N429

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

FREINGRUBER

V

FREINGRUBER

Waigani
Woods AJ

12 August 1983
19 August 1983

FAMILY LAW - Settlement of property - Decree obtained outside Papua New Guinea - No jurisdiction to entertain - Matrimonial Causes Act, (Ch. No. 282), s. 1, s. 56(3).

An application for settlement of property by way of proceedings under the Matrimonial Causes Act, (Ch. No. 282), can only be brought in relation to proceedings under that Act for a decree or a declaration of a kind referred to in par. (a) or par. (b) of the definition of "matrimonial cause" in s. 1: it cannot be brought in respect of a decree obtained outside Papua New Guinea.

Application

This was an application or purported application for a settlement of property.

Counsel

C. J Coady, for the applicant.
P. Donigi, for the respondent.
Cur. adv. vult.

19 August 1983

WOODS AJ: This is an application to the court for a settlement of property, namely some real estate in Port Moresby, at present standing registered in the joint names of the applicant and the respondent.

The applicant appears to be seeking a settlement following an alleged divorce obtained by the respondent from the applicant although this divorce was obtained outside Papua New Guinea. This divorce has not been registered or otherwise produced in Papua New Guinea.

Although the applicant does not refer to s. 75 of the Matrimonial Causes Act (Ch. No. 282) in her application, it would appear that she is asking the court to exercise its powers under that section with respect to settlement of property. It is thus apparent that the application is a proceeding under the Matrimonial Causes Act.

A proceeding for settlement of property is of a kind referred to in par. (c) of the definition "matrimonial cause" in s. 1 of the Act.

Section 56 of the Act sets out how proceedings under the Act shall be instituted. However s. 56 does not seem to envisage that a party may proceed for a settlement of property in relation to a proceeding of a kind referred to in par. (a) or (b) of the definition of "matrimonial cause" that has been dealt with outside Papua New Guinea. Section 56(3) states:

"Proceedings of a kind referred to in par. (c) of the definition ... that are in relation to proceedings under this Act for a decree or declaration of a kind referred to in par. (a) or (b) of that definition:

(a) May be instituted by the same Petition.

(b) Except as permitted by the Rules or by the leave of the court, shall not be instituted in any other manner."

Proceedings under s. 56(3) appear from the wording to have to be related to a proceeding under the Act which falls under (a) or (b) of the definition of "matrimonial cause". "Under this Act" would appear to qualify what proceedings of a kind referred to in par. c) of the definition can be instituted. Therefore a divorce or matrimonial cause of a kind referred to in the definition in (a) or (b) but taken outside Papua New Guinea does not seem to provide the basis for any proceeding under s. 56(3).

I realize a proceeding with respect to settlements is a "matrimonial cause" under the definition in s. 1 however looking at s. 14 "Jurisdiction",

s14(1) "Subject to this Act a person may institute a Matrimonial Cause ..."

and then referring to s. 56 for "Institution of Proceedings" as I have said this section which covers the institution of proceedings of a kind referred to in par. (c) of the definition does not seem to envisage such a proceeding not related to a proceeding under this Act of a kind referred to in par. (a) or par. (b).

It would further appear that the Act does not envisage the registration of a foreign divorce or such like order which then provides the basis for proceedings for settlement of property based on that "divorce".

It is quite open to the courts of one country to be reluctant to deal with ancillary property settlements following a foreign divorce. Whilst we may be prepared to register settlement orders regarding payment of moneys or maintenance provided the order providing the substantive relief is registrable under the Judgements Enforcement (Reciprocal Arrangements) Act 1976 it may be asking our courts to go too far into the family law of the country where the parties had elected to settle their substantial proceeding by expecting us to deal with substantial settlements of property following a foreign divorce. Counsel has not directed me to any rule of private international law allowing me to find such a jurisdiction or such a precedent.

Parties are free to choose their jurisdiction but once having done so they must accept the limits and extent of that jurisdiction. It is not as if the applicant here is excluded from seeking any relief to whatever problems that may have arisen over the ownership of the property within this jurisdiction. It is just that the applicant is excluded from seeking any solution or settlement by way of proceedings under the Matrimonial Causes Act unless they are in relation to proceedings under that Act for a decree or declaration of a kind referred to in pars (a) or (b) of the definition of "matrimonial cause" in s. 1.

I order that the application be struck out.

Application struck out.

__________________________

Solicitor for the applicant: Kirkes.
Solicitor for the respondent: P. Donigi.