HUGHES vs. HUGHES [1973] 2 GLR 342

CASES REFERRED TO

(1) McGowan v. McGowan [1948] W.N. 415; [1949] L.J.R. 197; 64 T.L.R. 634; 113 J.P. 27; 92 S.J.

647; [1948] 2 All E.R. 1032; 47 L.G.R. 118, D.C.

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(2) Dunn v. Dunn [1949] P. 98; [1949] L.J.R. 87; 65 T.L.R. 570; 112 J.P. 436; 92 S.J. 633; [1948] 2 All E.R. 822; 46 L.G.R. 521, C.A.

(3) Pardy v. Pardy [1939] P. 288; [1939] 3 All E.R. 779; 161 L.T. 210; 55 T.L.R. 1037; 83 S. J. 714, C.A.

(4) 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.

NATURE OF PROCEEDINGS

PETITION for divorce on the grounds of unreasonable conduct and desertion. The facts are sufficiently stated in the judgment.

COUNSEL

E. B. O. Anderson for the petitioner.

Messrs. Quist, Brown & Aidoo for the respondent.

JUDGMENT OF SARKODEE J.

The petitioner, husband, seeks dissolution of his marriage with the respondent on the sole ground that the marriage has broken down beyond reconciliation. He says that the respondent has deserted him; that she has behaved in such a way that the petitioner cannot reasonably be expected to live with her; that the spouses after diligent efforts have been unable to reconcile their differences.

The parties were married at the St. Stephens Church, Hampstead, London, England, on 30 March 1957. They lived and cohabited in London and later in Accra. There are two children of the marriage, Augustus aged fifteen years and Horatio aged fourteen years.

For the conduct of the respondent to amount to desertion the court must be satisfied that it is an unjustifiable withdrawal from cohabitation without the consent of the petitioner and that she has the intention of remaining separated permanently from him. The petitioner says that the respondent’s leaving him was without just cause. It is not denied that the respondent is separated from her husband but mere separation is not enough. It must be shown to be without the consent of the other spouse. When the petitioner, the respondent and their two sons returned to Ghana from the United Kingdom they had no place of their own to live. They lived at Avenida Hotel for some time. The wife’s father paid the bills. She later found a house at Tesano at a rent of ¢80.00 a month. He said it was expensive and so they left after staying there for two months. Here again the respondent’s father paid the rents. Subsequently a friend of the wife’s father gave them a house in which they lived rent free. All this time the husband was unemployed. In January 1967 he got a job at the Ghana Broadcasting Corporation as an engineer. Even though he was entitled to a bungalow one was not immediately available and his name was put on the waiting list. In March 1967 the wife got a job at the Agogo Hospital as a matron. Prior to this she was a nursing sister at the Adabraka Polyclinic. The husband said he objected to her taking the job at Agogo because he felt that would separate them. He said despite his protest she accepted it and without his consent. The respondent on her part says that they were facing financial difficulties. They had nowhere to live

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and so when she saw a job going at Agogo the petitioner advised her to take it. In any event after the wife had taken up the job he visited her at least twice every month. She in turn visited him in Accra and she did so whenever he was not going to Agogo. She says that the petitioner very often had no money on him when he visited her at Agogo and so with her knowledge he took various sums from the hospital secretary on her account. At times she gave him money herself.

They continued to exchange visits until about November 1969 when he cut off his visits to her, because according to him, when he visited her he got a poor reception; she made unkind remarks about how he dressed and about his financial position. He said it became difficult for him to go near her. The respondent denied she ever made those remarks; but even if she made them I find it difficult to see how they should cause the petitioner to stay away. There is no evidence that they were persistent.

The legal burden is on the husband, as the petitioner, to prove that his wife deserted him without cause. He says that anytime he went to Agogo he invited her to return to him but she refused. The petitioner himself had nowhere to live. The financial position of the parties was such that she had to find a better paid job. Even if there was desertion it started from November 1969 and not earlier. It is true that since that time the petitioner and the respondent have not lived as man and wife but there is no satisfactory proof that this was because the respondent refused to return to him.

It was argued on behalf of the petitioner that although it is the duty of the husband to procure a matrimonial home both the wife and husband have equal rights in the matter of choice of the home. Counsel contended that the respondent was in desertion when she refused to live in the husband’s family house and cited McGowan v. McGowan [1948] 2 All E.R. 1032, D.C. Denning L.J. (as he then was) in Dunn v. Dunn [1948] 2 All E.R. 822, C.A. said as summarised in the headnote that:

“There is no proposition of law that a husband has the right to say where the matrimonial home should be.

The decision where the home is to be is one affecting both parties and their children, and it is the duty of the parties to decide it by agreement, each having an equal voice. If such an arrangement is frustrated by the unreasonableness of one or the other and this leads to a separation, then the party who has produced the separation by reason of his or her unreasonable behaviour is guilty of desertion.”

From the circumstances which existed before she took up the job at Agogo and from her husband’s own conduct subsequently I am satisfied that he consented to her taking the job. When she left he moved into his family house where he has only one room which measured fifteen feet by seven feet; a room she describes as a hut; and most unsuitable for a family of four having regard to their background and station in life. It is difficult to see how he could ask her to return to live with him when he had no suitable accommodation to offer. I do not think the wife was being unreasonable. She was perfectly entitled to put her views across.

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About a year after he had stayed away from Agogo she wanted elders of her husband’s church to settle the differences between her and her husband. One Mr. Asem of the Pentecostal Church advised the petitioner to secure accommodation and then ask the respondent to resign from the hospital. She resigned as requested by the petitioner but he wrote to say that he had found no suitable house for her and so she should withdraw her resignation. She did so and remained at Agogo. This is not a case where the husband was fully settled in a house into which he asked his wife to return. There was just no place to go to. The wife had spent some weekends with him in this one room when she was at Agogo and was in a position to express her opinion. In any case she did not leave him because there was no place to live but because they were in financial difficulties and the husband consented to her taking the job. If one spouse agrees to the other departing, he cannot then complain. There can be no desertion if the separation is by consent: see Pardy v. Pardy [1939] 3 All E.R. 779, C.A. and there is no credible evidence on which to rely to say that the husband ever withdrew his consent. I hold therefore that the petitioner has not discharged the burden on him and that the respondent is not in desertion.

The petitioner alleged further that the respondent has behaved in such a way that he cannot reasonably be expected to live with her. In support of this it was contended that the respondent was a nagging and domineering wife. Apart from a feeble attempt in cross-examination to bring this out no positive evidence was led in support of these allegations. To succeed, the petitioner must show that the respondent’s conduct reached a certain degree of severity. Her conduct must be such that no reasonable person would tolerate or consider that the complainant should be called on to endure: see Gollins v. Gollins [1963] 3 All E.R. 966, H.L. It is not enough merely to refer to an isolated act which infuriates one spouse and point to it as grave or unreasonable. The matters relied upon are that the wife made unkind remarks about his dress when he visited her at Agogo. Next the husband said he felt humiliated when his wife went to Cape Coast and collected their sons whom he had sent there to spend their holidays with his relatives. His wife on the other hand said the children were not on holiday but she found them at a camp where members of the Pentecostal Church were holding a convention. The husband said the wife should not have taken the children straight to Agogo but should have taken them to Accra first. He felt his wife had challenged him. Also he did not like his wife’s father saying that he was ashamed of him as a son-in-law. Finally he said his wife referred to the children as “her” children and he understood that to mean she doubted the paternity of the children. These are isolated acts and cannot in my view be described as grave and weighty. They were not persistent and they cannot be called nagging. I do not therefore think they should entitle the husband to withdraw from cohabitation. This ground also fails. The petitioner led no evidence in support of the contention that the spouses, after diligent [p.347] of [1973] 2 GLR 342

efforts, were unable to reconcile their differences. The petition therefore fails and is dismissed.

In her answer the respondent says that the marriage between her and the petitioner has broken down beyond reconciliation and charges that the petitioner has behaved in such a way that she cannot reasonably be expected to live with him. She says further that she and the petitioner have not lived as man and wife since November 1969 and prays that their marriage be dissolved.

She said in evidence that their marriage has not been a happy one. Whilst they were in the United Kingdom it was “tolerable.” She had to give up a £G50 a month job as a midwife at Techimantia to accompany the petitioner to the United Kingdom, a second time, to enable him improve upon his educational qualifications he having found that his City and Guilds Diploma was inadequate. He felt humiliated as he did not have a degree. She travelled ahead to the U.K. to prepare a place for him and he joined her later in 1962. In 1962 he did nothing whilst she worked as a midwife to support the family. He was awarded a scholarship worth £32 a month in 1965. At that time she earned £140 a month. Out of her own savings she bought a caravan costing £800 in which she and the children lived whilst he was a student. She bought a V.W. car which he used, but the children had to walk barefooted to school. The petitioner said he could not drive them to school because he would be late for lectures. The husband and wife kept a joint banking account but all cheques she signed had to be endorsed by her husband. She paid her entire salary into this account. In spite of all their difficulties he out of their income gave a standing order to the bank and regularly remitted his mother and seven sisters in Ghana. She did not complain because she hoped he would qualify as an engineer one day and would look after the children.

She discovered that he had an Indian mistress and when she complained about his conduct the petitioner got annoyed, beat her up and used a knife on her. She still carries scars of the knife wounds on her face and hands. Eventually, he qualified and they returned to Ghana in 1968. He was not able to obtain a house for the family to live in. They lived at the Avenida Hotel for some time, the bills of which were paid by her father. She found a house at Tesano where they stayed for two months at a rent of ¢80.00 a month. Her father paid this as well. Her husband complained it was too expensive and so they moved out into a house given to them by a friend of her father.

In January 1969 he was employed by the Ghana Broadcasting Corporation. Still they had no place of their own. During this time she had no banking account of her own and so she paid her salary into the petitioner’s bank account at Barclays Bank, High Street. This time she had no signing powers. At the end of every month she gave her salary to the petitioner who would give her house-keeping money out of it and then pay the rest into his account. They were always in financial difficulties and so when in March 1969 she saw the post of matron advertised he advised

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her to apply. She applied and got it. She then moved to Agogo and her husband moved into his family house. They then put the children in a boarding school.

She says the petitioner is of violent disposition and that it seems to her he is suffering from some mental illness. The petitioner told her he killed one of a group of people who wanted to attack him when he was in Gambia during the Second World War. He became very sorry about the incident. Since then he has been seeking relief from all sorts of religious organisations. When they were in the United Kingdom the petitioner decided they and the children should change from Anglicans to become Roman Catholics. He got all of them to learn the catechism. He met his Indian mistress at a humanist group. He has joined the Pentecostal Church in Ghana and wants the children to become members.

He told the elder child when he is fifteen years old he would behave like his father who has suddenly changed into a man who strips himself naked and claps his hands. He beat the children up mercilessly on very little provocation but then after being brutal to them he would regret soon after and apologise. It got to a stage when the petitioner would get up from bed and lie on the floor saying that the spirits said she (the respondent) was not a good wife. He even would hide from her in certain circumstances. Because of what the spirits said about her he refused to have sexual intercourse with her, and as a result they have not lived as man and wife since November 1969.

All attempts at reconciliation have failed. When he stayed away after November 1969 she tried to get him to return to her by writing to his spiritual leaders. Pastor McGowen and Mr. Asem tried to bring them together but failed. She on her part talked to him when she visited Accra but without success. She was prepared to resign her post as matron in the interest of the marriage. There is no medical evidence as to the mental state of the petitioner but I do not think this is necessary in the circumstances. The respondent is not saying he is mad but that he has behaved in such a way that she did not think she could reasonably be expected to live with him. He has changed from the normal sober husband he used to be to one who felt he is being pursued and dictated to by spirits. He had become a brutal father to his children. He spends large sums of money on his spiritual church but cannot even pay the children’s school fees.

Even though the petitioner’s behaviour will have to have the grave and weighty quality necessary to substantiate a charge of cruelty as in Gollins v. Gollins (supra), I do not think it is necessary to prove injury to health essential to cruelty under the old law and that provided the necessary conditions are present the court should grant relief to the spouse affected by the conduct of the other. I accept the evidence of the respondent. Upon a careful observation of her demeanour and the opinion I have formed of her I believe her to be substantially a truthful witness. I will therefore grant the respondent’s prayer and I hold that the marriage between her and the petitioner has broken down beyond reconciliation. The said marriage is hereby dissolved.