Sections 27 and 28 of the Matrimonial Causes Act (Chapter 282) impose bars the court has no discretion to overlook.
Sections 27 and 28
A decree of dissolution shall not be made on a ground specified in section 17(a) to (k) if the petitioner has condoned, or has connived at, the ground.
A decree of dissolution shall not be made if the petitioner, in bringing or prosecuting the proceedings, has been guilty of collusion with intent to cause a perversion of justice.
| Condonation | Connivance | Collusion | |
|---|---|---|---|
| Provision | s 27 | s 27 | s 28 |
| Nature | Forgiveness of the offence after it occurred | Encouraging or permitting the offence before or as it occurred | An agreement about the proceedings themselves |
| Timing | After the conduct | Before or during the conduct | In bringing or prosecuting the case |
| Grounds affected | s 17(a) to (k) only | s 17(a) to (k) only | All grounds |
| Effect | Absolute — “shall not be made”. No discretion | ||
Condonation and connivance bar only the grounds in paragraphs (a) to (k) — the fault-based grounds.
They do not apply to paragraph (l) (unsoundness of mind), paragraph (m) (separation) or paragraph (n) (presumed death). There is nothing to condone in a spouse’s illness, absence or the fact of separation.
Collusion under section 28 applies to every ground, because it concerns the integrity of the proceedings rather than the conduct relied on.
Condonation
The Act does not define condonation. At general law it requires two things: knowledge of the matrimonial offence, and forgiveness of it, evidenced by a genuine restoration of the marital relationship.
Both elements matter:
- Knowledge. A spouse cannot condone what they do not know about. Learning the full extent of the conduct later reopens the position.
- Reinstatement. Continuing to share a house out of necessity — because there is nowhere else to go, or for the children — is not the same as restoring the marriage. The question is whether the relationship was genuinely resumed.
Condonation can be revived. Section 29(a) and section 25(6) both refer to adultery that, having been condoned, has been revived. Further misconduct of the same character revives the earlier offence and removes the bar.
Section 10 requires the court to consider the possibility of reconciliation, and a petitioner should not be penalised for trying.
Section 12 protects evidence of statements made at reconciliation attempts, and section 13 imposes an oath of secrecy on marriage conciliators. A spouse who attempts a reconciliation at the court’s encouragement, and fails, should not thereby lose the petition — and section 11 provides for the hearing where reconciliation fails.
Connivance
Connivance looks forward where condonation looks back. It is the petitioner’s wilful consent to, or encouragement of, the conduct later complained of.
The clearest case is a spouse who arranges or encourages the other’s adultery in order to obtain a ground. Passive acquiescence over a long period, with full knowledge, may also amount to it.
Mere failure to prevent conduct is not connivance. What is required is a state of mind — a willingness that the conduct should occur.
Collusion
The bar applies only where the collusion was “with intent to cause a perversion of justice”.
The qualifying words are important. Parties to a matrimonial cause routinely agree matters: maintenance, custody arrangements, property, and which party will be the petitioner. Reaching sensible agreement is encouraged, not penalised.
Collusion in the section 28 sense involves an agreement to mislead the court — to fabricate a ground, to suppress a defence, to present false evidence, or to conceal a bar such as condonation.
The risk is highest on grounds that are easy to establish on the parties’ own evidence: adultery, refusal to consummate, and separation. It is also why Part VI allows the Principal Legal Adviser to intervene, including at the Court’s request under section 65 — and why section 69 provides for rescission of a decree nisi on intervention.
In practice
- Disclose the history. A petitioner who conceals a reconciliation or an agreement risks the petition being dismissed and, on an intervention, a decree nisi rescinded under section 69.
- Distinguish trying from forgiving. Attempting a reconciliation under section 10 is protected; genuinely resuming the marriage with full knowledge may condone.
- Agree the consequences, not the facts. Agreement about maintenance, property and children is proper. Agreement about what the court will be told is not.
- Consider the discretionary bars too. Even where sections 27 and 28 are not engaged, section 29 gives the court a discretion to refuse.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 10–13, 17, 25, 27–29, 65–71
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.