Author: Barbara Ewoenam Kukah
Almost every couple that gets married, does so hoping for a long and happy married life. However, for various reasons, marriages come to an end. Marriages may end through death, nullity, or divorce – however, this article will focus on divorce as a means of dissolution of marriage. Because marriage is not only a social or religious institution, but also a legal one which is authorised and affirmed by the state, when it ends, it has to be done by legal means. Thus, divorce can be defined as the formal dissolution of a marriage through legal proceedings. In Ghana, it may be commenced in the district court, circuit court, or high court.
In Ghana, the procedure for obtaining a divorce is governed by the Matrimonial Causes Act (1971) Act 367, and the High Court Civil Procedure Act, 2004 (C.I 47). These laws provide that every action for divorce must be commenced by a petition. However in order to obtain a divorce for a marriage within the first two years of marriage, one has to first seek leave of the court before filing a petition.
Ground for Divorce
The courts will only grant the divorce petition on the sole ground that the marriage has broken down beyond reconciliation. For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts:—
(a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or
(d) that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or
(e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or
(f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.
Timeline For Court Proceedings
Once a petition is filed in court, the length of time it takes in court varies depending on various factors such as the willingness of the parties to consent and come to a mutual settlement, the reliefs sought (a case where custody or children or financial settlement is sought may take longer than one where these reliefs are not being sought), and the court’s schedule, among others.
It is however possible to have an estimation of the duration based on the timeline given by Order 65 of the C.I 47. The steps involved in divorce proceedings in the high and circuit courts of Ghana are shown below:
Every divorce proceeding in the Ghanaian courts begins with a petition. It is served on the Respondent by the court bailiff and must be served personally on the respondent.
2. Entry of appearance
The Respondent after being served with the petition has eight (8) days within which to enter an appearance.
3. Filing of answer
After entering an appearance, the Respondent is required to file an answer to the petition within fourteen (14) days.
The Petitioner may then choose to file a reply to the Respondent’s answer. This is to be done within fourteen (14) days after being served with the answer.
5. Close of pleadings
Eight days after the reply is to be filed, pleadings will close. This means that the parties can no longer serve each other written documents and the matter can be set down for trial in the courtroom.
6. Setting down for trial
Fourteen days after pleadings close, the petitioner or his lawyer is to write to the Registrar to inform him that the matter is ready to be set down for trial, and pay the fee for service of the notice of trial. The Registrar shall then set the matter down for trial and serve the notice of trial on the Respondent within fourteen (14) days. If the petitioner or petitioner’s lawyer fails to do this, the Respondent or Respondent’s lawyer may either apply for the matter to be struck out or to be set down for trial.
Once the matter is set down for trial, the parties are to file their witness statements and call their witnesses to be examined in court. The duration of the trial depends on the court’s schedule, the number of witnesses who are called, and the duration of cross examination.
During the proceedings, either of the parties may file motions to ask the court for some orders, eg. Paternity test, maintenance pending trial (etc). These may also affect the length of the time the case spends in court.
9. End of trial
This takes place after all witnesses have been examined. The judge shall then ask the parties to file written addresses by a certain date and give a date for judgment
This is to be given within six weeks of the close of the case. Though this is the prescribed time for judgments, sometimes there are delays. If there is an unreasonable delay, a party may inform the Chief Justice to request a date for judgment to be given by the judge.
11. Execution of judgment
After judgement is given, the parties then obey the court’s judgement. Payment of monies, sale of properties, custody of children and any other order given by the court is done within this time.
Knowing the timeline provided by the rules of court is very helpful to parties to divorce proceedings in knowing what to expect and managing their expectations of the process. It must be borne in mind though, that although this is what is prescribed, in reality, the process may be either much faster or much slower than that prescribed.
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