Section 78 of the Matrimonial Causes Act (Chapter 282) answers a practical problem: a wife petitions for divorce, fails, and is left with no income and children to raise.
Section 78(1) — what “principal relief” means
In this section, “principal relief” means relief of a kind specified in paragraph (a) or (b) of the definition “matrimonial cause” in section 1(1).
Those paragraphs cover proceedings for a decree of dissolution of marriage or of nullity of marriage, and proceedings for a decree of judicial separation, restitution of conjugal rights or jactitation of marriage.
See what is a matrimonial cause for the full definition. The distinction section 78 draws is between the decree itself — principal relief — and the ancillary orders under Part VII that normally accompany it.
Section 78(2) — the general rule
Except as provided by this section, the Court shall not make an order under this Part where the petition for the principal relief has been dismissed.
The maintenance, custody and property powers in sections 73, 74 and 75 attach to a matrimonial cause. They are not a general jurisdiction to order maintenance between spouses.
If the petition fails, the foundation for them falls away. A party cannot petition for divorce as a device to obtain a maintenance order, lose the divorce, and keep the maintenance.
Section 78(3) — the three conditions
Where —
(a) the petition for the principal relief has been dismissed after a hearing on the merits; and
(b) the Court is satisfied that —
(i) the proceedings for the principal relief were instituted in good faith to obtain that relief; and
(ii) there is no reasonable likelihood of the parties becoming reconciled,
the Court may, if it thinks it desirable, make an order under this Part, other than an order under section 75.
| Condition | What it excludes |
|---|---|
| Dismissed after a hearing on the merits | A petition struck out for want of prosecution, dismissed as frivolous or vexatious under s 98, or withdrawn |
| Instituted in good faith | A petition brought as a tactic, or in collusion |
| No reasonable likelihood of reconciliation | A marriage the court thinks may yet be saved |
The Act’s reconciliation policy runs through Part III: the court must consider reconciliation, may adjourn for it, and may not use anything said in the attempt.
Where a petition fails and the parties may yet reconcile, making maintenance and custody orders would entrench the separation. Condition (ii) requires the court to be satisfied that the marriage is over in fact, even though it has not been dissolved in law.
Why section 75 is excluded
Maintenance and custody address the ongoing position of people who are still married but living apart. They are needs-based and variable — section 76(1)(j) allows them to be discharged, suspended or varied as circumstances change.
A settlement of property is different. It is a final redistribution of assets on the footing that the marriage is at an end. Where the marriage subsists — because the petition failed — there is no basis for it.
The parties are still husband and wife. Their property rights inter se remain governed by the ordinary law, including the Married Women’s Property Act (Chapter 281), which provides a summary procedure for deciding title between spouses without any divorce.
Section 78(4) — the hearing must be together
The Court shall not make an order under subsection (3) unless it has heard the proceedings for the order at the same time as, or immediately after, the proceedings for the principal relief.
A party cannot lose the divorce, go away, and come back six months later asking for maintenance under section 78(3). The window closes when the court rises.
This dovetails with section 56(3), which requires ancillary claims to be included in the petition, and section 56(4), which requires them to be heard together as far as practicable.
The practical lesson: plead the maintenance and custody claims in the petition, even if you expect to win the divorce. If you do not, and the petition fails, section 78(4) shuts the door.
Note what section 78 does not do. It does not stop a party pursuing child maintenance, custody or a parenting order in the Family Court under the Lukautim Pikinini Act 2015. That jurisdiction is independent of any divorce, applies whatever the parents’ marital status, and is the only route open where the marriage was a customary one.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 1, 4, 9–12, 56, 72–78, 98
- Married Women’s Property Act (Chapter 281)
- Lukautim Pikinini Act 2015
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.