Customary divorce not available to a person married under the Ordinance
But since by his marriage under the Ordinance he has by express contract agreed that, in any question which may arise in connection with that marriage transaction, his obligations and rights should be regulated by English law, he will not be entitled to claim the benefit of the provisions of the customary law for divorcing his wife (Ackah v. Arinta (Sar.F.L.R. 79); and The Paramount Chief s Tribunal of Akwapim v. Budu (Div. Ct.) 1931-37) 89)).
Joinder of an alleged adulterer to a divorce petition
The unambiguous effect of these provisions, when read together with Section 42 of the Interpretation Act, 2009 (Act 792), is that the joinder of a named adulterer to a divorce petition is permissive and discretionary, rather than mandatory. Additionally, the exercise of judicial discretion to join a party to a suit is guided by Order 4 rule 5(2)(b) of C.I. 47, which empowers the Court to order the joinder of any person “who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon.” The operative test is therefore one of necessity.
In my respectful view, this opinion should not be understood as laying down the proposition that, in every case where a person is named in a divorce petition as an alleged adulterer, that person must automatically be joined to the proceedings. Such a proposition would be contrary to the clear language of section 12 of Act 367, which employs the permissive term “may” rather than the mandatory “shall.”
For the avoidance of doubt, persons commonly referred to in Ghana as “side chicks” or “side guys,” or by whatever other fanciful description, have no place as parties in divorce proceedings where their only involvement is the admission of having committed adultery with a person who is lawfully married. At best, such a person may be called as a witness. Such persons may also apply to the Court to be struck out as parties on the ground of misjoinder where they have been joined by the petitioner. In every case, the Court must exercise its discretion judicially, having regard to the particular facts and circumstances before it.
What this opinion is about, however, is this: where a named alleged adulterer places before the Court credible evidence that he or she is lawfully married to the respondent under customary law; where that assertion, if proved, would impugn the validity of the marriage the petitioner seeks to dissolve; and where the alleged adulterer further claims an interest in the matrimonial property that is the subject of the petition, then, having regard to all the circumstances of the case and in the interests of justice, such a person ought to be joined as a party to the proceedings. In those circumstances, the presence of the alleged adulterer is not merely useful; it is necessary for the effective and complete determination of all matters in dispute.
The petitioner is a University graduate, and must be a person of considerable culture and intelligence. In our opinion, conduct of the kind complained of (and not denied by evidence) would be most likely to produce upon her health the very effect which she described, and to put her in constant apprehension of physical violence. We are also of the opinion that such conduct as she described, having regard to her class and standing, amounted to intolerable mental cruelty. We think that the absence of medical evidence of physical injury in no way detracts from the petitioner’s right to be relieved by a decree of the Court for the dissolution of her marriage.
Need for medical evidence of injury to health in a petition based on cruelty
It appears that the only reason why the learned Judge dismissed the appellant’s petition was the absence of medical evidence as to actual physical injury. We think, therefore, that there is merit in the submission of Counsel in his arguments before us that the questions of mental cruelty, and reasonable apprehension of injury to health, were not considered by the Judge.
The clear purpose of section 12 of Act 367, as enacted, is to ensure that, where the circumstances so warrant, the person alleged to have committed adultery may be joined to assist in the resolution of that allegation. The issue of adultery is notoriously difficult to prove. Save for clear admissions — whether oral, documentary, or by way of video or photographic evidence, adultery must ordinarily be established by circumstantial evidence.
Proof of breakdown of the marriage by the facts in section 2(1)
A marriage cannot be said to have broken down beyond reconciliation unless the Petitioner establishes one or more of the facts specified in section 2(1), and adultery is one of the principal facts upon which the Petitioner relies. The question whether the Respondent committed adultery with the Appellant is therefore not “diversionary”, to borrow the words of the Court of Appeal, but goes to the very heart of the Petitioner’s case.
