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This was the story. A woman married under the Ordinance left her husband to go abroad for about six years.
During her sojourn abroad, she stayed in touch with her husband. They communicated frequently and she was remitting him on a regular basis. Her husband complained about her long absence and the fact that there was no one to cook and keep his home. When the woman returned, the husband had gotten married to another woman.
After persistent complaints and attempts to ‘’get’’ her husband back, the husband informed her that he could graciously make her a second wife if she would agree. She refused and took the husband to Court.
The Court ruled that because she left her marriage to go and stay abroad, her husband was right in marrying another wife and was actually doing her a favour by offering to make her a second wife. This was the storyline of a repeated telecast of an Akan drama I chanced upon on GTV on a Sunday mid morning.
There are various legal issues with this scenario and in order to appropriately address them, I will have to make some presumptions.
The first being that the husband decided he had to marry the second woman on the basis that his wife had deserted him, or that they had not lived as man and wife for a continuous period of at least five years.
The second presumption is that a man can marry under the ordinance (in which case the wife would be the ‘’first wife”) and then also marry a second wife under customary law.
Black’s Law dictionary defines divorce as “the legal dissolution of a marriage by a Court.” In Ghana, when a couple decides to marry under the Ordinance, then they can only obtain a divorce through the Courts. Divorce is a personal action (in personam) and thus any party in a marriage (i.e. either the wife or husband) may bring a petition for a divorce before the Courts. Due to the fact that it is an action in personam, upon the death of one party, an action to dissolve their marriage automatically terminates.The ground upon which a divorce can be obtained from the Courts is clearly stated under the Matrimonial Causes Act, 1971 (Act 367) which is the primary law that deals with dissolution of a marriage and other ancillary matters.
Under the Act, the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. In proving that the marriage has broken down beyond reconciliation, a petitioner must establish one of six causes, i.e. adultery; unreasonable behavior; desertion for a period of two years; consent of both parties where they have not lived together as husband and wife for a period of two years; not having lived together as husband and wife for a period of five years; and finally, inability to reconcile differences after diligent effort.
As the story line presumptively was based on desertion, or the couple not having lived together as husband and wife for a period of five years, let us focus on these.
A petitioner in order to prove that a marriage has broken down beyond reconciliation may lead evidence to the effect that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.
In simple language, a petitioner must prove that for two continuous years before he or she petitioned the courts for a divorce, the respondent (i.e. the partner whom he or she wishes to divorce) has deserted the marriage.
The requirement that the desertion must be for a period of two years continuously means that the couple must not have ‘’come back’’ together for a period of six months or more in the course of these two years.
According to section 5 of Act 367, a judge in considering a divorce based on the ground that the marriage has broken down beyond reconciliation due to desertion shall in determining whether the period for which the respondent has deserted the petitioner has been continuous, disregard any period or periods not exceeding six months in the aggregate during which the parties resumed living as man and wife.
Desertion in law as explained in Rayden on Divorce (9th ed.), p. 165, para. 120, reads, ” the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. But in its essence desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party. Desertion is not a withdrawal from a place, but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state.”
Again, Sarkodee J (as he then was) in the case of Hughes v. Hughes stated that “for the conduct [of the wife] to amount to desertion, the court had to be satisfied that it was an unjustifiable withdrawal from cohabitation and that she had the intention of remaining separated permanently from him. But where a spouse had agreed to the other departing, he could not then complain that the other was guilty of desertion as separation was by consent.’’
From the above expositions on desertion, let us now find out if our wife in the Akan drama episode had deserted the husband. Firstly, she had indeed separated from the husband by going abroad. Her going abroad had been with the consent of her husband, and thirdly, she was constantly in touch with the husband.
The communication lines between them were as active as one would expect in a long distance situation and she had been remitting him constantly from the fruits of her labour abroad. In law, she cannot be said to have deserted the marriage as her physical departure from the matrimonial home had been with the consent of her husband.
She had not shown any intention of being permanently separated from her husband. Au contraire (pardon my class six French) her separation was justified on the basis that she was going to seek greener pastures not only for herself but the whole family.
She had not abandoned that intention and had kept in touch with her husband and at all material times regarded herself as married to the man. On the ground of desertion as being proof that the marriage has broken down beyond reconciliation, our husband would fail.
Now let us look at the second possible presumption i.e. not having lived together as husband and wife for at least five years. This provision allows a couple who have not lived together as man and wife for at least five years to obtain a divorce from the Courts without either party being blamed or ‘’judged’’ for the breakdown of the marriage. It is a provision that allows a marriage to be brought to an end when it has from all indications and evidence become ‘’a mere shell’’ and one of the parties has absolutely no intention of returning to the other.
Moreover, it ensures that the institution of marriage does not become an albatross around the necks of persons who enter into it so that even when they clearly do not want to remain in it, they cannot ‘get out’ unless one party is to blame and/or consents. It allows a marriage that has ceased to be a union to be dissolved with as little embarrassment, anger, pain and humiliation as possible.
One party may still be willing to stay in the marriage and work things out, but once the other has continuously for a period of at least five years evidenced by actions that he or she no longer recognizes the marriage as subsisting and would never return to it and has not cohabited as husband and wife with the spouse, the Courts would graciously bring such a marriage to an end by granting a divorce decree. If for nothing at all, this helps the parties to find some closure and move on with their lives instead of remaining in a stalemate.
According to Sarkodee J. (as he then was – together with some other revered judges, his judgments on divorce matters were written so succinctly and with such a deep appreciation of the institution of marriage that one cannot help but quote him extensively) in the case of Kotei v. Kotei, “As the provision stands it seems no blame need be attributed to either party and there may be no passing of any sort of moral judgment. There may be no need to label one or the other party as technically innocent even though the conduct of both has brought about the breakdown of the marriage.”
He continued ‘’where there was proof that the parties had lived apart for a continuous period of five years immediately preceding the presentation of the petition, the court would dissolve the marriage against the will of a spouse who had not committed a matrimonial offence and who could not be blamed for the breakdown of the marriage. But there must be proof that the parties had not lived as man and wife during that period; there must have been a total breakdown of the consortium vitae, mere physical separation was not enough. The petitioner must prove not only the factum of separation but also that he or she had ceased to recognize the marriage as subsisting and intended never to return to the other spouse. The state of mind of the parties was relevant but it did not matter whether or not the state of mind of one of the parties was communicated to the other.’’
Again, let us analyze if our husband in the Akan drama episode can avail himself of this provision. Our wife had been abroad for six years; more than the required minimum of five years! That fact seems to be in his favour until we remember that mere physical separation is not enough – there must have been a complete breakdown of consortium vitae. As they stayed in touch and were communicating on the premise of husband and wife, can he say there was a complete breakdown of the consortium vitae? Again, as he kept receiving the remittances from his wife, even after getting married to the new woman and continued communicating with her as her husband and did not exhibit any intention and our gesture to let the wife know that he did not consider her as his wife, can he say there was a complete breakdown of consortium vitae?
Our husband must prove that in his mind, he had ceased to recognize the marriage as subsisting and never intended to return to it. Of course, he does not need to communicate this to our wife.
However, seeing as he kept up communication and accepted the remittances from our wife, how can he say that in his mind, he had ceased to recognize the marriage as subsisting?
Now, in order for him to succeed in divorcing our wife, he must file a petition before the Courts.
As already noted, a marriage under the Ordinance can only be undone by a decree from the Courts, ‘nothing more nothing less.’ Thus until such a petition is filed and the decree granted, the parties are still legally married and neither of them can go ahead and marry another person either under the Ordinance, customary law or Islamic law.
Any such subsequent marriage is invalid. An ordinance marriage is monogamous and so a subsequent marriage without obtaining a divorce becomes a crime, which is punishable under our law. By the provisions of section 262 of the Criminal Offences Act (1960), Act 29, bigamy is an offence which is punishable as a misdemeanour.
That means you can be sentenced to a custodial term (jail ooo, my friend) for three years or less and/or a fine.
Let us conclude by looking at the ‘’wrongs’’ in our story. The husband was wrong in marrying the other woman in Ghana since he was still legally married to the wife who was abroad. The marriage with the second woman is null and void and he can be prosecuted for bigamy.
The first wife is still his legal wife and so it does not lie in his power to decide (out of some divine mercy) to make her a second wife. Lastly, the judge in the play erred grievously in his judgment.
Well that was drama and so we can make believe anything, but in real life, your wife or husband being abroad is not a blank cheque that proves that he or she has deserted the marriage or that you have not lived together as husband and wife especially where the separation was with your consent.
If it’s an ordinance marriage, then you need to go to Court and petition for the dissolution of the marriage if you are no longer interested. That alone would ensure your freedom from the marriage, otherwise please do not make yourself liable to a charge of and a possible conviction for bigamy. Just in case you are in two minds as to whether bigamy is just one of the offences glorifying the pages of Act 29, kindly do a simple google search on bigamy! You would pleasantly come across various instances in which the Courts have convicted and sentenced persons for bigamy.
The writer is a circuit court judge.
