How infidelity shatters vows

Published October 17,2024

An exposition on circumstances under which adultery may be the basis for a divorce.

Infidelity, in the form of adultery, has for long remained the Achilles’’ heel of marriages. Its discovery can be traumatic as it shreds into irreconcilable pieces all trust, loyalty and commitment:  the very foundation of marriages.

While, by Section 2(1)(a) of the Matrimonial Causes Act, 1971 (Act 367), adultery remains a well-recognized basis for the dissolution of marriages, circumstances under which it can be used as a basis for ending marriages are often complex and nuanced.

In this article, we discuss the circumstances under which adultery can be used as a basis for ending marriages.

First of all, Section 43 of the Matrimonial Causes Act, 1971 (Act 367) defines adultery as acts of voluntary sexual intercourse between a married person with one of the opposite sex other than his or her spouse. A person alleging adultery within the meaning of this section need not show that there was a complete act of sexual intercourse. 

So, it is not necessary to prove a complete act of sexual intercourse as required in establishing consummation of marriage; showing that there was some degree of penetration of the female organ by the male organ is a sufficient prove that adultery has been committed. See Dennis v Dennis [1955] 2 All ER 51

By Section 43 of Act 367, it is the case that the act of adultery must also be voluntary. That is to say, rape or an intercourse in which  consent was obtained by duress, fear or force will not be considered as an act of adultery.

Second, if adultery has been committed then the claimant must satisfactorily prove same in a Court before marriage can be dissolved.  This requires the claimant to prove the fact of adultery to a degree beyond the civil standard of proof on a preponderance of probabilities. see the case of Adjetey v Adjetey [1973] 1 GLR 216. 

However, because adultery is usually committed in private, it is challenging to adduce direct evidence to prove that it has occurred. For this reason, nearly every commission of adultery is inferred from surrounding circumstances. Therefore, the Court usually decide on adultery by examining potential causes which satisfactorily lead to the conclusion of the occurrence of a voluntary act of sexual intercourse between a married person and another: See Adjetey v Adjetey [1973] 1 GLR 216

Another way the Court may use to adduce a commission of adultery is a voluntary confession by the adulterer. See Quartey v. Quartey [1972] 1 GLR 6.

Adultery may also be inferable in instances where it is shown that a child born by the respondent is not the child of a petitioner. Thus, in Hume v Hume and MacAuliffe [1965] Times Feb 25, the Court held that the wife of Mr. Hume had committed adultery because a DNA test run on Mr. Hume and a child of the marriage showed a very low probability of paternity. 

When a petitioner satisfactorily proves to the Court that adultery has been committed, the petitioner is also required to demonstrate to the Court that by reason of the adultery, living with the Respondent will be intolerable. Thus, in subjective terms, the Petitioner must find it intolerable to continue living with the Petitioner after getting to know of the adultery.

By section 3 of Act 367, every act of adultery only remains a valid basis for divorce six (6) months after it is discovered by the petitioner. As such, if after the adultery is discovered the parties continue to live as man and wife for a period of more than six (6) months, the previous act of adultery cannot be relied on for the purposes of a petition for divorce. However, if the couple reside together under the same roof for a period exceeding six (6) months after discovery of the commission of adultery but not as a husband and a wife, then the Petitioner can still rely on that commission of adultery as a basis for a divorce.

These notwithstanding, the Court will only dissolve the marriage if, upon a successful establishment of the fact of adultery, it is satisfied on the evidence that the marriage has broken down beyond reconciliation. 

Nana Nti Ofori-Debrah, a legal practitioner contributed to this article.