Matrimonial Causes proceedings are in many ways at variance with the normal civil proceedings in the high courts. Being a special proceeding, it is governed by its rules and of course the matrimonial causes act.
Among other distinguishing elements of the matrimonial causes act and rules from the Normal Civil procedure rules are the compulsory conference provision, the form 3A provision, the trial and computation of time sections .
In some discussions, the section on compulsory conference has been misrepresented in two ways.
- That compulsory conference is compulsory
- That compulsory conference is for the purpose of trying to reconcile parties.
Order XI rule 33 of the rules of Matrimonial causes act provides where:A defended suit includes proceedings with respect to:
- The maintenance of a party to the proceedings
- The custody or guardianship of an infant child of the marriage to which the proceedings relate; or
- The maintenance, welfare, advancement or education of a child of that marriage. and the petitioner and respondent are not in agreement as to the order that should be made by the court upon the trial of those proceedings in the event that the court does not make an order dismissing those proceedings or
b)A defended suit includes proceedings for a decree of dissolution of marriage or of nullity of a voidable marriage in a case where there are children of the marriage:
Who are not likely to have attained the age of sixteen years before the decree is made; or
In relation to whom the petitioner or respondent has obtained or is seeking an order under sub – section (3) of section 57 of the act.
and the petitioner and respondent are not in agreement concerning the arrangements that in the event of a decree of dissolution or of nullity of marriage being made should be made for the welfare, advancement and education of those children.
This part shall apply to the suit
Two things are deducible form the above section:
Compulsory conference is applicable when the suit is defended.
Compulsory conference is applicable when the petitioner and respondent are not in agreement as to the order that should be made by the court upon trial.
So when the suit is defended and the parties already have plans in respect of matter listed in 33(a)(b) the provision on compulsory conference will be waived.
On the second issues as to if compulsory conference is for the purpose of reconciliation.The rules are clear on it. It is not.The Agenda for the conference is never how or whether to settle the parties or not.Some Lawyers make the mistake of thinking that compulsory conference is for the purpose of talking the parties into reconciliation.Again,it is not.
Order XI rule 35(1) provides that “A conference for the purpose of this part shall be a conference at which the petitioner and respondent discuss and make bona fide endeavour to reach agreement on any matters in question.
In proceedings pending between them with respect to matter referred to in any sub-Paragraphs (i) to (iv),inclusive of paragraph(a) of rule 33 of this order
Concerning arrangement of a kind referred to in paragraph (a) of sub section(1) of section 57 of the Act.
Another important area of discuss in Matrimonial causes is as to whether a legal practitioner in a matrimonial proceeding has a legal duty to explore reconciliation of parties. My answer to that is NO. The law does not enjoin the legal practitioner to explore reconciliation of parties.
Order II Provides for form 3 and Form 3A otherwise named certificate as to reconciliation. The certificate as contained in the first schedule provides thus-
I (Full name of Legal practitioner)certify that I am the solicitor representing the petitioner(or as the case may be) and that I have(or my partner has, or the clerk in my office having charge of these proceedings has) brought to the attention of the petitioner(or respondent)the provisions of the matrimonial causes Act relating to the reconciliation of parties to a marriage and the approved marriage guidance organisations reasonably available to assist in effecting a reconciliation between the petitioner and the respondent and the possibility of a reconciliation between the petitioner and the respondent and the respondent being effected either with or without the assistance of such organisation.
From the wording of the above, it is clear that
-A solicitor is not enjoined to reconcile parties but only bring to their notice the provisions of the Act and the approved marriage guidance organisations.
-The law also does not place the duty in (1) above on solicitor. It I will suffice if a clerk in chambers does that.
Finally, another aspect of matrimonial proceedings which I will like to briefly comment on is the aspect of trial.
Unlike in normal civil proceedings, when a suit is not defended in matrimonial proceedings, the matter must be set down for trial before judgement is pronounced.
Order XI Rule39 and 40 of the matrimonial causes rules provides that suit must be set down for trial whether defended or undefended.
Hallblack Law Firm