Two sections of the Matrimonial Causes Act (Chapter 282) hold the balance between open justice and the privacy of a family.
Section 92 — hearings in open court
(1) Except to the extent to which the Rules make provision for proceedings, or part of proceedings, to be heard in chambers, the jurisdiction of the Court under this Act shall, subject to subsection (2), be exercised in open court.
(2) Where the Court is satisfied that there are special circumstances that make it desirable in the interests of the proper administration of justice that the proceedings, or part of them, should not be heard in open court, the Court may order that persons other than (a) parties and (b) their lawyers be excluded during the hearing.
This mirrors Constitution section 37(12), which requires proceedings of a court to be held in public subject to limited exceptions.
Note who may not be excluded: the parties and their lawyers. Section 92(2) is a power to clear the public gallery, not to conduct a hearing behind a party’s back.
Compare the position in the Family Court under the Lukautim Pikinini Act 2015, where child protection proceedings are far more tightly closed.
Section 95 — restrictions on publication
Section 95(2) makes it an offence to print or publish, or cause to be printed or published, any account of evidence in the proceedings, or any other account or particulars of the proceedings, other than the four permitted categories.
(a) the names, addresses and occupations of the parties and witnesses, and the names of the member or members of the court and of the lawyers;
(b) a concise statement of the nature and grounds of the proceedings and of the charges, defences and countercharges in support of which evidence has been given;
(c) submissions on any points of law arising in the course of the proceedings, and the decision of the court on those points;
(d) the judgment of the court and observations made by the court in giving judgment.
| Item | Publishable? |
|---|---|
| Names, addresses, occupations of parties and witnesses | Yes — para (a) |
| The ground relied on, and the defences raised | Yes, concisely — para (b) |
| Argument on a point of law and the ruling | Yes — para (c) |
| The judgment and the judge’s observations | Yes — para (d) |
| The evidence given | No |
| Details of the adultery, cruelty or intimate conduct alleged | No |
| A photograph forming part of the evidence | No — see subsection (6)(d) |
A newspaper may report that a named person petitioned on the ground of desertion, that the respondent alleged constructive desertion in answer, that the court ruled on a point about condonation, and what the judge decided and said.
It may not report what the witnesses said happened in the household. That is the material section 95 exists to keep out of the newspapers.
The word “concise” in paragraph (b) does work — a detailed narrative of the charges is not a concise statement of them.
Section 95(3) — the court may restrict further
(3) The court may, if it thinks fit in any particular proceedings, order that none of the matters in subsection (2)(a) to (d) be printed or published, or that any such matter or part of a matter shall not be printed or published.
(4) A person who contravenes subsection (2), or prints or publishes anything in contravention of an order under subsection (3), is guilty of an offence.
For a first offence, or a second or subsequent offence prosecuted summarily — a fine not exceeding K1,000 or imprisonment for a term not exceeding six months.
For a second or subsequent offence prosecuted on indictment — a fine not exceeding K2,000 or imprisonment for a term not exceeding 12 months.
Section 95(5): proceedings for an offence against the section shall not be commenced except by, or with the written consent of, the Public Prosecutor.
That is a filter. An aggrieved spouse cannot launch a private prosecution against a newspaper; the decision belongs to the office established under Constitution section 176.
Section 95(6) — what the section does not touch
(a) printing a pleading, transcript of evidence or other document for use in connection with proceedings, or communicating such a document to persons concerned in the proceedings;
(b) printing or publishing a notice or report under the direction of a court;
(c) printing or publishing a publication bona fide intended primarily for the use of members of the legal or medical profession, being (i) a separate volume or part of a series of law reports, or (ii) any other publication of a technical character;
(d) printing or publishing a photograph of a person, not being a photograph forming part of the evidence.
Exemption (c) is what allows matrimonial judgments to appear in law reports and on PacLII with the evidence set out. The law must be knowable to those who practise it.
Exemption (a) protects the ordinary conduct of the case — serving a petition, briefing a lawyer, giving a transcript to a party.
Exemption (b) covers court-ordered advertisements, such as substituted service notices under section 94.
Definitions in section 95(1) extend the section: “court” includes an officer of a court investigating a matter in accordance with the Rules, and “judgment of the court” includes a report made to the court by such an officer. So a welfare-style report prepared for a section 59 or custody question falls within the scheme.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 92–95
- Constitution — ss 37(12), 176
- Lukautim Pikinini Act 2015
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.