philipps v. Philipps (1878) 4 Q.B.D. 127 at p. 139,
C.A. still holds good. He said:
“In my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.”
Section 2 (2) of Act 367 provides that, “On a petition for divorce it shall be the duty of the court to
inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent.” The facts
relied on by the parties must therefore be pleaded and placed before the court, otherwise the court cannot perform its statutory duties under the above-quoted section of the Act. As I have already stated, the respondent asked for and obtained better particulars of the grounds of the petition; these particulars provided the facts on which the petition is grounded.
The particulars set out in detail the facts relied on by the petitioner to establish the allegations that the respondent has behaved in a way that makes it unreasonable to expect her to live with him, and also that the parties have after diligent efforts been unable to reconcile their differences. These facts can be summarized thus:
(a) That the respondent has been in the habit of assaulting her without just cause and that this started at the very inception of the marriage and continued up to the removal of the petitioner from the matrimonial home.
(b) That the cause of the parties’ inability to have children lies with the respondent and not with the
petitioner, and the efforts to have the position rectified have been abortive due to the passive
resistance of the respondent. Despite his attitude the respondent has been insulting the petitioner for
her failure to have children, and this has caused her great mental distress and humiliation.
(c) That because of (a) and (b) the petitioner left the matrimonial home with no intention of going
back. She states bluntly in her [p.202] of [1972] 2 GLR 198 petition that as far as the petitioner is concerned the marriage has broken down and she will never be reconciled with the respondent. She will not go back to the respondent, and no more diligent efforts at reconciliation will succeed.
The respondent by his answer denied that the marriage has broken down beyond reconciliation. He stated that he was not aware of any attempt at reconciliation and denied that he had behaved in such a way that the petitioner could not reasonably be expected to live with him. He stated that the only difference known to him was the anxiety of the petitioner to have an issue, but that a pathological report issued at the Korle Bu Hospital has satisfied the petitioner that the respondent could not be blamed for the inability of the parties to have children. He has, however, revealed that the petitioner has since the marriage had a miscarriage. He further pleaded that the petitioner by a letter dated 20 March 1971 made it clear to the respondent that her leaving the matrimonial home was not because of her anxiety for a child.
Before examining the evidence given at the trial it is important to set out the relevant sections of the Act, namely, sections 1 (2) and 2 (1) and (3) which provide: [His lordship here read the provisions of the Act as set out in the headnote and continued:] The wording of these sections is not very clear. The burden of proof on the petitioner is obscure. The court ought to grant a divorce only where there has been a breakdown of the marriage beyond reconciliation. It is obligatory on the petitioner to prove one or more of the specified facts in order to establish that the marriage has broken down beyond reconciliation obviously on all the evidence. Having established these facts to such a standard as to lead the court to make a finding that these facts exist, the court can still refuse to grant the decree because it is not satisfied that the marriage has broken down beyond reconciliation. The Act is completely silent on what further proof or evidence ought to be tendered by the petitioner to satisfy the court under section 2 (3). The court’s duty in making any finding is to consider all the evidence adduced before it. If after considering this evidence the court is satisfied that all the petitioner has shown is that the marriage has broken down beyond reconciliation as required under section 2 (1) (b), what more evidence is it to consider to be satisfied under section 2 (3)?
It is however suggested that the facts enunciated in section 2 are only to serve as guide-lines for the court when determining whether a marriage has broken down. Reliance is placed on similar provisions in the English Divorce Reform Act, 1969 (c. 55), which admittedly considerably influenced the framers of our own legislation. The wording of the English legislation is however different. It provides in section 2 (1) that “the court hearing a petition for divorce shall not hold the marriage to have been broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts…” The English Act clearly shows that the burden on the petitioner is to prove that the
[p.203] of [1972] 2 GLR 198 marriage has broken down and in so doing he must, inter alia, satisfactorily prove and establish one or more of the enunciated facts. The burden assumed is therefore to prove that the marriage has irretrievably broken down; proof of one or more of the facts enunciated is essential though not conclusive proof of the irretrievable breakdown of the marriage. There the respondent can even admit the enunciated facts but go on to lead evidence showing that the marriage has not broken down irretrievably.
Our legislation seems to state that proof of one of the facts shows that the marriage has broken down
beyond reconciliation, and yet the court can decline to grant the decree because it is not satisfied that the marriage has broken down beyond reconciliation. The Act seems to draw a distinction between
appearance and reality. The petitioner after proving one of the enunciated facts would be held to have shown that the marriage has broken down beyond reconciliation. The court is then to find out whether in truth it has done so. Here the court is directed to conduct an inquiry as far as reasonable into the facts relied on by the parties. The court is then to consider all the evidence, that is, including what it has found on its inquiry, and if satisfied that the marriage has really broken down beyond reconciliation, decree a divorce.
As I have stated earlier one of the facts the petitioner set out to establish is that the respondent has
behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. I have already set out the petitioner’s case as appears on her petition and the better particulars furnished. Her oral testimony substantially supports her case and stands virtually uncontradicted. The question to determine therefore is whether a refusal of the respondent to co-operate in seeking a solution to the problem of the parties’ failure to have an issue, coupled with the insults and assaults complained of, can be held to be such behaviour as to justify a finding that the petitioner cannot reasonably be expected to live with the respondent. There is uncontradicted evidence that the petitioner suffered great mental distress and humiliation as a result of the insults and assaults.
The test however is an objective one; it is whether the petitioner can reasonably be expected to live with the respondent and not whether the petitioner in fact finds it intolerable to do so. The answer must be related to the circumstances of both the petitioner and the respondent, and is eminently a question of fact in each case. It would be improper to attempt to lay down an exhaustive definition of conduct which would and that which would not suffice. However, as Asquith L.J. observed in Buchler v. Buchler [1947] P. 25 at p. 46, C.A. “It is, I think, possible to say of certain courses of conduct that they could not amount to constructive desertion, and of certain other courses that they could not fail to do so.” One point is however clear and it is that the conduct complained of must be sufficiently grave and weighty to justify a finding [p.204] of [1972] 2 GLR 198 that the petitioner cannot reasonably be expected to live with the respondent. Mere trivialities will not suffice. The parties must be expected to put up with what has been described as the reasonable wear and tear of married life. See Gollins v. Gollins [1964] A.C. 644, H.L. The aim of the reform introduced by the Matrimonial Causes Act, 1971 (Act 367), are threefold:
(a) to buttress, rather than to undermine the stability of marriage as a central social institution;
(b) when, regrettably, a marriage has broken down beyond reconciliation, to enable the empty legal
shell to be destroyed with the maximum fairness, and the minimum bitterness, distress and
humiliation; and
(c) to initiate a gradual process of assimilation of the procedures for divorce for various forms of
marriage known to our law especially customary and statutory or Ordinance marriage.
There is nothing in the Matrimonial Causes Act, 1971, which supports the view that divorce has become a relatively easy matter. Neither the experience of the late Roman Empire with its liberty of repudium, nor lately of some communist or socialist countries with similar libertarianism inspires confidence that easy divorce is a system worth trying. Ghana has what may appear to be a system of easy divorce of customary marriages, but there are few sociological or statistical studies to provide the data for an informed judgment of its social utility. Divorce, whether in relation to a customary or Ordinance marriage, is a serious matter from whatever side one views the subject. It affects the status of the parties and the interests of the children. The courts can grant the decree only in genuine cases of breakdown beyond reconciliation. The Act is not and was not intended to be a “Cassanova’s Charter.” In deciding whether the petitioner cannot reasonably be expected to live with the respondent the whole history of the marriage must be considered. Lord Pearce said in Gollins v. Gollins [1964] A.C. 644 at p. 696, H.L. that: “The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant.” It must however be remembered that these circumstances are relevant only as an aid in considering the behaviour of the respondent, and assessing the reasonableness of expecting the spouses to continue to live together. It is the conduct or behaviour of the respondent that must be considered. An unemployed husband may be an intolerable companion, but the wife cannot complain. She can only complain where the said husband makes no effort to find work or does not co-operate with the people who try to find him work. In this case the conduct complained of is the refusal of the respondent to find a solution to the problem confronting the couple and not the failure of the couple to have children. [p.205] of [1972] 2 GLR 198 The question is whether this complaint is grave and weighty enough to justify a finding that the petitioner cannot be reasonably expected to live with the respondent. There is no direct evidence that the respondent in refusing to co-operate to find a solution to their problem intended to inflict misery on or drive away the petitioner. Intention in this regard though not essential is always relevant. Lord Norman said in Jamieson v Jamieson [1952] A.C. 525 at p. 535, H.L. that: “Actual intention to hurt is a circumstance of peculiar importance because conduct which is intended to hurt strikes with a sharper edge than conduct which is the consequence of mere obtuseness or indifference.” But Lord Pearce warns in Gollins v. Gollins (supra) at p. 689 that:
“It has always been clear that an intention to hurt invests any act or conduct with a greater significance. The axiom is, however, merely a piece of jury wisdom which a sensible tribunal bears in mind when performing its task of assessing whether a particular act or course of conduct was cruel. It is wrong to exalt it into a criterion of legal principle which will decide in all cases where there is no physical violence whether conduct can be cruel.”
The evidence shows that the respondent was well aware of the petitioner’s anxiety to have children, but refused to co-operate in finding a solution. He went further and used the failure to have an issue to taunt and insult the petitioner. The petitioner states that this caused her mental distress and humiliation. The Act does not require that the behaviour should be aimed at the petitioner, or that it should cause her injury; it only requires that it should be such as to justify a finding that the petitioner cannot reasonably be expected to live with the respondent. I am not prepared to hold on the evidence that this conduct on the respondent’s part was aimed at or was with the intention of injuring the petitioner. It was more likely due to self-centredness and insensitivity arising from the respondent’s injured pride. However, I am of the view that it would not be reasonable to expect a petitioner to continue to live with a respondent who behaves and seems to be set on behaving in this manner.
The next fact that the petitioner set out to establish is that the parties to the marriage have, after diligent effort, been unable to reconcile their differences as provided in section 2 (1) (f) of the Act. This section, which does not appear in the English Divorce Reform Act, 1969 (c. 55), is said to have introduced into our law the concept of divorce on the ground of incompatibility especially when read in conjunction with section 10, which makes the petitioner’s conduct an irrelevant fact in divorce proceedings.
Incompatibility is a concept known to the law; it has its origins in early Danish law of divorce, and was carried over to the Virgin Islands. Then the United States of America took it over. To establish this head or guide line I think three things are requisite: [p.206] of [1972] 2 GLR 198
(a) There should exist differences between the parties.
(b) They should have made diligent efforts to reconcile these differences, and
(c) They should have been unable to effect the reconciliation of the differences.
I shall deal with these seriatim. The section does not require that there should be disputes between the parties; it only requires that there should be differences. A dispute is a difference but not all differences are disputes. The inability of a spouse to have an issue is not a difference; there may however be a difference between the spouses as to how to remedy the situation. Secondly, the differences must be between the parties. Land litigation between the wife’s family and the husband’s family would not be a difference between the wife and the husband, although it may lead to one. The fact that the husband belongs to the Justice Party and the wife supports the Progress Party does not mean that there are irreconcilable differences. Thirdly, the differences should be such as would make it impossible for the marriage to subsist. It should be remembered, that evidence of the differences is being proffered to show the breakdown of the marriage. Differences which cannot possibly affect the subsistence of the marriage are not sufficient. Evidence of petty quarrels and minor bickerings which are but evidence of that frailty which all humanity is heir to is not sufficient. The differences must be real and not imaginary; they should be so deep as to make it impossible for the parties to continue a normal marital relationship with each other.
In this case, as I have already stated, the evidence is that the parties were unable to have an issue; and the respondent refused to co-operate to find a solution to this problem. Barrenness and sterility are specifically mentioned in the Act (section 41) as additional facts to be considered when applying the provisions of section 2 (1) to marriages other than monogamous ones. Monogamous marriages, such as the one under consideration are not to be dissolved because of barrenness or sterility. Barrenness or sterility which leads to the breakdown of the marriage is irrelevant unless the petitioner can establish one of the facts required in section 2 (1) of the Act; in other words unless the petitioner can for example establish that the barrenness has given rise to a difference which cannot be resolved.
I have already stated as one of the aims of the Act the gradual assimilation of divorce procedures for the different types of marriage known to our laws. The courts are in duty bound to aid the Act to achieve its purposes, but the courts cannot under the guise of interpreting the Act indirectly introduce barrenness or sterility as essential facts under section 2 (1) in relation to monogamous marriage. Where the fact of barrenness is not admitted by the wife nor sterility by the husband, and hopeless disagreement and discord arise as to how to have an issue, a difference can be said to exist where a desire for a child is strongly [p.207] of [1972] 2 GLR 198 manifested by either spouse. Where however neither spouse desires an issue, it cannot be said that this difference is relevant to their ability to continue their marital relationship. In this case the strong desire of the petitioner for children is clearly established, and I am of the view that a difference within the meaning
and intendment of section 2 (1) (f) of the Act exists between the parties.
The question then arises whether there has been any diligent efforts to resolve these differences. The Act is silent on who should make the diligent effort; should it be the petitioner, the respondent or both, or can it even be the children or the church, or other third parties? I am of the view that all that is required under the section is that a genuine effort should have been made by someone. Who made the effort is I think not very relevant, but the effort must have been unsuccessful.
In this case I am satisfied that at the beginning both parties made diligent efforts to have their problems solved; they both submitted themselves to medical examination. It was the refusal of the respondent to accept the result of the medical examination that gave rise to the difference. The respondent then refused to discuss the matter any further and rather sought refuge in taunting, insulting and assaulting the petitioner. There is no evidence of any effort, diligent or otherwise, made by anybody to save this marriage. The petitioner apparently realising that the respondent’s behaviour held no promise of possible reconciliation made no attempt at reconciliation. She gave up hope and did not try at all. She sought comfort in the company of her friends and stayed out late at times. I am of the view that the petitioner has failed to establish to the satisfaction of the court that the parties after diligent effort have been unable to resolve their differences. However, having earlier on held that the petitioner has established to the satisfaction of the court that the respondent has behaved in such a way that she cannot reasonably be expected to live with him the petitioner has satisfied the provisions of section 2 (1) (b) of Act 367 and the court must therefore consider further whether on the evidence the marriage has broken down beyond reconciliation.
Section 8 (1) of the Matrimonial Causes Act, 1971 (Act 367). provides that:
“(1) On the hearing of a petition for divorce, the petitioner or his counsel shall inform the court of all
efforts made by or on behalf of the petitioner, both before and after the commencement of the
proceedings, to effect a reconciliation. (2) If at any stage of the proceedings for divorce it appears to the court that there is a reasonable possibility of reconciliation, the court may adjourn the proceedings for a reasonable time to enable attempts to be made to effect reconciliation, and may direct that the parties to the marriage, together with representatives of their families or any conciliator appointed by the court and mutually agreeable to the parties, attempt to effect a reconciliation.” [p.208] of [1972] 2 GLR 198 This power is additional to the ordinary inherent power of the court to adjourn its own proceedings. In this case the petitioner stated quite categorically that she has made no efforts at reconciliation, and the respondent pleaded that he does not know of any such efforts. The power of adjournment granted under this section is exercisable only where it appears to the court that there is a reasonable possibility of reconciliation.
The courts have been accustomed to dealing with reasonable probabilities; the Act however demands that consideration be given to reasonable possibilities. Everything is possible under the sun. A thing may be possible without being probable, a thing may be probable without being reasonably probable as the term is used in criminal cases. The Act decrees that the reasonable possibility should appear to the court. It seems to me that even where the parties say categorically and insistently that they shall never cohabit as husband and wife again, the court is not precluded from exercising its powers under this section. The court should take into account the respective ages, temperaments, and dispositions of the parties, the age and condition of the children, if any, the relations with her own and the family of the other spouse, and all other surrounding circumstances in deciding whether there is a chance of reconciliation. In this case the parties are young, educated and strong willed. They have no children and the petitioner has plainly given up. There is no indication that the respondent is now prepared, or that he would be prepared to consider, after being approached by family members, to co-operate to find a solution to their problems. They seem to feel that they should be free to start afresh while they are still young. The court may think or feel that a little patience, a spirit of forgiveness, and a measure of toleration for the frailties of human nature will do more for the parties than a decree of divorce; the court is however enjoined not to act on feelings or on instincts. The chances must be apparent to the court. I did not exercise any powers under this section because it did not appear to me that there was any reasonable possibility of reconciliation.
At this stage the court has not conducted any inquiry of its own. The Act as I have said provides that the court shall not grant a petition unless it is satisfied on all the evidence that the marriage has broken down beyond reconciliation. By all the evidence I understand the framers of the Act to include what is found by the court after conducting, where reasonable, an inquiry into the facts relied on by the parties.
At the trial the petitioner gave evidence on her own behalf but called no witnesses, the respondent
cross-examined her, and through her tendered as an exhibit the letter dated 20 March 1971 concerning the removal of the petitioner from the matrimonial home. The respondent did not give any evidence. The question which arises is whether the court in finally considering the evidence is bound to accept the case of the petitioner which in the circumstances stands uncontradicted by [p.209] of [1972] 2 GLR 198 evidence from the respondent. Section 2 (2) of the Matrimonial Causes Act, 1971, imposes on the court the duty to inquire, so far as is reasonable, into the facts alleged by the parties and this inquiry can throw some doubt on the case. But does this mean that the court should hold an inquest in all cases? The English Act had its origins in Putting Asunder, the report of a group appointed by the Archbishop of Canterbury in January 1964 and published in July 1966. This report recommended that the sole ground for divorce should be the breakdown of the marriage and that this breakdown was to be ascertained on inquest, that is that the court should assume an inquisitorial role in every case, defended or undefended, in order to satisfy itself that the breakdown of the marriage was irretrievable. The procedural difficulties are such that such a proposal was not likely to find easy acceptance; the length of trials would be extended and expenditure would increase because of these inquiries. It is therefore decreed that such an inquiry is to be held only when reasonable. I do not think that where the respondent has refused to tender evidence in
support of the facts alleged by him into the answer it would be reasonable in all cases to expect the court to conduct an inquest, unless there is reasonable ground to suspect that such an inquest is likely to show that the evidence adduced by the parties is false or perjured. I have no reason to suspect that any part of the petitioner’s evidence is false or that the true position has been hidden from the court. I shall therefore not hold an inquest.
In the result I hold that the marriage has broken down beyond reconciliation and I dissolve the marriage.
The petitioner will have her costs which I assess at ¢150.00.
DECISION
Petition granted.
S.E.K.
