Section 31 of the Matrimonial Causes Act (Chapter 282) restricts petitions in the early years of a marriage.
Section 31(2)
Subject to this section, proceedings for a decree of dissolution of marriage shall not be instituted within three years after the date of the marriage except by leave of the Court.
Section 31(1) provides that a reference to the leave of the Court includes a reference to leave granted on appeal.
Section 31(3) — the three exempt grounds
This section does not require leave for the institution of proceedings on one or more of the grounds in section 17(a), (c) or (e), and on no other ground — or for the institution of proceedings by way of cross-proceedings.
| Ground | Subject |
|---|---|
| s 17(a) | Adultery since the marriage |
| s 17(c) | Wilful and persistent refusal to consummate |
| s 17(e) | Commission of rape, sodomy or bestiality since the marriage |
The exemption is lost if any further ground is pleaded. A petition alleging adultery and cruelty in the first three years requires leave; a petition alleging adultery alone does not.
That is a pleading trap. A petitioner within three years who has several complaints should consider whether to confine the petition to the exempt grounds, or to seek leave for the whole.
Note the second limb: cross-proceedings never require leave. A respondent served within the three years may cross-petition on any ground.
Most grounds are in practice unavailable anyway in the first three years, because they require periods of two, three or five years to have run.
Section 31(4) — the test
(a) to refuse to grant leave would impose exceptional hardship on the applicant; or
(b) the case involves exceptional depravity on the part of the other party to the marriage.
In determining an application, the Court shall have regard to —
- the interests of any children of the marriage; and
- the question whether there is any reasonable probability of a reconciliation between the parties before the expiration of the three-year period.
The word in both limbs is “exceptional”. Ordinary unhappiness, incompatibility, or even serious misconduct is not enough; the hardship or the depravity must be out of the ordinary run of cases.
The purpose is to discourage precipitate petitions and to give a marriage a chance. That is reinforced by section 31(5), which directs attention to the children and to the prospect of reconciliation — and connects to section 10, under which the court must consider reconciliation in any event.
Note that “children of the marriage” has the extended meaning in section 2, which includes step-children ordinarily members of the household.
Sections 31(6) to (8) — leave obtained by misrepresentation
Where, at the hearing of proceedings instituted by leave, the Court is satisfied that the leave was obtained by misrepresentation or concealment of material facts, the Court may —
(a) adjourn the hearing for such period as it thinks proper; or
(b) dismiss the petition on the ground that the leave was so obtained.
(7) Where there is a cross-petition and the Court adjourns or dismisses the petition under subsection (6), it shall also adjourn for the same period or dismiss the cross-petition — but if, having regard to this section, it thinks it proper to proceed to hear and determine the cross-petition, it may do so, and shall then also hear and determine the petition.
(8) A dismissal under subsection (6) or (7) does not prejudice any subsequent proceedings on the same, or substantially the same, facts.
So a petitioner who obtains leave dishonestly loses the petition but is not barred forever — the same facts may be relied on again, in properly constituted proceedings, once the three years have passed or proper leave is obtained.
Section 31(9) — conduct within the period
This section does not prevent the institution of proceedings, after the period of three years from the date of the marriage, based on matters that have occurred within that period.
Conduct in the first three years is not excused or forgotten. A petitioner may simply wait until the three years have expired and then rely on everything that happened during them.
That will often be the sensible course. Waiting avoids an application for leave, avoids the exceptional hardship test, and allows the petition to plead the full history.
The petitioner should keep in mind the bars in the meantime — particularly condonation under section 27, which can arise from resuming the relationship after the conduct complained of.
The three-year rule applies only to dissolution. It does not restrict a petition for a decree of nullity, for judicial separation, or for restitution of conjugal rights — nor does it affect maintenance or custody proceedings in a court of summary jurisdiction, preserved by section 3(2).
Sources
- Matrimonial Causes Act (Chapter 282) — ss 2, 3, 10, 17, 27–31, 35, 40, 48
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.