Section 12 of the Matrimonial Causes Act (Chapter 282) is what makes reconciliation workable.
Section 12
Evidence of anything said or of an admission made in the course of an endeavour to effect a reconciliation under this Part is not admissible — in a court, or in proceedings before a person authorized by a law or by consent of parties to hear, receive and examine evidence.
| Element | Scope |
|---|---|
| What is protected | Anything said, and any admission made |
| When | In the course of an endeavour to effect a reconciliation under this Part |
| Where the protection applies | In a court, and before any person authorized by law or by consent to hear, receive and examine evidence |
| Effect | The evidence is not admissible — not merely privileged from compulsion |
A privilege can be waived by the person it protects. Section 12 makes the evidence inadmissible — so a party cannot put it before the court even if both parties are willing.
The protection covers proceedings beyond the matrimonial cause itself. It applies in a court generally, and before tribunals and arbitrators. So an admission made in reconciliation cannot be produced in later criminal, civil or employment proceedings either.
The words “under this Part” tie the protection to Part III — that is, to an endeavour to effect a reconciliation in the context of section 10, whether by a Judge in chambers under section 10(2)(b) or by a nominated conciliator under section 10(2)(c).
Why the protection is necessary
A reconciliation attempt has no prospect of success unless the parties speak frankly — about what went wrong, what each did, and what each wants.
Much of that would be highly damaging in the litigation that follows if it fails. Admissions of adultery, of cruelty, of drinking, of an intention to leave — all would go directly to the grounds and to the discretionary bars.
Without section 12, no sensible party would say anything. The section removes that risk, and so gives the section 10 duty a chance of working.
Three layers of protection
| Provision | Who or what it protects |
|---|---|
| s 12 | The evidence — statements and admissions in a reconciliation endeavour are inadmissible |
| s 13 | The conciliator — must take an oath or affirmation of secrecy in the form in Schedule 1 before entering on his functions |
| s 8 | The counsellor — oath of secrecy, and not competent or compellable to disclose an admission or communication |
| s 11 | The Judge — a Judge who acted as conciliator shall not continue to hear the proceedings except at the parties’ request |
Before entering on the performance of his functions, a marriage conciliator shall make and subscribe, before a person authorized to take affidavits, an oath or affirmation of secrecy in the form in Schedule 1.
Section 1(1) defines a marriage conciliator as a person authorised by an approved marriage guidance organization to endeavour to effect marital reconciliations, or a person nominated by a Judge under section 10. So a community leader or elder nominated under section 10(2)(c)(ii) must take the oath before acting.
The limits of the protection
1. It does not protect what happened, only what was said. The underlying facts remain provable by other evidence. A spouse who admits adultery in conciliation cannot have that admission tendered — but the adultery may still be proved in the ordinary way.
2. It does not protect statements outside a Part III endeavour. A conversation between the parties themselves, or with a pastor approached privately, is not within section 12 — though a counsellor of an approved organisation is separately protected by section 8(2).
3. It does not prevent a resumption from having consequences. Living together again may amount to condonation, or break the continuity of desertion or separation. Those are facts, not statements.
4. It does not displace child protection obligations. Where what is disclosed indicates a child at risk, the Lukautim Pikinini Act 2015 imposes a duty to report on specified persons, and section 39 of that Act restricts civil action against a person who reports.
Note that section 4 excludes customary marriages from this Act, so Part III — and with it section 12 — does not apply to reconciliation of a customary marriage.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 1, 4, 8, 10–13, 27–29, Schedule 1
- Lukautim Pikinini Act 2015 — ss 38, 39
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.