Till Death Do Us Part.

A beautiful woman sits behind her solicitor in a courtroom.  She appears to be in her late 60s or early 70s.  She is immaculately dressed in a stylish suit with three strings of pearls around her neck and matching drop pearl earrings.  Her makeup is flawless.  She looks sophisticated.  In the witness box is a posh sounding gentleman, probably in his 70s, being cross-examined by the sophisticated lady’s barrister.  The gentleman looks sad.  He seems to get increasingly agitated with every question the barrister puts to him.

The judge is flanked by two law students on the bench, one on either side of him. They are marshalling the judge as part of their training to become barristers at the Bar of England and Wales.  This is their first time observing a contested divorce case. They are filled with excitement and pure admiration at the skill of the barrister cross-examining the posh gentleman.  The judge had earlier on briefed the students about the case they were just about to observe.  He had told them that this was a difficult case for even the most experienced barrister.  The petitioner (the lady) was unhappy in her marriage and wanted a divorce.  The respondent (the gentleman) did not want a divorce and wished to stay married to her.

The judge explained to the students that the law (as it stood then in England and Wales) was such that the only ground upon which the petitioner would be granted a divorce was if the court was satisfied that the marriage had broken down irretrievably and the petitioner was relying on one or more of five ‘facts’ to prove that ground.  The ‘facts’ put in simple terms were adultery; unreasonable behaviour; desertion; separation for two years if both parties consent to the divorce; and separation for five years if one party did not consent.  Nothing else would suffice and a petitioner who could not satisfy the court that a marriage had broken down irretrievably by relying on one of the ‘facts’ would not have the divorce granted.

This case was tricky because the petitioner’s case on the face of it did not really fit squarely into any of the categories of ‘facts’ to be established.  Her case was essentially one of ‘death by a thousand cuts’.  A sustained pattern of what, to her, were many ‘small’ unpleasant incidents and experiences over the years that had a cumulative effect of becoming so intolerable that she could not reasonably be expected to live with him. In spite of their advanced ages, she could not wait until death parted them.  Even though the posh gentleman was perfectly content to remain married to his wife, she wanted out.

In law, strictly speaking, unless a petitioner can satisfy the court that a sustained pattern of small incidents forms behaviour that (s)he cannot reasonably be expected to live with, the petition would be dismissed.  In practice however, many divorces are granted on this basis anyway because respondents generally do not contest such a divorce petition with a view to remain married.  Any semblance of a contest is basically to deny any wrongdoing and tell their side of the story and not at all aimed at remaining married when the other party has made it clear they no longer wish to stay married.

The unusual element of this case was that the posh gentleman wished to remain married to the sophisticated lady and wanted the judge to dismiss the petition.  The sophisticated lady’s barrister was doing a brilliant job of putting her client’s case across during cross-examination.  The two students were in awe of her.

Suddenly, the posh gentleman slumped in his seat and collapsed onto the floor.  The judge threw off his wig and rushed to the posh gentleman’s aid while shouting to the students “call an ambulance!”.  The sophisticated lady sat still and stared, as if in disbelief at the drama in the court room.  Her barrister stood in shock.  Her solicitor was frantically making a phone call.  I remained frozen in my seat, feeling helpless.  Yes, I was one of the two students marshalling the judge and in awe of the barrister cross-examining the posh gentleman.  She was a woman and I wanted to be as brilliant a barrister as her one day.

I bet you are wondering how this story ends.  I later found out that despite the swift intervention of the judge and paramedics who promptly attended the scene, the posh gentleman died in hospital.  What was supposed to be an exciting first day marshalling a judge for me ended in tragedy.  I went back to my flat and cried.

I had many questions about the law.  I was deeply saddened that the posh gentleman had to be cross-examined at all.  When all he wanted was to stay married to his lovely wife.  I also could not understand why the law would ‘force’ a woman to remain married to a man when it was obvious the marriage had broken down.  I could not understand why the woman had to establish one of the five ‘facts’ in order to be granted a divorce.  What if she could not prove that his behaviour  was such that she could not reasonably be expected to live with him?  As the law stood, her only option would have been to leave the matrimonial home, live independently from him for a period of at least 5 years and then petition again.  I was equally sympathetic to the positions of both parties.  If anything, it was the law I had a problem with.  I thought the position of the law was quite harsh.  As it turned out, death did eventually part them anyway so what did it matter?

That experience some 20 odd years ago stayed with me and informed my own legal practice in later years.  Acrimony was to be avoided if at all possible.  Contested divorces were not in anyone’s interest.  If there were children involved, their interests should be paramount at all costs. Divorce in itself has terrible consequences on the parties involved and often has devastating psychological effects on children caught in the cross-fire of litigating parents.

Personally, I had told myself that when I got married, I would never contemplate divorce.  That if I ever ended up in the sophisticated lady’s shoes I would endure whatever thousands cuts came until death parted us.  I had two reasons for saying so to myself.  First of all, I am a Christian.  If I made a vow before God and man that I would stay with my husband until death parted us, death it would have to be.  Secondly, I had no desire whatsoever to put myself and especially my children through the horrible experience of divorce proceedings with irreversible consequences.  Who would want that?

I have come to realise that many women, especially Christian women, in unhappy marriages feel the same.  They are riddled with guilt, not helped by the judgment from society and the churches in particular, that they are bad wives and mothers for contemplating divorce when they should be sticking to their vows to remain in their marriages until death parts them.  I have sat through many a sermon that preaches that.  And even if they managed to get over the church-imposed guilt, would they be able to face the real life hurdle of making it through the turmoil of an acrimonious divorce in one piece without damaging their own wellbeing and that of their innocent children?

The reality that I have come to experience through my legal practice and in my own personal circumstances is that no one, not the parties, not the lawyers, not even the judges, wants to put anyone through the ordeal and humiliation of proving these ‘facts’.  Unfortunately though, the courts’ hands are tied by the law.  In Ghana, where marriages under the ordinance are concerned, the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation and which requires the establishment of one or more of six ‘facts’.  There is an additional fact in Ghana that the parties have, after diligent effort been unable to reconcile their differences.  The courts are therefore duty-bound to be satisfied that the marriage has broken down beyond reconciliation, but only through the establishment of one or more of these six facts.

What tends to happen in practice is that parties attempt reconciliation and when that fails, either party begins to find fault and evidence of wrongdoing to use in court against the other party in order to increase the chances of the petition being granted.  It is unbelievable the lengths to which some parties would go to achieve that aim.  That is often when acrimony sets in. That coupled with ancillary matters like division of assets, financial settlement, custody and maintenance of children is a recipe for disaster!

In England and Wales, the recent Supreme Court judgment in the case of Owens v Owens [2018] UKSC 41, settled the court’s position on the archaic English law on divorce, upon which Ghana’s law on divorce, in the case of marriages under the ordinance, is based. The case of Owens v Owens reminded me of the posh gentleman and the sophisticated lady.  The facts of their cases were similar except that in the Owens case, Mr. Owens did not die but successfully defended the petition in the trial court.  Mrs. Owens’ petition was dismissed and she appealed to the Court of Appeal and lost.  She appealed to the Supreme Court and sadly her appeal was once again dismissed.

The Supreme Court took the opportunity to express its strong dissatisfaction with the law as it stood and made it clear that the court reluctantly dismissed Mrs Owen’s appeal and urged Parliament to change the law.  The UK Parliament listened and changed the law by passing the Divorce, Dissolution and Separation Act 2020.  The divorce law in England and Wales now allows a petitioner to obtain a divorce without having to prove ‘fault’.  In fact, the new law goes even further and allows the parties to petition jointly if they wish.  The focus is on reaching amicable solutions that protect the interests and welfare of all parties involved especially the welfare of children, if any.

Many women in Ghana are trapped in unhappy, unhealthy and sometimes downright unsafe marriages.  The courts’ hands are tied and cannot actively help them.  Interestingly, our customary laws have no such requirement of death to end marriages, as our churches require, or proof of a sole ground for divorce based on six specific facts, as our statutes require. Our customary laws, recognising marriage as being between two families, do not rule out divorce from the outset. That is why drinks are returned when a customary marriage is dissolved.  The emphasis of our customary laws is on reconciliation where possible, and amicable separation where reconciliations fails.  Perhaps it is time for us to reform our laws in line with customary practices and find better ways to end marriages that have clearly broken down beyond reconciliation.

If you are wondering whether I am encouraging women to leave their marriages because they have had enough, I am not.  I am not advocating divorce where reconciliation is possible. Far from it.  I honestly believe that divorce should be an option of last resort.  What I am advocating for is that where one finds oneself in a position where divorce is the only option available, aside inevitable death, one should be able to leave a marriage free of judgment from church and society and of the turmoil that comes with pursuing divorce proceedings in court.  If for nothing at all, for the sake of our children.

I daresay it is time for our churches, society and Parliament to recognise that ‘forcing’ a woman to remain in a marriage where it has become intolerable for her to remain is cruel.  For if the law supposes that the only ways out of a marriage are death or proof of a sole ground restricted to only the six ‘facts’ referred to above, then I would respectfully submit, in the words of Charles Dickens’ Mr. Bumble, that “the law is an ass.”  Over to you Honourable Members of Parliament.

Allow me to introduce myself.  My name is Irene Ansa-Asare.  I am an Educated African Woman. Unapologetically so.