Section 15 of the Married Women’s Property Act (Chapter 281) provides a quick route for the commonest kind of matrimonial property dispute: whose is it?
If a dispute arises between husband and wife as to the title to or possession of any property —
(a) the husband or the wife; or
(b) a person, bank, company, public body, society or public officer in whose books any property of either spouse is standing,
may apply in a summary way to a Judge for an order declaring the title to, or the right to the possession of, the property.
Paragraph (b) is unusual
A bank holding an account, a company whose share register shows the shares, or a public officer holding a registered title may itself apply.
That solves a real problem. Where a husband and wife each claim an account or a shareholding, the institution is caught between two customers and risks liability whichever way it pays. Section 15(1)(b) lets it put the question to a Judge instead of choosing.
Section 15(4) then protects it: for the purposes of costs or otherwise, such a person shall be deemed to be a stakeholder only. It is not a party with an interest in the outcome and should not bear the costs of the spouses’ dispute.
Section 15 speaks of any property, so it is not confined to the “investments” defined in section 1 — though those are covered, and they include land registered under the Land Registration Act (Chapter 191).
The question the Judge answers is one of title or possession — who owns it, or who is entitled to have it.
Sections 15(2) and (3)
On an application, the Judge may —
(a) make such order (i) with respect to the property in dispute, and (ii) as to the costs of and consequent on the application, as he thinks proper; or
(b) direct (i) the application to stand over from time to time, and (ii) such inquiry to be made touching the matters in question as he thinks proper.
If either party so requires, the Judge may hear an application under this section in chambers.
| Section 15 application | Ordinary proceedings | |
|---|---|---|
| Form | Summary application to a Judge | Writ and pleadings |
| Who may start it | Either spouse, or the stakeholder | A party with an interest |
| Privacy | May be heard in chambers at either party’s request | Open court |
| Flexibility | May stand over; the Judge may direct an inquiry | Fixed procedural stages |
| Outcome | Declaration of title or right to possession, plus any proper order | Judgment |
Matrimonial property disputes often turn on contributions made over years without records. The Judge is not confined to deciding on the material first presented: the application may stand over, and such inquiry as he thinks proper may be directed.
Subsection (3) is a practical concession to privacy. Compare section 92 of the Matrimonial Causes Act (Chapter 282), under which a matrimonial cause is heard in open court unless the Court is satisfied that special circumstances justify exclusion.
Its importance in Papua New Guinea
Section 75 of the Matrimonial Causes Act (Chapter 282) allows the National Court to order a settlement of property, but only in proceedings under that Act — and section 4 provides that the Act does not apply to or in relation to a customary marriage.
Section 15 has no such limit. It applies to a husband and wife, and a customary marriage is fully valid under section 3 of the Marriage Act (Chapter 280).
Nor does section 15 require any divorce, separation, or matrimonial cause at all. A dispute may be resolved while the marriage continues.
Section 15 produces a declaration of title or right to possession. It applies ordinary property law — including section 5, under which a married woman’s property is hers as if she were not married, and section 6(1) and (2), under which sole registration is prima facie evidence of, and deems, her beneficial entitlement.
It does not empower a Judge to give one spouse property that belongs to the other because that would be fair. Only section 75 does that, and only in a matrimonial cause.
Section 15 is also the route contemplated by section 9(1), under which a court may, on an application under this Act, order an investment acquired by a married woman with her husband’s money, without his consent, to be transferred to him. And a married woman’s underlying right to sue — including to sue her husband — comes from section 12, under which she has, against all persons including her husband, the same civil remedies for the protection of her property as if she were not married.
Sources
- Married Women’s Property Act (Chapter 281) — ss 1, 5, 6, 9, 12, 15
- Matrimonial Causes Act (Chapter 282) — ss 4, 75, 92
- Marriage Act (Chapter 280) — s 3
- 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.