Introduction
There are no rights here. It is a question of discretion.
When the “other woman” in a divorce petition is herself a wife, the law confronts a clash between procedure, reputation, and fairness. Under the High Court (Civil Procedure) Rules, 2004 (C.I. 47), a court may order joinder of any person whose presence is necessary to effectually and completely determine the issues. In matrimonial causes, this often means bringing an alleged adulterer into the suit as a co-respondent. But what happens when the alleged adulterer is already married to the petitioner? The question shifts from simple joinder to discretion: should the court allow a party to defend her name in a case primarily aimed at dissolving another marriage, or does her inclusion risk prejudice, delay and unnecessary scandal? The Supreme Court’s Judgment in the case of Vida Yeboah v Dr. Stephen Yeboah and Mercy Agyeiwaa Civil Appeal No. J4/7/2026 dated 29th April, 2026 revisited this dilemma, re-stating the test of necessity and clarifying the limits of discretion in joinder applications. This essay examines that balance, probing how Ghanaian courts weigh the right to be heard against the need for judicial economy, the protection of reputation, and the integrity of matrimonial proceedings.
Procedural History and the Supreme Court’s decision
In the Vida Yeboah v Dr. Stephen Yeboah case (supra), a divorce petition was filed by Vida Yeboah at the High Court, Agona Swedru, citing adultery and unreasonable behaviour on or about 2019. In 2021, Mercy Agyeiwaa applied to be joined as a co-respondent, claiming that she was lawfully married to Dr. Yeboah under customary law. The High Court on 1st July, 2021 granted the joinder, however on 9th May, 2024, the Court of Appeal set aside the joinder holding that her presence was unnecessary. A further appeal to the Supreme Court is what resulted in the Supreme Court allowing the appeal and restoring the joinder in this present matter. A major issue to be interrogated was whether an alleged adulterer who claims a customary marriage is a necessary party in a divorce petition? The Supreme Court in allowing the joinder stated that a joinder under section 2 of the Matrimonial Causes act, 1971 (Act 367) and Order 65 rule 7 of the CI 47 is permissive and not automatic. The Supreme Court was clear that where the alleged adulterer asserts a subsisting customary marriage, supported by evidence, joinder becomes necessary in order to determine whether adultery actually occurred; determine the validity of a purported monogamous marriage contracted later; protect claimed property interests and avoid multiplicity of proceedings and reputational injustice.
Judicial discretion, joinder and an alleged adulterer – establishing the right jurisprudence
The Supreme Court, in the Vida Yeboah v Dr. Stephen Yeboah case (supra) is not establishing a general position of the law requiring the automatic joinder, in every case, where a person is named as an adulterer. Far from it! Judicial discretion demands that judges judicially exercise same only when it is justifiable, transparent, and intelligible to do so. Also, the discretion is deemed judicially exercised when its exercise falls within the range of reasonable outcomes. The Supreme Court’s jurisprudence establishes that persons whose only involvement is the admission of adultery have no automatic place as parties in divorce proceedings since at best, they could serve as witnesses. The ratio of the Supreme Court’s decision is that, the joinder of a named adulterer to a divorce petition is permissive and discretionary, to be exercised within the law relating to discretion. It is not mandatory but a matter of necessity. Thus, where the presence of a party to the suit would not in any way assist the court in completely and effectually adjudicating upon the issues in controversy, that party is not a necessary party. A necessary party is one whose presence in the proceedings is essential to ensure that all matters in dispute are effectively and completely determined and adjudicated upon. Any person whose presence before the court is necessary to ensure that the dispute is effectively and completely determined and adjudicated upon, is a necessary party and ought to be joined. Also, the Supreme Court has established, as a matter of ratio, that where the determination of a dispute will directly affect a third party in his or her legal rights or in his pocket, the court may, in its discretion, permit that person to be joined as a party. Where proprietary interests are claimed and may be directly affected by the court’s orders, the party asserting such interest ought, in the interests of justice, to be heard. Ultimately, where an alleged adulterer asserts a subsisting customary marriage supported by evidence, the case for joinder is particularly strong.
Conclusion
In conclusion, joinder of an alleged adulterer who is herself a wife sits at the intersection of procedural fairness, reputational risk, and purpose of matrimonial litigation. The C.I. 47 gives Ghanaian courts the power to bring in any person whose presence is necessary to settle the real questions in dispute. Yet, necessity is not presumed simply because adultery is pleaded. Divorce actions are concerned primarily with whether the marriage has broken down irretrievably, not with conducting a collateral trial on the conduct of third parties. The Supreme Court’s guidance in Vida Yeboah v Dr. Stephen Yeboah case (supra) makes clear that judicial discretion must be exercised with restraint. Courts should ask whether the alleged adulterer’s rights or obligations will be directly affected by the outcome. Where her participation is not essential to determining the dissolution of the marriage, joining her risks turning the suit into a public inquisition that prejudices both parties and distracts from the central issue. The proper balance lies in preserving the integrity of divorce proceedings while respecting the constitutional right to be heard. When the “other woman” is a wife, the court must scrutinize the application for joinder carefully, allowing it only where justice truly demands her presence. This approach ensures that matrimonial causes remain focused on dissolving failed marriages fairly, without becoming vehicles for public shaming or peripheral disputes.
God bless!
