KNOW THE LAW ON PRESUMPTION OF DEATH AND DISSOLUTION OF MARRIAGE
Introduction
Section 15 of the Matrimonial Causes Act, 1971 (Act 367) provides that any married person may present a petition to the court to have it presumed that the other party to the marriage is dead and to have the marriage dissolved. It is presumed that for a period of seven (7) years or more the other party to the marriage has been continually absent from the Petitioner has no reason to believe that the other party has been living within that time shall be evidence that the other party is dead until the contrary is proved.
Section 33 of the Evidence Act, 1975 (NRCD 323) states that where a person has not been heard of for seven (7) years despite diligent effort whether or not within that period, to find that person, that person is presumed to be dead. There is no presumption as to the particular time when that person died.
Dissolution of marriage
According to Act 367, the court may, if it is satisfied that reasonable grounds for the application of the presumption of death exist, make a decree of presumption of death and dissolution of marriage.
In the Ghanaian case of Josephine Ocran V. Hang Yoon Suit No. BDMC 256/2014 -10, Josephine Ocran (Petitioner) a Ghanaian and Hang Yoon (Respondent) a South Korean were married under the Marriage Ordinance (CAP 127) on 27th July, 2002 at Tema. The couples had a boy aged 10 years and the Respondent travelled out of the jurisdiction of the country in February 2004 and was not heard of ever since. The Petitioner caused a petition to be filed and served out of the jurisdiction to the Respondent’s last known address in South Korea but same was returned. The Petitioner further made efforts to get the Korean Embassy in Ghana to assist trace the Respondent in South Korea to no avail. Therefore, the court progressed with the divorce proceedings.
Her Ladyship Justice Cecilia Don-Chebe Abevey in her judgment held that: “accordingly, I make findings of presumption of death in accordance with Section 15 (3) of Act 367 and Section 33 (1) of NRCD 323 and on that basis, I decree the Respondent dead. I decree the marriage celebrated between the Petitioner and the Respondent on 27th July, 2002 at Tema Municipal Assembly Hall … dissolved”.
Conclusion
According to Act 367, in any proceedings under presumption of death and dissolution, the fact that for a period of seven (7) years or more the other party to the marriage has been continually absent from the petitioner and the petitioner has no reason to believe that the other party has been living within that time shall be evidence that the other party is dead until the contrary is proved.