LEGAL PRINCIPLE: CIVIL PROCEDURE – Statutory Compliance– Mandatory Provisions – Cannot Be Waived by Consent of Parties
PRINCIPLE STATEMENT
The provision of the statute is therefore very clear. The law is that it is mandatory that proceedings in respect of petition for dissolution of marriage shall be in public. Neither the parties nor the court can decide otherwise. A mandatory statutory provision directing a procedure to be followed in the performance of any duty is not a party's personal right to be waived. You cannot resort to estoppel to compromise a statutory provision of a public nature. Estoppel is the inhibition to assert a personal right, benefit or advantage in consequence of previous conduct, admission or in consequence of a final adjudication of the matter in a court of law. Any decision made by a court contrary to a mandatory statutory provision is a nullity.
RATIO DECIDENDI (SOURCE)
"The provision of the statute is therefore very clear. The law is that it is mandatory that proceedings in respect of petition for dissolution of marriage shall be in public. Neither the parties nor the court can decide otherwise. A mandatory statutory provision directing a procedure to be followed in the performance of any duty is not a party's personal right to be waived. You cannot resort to estoppel to compromise a statutory provision of a public nature. Estoppel is the inhibition to assert a personal right, benefit or advantage in consequence of previous conduct, admission or in consequence of a final adjudication of the matter in a court of law. Any decision made by a court contrary to a mandatory statutory provision is a nullity."
EXPLANATION / SCOPE
Mandatory statutory provisions cannot be waived by parties or courts, even by consent. A mandatory provision directing public hearing for marriage dissolution is not a personal right that parties can waive. Estoppel cannot compromise a statutory provision of a public nature. Estoppel only applies to personal rights, benefits, or advantages. Any decision contrary to a mandatory statutory provision is a nullity. The principle protects the public interest in open justice. Parties cannot agree to a procedure that violates the law. The court cannot approve such agreement. The nullity is incurable. This ensures that statutory mandates serve their public purpose, not just private convenience. Waiver is irrelevant where public policy and statutory command intersect.