Dissolution of marriage: proving adultery in divorce proceedings

Marriage is often entered into with the hope, commitment, and the expectation of a lifelong partnership. No one walks down the aisle intending to end the relationship in divorce. As the general marital vows goes, marriage is "for better or for worse." Unfortunately, there are situations where the "worse" becomes unbearable, and ending the marriage becomes the only realistic option.

Divorce is rarely easy. It can be emotionally painful for the spouses, affect their children, and place significant strain on both families. Recognizing the seriousness of dissolving a marriage, the law has established clear rules and procedures that must be followed before a court grants a divorce.

The Matrimonial Causes Act, 1971 (Act 367) empowers either the wife or husband to petition for divorce. A spouse seeking a divorce must commence the process by filing a petition before the appropriate court. This procedural requirement is mandatory and must be complied with as established by statute and the rules of court.

The law provides that, the only ground for dissolving marriage is that, it has broken down beyond reconciliation as stated under Section 1 of the Matrimonial Causes Act, 1971 (Act 367). Before granting a divorce, the court must be fully satisfied that the marriage cannot be saved and that there is no reasonable prospect of the parties reconciling.

To prove that a marriage has broken down beyond reconciliation, the petitioner must establish one or more of the following statutory facts provided under Section 2 of Act 367:

1. that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or

1. that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or 

1. that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or 

1. that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or 

1. that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or 

1. that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. 

This article focuses on point “a” above on proving adultery in divorce proceedings.

What is Adultery?

Legally, "adultery" means the voluntary sexual intercourse of a married person with one of the opposite sexes other than his or her spouse; Section 43 of Act 367. 

To rely on adultery as a ground for divorce, the petitioner must prove two essential elements:

• that the respondent voluntarily had sexual intercourse with the third party who is an opposite sex.; and
• that by reason of such adultery the petitioner finds it intolerable to live with the respondent.

How Can Adultery Be Proved?

In establishing that, the respondent voluntarily had sexual intercourse by the definition above; the Petitioner must prove that the sexual intercourse actually happened, that the Respondent consented to having such sexual intercourse with the said third party who is an opposite sex. This implies that a non-consensual sex on the part of the respondent such as rape, sexual assault, duress leading to the sexual intercourse if proven will cause the adultery allegation to fail. Likewise, a relationship of same sex with the Respondent will not qualify as establishing sexual intercourse.

There are various means by which adultery can be established which includes;

• a voluntary confession by the respondent. This was affirmed in Quartey v Quartey & Anor [1972] 1 GLR 6;
• compelling circumstantial evidence This principle was applied in Adjetey v. Adjetey [1973] GLR 216 (a must read).
• evidence of a sexually transmitted infection linked to an extramarital relationship;
• DNA test results revealing Petitioner is not the parent. This was affirmed in Hume v Hume & Anor [1975] Times Feb 25; or
• the respondent being caught in the act of adultery.

In reality, adultery is rarely committed in public, making direct evidence difficult to obtain. For this reason, the courts accept that adultery may be proved through circumstantial evidence, provided the evidence is sufficiently strong to support the inference. 

Each case, however, depends on its own facts, and the court will carefully assess the credibility and weight of the evidence presented.

The intolerability test

It is important to note that one can established adultery but without meeting the intolerability test, the adultery test will fail. The test of intolerability is subjective. The court considers how the particular petitioner genuinely feels, rather than how a reasonable person might react in the same circumstances. The petitioner must clearly state that the adultery has made it impossible or intolerable to continue the marital relationship before stating the particulars of the alleged adultery.

However, the law also recognizes that spouses may forgive each other. If, after discovering the adultery, the petitioner continues to live with the respondent as husband and wife for more than six months, the law may regard this as reconciliation. As illustrated in Ofori v. Ofori, such reconciliation may prevent the petitioner from successfully relying on adultery as a proof of the marriage breading down beyond reconciliation.

It is worth noting that simply living under the same roof does not necessarily amount to reconciliation. The crucial question is whether the parties continued living together as husband and wife, rather than merely sharing accommodation because of financial, medical, or other practical reasons.

Conclusion

Alleging adultery in divorce proceedings is a serious matter that requires credible evidence and careful adherence to the law. Mere suspicion or rumors are not enough. A petitioner must not only establish that adultery occurred but also satisfy the court that the adultery has made it intolerable to continue the marriage.

Understanding these legal requirements helps ensure that divorce proceedings are conducted fairly while balancing the interests of both parties. As people, appreciating the legal principles governing family law enables us to better understand the role of the courts in protecting both the institution of marriage and the rights of individuals when a marriage has irretrievably broken down.