Law Report: Marriage not dissolved in Ghana: D v D. Family Division (Mr Justice Wall), 12 October 1993

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The dissolution of a marriage in proceedings in Ghana was not entitled to recognition in the United Kingdom because the wife was not notified of the proceedings and the dissolution was not effective under Ghanaian law; even if the proceedings in Ghana were effective under Ghanaian law to dissolve the marriage, the English court would exercise its discretion to refuse to recognise the order dissolving the marriage if no reasonable steps had been taken to notify the wife of the proceedings in Ghana.

Mr Justice Wall dismissed the husband's petition and declared that the marriage between the husband and the wife had not been dissolved by the proceedings before the customary arbitration tribunal of the GA MANTSE, the paramount chief of the GA traditional area, but was a valid and subsisting marriage.

The parties were married in Ghana pursuant to Ghanaian custom in 1977. They came to live in England. The wife issued divorce proceedings in England in January 1990. The husband left England in January 1990 and went to Ghana. He applied to the customary arbitration tribunal for the dissoluation of the marriage. The wife had no knowedge the proceedings were taking place. The wife's mother was the defendant and attended the proceedings. The tribunal made orders dissolving the marriage. The husband asserted that there had been a valid dissolution of the marriage which was entitled to recognition in the United Kingdom under section 46 of the Family Law Act 1986.

E A Gumbel (Desmond Pye Partnership) for the husband; Janet Bazley (Garside & Hoy) for the wife.

MR JUSTICE WALL said that two experts in Ghanaian law had given evidence on the first question of whether or not the order dissolving the marriage by the tribunal was effective under the law of Ghana.

The authorities made it clear that the evidence must show that both parties voluntarily expressed their agreement to submit to arbitration. There was no such evidence in the transcript of the proceedings. The contribution of the wife's mother's appeared to consist of a series of protests that she was unable to deal with the matter in the absence of her daughter.

His Lordship was unable to find that the wife both voluntarily submitted to the tribunal and expressed her agreement to the proceedings 'in no uncertain terms'. The husband had failed to satisfy his Lordship on the balance of probabilities that there was a mutual voluntary submission to and a prior agreement to be bound by the proceeedings.

Further, the award must not be arbitrary but must be arrived at after hearing both sides in a judicial manner. The tribunal had a duty to go into the merits. It was impossible to do that as the wife had not been notified, was not present and the events alleged had mostly occurred outside Ghana.

The decision of the tribunal had to be 'effective under the law of the country in which it was obtained': that meant the decree of divorce would be upheld by the High Court of Ghana. His Lordship accepted the evidence of the wife's expert that the decree would not be upheld and it was therefore not effective under the law of Ghana.

The proceedings were not entitled to recognition under section 46 because the tribunal failed to adjourn so that the wife could be notified of the proceedings and such a failure rendered the proceedings ineffective under Ghanaian law. If, however, that finding was wrong that the proceedings were effective under the law of Ghana, section 51 which gave the court a discretionary power to refuse recognition fell to be considered.

It would be possible for a divorce to be recognised where reasonable steps had been taken by one spouse to notify the other but those steps had not been successful. It was also possible to envisage circumstances, albeit highly unusual, in which it would be reasonable to take no steps. In the circumstances of the present case, steps could and should have been taken to give notice of the proceedings to the wife and the failure to take such steps brought the case within section 51.