 JUDGMENT The Petitioner herein, by a petition filed on the 21st of January, 2015 seeks a dissolution of his marriage to the Respondent on the ground that the marriage celebrated between the Parties has broken down beyond reconciliation.  
The said Parties were married under the ordinance on the 27th of September 2004 at the Tema Municipal Assembly.  After the marriage they cohabited at house number B/319/22 Agya Pa Ye, North Kaneshie. Though exhibit 1 being the certificate of marriage, tendered by Respondent, states the respective occupations of Petitioner and Respondent as cashier and teacher, the pleadings disclose that Petitioner works as a shop attendant and the Respondent  described as a matter. There are two children of the marriage namely Genevieve Aboagyewaa and Charlotte Sakyiwa whose ages were correctly stated as 9 and 7 respectively by Respondent in her answer and not 12 and 9 as stated in the petition.  The petition further discloses that there have been previous proceedings between Parties to the said marriage at the Family and Juvenile Court, Ministries, Accra relating to the maintenance of the children of the marriage. 
In the petition, Petitioner prays this Court for the following reliefs: 
1. That the marriage celebrated between petitioner and respondent be dissolved. 2. That the Petitioner be given reasonable access to the children. 3. That the Petitioner undertakes to put into use money given to her to maintain the children of the marriage and ensure their wellbeing in terms of educational provisions, medical provisions and their general upkeep solely for these purposes. 
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4. Any other order(s) as this Honourable Court may deem meet. 
The Respondent, for reasons which remain unclear to this Court, entered Conditional Appearance to the petition on the 16th of February 2015 after which she filed an answer and cross petition on the 10th of March 2015. 
In proof of his claim that the marriage between the Parties has broken down beyond reconciliation, Petitioner avers that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with her and the Respondent had caused him much anxiety, distress and embarrassment. The relevant particulars of unreasonable behaviour of Respondent are given as follows. 
1. The Respondent has on numerous occasions heaped insults on the Petitioner and his family in public and ridiculed him about his joblessness  2. The Respondent abandoned the matrimonial home and duties and was most often found in the company of a male counterpart in the neighbouring house. 3. The Respondent has changed her marital name and is using the name of an unknown man  4. The Respondent travels in and out of the jurisdiction without informing the Petitioner 5. Upon the slightest misunderstanding the Respondent will hire thugs to attack and beat up some of the tenants in the family house where the couple lived. 6. The Petitioner says they have lost affection for each other and the union is only an arrangement of convenience to ensure the best interest of the children.”  
In paragraph 7 of her answer and cross petition, Respondent admits that the marriage between the Parties has broken down beyond reconciliation but blames Respondent for the unfortunate state of affairs. In denying the particulars of unreasonable behaviour enumerated in the petition, she explained that any expression of concern on her part regarding Petitioner’s refusal to find a job was always met with insults and sometimes physical assault. Respondent averred that Petitioner was in the habit of going out to smoke marijuana and returning home to terrorise Respondent sometimes in the presence of Respondent’s customers. The conduct complained of involved the Petitioner calling Respondent names like prostitute in public, attempting to strangle Respondent to death in the presence of the children of the marriage, throwing the belongings of the Respondent out of the matrimonial home and persistently locking out not only the Respondent but the children of the marriage, leaving them at the mercy of mosquitoes in the cold of the night. It is the case of Respondent that it had to take the intervention of DOVSU for Petitioner to allow them back into the home. Both the Darkuman police and DOVSU in light of Petitioners violent disposition advised her to seek shelter elsewhere in order to save her life 
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and limb. At the time of filing the answer Respondent was lodging with a friend per the advice of these two bodies. 
She lamented that Petitioner who was doing everything within his power to eject her from the matrimonial home had together with his two sisters namely Charlotte Amakye and Nana Ama, sued her in Court seeking to eject her from the matrimonial home and demanded that she remove the container in which she sells her drinks, banku and tilapia (to raise money for the children’s upkeep) from the frontage of the matrimonial home. In furtherance of his bid to eject her, Petitioner had approached the father of Respondent demanding that he comes to collect Respondents belongings from the matrimonial home as he is no longer interested in the marriage.  
At the hearing of the petition, the Petitioner testified that the parties, otherwise enjoyed a peaceful marriage until he lost his job.  It was then that Respondent’s attitude suddenly changed towards him. He accused Respondent of then forming inappropriate liaisons with other men and even changing her marital name.  He tendered exhibit B being a facility letter addressed to one Salomey Woyee as evidence of the fact that Respondent had changed her name during the subsistence of the marriage. There was yet another charge relating to the unruly behaviour of customers who patronized the Respondent’s drinking spot.  The Petitioner tendered in evidence Exhibit C, being a medical report issued to one George, a tenant in Petitioner’s family house who was allegedly assaulted by one of Respondents’ customers resulting in the said tenant terminating his tenancy. He admitted that the Parties prior to the instant petition had appeared before the Family and Juvenile Unit in Accra arising out of his failure to maintain the children for 5 years and tendered EXHIBIT A being the ruling of the Court ordering him to pay part of the rent for the accommodation of Respondent and the children of the marriage.  Petitioner’s testimony in Court was however silent on his allegation that Respondent travels in and out of the jurisdiction without informing him. 
The Respondent in her evidence in chief denied all the allegations of Petitioner and blames all their marital problems on the constant smoking of marijuana by Petitioner and on his refusal to find a job to enable him assist her financially in the education and general upkeep of the children of the marriage.  She tendered in evidence EXHIBITS 1 and 2 being copies of the said application for maintenance filed at the District Court praying for an order for Petitioner to pay school fees among other reliefs. The Petitioner pursuant to the order paid partly for the accommodation of Respondent and the children but has refused to comply with the Court’s order for maintaining the children and for payment of their school fees and medical expenses after making an initial payment of GH¢200 in 2014. She explained that 
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she had been driven into cross-petitioning for divorce arising out of the incessant threats, physical, emotional, and verbal abuse she suffers at the hands of Petitioner. 
By the provisions of the MATRIMONIAL CAUSES ACT, 1971, ACT 367, a Petitioner to succeed in obtaining a decree of divorce must first satisfy the Court of one or more of those facts set out in SECTION 2(1) of the Act to prove that the marriage has broken down beyond reconciliation.  This will mean that a Petitioner for a decree of divorce is not only required to plead facts showing a total breakdown of the marriage but to prove same. In the words of OSEI –HWERE, J in DANQUAH V DANQUAH (1979) GLR, the Court will exclude facts pleaded but not proved.  
The Parties have made a miscellany of allegations against each other but I do not intend to make a finding in respect of each and every one of the said allegations except those I consider relevant to the grant or refusal of the respective prayers of the parties.  
The main ground upon which the Petitioner relies in proof of the fact that the marriage has broken down beyond reconciliation is the fact that Respondent has behaved in a way that he cannot be expected to live with her. Chief among the charges levelled against Respondent is that of general promiscuity on the part of Respondent. The Petitioner accuses Respondent of having affairs with other men. One name that came up during crossexamination of the Respondent on this issue was that of Collins Baffour.  According to Counsel for Petitioner, the Respondent together with the said Collins Baffour are supposed to have been arrested by the Kotobabi police from a room in Kasoa. Counsel was emphatic that the two were arrested because they were caught alone in a room at Kasoa. The Respondent vehemently denies this allegation and insists that Collins Baffour is only a friend that she was involved in some loan transaction with sometime ago and as a result of which she was invited by the police and not arrested from a room as Counsel sought to suggest. Counsel concludes based on this allegation that Respondent was involved in an illicit relationship with Collins Baffour.  Unfortunately, this Court is unable to infer adultery on the part of Respondent based on these unsubstantiated allegations which have been denied by Respondent. In the case of KLAH V PHOENIX, INSURANCE, 2012 2 SCLR @ 1139 THE SUPREME COURT  held that when an averment has been positively denied it was incumbent on the Party asserting those averments to lead evidence  to substantiate the Party’s claims 
Counsel for Petitioner during cross examination of Respondent alluded to certain statements that were given at the police station that go to prove that Respondent and the said Collins Baffour were arrested after having been caught being alone in a room. These statements were neither tendered in Court nor the police who are supposed to have effected 
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the arrests called forward to give evidence in this Court.  In any event, I am yet to come across a law that authorizes the police to arrest anyone on suspicion of being in the process of or having committed adultery.  It is trite learning that the burden of proving adultery lies on the Party alleging it.  Adultery, being a matrimonial offence that is grave and weighty ought to be proved with a very high standard of probability though not necessarily to the standard required in criminal trials SEE THE DICTUM OF SARKODEE J IN THE CASE OF ADJETEY V ADJETEY ( 1973)1GLR 216. It will therefore be unsafe for this Court to find adultery proven against Respondent on the basis of the uncertain and uncorroborated evidence of Petitioner and I so find the allegation of adultery levelled against Respondent unproven. Linked to this charge of adultery is the accusation that Respondent has changed her marital name and has presently assumed the name of another man.  In support of this allegation Petitioner relies on exhibit being a facility letter addressed to one Salomey Woyee. The Respondent admits to using the said name which she claims to be one of her maiden names. I note however that this fact was never pleaded by Respondent and exhibit 1, the marriage certificate tendered in evidence by Respondent does not list the name Woyee as one of the names of Respondent. This leads me to conclude that Respondent must have had a hidden motive for using the said alias. It appears that respondent is in the habit of using different names for different purposes for unknown reasons but does this entitle one to conclude that she has assumed the name of another man? There is no evidence before this Court corroborating Petitioner’s bare assertion that the name Woyee belongs to a man who impliedly is in a relationship with Plaintiff.  As stated in the case of MAJOLAGBE V LARBI (1959…. “proof in law is the establishment of an averment by proper legal means, in other words, the establishment of an averment by admissible evidence”.  A simple bare assertion will not suffice. I therefore hold that Petitioner has failed to establish that Respondent is currently using the name of “an unknown man”. I now turn to the plaint of Petitioner regarding the unwholesome conduct of Respondent in the matrimonial home which he shares with his other siblings, notably his two sisters whose names have been given as charlotte Amakye and nana Ama. Petitioner alleges that the insulting behaviour of Respondent is not only towards him but extends to his sisters as well. The evidence on record paints a picture of extremely strained relations between Respondent on the one part and Petitioner and the rest of his family on the other.  The Petitioner attributes the problems in the marriage to the insolence of the Respondent since he lost his job and Respondent accuses Petitioner of being responsible for the breakdown in the marriage by his acts of violence, abuse of marijuana and wilful neglect to care for the children of the marriage.  Though I do not hold Respondent totally blameless for the problems in the marriage, I find from the evidence that Petitioner is mainly to blame for the current state of affairs between the parties. 
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Petitioner himself made the following admissions during cross-examination. 
 Q: you have on many occasions called your wife a prostitute 
A: Yes, I did not insult her in court but I have said so but I have an explanation. I do not   remember saying so in court but when we quarrel we insult each other and say a number of things to each other. 
Q:  One of the issues that leads to quarrels between you is smoking. 
A:  it is not smoking that is destroying the marriage  
 Q: you return home late after smoking marijuana and your wife complains that is what is causing the problem. 
A: Not true because she knew me before she married me.  
So she cannot say it is because of this that the marriage has broken down. 
In respect of Respondent’s allegations pertaining to his violent conduct Petitioner had this to say. 
Q:  It is as a result of the constant threats on your part that Respondent was advised not to sleep there (in the house) 
A:  I agree but I did not ask her not to sleep in the house. 
     I put it to you that you encouraged your sisters to maltreat your wife 
A: Not true, my sisters know what goes on. 
Q: You do not love Respondent anymore. 
A:  Yes. 
 Q: The Respondent’s family, the police DOVSU and even the District Court have all intervened in   this marriage but failed. 
      That is because of your intransigence to resolve the matter. 
A:  Yes. 
Q:  You do not even maintain the children 
A:  I disagree. I maintained them until 2010 when I lost my job.  I did not have money but she was helping but I give her money occasionally I have even paid fees recently. 
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It is quite clear that, the responses of Petitioner under cross examination completely corroborate the evidence of Respondent regarding the Petitioner’s conduct.  In addition to the above admissions, Petitioner admits in his evidence in chief to locking out Respondent and the young children of the marriage out at night and to throwing out her belongings during a quarrel.  
The conduct of Petitioner in my view falls far short of that of a reasonable father and husband. I find his conduct such as the locking out his own young children at night not only cruel but reprehensible and driven by an intention to get Respondent and the children of the marriage out of the matrimonial home.  I do not think the petitioner’s sisters for instance would have had the impetus to sue for the ejectment of Respondent from the matrimonial home if they did not have the blessing of Petitioner to do so.  After all, the evidence shows that this is a family house to which they are all equally entitled. I am at a loss to understand how Petitioner who laments that he is unable to maintain his children because of his unemployment should put impediments in the way of Respondent as she strives to earn a living for the benefit of the family as a whole. Petitioner accuses Respondent of hiring thugs to brutalise tenants in the said house and appears to rely on Exhibit C, a medical form issued to one George Kacou as evidence of this fact.  There is however nothing in the said exhibit that links Respondent to the said incident. This Court would have expected the Petitioner given his financial situation to have exercised some patience and restraint, even if truly provoked by Respondent, if for nothing at all, in the interest of the children of the marriage. In light of the above I am not satisfied that a proper case has been made out by the Petitioner in support of his claim that it is the Respondent who has behaved in a way that he cannot be expected to live with her. 
The pertinent issue however is whether this court is satisfied upon the evidence led as required by SECTION 2(3) OF THE MATRIMONIAL CAUSES ACT that the marriage has broken down beyond reconciliation. The evidence on record shows that the Parties have not lived as husband and wife for the past 3 years. Under SECTION 2(d) OF THE MATRIMONIAL CAUSES ACT, this is a factor listed as proof of breakdown of a marriage. This Court referred the parties to conciliator for an attempt at settlement to no avail, it is quite obvious that the marriage between the Parties has irretrievably broken down as the Parties themselves have told this Court. I accordingly grant the decree for divorce prayed for by Petitioner and consented to by Respondent. As prayed for by Petitioner, I grant custody of the two children of the marriage, namely Genevieve Aboagyewaa Mensah and Charlotte Sakyiwa Mensah to Respondent with reasonable access to Petitioner.  It is on record that Petitioner is currently gainfully employed and in his relief (iii) Petitioner prays the Court to order Respondent to undertake to apply any monies given her by 
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Petitioner towards the education, medical and general upkeep of the children. The history of this case does not give me cause to think that Respondent who has been solely responsible for all expenses relating to the children of the marriage for sometime now will misapply any monies given her by Petitioner. I accordingly grant the Respondent’s prayer for monthly maintenance of GH¢200 for the two children of the marriage which Petitioner accepts. Additionally, per his prayer in relief (iii) Petitioner shall be responsible for the payment of school fees, medical bills feeding fees of the children of the marriage. The Respondent should bear expenses relating to their clothing. As regards accommodation, Petitioner is hereby ordered to pay half the cost of providing accommodation for the children of the marriage. The Respondent in her Cross-Petition prays for a lump sum payment of GH¢20,000.00.  The evidence before this Court which stands undisputed is that, the Petitioner who has been unemployed for a considerable period only gained employment as an assistant in his sister’s shop recently.  SECTION 19 OF THE MATRIMONIAL CAUSES ACT enjoins this Court in making an order for financial provision to consider the living standard and circumstances of the Parties.  SECTION 20 also stipulates that such an award must be such as the Court considers just and equitable.  I am of the opinion that the demand by Respondent for GH¢20,000.00 is rather on the high side given the circumstances of Petitioner and in view of his other obligations towards the children of the marriage. 
 I therefore award a lump sum payment of GH¢5,000.00 in favour of Respondent to be paid by Petitioner.   
Each Party to bear their own costs. 
[SGD] MRS. AKUA SARPOMAA AMOAH                     JUSTICE OF THE HIGH COURT  
aey/… 