An order for a settlement of property is worthless if the party who holds the title simply refuses to sign the transfer. Section 77 of the Matrimonial Causes Act (Chapter 282) solves that.
Section 77(1) — appointing someone to sign
Where a person who is directed by an order under this Part to execute a deed or instrument refuses or neglects to do so, or where service of any such order on any such person is dispensed with under section 94, the Court may —
- appoint an officer of the Court or other person to execute the deed or instrument in his own name in the place of that person; and
- authorise that appointee to do all acts and things necessary to give validity and operation to the deed or instrument.
The execution of a deed or instrument by a person appointed under subsection (1) has the same force and validity as if it had been executed by the person directed by the order to execute it.
“Refuses or neglects” — a deliberate refusal is not required. A party who simply does nothing falls within the section.
“In his own name” — the appointee signs as themselves, not by forging the party’s signature. Subsection (2) then supplies the legal effect.
“Or other person” — the appointee need not be a court officer. Where technical knowledge is needed, or where a particular person is best placed to complete the transaction, the Court may name them.
The second trigger — absent parties
Service of process may be dispensed with where the Court thinks it necessary or expedient. Section 77(1) then operates even though the party has never been served with the order.
This covers the party who has left the country, cannot be found, or is deliberately evading proceedings. Without it, a spouse could defeat a property order simply by disappearing.
Section 94(1) also allows service in or outside Papua New Guinea in accordance with the Rules — so dispensation is a last resort, not a first step.
Which orders section 77 supports
| Order | Document typically required |
|---|---|
| Settlement of property — s 75(1) | Transfer of a State lease or other registered land; a trust deed |
| Marriage settlements — s 75(2) | Deed varying or appointing under an existing settlement |
| Securing maintenance — s 76(1)(b), (c) | Mortgage, charge or other security instrument |
| Trustees — s 76(1)(e) | Deed of appointment or retirement of trustees |
| Documents of title — s 76(1)(d) | Production of certificates of title, share certificates |
Where the property is a State lease or other land under the Land Registration Act (Chapter 191), title passes on registration of an instrument of transfer, not on the making of the court order.
That is exactly why section 77 exists. The Registrar needs an executed transfer in registrable form. A court order alone will not do — but a transfer executed by a person appointed under section 77 will, because subsection (2) gives it the same force as the party’s own execution.
Section 77(3) — who pays
The Court may make such order as it thinks just as to the payment of the costs and expenses of and incidental to the preparation of the deed or instrument and its execution.
In practice the costs will usually fall on the party whose refusal made the appointment necessary. The power is discretionary, but it exists so that a party who has complied is not out of pocket because the other did not. See also section 97 on costs generally.
The alternative — attachment
A refusal to comply with a court order is contempt, and section 86(1) allows enforcement by attachment or sequestration of orders for maintenance, costs, custody or access.
But imprisoning a party does not produce a signed transfer. Section 77 does — it simply bypasses the recalcitrant party, gets the document executed, and moves on.
Note also that section 86(1) is confined to maintenance, costs, custody and access. It does not extend to property settlement orders, which makes section 77 the principal enforcement route for section 75.
Where a party is likely to dispose of the asset before the order can be executed, the answer is section 93 — setting aside or restraining a disposition made to defeat an order — together with the injunction power in section 96, which allows an injunction in aid of the enforcement of a decree.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 75–77, 86, 93, 94, 96, 97
- Land Registration Act (Chapter 191)
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.