Divorcing Amicably

Dear legal mind 

I married the love of my life in the early 2000. I should say, our union to a reasonable extent has been fulfilling; three wonderful kids, frequent vacations and travel, two splendid homes, the likes. However, my husband has been unfaithful in our marriage and frankly I cannot  keep up with him. I want out of this union but i want to protect my husband’s name and our children. if my husband agrees, can we apply/file for a no-fault divorce in our courts? 

Akosua D

Accra 

Dear Akosua D, In as much as the courts and even society prefers that marriages remain intact, and that Marriages should only end or be dissolved as a last resort the reality or inevitability as your situation demonstrates is that at a point in time, some marriages come to an end and mainly through divorce. 

For formal marriages that are dissolved/ended at the courts, the traditional approach has been for a Petition for divorce to be brought on the sole ground that the  marriage has broken down beyond reconciliation. And in proving that the said marriage has broken down beyond reconciliation, the Petitioner(the party requesting for divorce) is required to prove/establish some specified grounds; adultery by the other party, unreasonable behaviour, desertion for a continuous period of at least two years, separation for at least two years, and irreconcilable differences. 

Put differently, in order for the petitioner to obtain a divorce order, one has to prove that the other was at fault or has done something wrong or that they are to be blamed for the marriage breaking down beyond reconciliation. That is the essence of a divorce based on a “fault”. 

At the other end of the spectrum, no-fault divorce is essentially that couples who present a petition for divorce no longer require to rely on and prove any of the above listed grounds to obtain divorce. 

So by its design, a no fault, or no blame divorce is a much more simple and amicable approach to divorce. Because, it ensures that couples will be able to file for divorce or dissolution without needing to place the fault or any wrongdoing on the other spouse to prove that the marriage has broken down beyond reconciliation. 

Now, as to whether or not a no-fault divorce is available within Ghana in other “to protect your husband and children”, the simple answer is no. From the provision of section 2 ( 1 ) of the Matrimonial Causes Act, 1971, Act 367, it appears that a petition for divorce and the fact that a marriage has broken down beyond reconciliation will  need to be based on some proven/specified fault or wrongdoing by the other spouse. In other words, it is highly difficult for a divorce to be granted without proof of a fault by the other spouse. 

The no-fault divorce mainly applies in some jurisdictions such as the USA, Canada, Australia, the UK etc.; where specific legislations have been made or amendments made to existing laws to provide for no-fault divorce. 

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