The Law On Divorce in Ghana

Divorce in Ghana is the legal process of ending a marriage. It usually involves filing a petition with the court, serving notice on the other spouse, and attending hearings to finalize the divorce. The Matrimonial Causes Act, 1971 (ACT 367) makes provision for the legal requirements for divorce in Ghana. This article will explain the law on divorce in Ghana. In addition, it will also explain the orders that the Court usually gives on child custody, maintenance and property division.

You can download a copy of the Matrimonial Causes Act, 1971 (ACT 367) here. The hardcopy will be available for sale at our bookstore soon.

The Right to Divorce

Divorce is not as of right in Ghana law. This means that a married couple cannot simply agree to divorce and then obtain a Divorce Order from the Court. They will have to petition the Court and prove with evidence that the marriage has broken down beyond reconciliation. This is the only grounds acceptable in Ghana law for granting a petition for divorce. The Petitioner must produce sufficient evidence to prove any one or more of the following; Adultery, Unreasonable Behaviour, Desertion, Lack of Cohabitation, Failure of Reconciliation. This is what will establish whether the marriage has broken down beyond reconciliation.

Grounds For Divorce in Ghana

Sometimes in divorce proceedings, each party usually wants to tell their side of the issue. They want to passionately explain and justify the ‘wickedness’ of the other spouse. The Court is  not interested in these stories.  Instead, the Court will focus on the relevant elements that can help decide the breakdown of the marriage. We explain those elements at this section.

Adultery

Adultery is one of the grounds for divorce in Ghana. Under Ghanaian law, adultery is defined as any sexual intercourse between a married person and a person who is not their spouse. If one spouse commits adultery, the other spouse can file for divorce on the grounds of adultery. The Petitioner will have to provide relevant evidence of the adultery. The Court will not rely on rumours, suspicion or speculation to grant a divorce on this ground. In some cases, the birth of a child out of wedlock, or paternity/maternity tests, sex-tapes/photos etc., will provide undisputable evidence of adultery.

Unreasonable Behaviour

In Ghana, unreasonable behaviour is one of the grounds for divorce. Unreasonable behaviour can include anything that makes it difficult or impossible for the spouses to live together, such as physical or verbal abuse, financial misconduct, drunkenness, drug use, neglect, refusal to communicate or participate in marital counselling, denial of sex, refusal to cook or clean, etc.,.

Unreasonable behaviour is usually hard to prove. Much of the time, the complaints are normal habits that are annoying to the spouse but do not necessarily amount to unreasonable behaviour. The Court will determine each case on its own merits.

Desertion

Desertion as a ground for divorce in Ghana refers to the act of one spouse leaving the marital home without the consent of the other spouse for a continuous period of two years, and without any intention of returning. This usually occurs when one spouse decides to end the relationship by leaving.

However, one spouse might force the other to leave the matrimonial home due to neglect or mistreatment. In such cases, the misbehaving partner is the one who deserts and not the one who left the home.

Lack of Cohabitation

Where the couple have not lived together for a continuous period of two years or more, the Court may grant a divorce. The other spouse will have to give their consent. If the consent is being unreasonably withheld, then the Court may grant the divorce without the consent.

If the couple have not lived together for a continuous period of five years or more, then the Court will grant the divorce.

Failure of Reconciliation

The Petitioner must satisfy the Court that several attempts at reconciliation have failed. The Petitioner will have to produce evidence of Marital Counselling, mediation by pastors or church leaders, family elders and etc.,. This is also one of the grounds for divorce.

Procedure for Divorce in Ghana

Divorce cases are dealt with as civil cases in Ghana. The procedure is governed by the High Court Civil Procedure Rules, 2004 (CI47). You can download a copy of the CI 47 here.

In Ghana, a person has the right to conduct their own case in Court or act through a Lawyer. We strongly recommend that you engage a competent lawyer to provide all the legal services you may need, including divorce proceedings.

Petition for Divorce

Petitioners in Ghana must file a Petition for Divorce in accordance with the prescribed format, identifying the parties involved and the grounds/reasons for the divorce. The Respondent may then respond to the Petition by filing an Answer. If necessary, the Petitioner can file a Reply to the Answer.

The Court will set a date for the parties to present evidence such as documents, audio recordings, and eyewitnesses. After both parties have presented their evidence and witnesses and have been cross-examined, the Court will give its judgment. The entire process may take several months or years, depending on the issues to be determined in the case and the workload of  the Judge.

The Court typically tries to reconcile the couple, but if these attempts fail and the Petitioner meets the required grounds for divorce, a Divorce Order may be granted as well as determinations for Custody/Access to children, Marital Property Sharing, Maintenance Payments, and Alimony/Financial Provision.

Child Custody and Reasonable Access in Divorce Proceedings

In Ghana, parents of an underage child have the right to custody or reasonable access. However, the child’s rights are paramount; where parents’ rights clash with the best interest of the child, the Court will deny the parents’ rights and prioritize the child’s wellbeing.

The parents may be able to agree on custody, where one parent has fulltime custody and the other has reasonable access. The agreement may also be where each parent has custody 50% of the time. If they cannot agree, the court will make a decision. The Court will take into account the child’s age, health, the parents’ financial, mental and physical capacity, and the potential for a stable home environment. Ultimately, the court will make a decision based on the best interest of the child and any relevant evidence presented.

Property Sharing in Divorce Proceedings

The Law on divorce in Ghana considers property acquired during the pendency of marriage as joint property of the couple. In the past, the properties were split into two equal shares for the couple. This was based on the nature of the traditional nuclear family and gender roles. The husband earned income used to acquire the property. The wife also cooked, washed and took care of the home and children. The law considered this to be the wife’s valuable contribution to the success of the man and the family. The law would give the wife equal/joint ownership of all marital properties after the marriage is dissolved.

However, nowadays, the equal/joint ownership is no longer automatic. A spouse claiming joint ownership must prove their contribution. It is assumed that, in most homes, the couple are both employed and have hired maids, cooks, cleaners, and nannies to take care of the household duties. Therefore, the one claiming joint ownership must prove their contribution towards the property. They will only be entitled to a reasonable share of that property commensurate with their actual contribution.

Child Support & Maintenance

The Parent or legal guardian of a child in Ghana is responsible for providing the basics of food, health, clothing, shelter, and a basic education for that child. The Ghana law defines a child as a person below the age of eighteen. See the Children’s Act, 1998 (ACT 560).

In most divorce proceedings, the court grants the wife custody of the child and orders the husband to make monthly payments as maintenance. The idea is that the husband contributes financially whilst the wife deals with the day to day upkeep of the child. In this way, they equally maintain the child. Please note that there are some few rare cases where the husband will have custody and the wife pay maintenance.

The court will impose a figure if the parties cannot agree on the amount to be paid as maintenance. The Court will consider certain factors before imposing a figure as maintenance. Some of the factors are, the needs of the child, the financial capacity and responsibilities of the one providing maintenance, the family situation of the couple and any other relevant facts. This ensures that the amount imposed is reasonable and not excessive. In effect, a rich business man will not pay the same maintenance as a poor driver. This is because their financial and family situations will be different.

Alimony & Financial Provision

In most divorce proceedings, the husband pays financial provision or alimony to the wife. The financial provision or alimony is compensation for the divorce/breakdown of the marriage. In some exceptional cases the court may not order financial provision or may order the wife to pay the husband. This is rare, only where the wife has been adulterous or engaged in some other similar extreme act. In addition, the wife would have to earn a greater income than the husband.

Again, if the parties cannot agree on the alimony, the Court will impose a figure. Just like the maintenance, the Court will consider the earning capacity and financial responsibilities of the husband before imposing a figure as alimony. The Court will also consider the number of years married, the children and other factors. The court will ensure that the husband can afford the compensation and also that it is sufficient compensation for the wife. Just like the maintenance, the alimony that the ex-wife of a Minister of State will get will be different from that of a School Teacher because their situations are different.

Conclusion

The Law on Divorce in Ghana continues to develop. There are new case being determined and new interpretations of the laws on a regular basis. We hope that you find this article educational and helpful.

Check out our articles on Inheritance Law here.