Section 29 of the Matrimonial Causes Act (Chapter 282) allows the court to refuse a decree even where the ground is proved.
Section 29
(a) the petitioner has committed adultery that has not been condoned by the respondent or that, having been so condoned, has been revived; or
(b) the petitioner has been guilty of cruelty to the respondent; or
(c) the petitioner has wilfully deserted the respondent — before the happening of matters constituting the ground relied on, or, where the ground involves matters occurring during or extending over a period, before the expiration of that period; or
(d) the habits of the petitioner have, or the conduct of the petitioner has, conduced or contributed to the existence of the ground relied on by the petitioner.
How they differ from the absolute bars
| Absolute — ss 27, 28 | Discretionary — s 29 | |
|---|---|---|
| Language | “Shall not be made” | “May in its discretion refuse” |
| Concerned with | The petitioner’s attitude to the respondent’s conduct, or the integrity of the proceedings | The petitioner’s own conduct |
| Grounds affected | s 27: (a) to (k); s 28: all | (a) to (l) |
| Effect | Petition must fail | Petition may succeed — the court weighs the conduct |
Section 29 reaches one paragraph further than section 27. It applies to paragraph (l) — unsoundness of mind — as well as to the fault grounds.
It does not apply to paragraph (m) (separation) or paragraph (n) (presumed death). But separation has its own controls in section 25, including the mandatory refusal in section 25(4) where a decree would be harsh and oppressive, and the discretionary refusal in section 25(6) for the petitioner’s uncondoned adultery.
Paragraph (a) — the petitioner’s own adultery
Where both parties have committed adultery, the petitioner’s own conduct is a discretionary bar — unless the respondent has condoned it, and that condonation has not been revived.
The structure mirrors section 27 but runs the other way: section 27 asks whether the petitioner forgave the respondent; section 29(a) asks whether the respondent forgave the petitioner.
In practice a petitioner who has committed adultery is expected to disclose it and to ask the court to exercise its discretion in their favour — historically known as filing a discretion statement. Concealing it risks the intervention provisions in Part VI and rescission of the decree nisi under section 69.
Paragraph (c) — the timing requirement
Paragraph (c) applies where the petitioner deserted the respondent before the happening of the matters constituting the ground — or, where the ground extends over a period, before the expiration of that period.
A spouse who leaves, and whose abandoned partner then forms a relationship with someone else, is in a weak position to complain of that relationship. Paragraph (c) captures exactly that sequence.
But a petitioner who left after the respondent’s misconduct is not caught — and if the departure was justified by the respondent’s conduct, it is not desertion at all: see constructive desertion under section 18.
Paragraph (d) — conduct conducing to the ground
Paragraph (d) is not limited to matrimonial offences. It asks whether the petitioner’s habits or conduct conduced or contributed to the existence of the ground.
Examples that arise in practice:
- Both spouses drinking heavily, where the petition relies on section 17(f);
- Prolonged neglect or absence by the petitioner, where the petition relies on adultery;
- Provocation by the petitioner, where the petition relies on cruelty;
- Conduct causing the respondent to lose employment, where the petition relies on failure to pay maintenance.
The words are “conduced or contributed”, so a causal contribution suffices — the petitioner need not be the sole or main cause.
How the discretion is exercised
The section confers the discretion without stating criteria. The considerations that arise are those the Act elsewhere treats as important:
- The interests of the children — expressly relevant under section 31(5), and central to section 59;
- The prospect of reconciliation — section 10;
- The relative gravity of the two parties’ conduct;
- Whether refusing a decree would leave the parties tied to a marriage that has plainly ended, and what provision can be made for the respondent under Part VII;
- The public interest — a consideration the Act makes explicit in section 25(4).
A petitioner facing a section 29 bar should disclose the conduct, explain it, and address what the court should do about the consequences — particularly maintenance and property provision for the respondent.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 10, 17, 18, 25, 27–31, 59, 65–71, 73–76
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.