Part III of the Matrimonial Causes Act (Chapter 282) places a duty on the court, not on the parties.
Section 10(1) — the court’s duty
Where a matrimonial cause has been instituted, it is the duty of the Court to give consideration, from time to time, to the possibility of a reconciliation of the parties — unless the proceedings are of such a nature that it would not be appropriate to do so.
It is the Court’s duty, not the parties’. Nothing requires a petitioner to attempt reconciliation before filing. There is no precondition to instituting proceedings.
It is continuing. The words are “from time to time” — the question is revisited as the case develops.
It is qualified. Where the proceedings are of a nature making it inappropriate, the duty does not arise. A petition based on section 17(i) — conviction for attempting to kill the petitioner — is the obvious example, as is a petition for jactitation, where the parties are not married at all.
Section 10(2) — the three things a Judge may do
(a) adjourn the proceedings — (i) to afford the parties an opportunity of becoming reconciled; or (ii) to enable anything to be done under paragraph (b) or (c);
(b) with the consent of the parties, interview them in chambers, with or without counsel, as the Judge thinks proper, with a view to effecting a reconciliation;
(c) nominate — (i) an approved marriage guidance organization or a person with experience or training in marriage conciliation; or (ii) in special circumstances, some other suitable person — to endeavour, with the consent of the parties, to effect a reconciliation.
| Power | Consent required? |
|---|---|
| (a) Adjourn | No — the Judge may adjourn of his own motion |
| (b) Interview in chambers | Yes — “with the consent of the parties” |
| (c) Nominate a conciliator | The nomination may be made; the endeavour requires the parties’ consent |
Approved marriage guidance organisations are not available everywhere. Paragraph (c)(ii) allows a Judge, in special circumstances, to nominate some other suitable person.
That permits the nomination of a church leader, a respected community figure or a village elder — someone the parties will actually listen to. Whoever is nominated becomes a marriage conciliator under section 1(1), and must take the oath of secrecy required by section 13.
Resuming the hearing after an adjournment
If, not less than 14 days after an adjournment, either of the parties requests that the hearing be proceeded with —
(a) the Judge shall resume the hearing; or
(b) arrangements shall be made for the proceedings to be dealt with by another Judge,
as the case requires, as soon as practicable.
So an adjournment for reconciliation cannot be used to delay a case indefinitely. After fourteen days either party may require the matter to proceed, and the court must act as soon as practicable.
Section 11 — where the Judge acted as conciliator
Where a Judge has acted as conciliator under section 10(1)(b) but the attempt has failed, the Judge shall not, except at the request of the parties, continue to hear or determine the proceedings — and in the absence of such a request, arrangements shall be made for the proceedings to be dealt with by another Judge.
A Judge who has interviewed the parties in chambers, with a view to reconciling them, will have heard things that would never come out in evidence — and that are protected from disclosure by section 12.
Section 11 removes the risk that the Judge decides the case on material the parties cannot address. The default is transfer to another Judge; the parties may jointly request otherwise.
The provision is a strong incentive to a Judge to use paragraph (c) — nominating an outside conciliator — rather than paragraph (b).
Does attempting reconciliation hurt the petition?
Section 12 makes evidence of anything said, or any admission made, in the course of an endeavour to effect a reconciliation inadmissible. Section 13 requires conciliators to take an oath of secrecy, and section 8(2) makes marriage guidance counsellors neither competent nor compellable.
But a genuine resumption of the marriage is a different matter. It may amount to condonation under section 27, an absolute bar on grounds (a) to (k) — though condonation may be revived by further misconduct.
Resumption may also break the continuity required by grounds with a time element — desertion and separation in particular.
The distinction is between talking and resuming. Attending conciliation is protected; moving back in and living as husband and wife may not be.
Note that section 4 excludes customary marriages from the Act, so Part III does not apply to them — though customary and community reconciliation processes operate in their own right.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 1, 4–13, 17, 25, 27–29, Schedule 1
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.