UNIVERSITY OF GHANA

LAW JOURNAL
Publication of the University of Ghana School of Law

VOLUME XXXIII(I) 2024

I
UNIVERSITY OF GHANA
LAW JOURNAL

Editor-in-Chief
Christine Dowuona-Hammond

VOLUME XXXIII(I) 2024

II
 UNDERSTANDING THE LEGALITY OF DIVORCE IN
GHANA: A SOCIO-LEGAL APPROACH

Peter Atudiwe Atupare*

Elijah Tukwariba Yin∗*

Abstract
Divorce is a legal process that dissolves a marriage and
allows both parties to go their separate ways. It includes
the termination of marital rights and responsibilities and
the division of assets and debts. Divorce can be complex
and emotionally challenging, as it often requires making
difficult decisions about children, finances, and living
arrangements. Despite these, divorce can also provide
a fresh start for individuals to move forward and build
a new life. The literature on divorce is huge, with many
scholars focusing on different facets of the subject, which
has substantially added to our knowledge of divorce.
However, there has been relatively less focus on the
alignment of empirical data on causes of divorce within
the framework of the Matrimonial Causes Act 1971
(Act 367). This paper adopts a socio-legal approach
to studying the factors leading to divorce and how they
corroborate or contradict the existing legal structure.
Using the mixed-method approach to data collection and
analysis, it was discovered that some participants’ bases
for divorce are not necessarily legal but rather social.
The findings epitomise the changing nature of society
and what people think must warrant divorce. Impliedly,
legal actors must take a holistic approach rather than
the typical legalistic one defined in Act 367.

∗
PhD, LLM, MA, LLB, BA, BL. Associate Professor, University of Ghana School of
Law, and a former Dean of the University of Cape Coast Faculty of Law.
∗∗
PhD, LLM, MA, PGDL, BA, HETC. Senior Lecturer, Faculty of Law, University of
Cape Coast, Ghana.

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1. INTRODUCTION

This paper adopts a socio-legal approach as a distinguishing feature in

studying the factors leading to divorce and how such factors corroborate
or contradict the existing legal structure. It is argued that the factors
leading to divorce are not necessarily legal. We share that by examining
the social and legal factors that shape divorce outcomes, we can better
understand the complexities of this process and work towards improving
the legal system’s response to divorce. Through this analysis, we aim to
highlight the importance of taking a holistic approach to divorce that
considers both its legal and social dimensions. The paper contributes to
the legal literature on divorce and sociological jurisprudence.
Legally, divorce pertains to the termination of a marital union by a
court or another authorised entity.1 It is a process that ends a marriage and
absolves both parties of all marital responsibilities.2 Based on customary
law, the process of divorce may be culturally defined.3 Hence, the legal
basis and acceptance of divorce may not necessarily receive cultural
approval.4 This is because the process of dissolving marriages must
be seen as consistent with the customs and practices of ethnic groups.
Likewise, a customary approach to and outcome of a divorce that is
considered inconsistent with the formal law or injurious to any party

1 Online Journal: Baffour K. Takyi and Stephen Obeng-Gyimah, ‘Matrilineal

family ties and marital dissolution in Ghana’ (2007) 28(5) Journal of Family Issues p.
682–691 <https://doi.org/10.1177/0192513X070280050401>.
2 Anne-Marie Ambert, ‘Changing families: Relationships in context’ (Pearson
Education Canada, 2014). C.R. Sasse, ‘Families today’ (Glencoe 2nd ed.) identifies
the following three stages of divorce: isolation, invalidation, and the final stage being
betrayal. The final stage is characterised by a breakdown of support and trust. This is
consistent with the conceptualization of divorce as a process by Cao in Hongjian Cao,
Mark A. Fine and Nan Zhou, ‘The Divorce Process and Child Adaptation Trajectory
Typology (DPCATT) Model: The Shaping Role of Predivorce and Postdivorce Inter-
parental Conflict’, (2022) 25 Clinical Child and Family Psychology Review <https://
link.springer.com/article/10.1007/s10567-022-00379-3>.
3 Online Journal: Jamil Ddamulira Mujuzi, ‘Reconciling Customary Law and
Cultural Practices with Human Rights in Uganda’ (2020) 41(2) Obiter, Nelson Mande-
la University Law Journal. Different cultures have different expectations and require-
ments for divorce. Customarily, such requirements must be met for the marriage to be
properly recognised as dissolved.
4 This is arguable in a democracy where the constitution of the state is consid-
ered supreme.

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concerned could be classified as invalid. This implies that in matters of
divorce, legal regulations are closely intertwined with relevant cultural
practices. Notwithstanding, in Ghana, the formal legal system is the
proper method for terminating a marriage that was constituted under
customary law.5
The phenomenon of divorce has been a longstanding practice.
According to the Cambridge Family Law Practice group,6 in ancient
times when the church held greater authority than the monarch,
marriage was considered a religious institution and hence, divorce was
also under the jurisdiction of the church. Marriage was considered a
lifelong commitment, and divorce was quite uncommon. However,
in cases of severe cruelty, the church occasionally permitted a legal
separation known as ‘a mensa et thoro’, allowing couples to live apart
but not to remarry.7 During the 18th and early 19th centuries, obtaining
a divorce through an Act of Parliament was possible, but this privilege
was exclusively available to the wealthy. The Matrimonial Causes Act
1857 of the United Kingdom was the first legislation that allowed for
divorce in a broad sense. In traditional Africa, divorce also has a long
history as families and the parties who contracted the marriage primarily
negotiated divorce, based on existing cultural and societal normative
orders. This points to divorce as a cross-border issue as the process
differed from one society to another.

5 Online Journal: Prapjel Mensah-Panford, ‘An Assessment of Matrimonial

Property Distribution Upon Divorce: The Perspective of The Ghanaian Courts’ [2018]
SSRN Papers <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165453> ac-
cessed 7 April 2024
6 Cambridge Family Law Practice Group, ‘A Brief History of Divorce’ (CFLP,
18 April 2012) <https://cflp.co.uk/a-brief-history-of-divorce/> accessed 6 April 2024.
7 Online Journal: Sir Arthur S. Quekett, ‘Divorce Law Reform in Northern
Ireland’ (1940) 3(22) Journal of the Comparative Society of Legislation <https://hei-
nonline.org/HOL/LandingPage?handle=hein.journals/jclilcs22&div=8&id=&page=>
accessed 16 September 2024.

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 Divorce cuts across all types and stages of societies, from hunting
and gathering,8 pastoral/ horticultural,9 agrarian,10 industrial,11 and to
post-industrial12 societies. While the incidence of divorce may be similar
across societies, the processes leading to divorce may exhibit variations
across different cultural contexts.13 Sociologists and anthropologists
have revealed that among the Shoshone Indians, a wife who desired a
breakup would merely place her husband’s belongings outside the home
that belonged to her. In traditional Japanese culture, a man only needed
a letter with three and a half lines to divorce his wife. Nevertheless, to
obtain a divorce, women were required to serve two years in a particular
temple. A straightforward declaration of intent to divorce was all that
was required in the ancient Roman Republic to end a marriage. During
the time of Augustus, the founder of the Roman Empire (27 BC to
14 AD), all one needed to get a divorce was a statement of rejection
witnessed by seven people. For the Cewa people of East Africa, a

8 National Geographic Society, ‘Hunter-Gatherer Culture’ (National Geo-

graphic Society, 9 April 2024) <https://education.nationalgeographic.org/resource/
hunter-gatherer-culture/> accessed 16 September 2024. Hunter-gatherer culture is a
subsistence lifestyle that depends on hunting and fishing animals, as well as foraging
for wild flora and other sources of nutrition such as honey, in order to obtain suste-
nance. Until around 12,000 years ago, the whole human population engaged in the
activity of hunting and gathering.
9 Horticultural civilizations cultivate crops using basic implements, whereas
pastoral societies rear livestock. Both agrarian and industrial cultures exhibit high-
er levels of wealth compared to hunting-and-gathering societies. Additionally, both
societies also have larger levels of inequality and conflict in comparison to hunt-
ing-and-gathering societies.
10 The economy of the agrarian society is based on producing and maintaining
crops and farmland.
11 These societies used large-scale production and mass-production techniques
in order to make products. They depended heavily on natural gas (and other power
sources) and machines to produce goods for consumption.
12 This society is characterised by a shift from a manufacturing-oriented econ-
omy to a service-oriented economy. This transition is also associated with subsequent
societal reorganisation.
13 Online Journal: Zuzana Žilinčíková and Martin Kreidl, ‘Grandparenting Af-
ter Divorce: Variations Across Countries’ (2019) 38 Advances in Life Course Research
61-71 <https://www.researchgate.net/publication/332801091> accessed 16 September
2024; Tamara D. Afifi and others, ‘Analysing Divorce from Cultural and Network
Approaches’ (2013) 19(3) Journal of Family Studies <https://www.researchgate.net/
publication/271151407> accessed 16 September 2024. .

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divorce was finalised when the husband left his wife’s village with his
hoe, axe, and sleeping mat.14 There are notable distinctions between the
bases and procedures of divorce observed in ancient and contemporary
societies. Coontz argues that in modern societies, the roots of divorce lie
in the very values that propel marital relationships above personal and
familial commitments.15 In other words, the relatively high occurrence
of divorce and its associated trauma in today’s societies stem from the
same development that made marriage central to people’s happiness.
In Ghana, available statistics reveal that 553,065 people have
had their marriages dissolved, while 405,090 have separated. Out of
the data for dissolved marriages, 362,233 representing 65.5%, were
females, while 190,832, representing 34.5%, were males. Of the over
400,000 separated spouses, the majority (252,079) were females, with
the remaining 153,011 being males. The rate of divorce is over 4000 per
year.16 The causes of divorce are varied and require either a single factor
or a combination of factors to initiate the divorce process.
The Matrimonial Causes Act 1971 (Act 367) of Ghana governs
divorce and its associated processes. The Act states the following as the
basis for divorce: adultery, unreasonable behaviour, desertion, 2 years
separation with consent, not having lived as man and wife for 5 years,
and that the parties to the marriage have, after diligent effort, been unable
to reconcile their differences.17 These bases are evidenced in case law.
In Arthur v Arthur,18 the trial court dissolved the marriage on grounds
of desertion and adultery, whereas in Mensah v Mensah19 it was on the
basis of infidelity. In Quartson v Quartson,20 the petitioner petitioned
for divorce, citing unreasonable behaviour and adultery, which the court
granted. The courts concluded that these marriages were broken beyond
reconciliation. Aside from these legal bases, some scientific studies

14 Stephanie Coontz, ‘The Origins of Modern Divorce’ (2007) 46(1) Family

Process 7-16 <https://www.researchgate.net/publication/6431028>.
15 Ibid.
16 Census Report of the Ghana Statistical Service (2021) ; Isaac Kofi Adjei,
‘Over 500k Ghanaians are divorced, 400k separated – 2021 Population Census re-
veals’ (JoyOnline, 1 March 2022) <https://www.myjoyonline.com/over-500k-gha-
naians-are-divorced-400k-separated-2021-population-census-reveals/> accessed 16
September 2024.
17 Section 2(1) of Act 367.
18 [2014] GHASC 127.
19 [2012] GHASC 8.
20 [2012] GHASC 49.

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have added to the causes of divorce.    
Empirically, third-party intrusion, lack of commitment, non-
submissiveness, and lack of affection have constituted some of the
reasons for divorce in Ghana.21 Takyi identified that previous marital
experiences and the absence of children were found as precursors to
divorce.22 Lack of communication, differences in personality, and
cultural training have also been documented.23 Recent scholarly work
found infidelity, physical and psychological abuse, financial problems,
intimacy challenges, third-party intrusion, and gender-role ideology as
the main causes of divorce in Ghana.24 Additionally, lack of respect and
responsibility, infidelity, family interference, differences in decision-
making, miscommunication, and differences in values and beliefs have
also been named as bases of divorce in Ghana.25 Some demographic
factors such as employment, low socio-economic status, and educational
background have also been identified as the bases of divorce.26 Amato’s
study in the US asserts that divorce among financially prosperous
marriages typically arises from factors such as the absence of affection,
estrangement, ineffective communication, and interest swing.27 For

21 Online Journal: Kwaku Oppong Asante, Osafo Joseph and Georgina K.

Nyamekye, ‘An Exploratory Study of Factors Contributing to Divorce Among Mar-
ried Couples in Accra, Ghana: A Qualitative Approach’ (2014) 55(1) Journal of Di-
vorce and Remarriage 16–32 <https://www.researchgate.net/publication/259891606>
accessed 16 September 2024.
22 Online Journal: Baffour Takyi, ‘Marital Instability in an African Society:
Exploring the Factors That Influence Divorce Processes in Ghana’ (2001) 34(1) So-
ciological Focus 77 – 96 <https://www.researchgate.net/publication/271945187> ac-
cessed 16 September 2024. Takyi’s study focused on Ghana.
23 Stephen Adei, ‘The Secret of a Happy Marriage: Communication’ (Africa
Christian Press, 1991).
24 Online Journal: Joseph Osafo and others, ‘Factors Contributing to Divorce
in Ghana: An Exploratory Analysis of Evidence from Court Suits’ (2021) 62(4),
Journal of Divorce and Remarriage 312-326 <https://www.researchgate.net/publica-
tion/348574739>.
25 J.G.I. Ameyaw, S. Dankwa and I. Eshun, ‘Factors that Contribute to Mar-
riage Breakdown Among Young Couples in the Ghanaian Context’ (2023) 29(11)
Journal of Scientific Research and Reports 34-47.
26 Paul R. Amato and Previti Denise, ‘People’s Reasons for Divorcing: Gender,
Social Class, the Life Course, and Adjustment’ (2003) 24(5) Journal of Family Issues
602-626.
27 Paul R. Amato, ‘Research on Divorce: Continuing Trends and New Devel-
opments’ (2010) 72 Journal of Marriage and Family 650-666.

107
those with low socioeconomic status, Kitson explained divorce within
the context of financial problems, violence, and alcohol dependency.28
Clarke-Stewart and Brentano identified changes in the life cycle as
causes of divorce. Life cycle-based risk factors include the duration
of the marital union, the existence of children, and cohabitation before
the matrimonial union. In the early stages of a marital union, common
causes encompass fundamental incompatibility, divergent values, and
personality traits. However, as the union progresses, the reasons revert to
tedium and estrangement, overall discontentment with the partnership,
and the upbringing of children.29 Aside from the demographic factors,
Erzar and Simonič have offered relational explanations as causes of
divorce. These include addictions, family violence, lack of commitment,
relationship problems, poor positive perspective on the marriage,
infidelity, intergenerational relations, relational conflict, lack of trust
and love between partners, and lack of belonging to a relationship.30
Amato and Hohmann-Marriott found that almost 50% of divorces
occur in couples with low levels of conflict, where the spouses lack
commitment to each other.31
In the work of Klobučar & Simonič in Slovenia, they tried
to understand the causes of divorce from the perspective of women.
They established four categories: actual problematic behaviour, partner
disinterest, relations with parents-in-law, and undefined changes. In
respect of the problematic behaviour, women clearly outlined violence,
infidelity, and alcoholism as the causes of divorce. The issue of partner
disinterest was explained to be the continuous absence of a partner
because of work and hobbies. This was also manifested in terms of
emotional absence such as misunderstanding cues and information,

28 Gay Kitson and William Michael Holmes, Portrait of Divorce: Adjustment

to Marital Breakdown (Guilford Press, 1992). This book generally focused on marital
issues in the US. It also draws on studies from other jurisdictions.
29 Alison Clarke-Stewart and Cornelia Brentano, Divorce: Causes and Conse-
quences (Yale University Press, 2006). This is an interdisciplinary study which draws
upon European American experience.
30 Katarina Kompan Erzar and Barbara Simonič, ‘Marital Infidelity: Relational
Family Therapy Perspective on Adult Detachment’ (2010) 21 Journal of Family Psy-
chotherapy 105–116. The work of Amato ‘Research on Divorce: Continuing Trends
and New Developments’ (n 31) has also pointed out similar factors.
31 Paul R. Amato and Bryndl Hohmann-Marriott, ‘A Comparison of High-and
Low-distress Marriages That End in Divorce’ (2007) 69 Journal of Marriage and Fam-
ily 621–638.

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uncomfortable silences, and a lack of attention to important events – the
birthday of a wife or child. According to the researchers, one reason for
divorce was not setting healthy emotional limits with parents-in-law.
And finally, on undefined changes that were inexplicit among the factors
of divorce identified, the women expressed experiencing estrangement
or a realisation that they no longer desired or consented to a shared
existence with a partner who did not have the same values.32
The existing body of literature on divorce in Ghana33 have focused

32 Nataša Rijavec Klobučar and Barbara Simonič, ‘Causes of Divorce from the
Perspective of Females in Slovenia’ (2017) 58(4) Journal of Divorce and Remarriage
263-275.
33 See: J.G.I. Ameyaw, S. Dankwa and I. Eshun (n 25); Joseph Osafo and others
(n 24); Abudulai Issah, ‘The Effect of Divorce on Children Education: A Case Study
of Walewale in the Northern Region of Ghana’ [2019] European Journal of Educa-
tion Studies; Adjeley Suta Alania, ‘Post-Divorce Experiences of Women in the Cape
Coast Metropolis’ [2018] University of Cape Coast Repository; Kim Caarls, Valenti-
na Mazzucato and Camille Richou, ‘La Migration Internationale Est-elle un Facteur
de Divorce? Les Couples Ghanéens au Ghana et à l’étranger’ (2015) 70(1) Institut
National d’Études Démographiques 135-161; Kwaku Oppong Asante, Osafo Joseph
and Georgina K. Nyamekye (n 21); Baffour Takyi and Stephen Obeng-Gyimah (n 1);
Baffour Takyi (n 22); Stephen Adei (n 23); A.Y. Amoateng and T.B. Heaton, ‘The So-
ciodemographic Correlates of the Timing of Divorce in Ghana’ (1989) 20(1) Journal
of Comparative Family Studies 79-96; Kwame Opoku, ‘Divorce in Ghana’ (1972)
5(4) Verfassung und Recht in Übersee 407-414 and out of Ghana: Thomas Leopold,
‘Gender Differences in the Consequences of Divorce: A Study of Multiple Outcomes’
(2018) 55(3) Duke University Press – Demography 769-797; Shelley Clark and Dana
Hamplova, ‘Single Motherhood and Child Mortality in Sub-Saharan Africa: A Life
Course Perspective’ (2013) 50(5) Demography; Bilampoa Gnoumou Thiombiano,
Thomas Legrand and Jean-Francois Kobiane, ‘Effects of Parental Union Dissolution
on Child Mortality and Child Schooling in Burkina Faso’ (2013) 29(1) Demographic
Research 797-816; Eran Shor and others, ‘Meta-analysis of Marital Dissolution and
Mortality: Re-evaluating the Intersection of Gender and Age’ (2012) 75(1) Social Sci-
ence and Medicine 46-59; Robert Bauserman, ‘A Meta-Analysis of Parental Satisfac-
tion, Adjustment, and Conflict in Joint Custody and Sole Custody Following Divorce’
(2012) 53(6) Journal of Divorce and Remarriage 464-488; Kjersti Norgard Berntsen
and Oystein Kravdal, ‘The Relationship Between Mortality and Time Since Divorce,
Widowhood or Remarriage in Norway’ (2012) 75(12) Social Science and Medicine;
Hyun Sik Kim, ‘Consequences of Parental Divorce for Child Development’ (2011)
76(3) American Sociological Review; M.S. Rendall and others, ‘The Protective Effect
of Marriage for Survival: A Review and Update’ (2011) 48(2) Demography 481–506;
Sophia Chae, ‘Divorce, Remarriage and Children’s Outcomes in Rural Malawi’ [2011]
(Presented at the Sixth African Population Conference, Ouagadougou, Burkina Faso);
D. Umberson, ‘Gender, Marital Status and the Social Control of Health Behaviour’

109
on the different facets of divorce. These studies have contributed
significantly to our understanding of divorce issues. However, the
focus of these studies indicates a lack of attention to some constitutive
elements of divorce in the literature. Our search suggests that there has
been a relatively less scholarly focus on the alignment of empirical data
on causes of divorce with the existing legal framework, specifically
the Matrimonial Causes Act of Ghana 1971 (Act 367). This reveals a
paucity of literature on divorce issues in Ghana, necessitating further
investigation. It is against this backdrop that this paper adopts a socio-
legal approach as a distinguishing feature in studying the factors leading
to divorce and how such factors corroborate or contradict the existing
legal structure.

2. METHOD

This study used a mixed-method approach to data gathering and analysis.

A mixed-method research approach involves researchers collecting and
analysing quantitative and qualitative data within the same study.34 The
mixed-method type of explanatory sequential design was employed.35
Quantitative research collects numerical data and analyses it using
statistical methods. The aim is to produce objective empirical data that
can be measured and expressed numerically. Qualitative research, on the
other hand, seeks to understand a phenomenon within a real-world context

(1992) 34(8) Social Science Medicine 907-917; Pearl Dykstra and Tineke Fokkema,
‘Social and Emotional Loneliness Among Divorced and Married Men and Women:
Comparing the Deficit and Cognitive Perspectives’ (2007) 29(1) Basic and Applied
Social Psychology; R.E. Lucas, ‘Adaptation and the Set-Point Model of Subjective
Well-Being: Does Happiness Change After Major Life Events?’ (2007) 16(2) Current
Directions in Psychological Science 75-79; E.M. Hetherington & J. Kelly, ‘For Better
or For Worse? Divorce Reconsidered’ (2003) 44(3) Journal of Child Psychology and
Psychiatry 470-471; etc.
34 B. Blummer and J.M. Kenton, ‘Methodology: The Think-Aloud Prob-
lem-Solving Activity and Post-Activity Interview’ [2014] Student Information Search
113-123.
35 Using this design, the researcher collects quantitative data first, followed by
qualitative data. This approach is used when researchers want to use qualitative data
to further explain the quantitative data. It is the same for sequential analysis. See:
Mohammed Abu Sayed Toyon, ‘Explanatory Sequential Design of Mixed Methods
Research: Phases and Challenges’ (2021) 10(5) International Journal of Research in
Business and Social Science 253-260.

110
through the use of interviews and observation. This approach tackles the
research inquiries on the ‘how’ and ‘why’ aspects, allowing for a more
profound comprehension of experiences, events, and contexts.36 The
mixed-method approach was used because a combination of qualitative
and quantitative data can improve an evaluation by ensuring that the
limitations of one type of data are balanced by the strengths of another.37
The study of divorce from a broader and in-depth perspective gives a
holistic view of the processes and practices associated with divorce.
The sources of data were both primary empirical and primary
non-empirical. Primary empirical data refers to data gathered directly
from participants using questionnaires and interview guides. Primary
non-empirical data refers to data gathered from court documents. These
include statutes, the facts of the case, and the decisions of the courts.38
For the quantitative approach, the unit of analysis comprised
divorced couples. Through court documents, the researchers were
able to trace 214 respondents. Some of these respondents referred the
interviewers to other community members who were also divorced.
In all, 300 respondents were interviewed using questionnaires. Out
of the 300 respondents, 132 were males and 168 were females. The
respondents were drawn from Greater Accra, Central, Eastern, Western,
Ashanti, Northern, Volta, and Upper East regions of Ghana. This
implies that the data gathered, to a large extent, reflects views across the
northern, middle, and southern parts of the country. The administered
questionnaire was made up of 8 sections. The sections were categorised
into demographic characteristics, pre-marital experiences, marital
experiences, residential pattern and property acquisition, economic
life, emotional and psychological abuse/support, pre-divorce and

36 J.A. Cleland, ‘The Qualitative Orientation in Medical Education Re-

search’ (2017) 29(2) Korean Journal of Medical Education 61.
37 N. Ivankova and Nancy Wingo, ‘Applying Mixed Methods in Action Re-
search: Methodological Potentials and Advantages’ (2018) 62(7) American Be-
havioural Scientist 978-997.
38 By way of further explanation, non-empirical research is a form of research
that does not depend on gathering and analysing original data. It is a methodical ex-
amination that relies on established facts, hypotheses, or literature. Non-empirical
research can be categorised into distinct types, including legal research, which en-
compasses the examination of legal concepts. Non-empirical research differs from
empirical research in that it does not include collecting new data, but rather relies on
existing knowledge and information to investigate and comprehend a certain subject
or issue.

111
divorce, and post-divorce experiences. Some of the questions asked
included the following: What was the most challenging time during
your marriage? What other challenges did you experience? What did
you learn from your partner during these times? What do you think
causes divorce in Ghana? Personally, what informed your decision to
divorce? Which grounds dominate the basis of divorce in Ghana? Some
of the questions were asked indirectly to get to the heart of the issues; in
effect, to minimise social desirability bias.39 The researchers employed
Cronbach’s alpha (CA) coefficients40 to evaluate the internal consistency
of the measurement variables. Given the demonstrated satisfactory
and acceptable reliability of the item, the study proceeded to evaluate
the composite reliability (CR) and the average variance extracted. A
CR falling within the range of 0.76 to 0.92 was deemed acceptable. The
reliability statistics for the variables demonstrate that the CA and CR
coefficients exhibit satisfactory levels of internal consistency. The table
below depicts the sample distribution.

Table 1: Regional Distribution of Sample

Region Sample Distribution

Greater Accra 65
Ashanti 60
Central 40
Western 40

39 Social-desirability bias refers to a form of response bias when survey respon-

dents have a tendency to answer questions in a way that will be perceived positively by
others. It can manifest as either excessive reporting of ‘good behaviour’ or insufficient
reporting of ‘bad’ or unwanted behaviour. See: Ronald B Larson, ‘Controlling Social
Desirability Bias’ (2019) 61(5) International Journal of Market Research 534-547.
40 Cronbach’s alpha is a method for evaluating the reliability of an instrument
by measuring the extent to which the items within it share common variance or cova-
riance, in relation to the total variance. The concept is that if the instrument is depend-
able, there should be a significant amount of correlation among the items compared to
the variability. See: L.M. Collins, ‘Research Design and Methods’ (2007) 2 Encyclo-
pedia of Gerontology 433-442.

112
 Eastern 35
Volta 20
Northern 20
Upper East 20
Total 300

For the qualitative research, 76 divorcees were interviewed with

an interview guide. Of the 76 participants, 47 were females, while 29
were males. The interview guide had open-ended questions that allowed
the interviewers to probe further. The participants were from the selected
regions, and the distribution is as follows: Greater Accra – 13, Ashanti
– 13, Central – 10, Western – 10, Eastern 10, Volta – 8, Norther – 7, and
Upper East - 5. These participants were reached via referrals.
This study also utilised primary non-empirical data, such as
the Matrimonial Causes Act 1971 (Act 367). For the Act, the various
grounds for divorce were extracted and formed the basis of analysis. The
facts of divorce cases, the grounds for divorce, and the courts’ decisions
were also sourced. Some of the case law examined include Mensah v
Mensah,41 Quartson v Quartson,42 Arthur v Arthur,43 and Adjei v Adjei.44
In respect of data analysis, after the quantitative data gathering,
the analysis was done using version 21 of SPSS. Using descriptive
statistics, the data were categorised and described using frequencies
and percentages. Chi-square analysis was used to determine sex
differences in problems indicated as causes of divorce. In respect of
the qualitative analysis, following the transcription of the interview
recordings, a comprehensive analysis of the qualitative data was
undertaken to ascertain recurring themes and patterns within the
participants’ responses. We were guided by McCaffrey et al.’s principles
of the hermeneutic circle to analyse the experiences of divorcees.45 The
grounds for divorce as espoused in the Matrimonial Causes Act and
case laws were also analysed thematically. The results were analysed

41 [2012] GHASC 8.
42 [2012] GHASC 49.
43 [2014] GHASC 127.
44 [2021] GHASC 5.
45 G. McCaffrey, S. Raffin-Bouchal and N.J. Moules, ‘Hermeneutics As Re-
search Approach: A Reappraisal’ (2012) 11(3) International Journal of Qualitative
Methods 214-229.

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and presented sequentially.46 That is, the quantitative data, which give a
broader view, were presented first, followed by the qualitative narratives,
which present context for the quantitative data.
This study received ethical clearance from the Center for Legal
Research Review Board of the Faculty of Law of the University of Cape
Coast. The participants were asked to sign an informed consent form.
We educated them on the content of the consent form before they signed.
They were informed of their rights as participants. We also informed
the participants that their participation was entirely optional, giving
them the freedom to withdraw from the study at any time or refuse to
answer any questions that caused them discomfort. They were notified
that the interview would be digitally recorded and kept confidential, as
stated in the signed consent form. The participants were also guaranteed
confidentiality and anonymity. Hence, we used gender, age, and number
of years married to represent the participants.

3. ANALYSIS AND FINDINGS

This paper adopts a socio-legal approach as a distinguishing feature in

studying the factors leading to divorce and how such factors corroborate
or contradict the existing legal provisions. We argue that the factors
leading to divorce are not necessarily legal. This section presents the
analysis of data in two ways. First, the results of the primary empirical
data are presented, followed by an analysis of the grounds for divorce
based on the Matrimonial Causes Act.

3.1. Grounds for Divorce: Perspective of Participants

This section presents the analysis of quantitative and qualitative data
gathered from respondents on the causes of divorce. From Table 2, 88
(29.30%) respondents indicated that financial problems were the main
cause of divorce in Ghana. The data further show that 52 (17.30%)
respondents said third-party intrusion, 44 (14.70%) respondents said
infidelity, 28 (9.30%) said physical and psychological abuse, while 16
(5.30%) agreed that intimacy challenges formed the basis of divorce.
Another 8, representing 2.70%, revealed that gender-role ideology

46 This is a two-phase analysis where the quantitative data is analysed first,

followed by the qualitative data based on the quantitative results. The qualitative data
is used to explain the quantitative data.

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caused the divorce, 11 (3.70%) said unreasonable behaviour, 14
(4.70%) said sexual incompatibility, 11 (3.70%) respondents stated poor
communication, while 14 (4.70%) indicated child upbringing issues as a
ground upon which people divorced. The table also shows that 12 (4%)
attributed divorce to desertion, while 2 (0.60%) said separation with
consent was another factor that caused divorce in Ghana.

Table 2: Causes of divorce in Ghana

In your view, which of the Frequency Percentage

following grounds cause (%)
divorce in Ghana?
Infidelity 44 14.70
Physical and psychological abuse 28 9.30
Financial problem 88 29.30
Intimacy challenges 16 5.30
Third-party/Family intrusion 52 17.30
Gender-role ideology 8 2.70
Unreasonable Behaviour 11 3.70
Sexual incompatibility 14 4.70
Poor communication 11 3.70
Child upbringing issues 14 4.70
Desertion 12 4.00
Separation with consent 2 0.60
Total 300 100.00

Source: Field Survey, 2022

We also asked respondents to identify the three most prevalent
causes of divorce. According to the responses presented in Table 3, more
than half (52.70%) of the respondents rated financial problems as the
leading cause of divorce. This was followed by third-party intrusion, as
indicated by 29% of the respondents. On the issue of infidelity, 18.30%
pointed it out as the basis of divorce. The data reveals that the leading
cause of divorce is financial challenges.

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Table 3: Dominant basis of divorce

In your view, which of the Frequency Percentage (%)

following grounds dominates
the basis of divorce in Ghana?
Infidelity 55 18.30
Financial problems 158 52.70
Third-party/Family intrusion 87 29.00
Total 300 100.00

Source: Field Survey, 2022

Using Chi-square analysis to determine sex differences in
problems indicated as causes of divorce, females checked infidelity (X2
= 9.36; p < .002), physical and psychological abuse (X2 = 10.36; p <
.004), family intrusion (X2 = 43.21; p < .001), financial problems (X2 =
26.76; p < .001), intimacy challenges (X2 = 13.63; p < .002), and poor
communication (X2 = 32.82; p < .001) as major contributing factors to
their divorce. The males also checked financial problems (X2 = 33.46; p
< .001) and infidelity (X2 = 21.91; p < .001). This shows that financial
challenges and infidelity stood out strongly for both males and females
as the basis of divorce.
Complementing the quantitative data, the data garnered from
the interviews provides context for the survey data. According to a
participant:

It was obvious that my husband could not meet my needs financially.

Even paying the children’s school fees and putting food on the table
were problems. I could not bear it anymore, so I initiated the divorce.
(Female, Age: 49, Years Married: 17)

Another participant added:

Money is everything in a marriage. What can you achieve in a marriage

if you do not have money? For me, financial problems formed the
basis of our divorce. …it got to the point where my husband could
not afford rent. Initially, when we started having financial issues, I
supported the family with the profits I made from my business to the
extent that I had to spend the capital of my business to take care of

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 the home. I got out of business, and the hardship became intolerable.
(Female, Age: 52, Years Married: 19)

In the words of another divorcee:

Money is crucial. I believe if I had money, my marriage would have

been intact. …financial problems are the key to divorce. It brings
about unhappiness and petty quarrels. Financial problems ‘walk with
divorce’. (Male, Age: 48, Years Married: 9)

While participants talked of lack of money as the basis for divorce, a

participant revealed that having much money also formed the basis of
divorce. The participant said:

You know, in this country, when some women become financially

resourceful, they become very disrespectful to their partners. This is
what happened in my case. I could no longer bear the attitude of my
wife because she kept complaining about providing everything in the
home. She even went to the extent of saying that I am now her wife.
After all this, she packed her things and left me. We are now divorced.
Such is the world. (Male, Age: 39, Years Married: 11)

Apart from the mention of financial challenges, other participants raised

the issue of infidelity. A participant said:

How can she (referring to the wife) cheat on me? I couldn’t stand it so
I asked her to pack her things and leave. …she had no option but to
leave. I followed up at her family home and divorced her. (Male, Age:
45, Years Married: 9)

Another participant said:

An unfaithful partner is like the devil. He can kill you at any time.
…I can’t tell if he contracted any STIs. I lived with him for about a
year before I packed out to live with my parents. The truth is that my
love for him faded out. I would not even have left the marriage, but his
continuous engagement in adultery acts made me leave. I didn’t know
when he would bring home a disease. (Female, Age: 35, Years Married:
6)

Other participants talked about the intrusion of family members into the

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marriage. An interviewee indicated that:

My mother-in-law wanted to decide what should happen in the marriage.

My wife’s decision was just my mother-in-law’s decision. I did not
marry my wife’s mother, and since it’s like I’m married to my in-law, I
opted for divorce. (Male, Age: 38, Years Married: 9)

It was also revealed by another interviewee:

My husband’s family members kept visiting and staying in my

matrimonial home for months. Whenever they visit, I see a change
in my husband’s attitude. He becomes hostile towards me. He begins
to complain about the food I cook and just about any little thing I do
(sic). My husband allowed them to control the house and even went to
the market to shop for the home. This interference and the supposed
acceptance by my husband implied that he was not interested in the
marriage. We discussed it and decided to go our separate ways. (Female,
42, Years Married: 8)

For those who stated physical and psychological abuse, the participants
shared that:

My husband could beat me up like his own child. I realised if I didn’t

leave, he would kill me someday. So, I left him. (Female, Age: 36,
Years Married: 5)

I used to hear of men beating their wives until I began to experience

it myself. I have been hospitalised twice because of his abuse. Which
woman can marry a man of this nature? Would you allow your sister
or daughter to remain in such a marriage? (Interviewee questions the
interviewer). (Female, Age: 52, Years Married: 11)

He has chased me out of his house not once or twice but countless
times. There were times I had to lodge at the abode of friends. I could
not contain these acts anymore, so I applied to divorce him. (Female,
Age: 40, Years Married: 6)

This man was unappreciative. He basically disliked whatever I did.

He insulted me in addition. It was terrible, and I could not cope
psychologically anymore. There were times I contemplated suicide.
To either take my life or divorce, I decided to divorce him. (Female,
Age: 50, Years Married: 15)

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According to a participant:

My husband stays abroad and comes home every December (sic). I

suffered from a lack of emotional care and I could not bear it anymore.
I really felt deserted. (Female, Age: 37, Years Married: 9)

In respect of other participants, it was about sexual incompatibility and

intimacy challenges. Two participants revealed that:

Let me tell you the truth, my husband suffered from erectile dysfunction.
This means he could not satisfy me sexually. I also didn’t want to engage
in any infidelity, so I discussed it with him. He was not happy, but I had
to leave the marriage. (Female, Age: 34, Years Married: 6)

My wife was not attractive to me sexually. Anytime I got close to her, my

penis could not erect. Yet when I meet other ladies, I am able to satisfy
myself sexually (sic). There was no point punishing her and myself. We
are divorced now. (Male, Age: 44, Years Married: 13)

For others, although they were satisfied sexually, a childless marriage

formed the basis of their divorce.

My husband was good in bed, yet he suffered from a low sperm count.
We had tried everything medically and still, there were no positive
results. I felt I was growing old and had to have children of my own.
This brought about our misunderstanding and finally a divorce. (Female,
Age: 33, Years Married: 5)

The problem of childbirth was not only attributable to men; two

participants also attributed it to the barrenness of women. A barren
woman is just like a man, and I cannot continue to stay with such a
woman. (Male, Age: 43, Years Married: 11)

I never intended to divorce from the beginning of my marriage. But after

marrying for 10 years without a child, we all became frustrated. I only
got to know my wife was barren in the 8th year of the marriage. Even so,
we continued with the marriage for another two years. I could not bear a
home without the cry of my own child. This brought about our divorce.
(Male, Age: 40, Years Married: 10)

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To other participants, their divorce was said to be a display of
unreasonable behaviour by their spouse. An interviewee recounted his
experience:

My ex-wife kept consulting pastors and fetish priests to deal with non-
existent problems. I woke up twice in bed to see her sprinkling things
on me. I also saw her digging and planting strange things in the house.
She became more like a fetish priest herself. I complained to her father,
but to no avail. I had no option but to divorce her. (Male, Age: 46, Years
Married: 12)

According to another interviewee:

She was the social media type. Every little thing about our marriage is
on social media. She puts every little problem we have on Facebook and
updates her WhatsApp status. We had no secrets or privacy in our home.
She nearly caused a fire outbreak in the house because she was focused
on her phone while the food was on fire. Because of social media, our
children are always late for school. Her attitude towards social media
drained our marriage physically and psychologically. I could not
complain anymore. (Male, Age: 40, Years Married: 8)

In the words of a participant:

My husband is a heavy drug addict. He could not go a day without

marijuana. In addition to that, he was a compulsive gambler. His
gambling behaviour caused considerable distress to the family. We were
heavily in debt, to the extent that it became humiliating. With all these
challenges, the little money he got he still spent it on marijuana and
gambling at the detriment of the entire family. This is why I divorced
him. (Female, Age: 43, Years Married: 9)

From the qualitative data above, participants pointed to financial

challenges, the intrusion of family members in the marriage,
psychological and physical abuse, infidelity, sexual incompatibility
and intimacy challenges, desertion, childbearing difficulties, and
unreasonable behaviour. The next section presents an analysis of the
Matrimonial Causes Act which is corroborated by case law.

3.2. Grounds for Divorce: Matrimonial Causes Act 1971 (Act 367)
This section provides a detailed analysis of the grounds for divorce

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as outlined in the Matrimonial Causes Act 1971 (Act 367). These
grounds are corroborated by case law. The Matrimonial Causes Act of
1971 emerged as an attempt to create a distinctively Ghanaian legal
framework for marriage and divorce. It aims to ensure that the doctrine
and concepts embodied in the marriage and divorce laws resonate with
the socio-cultural values of the majority of the population. Before the
enactment of the 1971 Act, the prevailing marriage and divorce laws
were largely foreign in origin and culturally and socially irrelevant for
most Ghanaians. These laws had a marginal effect on the indigenous
institutions of marriage and divorce, given their fundamentally
foreign origin. It became imperative to introduce a comprehensive
legal framework that acknowledges the reality of Ghanaian marital
relationships and addresses the challenges faced by couples seeking
divorce.
The Matrimonial Causes Act is a significant and far-reaching
piece of legislation governing divorce within the legal framework of
Ghana. As a comprehensive and influential statute, it plays a pivotal role
in shaping the legal landscape surrounding marital dissolution in the
country. This Act provides a structured framework for initiating divorce
proceedings and establishes the grounds upon which a marriage may
be legally dissolved. With its enactment, the Matrimonial Causes Act
has become a cornerstone of Ghanaian family law, providing clarity
and guidance to individuals seeking to end their marital unions. Its
provisions have profoundly impacted the legal rights and obligations of
married couples, shaping the processes and outcomes of divorce cases
across the nation.
The Matrimonial Causes Act 1971 (Act 367) empowers either party
to a marriage to present a petition for divorce to the Court.47 The Act
indicates that the only ground for such a petition to be granted is when
the marriage has broken down beyond reconciliation.48 These provisions
grant individuals the legal right to initiate divorce proceedings, ensuring
that they have access to the legal system to seek the dissolution of their
marriage. By allowing both spouses to initiate the process, the Act
recognises the importance of providing a fair and equitable opportunity
for each party to address the breakdown of their marital relationship.
However, it is crucial to note that the Act further establishes that the sole

47 Section 1(1) of Act 367.

48 Section 1(2) of Act 367.

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ground for granting a divorce petition is the irretrievable breakdown
of the marriage. In other words, the marriage must have reached a
point where reconciliation between the spouses is no longer possible.
This ground serves as the cornerstone of divorce cases under the Act,
highlighting the fundamental principle that a marriage should not
continue when it has become untenable for the parties involved.
It is imperative to state that, the petitioner, who initiates the
proceedings, is burdened with substantiating the claim that the marriage
has irretrievably broken down. It is against this backdrop that the Act
identifies adultery, unreasonable behaviour, desertion, separation with
consent for two years, and five years of separation as grounds that must
be substantiated to indicate that the marriage is broken down beyond
reconciliation.49 These grounds are discussed below:
Adultery, within the context of marriage, can be defined as the act
of engaging in sexual intercourse between two individuals, one or both
of whom are married to someone other than the other.50 Infidelity is also
defined as the act or fact of having a romantic or sexual relationship
with someone other than one’s husband, wife, or partner. Infidelity,
therefore, encompasses adultery.51 Act 367 provides a legal definition of
adultery as ‘the voluntary sexual intercourse of a married person with a
person of the opposite sex other than his or her spouse’.52 It is essential
to note that if an individual is a petitioner seeking a divorce, they cannot
rely on their own adultery as a ground for divorce. For the accusation
of adultery to be substantiated, there must be evidence of at least partial
penetration.
Moreover, the petitioner must demonstrate to the court that living
with the respondent has become intolerable. However, this assessment
relies on the subjective perspective of the petitioner, and the court will
evaluate their viewpoint to arrive at a conclusion. The petitioner must
have indicated that the respondent has committed adultery and that by
reason of the adultery the petitioner finds it intolerable to live with the

49 Section 2 of Act 367.

50 Deborah L. Rhode, ‘Adultery: An Agenda for Legal Reform’ [2016] Harvard
University Press; Also see T. Tanner, ‘Adultery in the novel: Contract and Transgres-
sion’ [2020] John Hopkins University Press.
51 K.M. Hertlein, L.J. Wetchler and F.P. Piercy, ‘Infidelity: An Overview’ [2013]
Handbook of the Clinical Treatment of Infidelity 5-16.
52 Section 43 of Act 367.

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respondent.53 To invoke this ground for divorce, the couple should not
have cohabitated for more than six months after becoming aware of
the occurrence of adultery.54 If the couple continues to live together
for a duration exceeding six months after the adultery takes place, this
ground cannot be utilised as a basis for divorce.
It is noteworthy that in divorce petitions where adultery is alleged,
the individual accused of engaging in adultery with the party to the
marriage may be included as a party to the legal proceedings. This
provision allows for the involvement of all relevant parties to ensure a
comprehensive examination of the allegations and a fair resolution of
the divorce case. Adultery, as the basis of divorce, is confirmed in the
case law.
In Mensah v Mensah,55 infidelity was mentioned as the reason for
divorce. The facts of the case as adduced by the Supreme Court were as
follows.
This is an appeal from the judgment of the Court of Appeal dated
23/7/2009, which affirmed the judgment of the High Court dated the
31st of January 2003. In a petition filed on the 20th of April 2000, the
petitioner/respondent/respondent (hereinafter petitioner) averred that
she and the respondent/appellant/appellant (hereinafter respondent)
were married under customary law in March of 1989 and converted
to a marriage under the Ordinance in June of 1989. It however,
emerged from the evidence that the parties got married in 1987. About
a decade after the celebration of this union, cracks started appearing
in the marriage, with the petitioner accusing the respondent of acts of
infidelity, which culminated in the Respondent moving into their jointly
acquired home in Adenta with his illicit lover giving credence to the
Petitioner’s allegations. After diligent efforts at reconciliation had
failed, the Petitioner filed her petition for divorce at the High Court.
Likewise, in Arthur v Arthur,56 the High Court annulled the
marriage on the basis of desertion and adultery. Aside from adultery,
unreasonable behaviour is also identified as a basis for divorce.
The petitioner would have to show that the respondent has behaved
in a way that the petitioner cannot reasonably be expected to live with

53 Section 2(1)(a) of Act 367.

54 Section 3 of Act 367.
55 [2012] GHASC 8.
56 [2014] GHASC 127.

123
the respondent.57 When assessing whether a petitioner can reasonably be
expected to live with the respondent, the court is instructed to disregard
any period or periods, not exceeding six months in total, during which
the parties lived together as husband and wife after the occurrence of
the last incident relied upon by the petitioner and substantiated before
the court.58 Among the various grounds for divorce, the most invoked
factor is unreasonable behaviour. In Quartson v Quartson,59 the court
established that unreasonable behaviour could manifest as either an
action or a failure to act, encompassing a broad range of conduct, from
instances of severe physical or emotional violence to milder incidents.
It is important to note that the conduct being complained of must be
significant, surpassing the ordinary challenges and strains commonly
encountered in married life. The threshold for establishing unreasonable
behaviour requires a showing of conduct that is substantial and exceeds
the typical ups and downs experienced in marital relationships. While
unreasonable behaviour is seen as a crucial basis for divorce, the issue
of desertion is also identified by the Act.
Section 2(1)(c) of Act 367 reads, ‘the Respondent has deserted
the Petitioner for a continuous period of at least two years immediately
preceding the presentation of the petition’. Desertion under the Act
denotes the deliberate separation of one spouse from the other. It
is important to note that the mere physical act of one spouse leaving
the marital home does not automatically establish that spouse as the
deserting party. The petitioner bears the burden of demonstrating to the
court that the respondent has indeed deserted the marriage, displaying a
clear lack of intent to reconcile or return. For desertion to be recognised
as a valid ground for divorce, it must persist for a minimum duration
of two consecutive years immediately preceding the submission of the
petition. This temporal requirement ensures that the element of desertion
is not transient or temporary, but rather a prolonged and enduring
absence that substantiates the breakdown of the marital relationship.
Arthur v Arthur60 corroborates desertion as one of the bases of divorce.
It is important to state that desertion as a ground for divorce is one thing,
while separation with consent for a period of time is another.
Section 2(1)(d) of Act 367 outlines an essential provision pertaining

57 Section 2(1)(b) of Act 367.

58 Section 4 of Act 367.
59 [2012] 2 SCGLR 1077.
60 [2014] GHASC 127.

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to divorce proceedings, known as ‘Separation with consent for two (2)
years. To establish that the marriage has irretrievably broken down,
the petitioner must satisfy the court by presenting one or more of the
specified facts. Under this provision, it is required that the parties to the
marriage have not lived together as husband and wife for a continuous
period of at least two years immediately preceding the presentation
of the divorce petition. Additionally, the respondent’s consent to the
grant of a decree of divorce is essential for this ground to be invoked.
However, it is crucial to note that the respondent’s consent cannot be
unreasonably withheld. In instances where the court determines that the
consent has been unreasonably withheld, it may still grant the petition
for divorce despite the respondent’s refusal. The element of consent
assumes significant importance in relying on this ground. The court
must ensure that the respondent’s consent to the divorce has been given
with a clear understanding of the consequences of such consent. This
requirement underscores the need for the respondent to be fully informed
and aware of the implications and ramifications of consenting to the
dissolution of the marriage. Furthermore, the respondent is permitted
to make an application to the court at any time before the decree is
granted.61 In such cases, if the court determines that the petitioner
intentionally or unintentionally misled the respondent regarding any
matter that influenced the respondent’s decision to consent to the
divorce, the court may dismiss the proceedings upon the respondent’s
request. This provision emphasises the significance of informed consent
and the importance of ensuring that the respondent’s decision to
consent to the divorce is made with full knowledge and understanding
of the relevant circumstances. It serves as a safeguard against potential
misrepresentations or manipulation and promotes a fair and transparent
process in divorce proceedings. As separation with consent for two
years is an acceptable basis, likewise, five years of separation is also
defined as a ground for divorce.
Section 2(1)(e) of Act 367 introduces the ground for divorce based
on the parties’ failure to live as husband and wife for a continuous period
of at least five years preceding the presentation of the petition. Unlike
some other grounds, this provision does not require the respondent’s
consent. Section 7 further elaborates on the continuity requirement. It
states that, when determining whether the period of non-cohabitation

61 Section 2(1)(d) of Act 367.

125
has been uninterrupted, the court shall disregard any periods totalling
no more than six months in which the parties resumed living together
as husband and wife. This provision recognises that temporary
reconciliations should not interrupt the overall period of separation.
To invoke this ground, the petitioner must demonstrate, in addition
to satisfying any other grounds mentioned earlier, that despite their
best efforts, the parties have been unable to reconcile their differences.
This requirement underscores the significance of genuine attempts at
reconciliation and acknowledges that the breakdown of the marriage
has persisted despite such efforts. It is important to note that even if
the court finds one or more of the required facts for the dissolution of
the marriage, it cannot grant a divorce unless it is satisfied, based on all
the evidence presented, that the marriage has irretrievably broken down
beyond the possibility of reconciliation. This provision ensures that
divorce is only granted when there is clear and compelling evidence of
the marriage’s irretrievable breakdown. By incorporating the ground of
not having lived as husband and wife for five years, the Act recognises
that some marriages may reach a point where cohabitation is no longer
possible or conducive to the well-being of the parties involved. It
provides a legal framework for the dissolution of marriages in cases
where prolonged separation has rendered reconciliation unattainable.
From the above, it is clear that any factor considered a cause of
divorce outside of the Act is not legal. Therefore, what is the relationship
between the Act and what participants indicated as the basis for divorce
in Ghana? At what point do they depart?

4. THE NEXUS BETWEEN THE ACT AND PRIMARY

EMPIRICAL DATA

As already stated, the Matrimonial Causes Act empowers marriage

parties to initiate divorce by petitioning the court. The only basis
for such a petition to be granted is when the marriage is classified as
broken down beyond reconciliation. The inclusion of ‘breakdown
beyond reconciliation’ as the sole ground for divorce reflects a modern
approach to marital dissolution, acknowledging the complexities and
realities of human relationships. This provision recognises that there
may be instances where the continuation of a marriage is detrimental
to the well-being and happiness of the parties involved. It emphasises
the importance of prioritising the individual’s right to seek a divorce

126
when all attempts at reconciliation have proven futile. By establishing
this ground, the Act seeks to strike a balance between protecting the
institution of marriage and respecting the autonomy and agency of
individuals within a marriage. It recognises that forcing individuals to
remain in an irreparable marital relationship may cause further harm
and distress, compromising their well-being and the potential for future
growth and happiness.
For a court to dissolve a marriage, the grounds of unreasonable
behaviour, adultery, desertion, separation with consent for two years,
and five years of separation must be substantiated by the petitioner for
divorce. It is important to state that the day-to-day ups and downs in
marriages cannot form the basis of unreasonable behaviour. Also, the
grounds of adultery will only be applicable if the parties have not lived
together as partners for more than six months after having knowledge
of the occurrence of adultery. For desertion to be a viable reason for
divorce, it must have happened for at least two years before the petition
is filed. The time requirement ensures that the desertion is not short-term
or temporary, but rather a long-term absence that shows the marriage
has ended. In respect of separation for years, temporary reconciliations
should not have interrupted the overall period of the separation.
Evaluating these legal grounds for divorce with empirical data, the
survey and interview results reveal that the basis of divorce is both legal
and non-legal. From the empirical data, the following could be classified
as legal: infidelity, physical and psychological abuse, which forms part
of unreasonable behaviour, desertion and separation with consent. The
following could also be classified as non-legal: financial challenges,
social media, family or third-party intrusion, gender role ideology, poor
communication, sexual and intimacy challenges, infertility, and child
upbringing issues. Statistically, 67.7% of respondents’ basis for divorce
is not necessarily legal. These bases, as revealed by the respondents, form
part of the ups and downs of marriages. In the case of desertion, which
is deemed legal, the qualitative interview reveals that some participants
lived together at some point in the marriage, making the two-years-of-
separation-in-a-row criterion hardly attainable for a justifiable legal
basis for divorce. This finding is similar to that of adultery/infidelity as
some participants shared that even after the discovery of the adultery
act, they stayed together with their partner for some time, exceeding
six months, before finally moving out. For some participants, it was
the continuous engagement in the adultery act by their partner that

127
made them leave the marriage. From this analysis, one can surmise that
participants’ bases for divorce are not necessarily legal but rather social.
These bases epitomise the changing nature of society and what people
think must constitute the grounds for divorce.

5. DISCUSSION

The findings of this study are similar to the works of other scholars on
the causes of divorce. The finding that financial challenges formed the
basis of divorce corroborates with other scholarly works. Osafo et al.62
and Dew63 found that financial challenges created uneasy situations in
marital relationships, hence, one of the leading causes of divorce. Scott
et al.64 also found that financial problems were the major contributor to
divorce by 36.7% of participants and by at least one partner from 55.6%
of couples. However, this finding contradicts the works of Anderson65
as he found financial problems to be inadequate predictors of divorce.
While these findings cannot be considered groundbreaking, what was
surprising was the view shared by some participants that economically
empowered women used their financial strength as a basis to disrespect
their husbands, resulting in divorce.
Identifying infidelity as a ground for divorce is not poles apart from
the findings of Ameyaw et al.,66 Syamsiar,67 Osafo et al.,68 Bashirpour,69

62 Osafo and others (n 24).

63 Jeffrey P. Dew, ‘Revisiting Financial Issues and Marriage’ [2016], Handbook
of Consumer Finance Research 281-290.
64 Shelby B. Scott and others, ‘Reasons for Divorce and Recollections of Pre-
marital Intervention: Implications for Improving Relationship Education’ (2013) 2(2)
Couple and Family Psychology: Research and Practice 131.
65 Jan D. Andersen, ‘Financial Problems and Divorce: Do Demographic Char-
acteristics Strengthen the Relationship?’ (2005) 43(1-2) Journal of Divorce and Re-
marriage 149-161.
66 Ameyaw, Dankwa and Eshun (n 25).
67 S. Syamsiar and H. Hasmawati, ‘Causes of Divorce in Ternate City, North
Maluku’ [2021] Atlantis Press (2nd Annual Conference on Education and Social Sci-
ence (ACCESS 2020)).
68 Osafo and others (n 24).
69 M. Bashirpour, A. Shafi’abadi and F. Doukaneifard, ‘Factors Affecting the
Tendency to Marital Infidelity: A Grounded Theory Study’ (2020) 8(4) Journal of
Qualitative Research in Health Sciences 16-27.

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Fura,70 Loudova et al.,71 and Allen and Atkins.72 These works established
a strong positive relationship between infidelity and divorce, as infidelity
was generally identified as a primary cause of divorce. The findings
on physical and psychological abuse, intimacy challenges, third-party
intrusion, and gender-role ideology are also consistent with the work
of Osafo et al.73 as they reported the underlying factors causing divorce
to be third-party intrusion, challenges of marital intimacy, physical and
emotional abuse, and gender-role ideology. The intimacy problem is
further reported by Kamali et al.74
Other factors identified by this study as contributing factors
to divorce are poor communication, unreasonable behaviour, child
upbringing issues, desertion, and the agreed separation of couples.
Concerning poor communication, the finding validates the work of
Amato Previti75 and Eyo,76 who found that lack of communication
contributed to the causes of divorce. This finding is also consistent with
the work of Mohlatlole et al.77 who found that poor communication was
one of the most common factors that lead to divorce. Unreasonable
behaviour, desertion, and separation with consent found as the bases of
divorce resonate with the works of Chirwa78 and Trinder.79 The findings
of this study also show that some participants divorced because of

70 D.L. Fura, ‘Causes and Consequences of Divorce Among Woliso Town

Community’ (2018) 8(21) Research on Humanities and Social Sciences 54-62.
71 Irena Loudová, Janiš Kamil and Jiří Haviger, ‘Infidelity as a Threatening
Factor to the Existence of the Family’ (2013) 106 Procedia-Social and Behavioral
Sciences 1462-1469.
72 Elizabeth S. Allen and David C. Atkins, ‘The Association of Divorce and
Extramarital Sex in a Representative US Sample’ (2012) 33(11) Journal of Family
Issues 1477-1493.
73 Osafo and others (n 24).
74 Z. Kamali and others, ‘Factors that Influence Marital Intimacy: A Qualitative
Analysis of Iranian Married Couples’ (2020) 7(1) Cogent Psychology.
75 Paul Amato and Denise Previti (n 26).
76 Ubong Eyo, ‘Divorce: Causes and Effects on Children’ (2018) 6(5) Asian
Journal of Humanities and Social Studies.
77 Nkuke Evans Mohlatlole, Sello Sithole and M. Linda Shirindi, ‘Factors Con-
tributing to Divorce Among Young Couples in Lebowakgomo’ (2018) 54(2) Social
Work/Maatskaplike Werk 256-274.
78 Felistus Chirwa, ’Irretrievable Breakdown as a Ground for Divorce in Zam-
bia’ (Dissertation, Cavendish University 2020).
79 L. Trinder, ‘Contact After Divorce: What Has the Law to Offer?’ [2017]
Frontiers of Family Law 23-41.

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childlessness. Consistent with the work of Ma et al.,80 childless women
have a divorce risk that is more than twice as high as that of women
with only one child. The extent of social media usage by some partners,
which was interpreted to mean the violation of privacy in the marriage,
was also seen as the basis of divorce.

6. CONCLUSION

This study examined the factors leading to divorce and how such factors
corroborate or are inconsistent with the existing legal framework. It
is argued that the factors leading to divorce are not necessarily legal.
The Matrimonial Causes Act 1971 (Act 367) is the legislation that
governs divorce and related matters in Ghana. It provides the legal
framework for couples seeking to dissolve their marriage and addresses
various aspects, such as grounds for divorce, property division, child
custody, and spousal maintenance. The Act aims to protect the rights
and interests of all parties involved in a divorce and ensure a fair and
equitable resolution of marital disputes. It serves as an important tool
in regulating the process of divorce in Ghana and promoting the well-
being of individuals and families. The Act identifies adultery, desertion,
unreasonable behaviour, separation with consent for two (2) years, and
five years of separation. For any of these grounds to be justifiable, the
marriage must have been broken down beyond reconciliation.
In respect of the empirical analysis, while some bases of divorce
were considered legal, others were also not strictly legal (financial
challenges, family or third-party intrusion, gender role ideology, social
media usage as a violation of marriage privacy, poor communication,
sexual and intimacy challenges, infertility, and child upbringing issues)
but day-to-day social problems. Juxtaposing the legal bases with the
empirical findings, it was evident that the most attributable reasons
given by participants were not necessarily legal but social. This implies
that in examining divorce issues, it is important for legal arbiters to take
a holistic approach rather than the typical legalistic approach as defined
in the Matrimonial Causes Act.

80 Li Ma, Ester Rizzi and Jani Turunen, ‘Childlessness, Sex Composition of

Children, and Divorce Risks in China’ (2019) 41(26) Demographic Research 753-780.

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