N946

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BULAGE

V

BEN

Kundiawa
Brunton J

20 November 1990

FAMILY LAW - De facto relationships - Expenditure incurred during cohabitation - Whether recoverable by action.

CONTRACT - Matters not giving rise to - No intention to create contractual relationships - De facto relationship - Whether expenditure during cohabitation recoverable.

There is no cause of action under which a de facto husband or wife may recover the everyday expenditure incurred during the course of the relationship because they are not matters to which the courts attribute a contractual relationship.

Balfour v Balfour [1919] 2 KB 571, followed.

Comments on legal relationships in respect of property.

Cases Cited

The following cases are cited in the judgment:

Balfour v Balfour [1919] 2 KB 571.
Eves v Eves [1975] 1 WLR 1338; [1975] 3 All ER 768.
Synge v Synge [1894] 1 QB 466.

Appeal

This was appeal from an order made by a District Court magistrate that a de facto wife pay the sum of K1,480 to the de facto husband for the amount of money spent on the de facto wife during cohabitation.

Counsel:

T Bongere, for the appellant.

20 November 1990

BRUNTON J.: The complainant respondent sued his ex de facto wife the defendant/appellant for the moneys he claimed he had spent on her during the time they lived together.

The complaint in the District Court alleged:

"That you owed the Complainant the sum of Three Thousand Four Hundred and Sixty-Six kina (K3,466.00), the amount of money spent on you while you were living with the Complainant as his wife.

The above amount was spent on you by purchasing clothes, food etc, and also given some to your wantoks and so on.

You then divorced the Complainant and living with another man.

Therefore the Complainant seeks Court Order to claim the above amount in full plus cost."

The evidence before the District Court disclosed that the appellant had been married in a church, and her husband had deserted her. In 1986, the respondent, a community school teacher, took his furlough leave and went to stay in the village of the appellant. They developed a relationship and lived together between 14 June 1986 and 10 April 1989. The appellant then went back to her previous husband following a court case. The respondent says she left him with an 11-month-old baby. The appellant says that she had a baby by the respondent and that he took the child from her. This issue of fact remained unresolved on the depositions.

The respondent had given evidence in the District Court that he had laid out moneys on the appellant during the time they lived together:

December 1986 K200 
Brother’s Bride-price — 600 
(K300 pig plus K300 cash)  
Trade Store 400 
School Children’s Party 50 
Her children 150 
Compensation for death 80 
TOTAL K1,480 

The magistrate ordered that the appellant pay to the respondent K1,480.

There was no evidence of the custom of the parties before the Court. There was no evidence before the Court that this action was based in custom. If there was to be a legal basis for the cause of action, it would have been either in statute or in case law. There is no statute that gives a man the right to sue his girlfriend for the money he spends on her. In this country there are no rules of law developed by the courts which would support such an action. Outside of marriage, men and women do spend sums of money on each other in the process of courtship, and when they enter de facto relationships. 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 may be questions of how the property is to be partitioned, or who has the ownership of the property. But there is no action to recover the every day expenditure incurred during the course of the relationship. In many cases outlays of cash will be in the nature of domestic expenditure on food, clothing and other essentials. In other cases the expenditure will be of the sort to which formal, or business relations are not normally attributed, outlays made as a result of the love or affection existing at the time between the parties. They are not matters to which the courts attribute a contractual relationship: see Balfour v Balfour [1919] 2 KB 571. This does not mean that married couples or couples living together cannot enter into legal relationships in respect of property. For example, where a man before marriage promised his future wife to leave her a house if she married him, the woman was able to enforce the promise although it was made informally and in affectionate terms: Synge v Synge [1894] 1 QB 466. A more modern example is Eves v Eves [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 to be 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 of the parties acted in reliance on the promise, and contributed labour, or other resources, on the basis of the promise (either express or implied).

In this case there was no evidence of any promise either express or implied. There was no evidence that the expenditure went towards a particular item of property that the respondent could claim. The expenditure was of the general nature that Papua New Guineans face in the course of their lives — bride-price, birthday parties, dinau (credit) at the trade store, compensation for a death. If a man enters into a relationship with a woman and in order to keep her happy, and himself happy too, spends money on her, then he cannot claim that money back if she eventually leaves him. The same would apply to a woman who laid out money in her relationship with a man. The situation may be different if there is evidence of some enforceable agreement between the parties, or the parties acquired a particular item of property, be it real property, a chattel, or a chose in action.

The order of the District Court was made in respect of a matter for which there was no recognised cause of action. It was therefore made without jurisdiction. The appeal is upheld. The orders of the District Court are quashed. Costs to the appellant.

Appeal allowed

Order of District Court quashed

_______________

Lawyers for the appellant: T Bongere & Co.