Section 5 of the Married Women’s Property Act (Chapter 281) settles what a married woman owns.
(1) Property that —
(a) belongs to a woman at the time of her marriage; or
(b) is acquired by or devolves on a married woman,
belongs to her in all respects as if she were not married, and may be disposed of accordingly.
(2) Subsection (1) does not interfere with or make inoperative a restriction on anticipation or alienation attached to the enjoyment of property by a married woman.
The two limbs of subsection (1)
| Limb | Examples |
|---|---|
| (a) Owned at the time of marriage | Savings, land, shares, business interests, personal possessions brought to the marriage |
| (b) Acquired during the marriage | Earnings; property bought with them; a business built up; gifts made to her |
| (b) Devolving on her | An inheritance; property passing under a will or on intestacy; the proceeds of a life policy held on trust for her |
These words do the work. The property is hers on exactly the terms it would be if she were single: she may keep it, sell it, mortgage it, give it away, or leave it by will.
The word “devolves” is important. Under the old law, property inherited by a married woman could pass to or be controlled by her husband. Section 5(1)(b) puts an end to that: an inheritance is hers.
“Property” is not narrowly confined either. Section 1 defines “investment” widely, and it expressly includes land registered under the Land Registration Act (Chapter 191) and lands held under any other law relating to land.
Why the Act still uses the old phrase
The Act refers to a married woman’s “separate property” in sections 12 and 18 and in section 17.
The expression comes from equity. Before statutes of this kind, the common law gave a wife’s property to her husband, and the Court of Chancery responded by recognising property settled to a married woman’s separate use — property she alone could deal with, protected from her husband.
Section 5 makes what was once an exception into the rule. Every item of property a married woman owns is now separate property, whether or not any settlement says so.
The phrase survives in the Act because the sections that use it were drafted around it: section 12 gives her civil remedies in respect of her own property against all persons including her husband; section 17 imposes on a married woman having separate property the same liability for the maintenance of her children as the husband; and section 18 gives her legal personal representative the same rights and liabilities in respect of her separate estate as she would have had.
Section 5(2) — restraint on anticipation
Section 5(1) does not interfere with or make inoperative a restriction on anticipation or alienation attached to a married woman’s enjoyment of property.
Section 19(1)(b) says the same for restrictions imposed by a settlement, agreement for a settlement, will or other instrument.
A restraint on anticipation prevented a married woman from selling or charging property or future income in advance. Its purpose was protective — to stop a husband pressing her to realise her capital for his benefit.
Section 5(2) preserves such restraints where they exist, because they were imposed for her benefit. But the Act limits them: section 19(2) makes a restraint in a settlement of a woman’s own property, made by herself, invalid as against debts contracted before her marriage; and section 20 allows a court to order costs to be paid out of property subject to a restraint.
When ownership is disputed
Section 6(1) — an investment standing in a married woman’s sole name is prima facie evidence that she is beneficially entitled to it.
Section 6(2) — an investment allotted, registered or transferred into her sole name shall, unless the contrary is shown, be deemed to be her property.
Section 15 — where a dispute arises between husband and wife as to title to or possession of any property, either may apply in a summary way to a Judge for an order declaring the title or right to possession.
Section 5 answers the question whose property is it? It does not empower a court to move property from one spouse to the other because that would be fair.
That power exists only in a matrimonial cause: section 75 of the Matrimonial Causes Act (Chapter 282) allows the National Court to require a settlement of property as it thinks just and equitable. And section 4 of that Act excludes customary marriages altogether — so for most married people in Papua New Guinea, this Act and section 15 are the available route.
Note too that customary land is held by a group under custom rather than by an individual, and is not property that section 5 makes an individual’s own.
Sources
- Married Women’s Property Act (Chapter 281) — ss 1, 2, 5, 6, 12, 15, 17–20
- Matrimonial Causes Act (Chapter 282) — ss 4, 75
- Land Registration Act (Chapter 191)
- 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.