Section 75 of the Matrimonial Causes Act (Chapter 282) is the Act’s property power.
Section 75(1) — requiring a settlement
In proceedings under this Act, the Court may by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such settlement of property to which the parties are, or either of them is, entitled (whether in possession or in reversion) as the Court thinks just and equitable in the circumstances.
“The parties…or either of them” — the order may be directed at one party alone, or at both.
“For the benefit of all or any of the parties to, and the children of, the marriage” — the beneficiaries may include the children, not only the spouses.
“Whether in possession or in reversion” — a future interest counts. A party entitled to property only on the death of another, or on the falling in of a life estate, holds property within the section.
“Just and equitable in the circumstances” — the test. Unlike section 73, section 75 lists no factors, so the discretion is at large, informed by contributions, needs, the length of the marriage and the position of the children.
The section speaks of requiring the parties to make a settlement of property. That is not the same as a bare order vesting title in the other spouse. The machinery in section 76 makes the point — the Court may appoint or remove trustees (s 76(1)(e)) and order that any necessary deed or instrument be executed (s 76(1)(d)).
Where a party will not sign, section 77 allows the Court to appoint an officer to execute the document in that party’s place.
Section 75(2) — ante-nuptial and post-nuptial settlements
The Court may make such order as it thinks just and equitable with respect to the application, for the benefit of all or any of the parties to, and the children of, the marriage, of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties, or either of them.
| Subsection | Property affected | What the Court does |
|---|---|---|
| 75(1) | Property to which a party is entitled, in possession or reversion | Requires a settlement to be made |
| 75(2) | Property already dealt with by an ante-nuptial or post-nuptial settlement | Orders how it is to be applied |
A marriage settlement is a trust made in contemplation of, or during, a marriage — property held for the spouses and their issue. Its terms assume the marriage continues.
When the marriage ends, the settlement’s scheme may no longer make sense. Subsection (2) lets the Court redirect the property to the parties and children on a footing that reflects the new position, rather than leaving the trust to operate on obsolete assumptions.
Formal marriage settlements are uncommon in Papua New Guinea, but the words “post-nuptial settlement” are wide enough to capture arrangements made during the marriage that place property in trust for the family.
Section 75(3) — the age limit
The power to make orders of a kind referred to in this section shall not be exercised for the benefit of a child who has attained the age of 21 years unless the Court is of opinion that there are special circumstances that justify it.
This mirrors section 73(4). Continuing education or a disability preventing self-support are the usual special circumstances.
Two important limits on section 75
Section 78(3) allows the Court, where a petition has been dismissed after a hearing on the merits and certain conditions are met, to make a Part VII order — but expressly other than an order under section 75.
So maintenance and custody survive a dismissed petition; property settlement does not. The property power is tied to a marriage that has actually been dissolved or annulled.
Section 4 excludes customary marriages from the Act, so section 75 is unavailable to those parties.
And customary land — the great majority of land in Papua New Guinea — is held by a group under custom, not by an individual. It is not property to which a party is “entitled” in the sense section 75(1) contemplates, and it cannot be settled by order of the National Court in a divorce.
See the Land Act 1996 and Constitution Schedule 2.1 on the recognition of custom.
Protecting a section 75 claim
Section 93 — the Court may set aside or restrain a disposition made to defeat an existing or anticipated order, including one for the making or variation of a settlement.
Section 96 — the Court may grant an injunction, by interlocutory order or otherwise, where it appears just or convenient.
Section 56(3) — ancillary claims must be included in the petition, so a property claim should be pleaded from the outset.
Separately, the Married Women’s Property Act (Chapter 281) gives a summary route for deciding title between spouses, which operates independently of any divorce.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 4, 56, 72–78, 93, 96
- Married Women’s Property Act (Chapter 281)
- Land Act 1996
- Constitution — Sch 2.1
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.