Part VI of the Matrimonial Causes Act (Chapter 282) exists because a divorce may be presented to the court by two people who both want the same outcome.
Why intervention is necessary
In most litigation the parties are opposed, and each has an interest in exposing the weaknesses in the other’s case. A matrimonial cause is often not like that: both parties may want the decree.
Yet the Act imposes bars that exist in the public interest, not for the parties’ benefit:
- Section 28 — collusion with intent to cause a perversion of justice, an absolute bar on every ground;
- Section 27 — condonation and connivance;
- Section 59 — proper arrangements for children under 16.
If neither party will raise these, someone must be able to.
Sections 65 and 66 — the Principal Legal Adviser
In proceedings under this Act, where the Court requests him to do so, the Principal Legal Adviser may intervene in, and contest or argue any question arising in, the proceedings.
In proceedings (a) for a decree of dissolution or nullity of marriage, judicial separation or restitution of conjugal rights; or (b) in relation to the custody or guardianship of children —
where the Principal Legal Adviser has reason to believe that there are matters relevant to the proceedings that have not been or may not be, but ought to be, made known to the Court, he may, at any time before the proceedings are finally disposed of, intervene.
Section 65 is reactive — the Court asks. Section 66 is proactive — the Principal Legal Adviser forms his own view.
Note that section 66 expressly extends to proceedings in relation to the custody or guardianship of children, not only to the decree itself. That is consistent with the protective purpose.
Section 67 allows the Principal Legal Adviser to delegate, by writing under his hand, all or any of his powers under this Part — except the power of delegation — to the person occupying a prescribed office.
The office is that established by section 156 of the Constitution. Older text of the Act refers to the Attorney-General, reflecting the pre-Independence position.
Section 68 — intervention by other persons
(1) In proceedings for a decree of dissolution or nullity of marriage, judicial separation or restitution of conjugal rights, where a person applies to the Court for leave to intervene and the Court is satisfied that he may be able to prove facts relevant to the proceedings that have not been or may not be, but ought to be, made known to the Court, the Court may, at any time before the proceedings are finally disposed of, make an order entitling him to intervene.
(2) An order may be made on such conditions as the Court thinks proper, including the giving of security for costs.
| Provision | Who | Leave needed? |
|---|---|---|
| s 65 | Principal Legal Adviser | No — the Court requests |
| s 66 | Principal Legal Adviser | No — on his own reason to believe |
| s 68 | Any person | Yes — and conditions may be imposed |
The obvious candidates are a person named as the adulterer — though section 33(1) already requires them to be made a party — a person alleged to be the other party’s new spouse, a relative with knowledge of a concealed reconciliation, or a person with information about the children.
The security for costs power in section 68(2) is the control against vexatious intervention. Section 98 separately deals with frivolous or vexatious proceedings.
Section 69 — rescinding the decree nisi
Where an intervention takes place after a decree nisi has been made and it is proved that —
(a) the petitioner has been guilty of collusion with intent to cause a perversion of justice; or
(b) material facts have not been brought before the Court,
the Court may rescind the decree.
It is enough that material facts have not been brought before the Court. No dishonesty need be proved — an innocent failure to disclose something material will do.
That is a powerful provision, and it explains why a petitioner with their own adultery to disclose should disclose it rather than hope it is not raised.
See also sections 62 and 63, which allow rescission on reconciliation and on miscarriage of justice.
Sections 70 and 71
For the purposes of this Part, where a decree nisi has been made, the proceedings shall not be taken to have been finally disposed of until the decree nisi has become absolute.
A person intervening under this Part or Part V shall be deemed to be a party in the proceedings, with all the rights, duties and liabilities of a party.
Section 70 extends the window for intervention through the whole nisi period. And an intervention is an “appeal” for the purposes of section 60(1)(a), so it holds the decree in the nisi stage until determined.
Section 71 means an intervener may lead evidence, cross-examine, and be exposed to a costs order under section 97 — which, with the section 68(2) security power, is the discipline on intervention.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 27–29, 33, 58–64, 65–71, 97, 98
- Constitution — s 156
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.