¹ Although the provisions “make it plain that the policy of the legislature is to encourage reconciliation as far as may be practicable” (per Ormrod, J. in Pheasant v. Pheasant [1972] 2 W.L.R. 353, at p. 355Google Scholar; [1972] 1 All E.R. 587, at p. 588), commentators have rightly been sceptical about their practical effect. “These provisions are half-hearted, toothless and in their context useless.… The reconciliation provisions are a sham”: Freeman, “The Search for a Rational Divorce Law,” [1971] Current Legal Problems 178, at 199, 210; “I do not think that these provisions will have any effect whatsoever”: Morris, D., The End of Marriage (Cassell 1968), p. 159.Google Scholar Subsections (1) and (2) are set out below, at pp. 307–309. Subsections (3) to (5) are summarised at p. 313. (No separate attention is paid in this article to the considerable volume of conciliation work undertaken with parties, or prospective parties, to matrimonial proceedings in magistrates’ courts.)

² [1951] P. 21 at p. 23; referred to and adopted in Henley v. Henley [1955] P. 202Google Scholar; Theodoropoulas v. Theodoropoulas [1964] P. 311Google Scholar. Cf., McTaggart v. McTaggart [1949] P. 94Google Scholar, per Denning L.J. at p. 97; Committee on Procedure in Matrimonial Causes (Cmd. 7024), para. 28; Royal Commission on Marriage and Divorce 1951–55 (Cmd. 9678), para. 341.

³ Cohen v. Cohen [1940] A.C. 631 at p. 645.Google Scholar

⁴ The Divorce Reform Act 1969 came into force on 1 January 1971.

⁵ [1940] A.C. 631.

⁶ Mummery v. Mummery [1942] P. 107Google Scholar; Perry v. Perry [1952] P. 203Google Scholar; Pizey v. Pizey [1961] P. 101Google Scholar at p. 108.

⁷ Mummery v. Mummery [1942] P. 107Google Scholar at p. 109.

⁸ [1952] P. 203 at p. 215.

⁹ [1950] P. 1 at pp. 6–7.

¹⁰ But for an argument to the effect that, on principle, resumption of cohabitation, to terminate desertion, should involve “reconciliation” in the sense of an acceptance by the deserted party of the deserter's offer to return permanently, see Irvine, “The Concept of Reconciliation and the Matrimonial Causes Act 1963” (1966) 82 L.Q.R. 525.

¹¹ Abercrombie v. Abercrombie [1943] 2 All E.R. 465Google Scholar (discharge of separation order by resumption of cohabitation); Lowry v. Lowry [1952] P. 252Google Scholar (where had parties “last ordinarily resided together as man and wife” for purposes of founding magistrate's jurisdiction to make order on ground of desertion?); and see Pizey v. Pizey and Stephenson [1961] P. 101Google Scholar (separation rendered consensual by course of visits to deserting wife for week-ends and longer periods).

¹² The language of Denning L.J. in Bartram v. Bartram [1950] P. 1Google Scholar at p. 7.

¹³ [1943] 2 All E.R. 465, E.g.: “Whether one talks about resumption of cohabitation or condonation, any wife who has suffered an injury effects a reconciliation with the implied condition that there shall be no recurrence of the bad behaviour; but that does not change the nature of the reconcilation.” (Lord Merriman P. at p. 468.) “… it is quite wrong in law to say there cannot be a resumption of cohabitation if the resumption is contingent upon the continued good behaviour of one or other or both of the spouses. It is none the less a reconciliation….” (Henn Collins J at p. 471.) Cf. the uncritical acceptance by Lord, Merriman P. and Pearce, J. in Lowry v. Lowry [1952] P. 252Google Scholar, of the magistrate's finding that the parties, after some years apart and two nights together at a certain house, were reconciled, as a step towards saying that they “last ordinarily resided together as man and wife” at that house.

¹⁴ [1942] P. 107.

¹⁵ [1900] 1 Q.B. 9.

¹⁶ But Denning, L.J. in Bartram v. Bartram [1950] P. 1Google Scholar at p. 7 does not read Lord Merriman P. in Mummery v. Mummery in this way.

¹⁷ Henderson v. Henderson [1944] A.C. 49.Google Scholar

¹⁸ See, e.g., Germany v. Germany [1938] P. 202Google Scholar; Baguley v. Baguley [1962] P. 59n.Google Scholar

¹⁹ See especially the analysis by Winn, L.J. in Quinn v. Quinn [1969] 1 W.L.R. 1394 at pp. 1409–1410Google Scholar; [1969] 3 All E.R. 1212 at pp. 1222–1223.

²⁰ Hearn v. Hearn [1969] 1 W.L.R. 1832 at p. 1841Google Scholar; [1969] 3 All E.R. 417 at p. 425, per Cairns J. Cf. the analogy used in Howard v. Howard [1965] P. 65Google Scholar at p. 73, per Sir Jocelyn Simon P.: “… a master who, with full knowledge of a servant's misconduct, elects to continue him in his service cannot subsequently dismiss him for the offences which he has condoned.”

²¹ Cramp v. Cramp [1920] P. 158, at p. 163Google Scholar, per McCardie J.

²² See, e.g., Inglis v. Inglis [1968]Google Scholar P. 639.

²³ Hearn v. Hearn [1969] 1 W.L.R. 1832 at p. 1838Google Scholar; [1969] 3 All E.R. 417 at p. 422, per Cairns J.

²⁴ Fearn v. Fearn [1948] P. 241 at p. 252Google Scholar, per Bucknill L.J.

²⁵ Hearn v. Hearn [1969] 1 W.L.R. 1832Google Scholar; [1969] 3 All E.R. 417; Tynan v. Tynan [1969] 3 All E.R. 1472.Google Scholar

²⁶ See, for instance, among the modern cases, Blyth v. Blyth [1966]Google Scholar A.C. 643; Ford v. Ford [1970] 3 All E.R. 188.Google Scholar

²⁷ (1859) 1 Sw. & Tr. 334 at p. 357.

²⁸ [1948] 2 All E.R. 858 at p. 860.

²⁹ [1950] P. 1. See above at n. 9.

³⁰ See Baguley v. Baguley [1962] P. 59n. at p. 65Google Scholar, per Hodson L.J. (on which see Morley v. Morley [1961] 1 W.L.R. 211 at p. 223Google Scholar; [1961] 1 All E.R. 428 at pp. 439–440, per Lord Merriman P.); Ives v. Ives [1968] P. 375Google Scholar; Tynan v. Tynan [1969] 3 All E.R. 1472.Google Scholar (Denning L.J.'s characteristic solo run was no doubt stimulated by his recent service as chairman of the Committee on Procedure in Matrimonial Causes (Final Report, February 1947: Cmd. 7024). The Committee were to consider “in particular whether any (and if so, what) machinery should be made available for the purpose of attempting a reconciliation between the parties.” They concluded (inter alia) that a Marriage Welfare Service, sponsored by the state, should evolve “from existing services and societies” and that Court Welfare Officers should be appointed (§§ 28, 29).)

³¹ (1859) 1 Sw. & Tr. 334, at p. 357.

³² [1950] P. 1 at p. 7.

³³ [1956] 1 W.L.R. 1380 at p. 1387; [1956] 3 All E.R. 478 at p. 484.

³⁴ [1968] P. 375 at p. 399.

³⁵ [1969] 3 All E.R. 1472 at p. 1474.

³⁶ Wells v. Wells [1954] 3 All E.R. 491 at p. 493Google Scholar; slightly different wording at [1954] 1 W.L.R. 1390 at p. 1394.

³⁷ The subsection is still in force in its application to the Act of 1960.

³⁸ See Tynan v. Tynan [1969] 3 All E.R. 1472 at pp. 1474–1475Google Scholar; see also Ives v. Ives [1968] P. 375.Google Scholar

³⁹ [1950] P. 1. See above, p. 296.

⁴⁰ [1948] 2 All E.R. 858. See above, p. 299.

⁴¹ [1967] P. 105. The case is criticised by Irvine, op. cit. at n. 10. See also the commentaries cited at n. 43.

⁴² [1966] A.C. 643 at p. 671: “… from the absence of any talk at all about reconciliation or the future either in her earlier advances, or later over the cup of tea, or finally when he was taking his departure, I draw a very strong inference that neither regarded this (sc., presumably, their act of intercourse) as effecting a reinstatement or, to use language which the parties would use, a reconciliation.”

⁴³ Michaels, (1965) 28 M.L.R. 101. See on the other hand Hall, [1965] C.L.J. 51 at p. 53: “At what precise moment during perhaps a gradual process of readjustment after the discovery by one of an act of adultery by the other should the two be regarded as having become reconciled?” (My italics.)

⁴⁴ A rare occasion for refusing a decree is provided by the Matrimonial Causes Act 1965, s. 5 (5).

⁴⁵ H.C. Standing Committee C, Official Report, 3 April 1968, col. 84.

⁴⁶ Divorce Reform Act 1969, s. 9 (2), Sched. 2.

⁴⁷ Reform of the Grounds of Divorce, 1966Google Scholar (Cmnd, 3123), para. 15.

⁴⁸ The phrase is from section 3 (2); see below, p. 308 ff.

⁴⁹ Cf., Ian Percival Q.C., M.P., H.C. Standing Committee B, Official Report, 12 March 1969, cols. 312–313.

⁵⁰ (1966) S.P.C.K.

⁵¹ Quoted from Walker, Lord in the Report of the Royal Commission on Marriage and Divorce 1951–55 (Cmd. 9678), p. 341.Google Scholar

⁵² Putting Asunder, pp. 38–39

⁵³ Ibid., p. 39.

⁵⁴ [1971] 1 All E.R. 63.

⁵⁵ It seems that United States experience and English impression are very different. See Sanctuary, G., Marriage Under Stress (London: Allen and Unwin 1968Google Scholar), Chaps. 8 and 9, where the activities of a number of family courts and conciliation courts are described. Success rates for post-petition counselling or conciliation, in terms of petitions not proceeded with, are on the face of the figures high (e.g., Toledo, Ohio—40 per cent. (p. 137), Milwaukee, Wisconsin—48 per cent. (p. 140)). But the national figure for divorce petitions abandoned is about 30 per cent, (in Milwaukee, before the use of a reconciliation procedure was made compulsory, 39 per cent, of cases did not come to trial). Clearly success rates must be related to a wide variety of special cultural factors, including divorce and remarriage rates and the various functions which the filing of a petition may subserve within the culture.

⁵⁶ Selby, “The Development of Divorce Law in Australia” (1966) 29 M.L.R. 473 at p. 487.

⁵⁷ Cf. S. v. S. [1968] P. 185Google Scholar at p. 188.

⁵⁸ Cf. [1971] 1 W.L.R. 223; [1971] 1 All E.R. 894 (Practice Direction).

⁵⁹ Cf. Ian Percival Q.C., M.P., loc. cit. at n. 49, above, col. 313.

⁶⁰ [1971] 1 W.L.R. 223; [1971] 1 All E.R. 894.

⁶¹ This machinery is, in substance, that formerly introduced (see S. v. S. [1968] P. 185) on an experimental basis in London to help the court to discharge its duty under section 2 of the Matrimonial Causes Act 1965, upon an application for leave to petition for divorce within three years of the marriage, “to have regard … to the question whether there is reasonable probability of a reconciliation” within the three-year period.

⁶² [1971] 1 W.L.R. 223; [1971] 1 All E.R. 894.

⁶³ H.C. Standing Committee B, 12 March 1969, Official Report, col. 324.

⁶⁴ Ibid., cols. 327, 330.

⁶⁵ Some solicitors must have been surprised to read this statement by the Chief Officer of the National Marriage Guidance Council, about section 3 (1) referrals (Tyndall, Nicholas, “Reconciliation and the Divorce Reform Act 1969” (1971) 68 Law Soc.Gaz. 37 at p. 39Google Scholar): “Reference to a reconciliation agency does not mean ‘Go to see if a counsellor can save your marriage before proceeding to divorce.’ Rather it means ‘Go to discuss with a counsellor, without any prejudice to future action, whether in seeking divorce you are making a decision which you feel to be the best in the circumstances, to see whether those circumstances can be adjusted and to help you at an emotional level to an understanding of what the decision implies.’”

⁶⁶ At this point the writer should explain his limited credentials. In his spare time he is privileged to be the secretary of a Marriage Guidance Council. But he is not a counsellor and writes as a layman on the subject of counselling, as it were from the outside. His views are not those of his own Marriage Guidance Council or of the National Marriage Guidance Council. A valuable account of counselling is included in the article by Nicholas Tyndall cited above, n. 65. The writer has elsewhere criticised Mr. Tyndall's use of the word “reconciliation”: see (1971) 13 Marriage Guidance 662. A fuller discussion of counselling, most enlightening for lawyers, is that by Harvey, L. V., “Marriage Counselling: A Therapeutic Approach to Marital Disorganisation,” in Divorce, Society and the Law, ed. Finlay, H. A. (Butterworths 1969).Google Scholar

⁶⁷ “The National Marriage Guidance Council… believes that the well-being of society is dependent on the stability of marriage. Its Objectives are: (1) to provide a confidential counselling service for people who have difficulties or anxieties in their marriage or other personal relationships….”

⁶⁸ For an influential statement of the principle of “client self-determination,” see Biestek, F., The Casework Relationship (Allen and Unwin 1961Google Scholar), Part Two, Principle 6. For a recent re-assertion of the principle, see Monger, M., Husband, Wife and Caseworker (Butterworths 1971), pp. 103–105.Google Scholar

⁶⁹ Mentioned by Harvey, op. cit., n. 66, at pp. 42–43.

⁷⁰ In the same household: s. 3 (6).

⁷¹ Whether in one period or in two or more shorter periods.

⁷² [1967] P. 105. And that in Quinn v. Quinn [1969] 1 W.L.R. 1394Google Scholar; [1969] 3 All E.R 1212 (resumed cohabitation not “with a view to effecting a reconciliation” unless both spouses intended, or at least knew, resumption to be for a trial period).

⁷³ Harvey, op. cit., n. 66, at p. 46, where the point is fully elaborated.

⁷⁴ In Pais v. Pais [1971] P. 119 at pp. 123–124Google Scholar, Baker J. thought that “evidence … as to dates and parties, i.e., who sought counsel and when,” was the subject of privilege. The privilege can be waived. But that will not help where both parties have participated in the counselling and only one waives the privilege. Thus there might be need for a special rule rendering admissible a certificate of the kind suggested on the application of one spouse only, and solely for the purposes, in effect, of a reformed s. 3 (3) and (4).

⁷⁵ The machinery set out in the second Practice Direction (above, pp. 309 ff.) was devised “with the co-operation of the various organisations concerned with marriage reconciliation and welfare.” So it seems that the N.M.G.C. does not share the doubts expressed here.

⁷⁶ I am grateful to my colleagues, Mr. F. V. Jarvis, Mr. M. L. Monger and Mr. P. J. Seago, for reading this article and making helpful suggestions. I am alone responsible for the views expressed and the errors perpetrated.