ERSKINE vs. ERSKINE [1983]DLHC912

Date	1983-01-19
Suit No.
Citation No.	[1983]DLHC912

TWUMASI J.

KWAMINA ATTA ERSKINE IN PERSON.

EBO BENTSI-ENCHILL FOR THE WIFE.

[1983]DLHC912
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ERSKINE <o:p></o:p>

{HIGH COURT, SEKONDI} <o:p></o:p>

[1984-86] 1 GLR 249<o:p></o:p>

DATE:
19 JANUARY 1983<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KWAMINA ATTA ERSKINE IN PERSON. <o:p></o:p>

EBO BENTSI-ENCHILL FOR THE WIFE.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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TWUMASI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>This is
an action for the dissolution of the marriage contracted on 29 September 1973
by Mr Kwamina Atta Erskine, barrister-at-law, who has his permanent place of
abode at No 55 Chapel Hill, Takoradi, and Mrs Justina Gyanba Erskine, the
supervisor of Planned Parenthood Association of Ghana, stationed at Takoradi.
It is the husband, Kwamina Atta Erskine, who petitioned for an order to
dissolve the marriage. The main ground for which divorce was sought was that
since January 1975 the wife had been guilty of desertion and from all
indications the marriage had broken down beyond reconciliation. In her answer
to the petition the wife admitted desertion but gave reasons for her conduct.
The petitioner disputed the validity of those reasons and challenged the wife
to substantiate her allegations. When the case became ripe for hearing counsel
for the wife stated that his instructions were that the wife had no objection
to the dissolution of the marriage but was prepared to pursue her
cross-petition that the custody of the eight-year old son under the wrecked marriage
be granted to her. As if he was under a reciprocal obligation the husband
renounced this contest for the custody of the son. Under the circumstances, the
court spared no time in ordering immediate dissolution of the marriage and
granting custody of the son to the wife and, intuitively, proclaimed that there
would be no order as to costs.<o:p></o:p><o:p>&nbsp;</o:p>At this
stage counsel for the wife submitted that his client was entitled to costs
because, as he put it, the practice in matrimonial causes had been that the
husband was obliged to pay his wife’s costs. He referred to Tolstoy on Divorce
(5th ed), chap 12, pp 204-205 on costs between husband and wife and also to
Halsbury’s Laws of England (3rd ed). Vol 19, paras 1401 and 1427 on costs of
proceedings for divorce or judicial separation. The husband in person disputed
this proposition and in reply referred to Miller, Family Property and Financial
Provision. p 4 of the introductory chapter and submitted that the legal
position was that husband and wife were placed on an equal footing with regard
to financial provision and a husband was no longer bound to pay his wife’s
costs in matrimonial proceedings. I would endeavour to restate the legal
position as it was some years ago and to ascertain its development up to date.<o:p></o:p><o:p>&nbsp;</o:p>It is
well-known that where no provision is made by our High Court (Civil Procedure)
Rules, 1954 (LN 140A), then under the provisions of Order 74 the practice and
forms in force for the time being in the High Court of Justice in England have,
so far as can be conveniently applied, been in force in our High Court.
Unfortunately there does not seem to be a single reported local case dealing
with the issue of costs between husband and wife on dissolution of their
marriage. The practice in England before the enactment of the Matrimonial
Proceedings and Property Act, 1970 had been this: Since the relationship
between husband and wife was based on the economic dependence of the latter on
the former upon marriage the common law imposed a duty on the husband to maintain
his wife during cohabitation and this enabled the wife to pledge the husband’s
credit for her necessaries if the husband failed in his duty. A wife’s costs in
divorce proceedings reasonably incurred were regarded as necessaries: see
Abrahams (M) &amp; Sons &amp; Co v Hoffe-Miles (1923) 40 TLR 2; Wright v
Annandale [1930] 2 KB 8, CA; and J N Nabarro &amp; Sons v Kennedy [1954] 2 All
ER 605. But if the wife committed adultery or other misconduct her right to
pledge her husband’s credit for necessaries was lost: see Durnford v Baker
[1924] 2 KB 587, CA; and Arnold v Amari [1928] 1 KB 584 and her solicitor could
not recover costs whether she was the petitioner or respondent. This practice
had persisted even after the coming into force of the Married Women’s Property
Act, 1882 (45 &amp; 46 Vict, c 75) which established the principle of
separation of property between spouses and abolished the ecclesiastical rule
that upon marriage a wife’s property became vested in her husband. Also where
it was proved (and the onus lay on the husband) that the wife had a separate
estate the husband’s obligation to pay costs ceased (see Tolstoy on Divorce
(supra) at 205). If therefore we were to proceed on the law as it existed
before the enactment of the Matrimonial Proceedings and Property Act, 1970 (c
45) of England, the wife in the instant case would have been deprived of her
right to pledge her husband’s credit for her solicitor’s costs because she
would have been guilty of misconduct, to wit wilful desertion of her husband
since January 1975.<o:p></o:p><o:p>&nbsp;</o:p>