DC101

PAPUA NEW GUINEA
[DISTRICT COURT AT VANIMO]

CASE NO 97 OF 2003

BETWEEN

MARK KATI
Complainant

AND

DOMINICA MAKUNAI WILLIE
Defendant

Vanimo

August, M
6 April 2005
6, 10 May 2005
24 June 2005

FAMILY LAW -Whether expenditures incurred during a de facto relationship is recoverable by action.

CONTRACT – No intention to create contractual relationship.

CUSTOM – Arrangement by parents and relatives for the complainant and defendant to get married – Bride price not paid until children are produced unreasonable and unconstitutional.

Cases cited
Bulage v Ben [1990] PNGLR 473 – Applied
Re Wagi Non And Section 42(5) Of The Constitution [1991] PNGLR 84

Counsel
Complainant in person
Defendant in person

2005: 24th June

AUGUST M.: This is an action by the complainant to recover monies spent during the time the defendant lived with the complainant for 8 months in a de facto relationship.

The relatives of the complainant and the defendant made arrangement for them to get married in 1996 at Kambaratoro Village, Vanimo/Green District, Sandaun Province as is the practice in that area. Sometimes later the defendant went to Port Moresby to live with her uncle and got married to another man. Her uncle died so she came back to Vanimo about 2001. It was in Vanimo that she lived with the complainant in a de facto relationship for 8 months, but left again and now living with another man from Maprik in East Sepik Province. During their stay together the complainant spent K1250.00 and kept a record of all that he spent for the entire 8 months. He has not paid bride price because according to custom prevailing in the area you must have children before bride price is set or demanded, but the arrangement for them to get married was there. However, after 8 months of living together, the defendant left the complainant for the man in Maprik.

The defendant wants the court to order the defendant to refund the money he spent on her.

The only issue here is whether the expenditure incurred during the de facto relationship is recoverable by action in court?

The law is well stated in the case of BULAGE v BEN [1990] PNGLR 473 where His Honour Brunton J said at pages 474 – 475:

"There is no statute that gives a man the right to sue his girl friend for the money he spent on her. In this country there are no rules of law developed by the courts which support such an action. Outside of marriage, men and women do spend sums of money each other in the process of courtship, and when they enter de facto relationship. An action may lie in respect of particular items of property accumulated, or passed during such a relationship. For example a couple may live together, and through their joint effort purchase a house, or car. When they break up, there maybe questions of how the property is to be partitioned, or who has ownership of the property. But there is no action to recover the everyday expenditure incurred during the course of the relationship. In many cases outlays of cash will be in the nature of domestic expenditure of on food, clothing and other essentials. In other cases the expenditure will of the sort to which formal, or business relationship are not normally attributed, outlays made as a result of love or affection existing at the time between the parties. They are matters to which the courts attribute a contractual relationship: see Balfour v Balfour (1919) 2 KB 571. This does not mean that married couples living together cannot enter into a legal relationship in respect of property. For example, where a man before marriage promised his future wife to leave her a house if she marries him, the woman was able to enforce the promise although it was made informally and in affectionate terms: Synge v Synge (1984) QB 466. A more modern example is Eve v Eve [1975] 1 WLR 1338. That was a case of an unmarried couple living together as husband and wife.

It was said to be part of the bargain between the parties, expressed or implied that the woman should contribute her labour towards repairing the house and get a beneficial interest in the house. This arrangement was held to be forceable by way of either contract or constructive trust. The essence of the modern cases seems to be that there was some sort of an agreement, either express or implied between the parties in relation to some property, and that one the parties acted in reliance on the promise, and contribute labour, or resources, on the basis of the promise (either express or implied)".

In applying the principle stated Bulge's case, the money spent by the complainant on the defendant is not recoverable in an action in court.

This leads me to comment on the practice of arranging marriage and the demand for children before bride price is paid. There are some good arguments for and against such customary practices in this particular area, but my view is that this practice should be limited to the village setting only, but where the parties are likely to live and work in the towns and cities, the men and women should be left alone to exercise their freedom.

I am of the view that the demand by custom for children before bride price is paid is unreasonable and unconstitutional. In the case of Re WAGI NON and Section 42 (5) of the Constitution [1991] PNGLR 84 it was held that the enforcement of custom must not conflict with the principles and rights given in the Constitution.

I am of the firm belief that if the man or his relatives had been given the opportunity to pay the pride price before any children are conceived, the chance of saving that marriage would be much higher. What the customary practice has done was that it has allowed the woman go looking for husbands because she is not obligated to the man by the payment of bride price. The practice of bride price is good, but the demand for children is in my view a barrier to a good customary marriage.

I conclude that the money spent by the complainant during the 8 months living in a de facto relationship with the defendant is not recoverable by action in court. I order that that this complaint be dismissed without costs.

In Person: Complainant
In Person: Defendant