The Married Women’s Property Act (Chapter 281) gives a married woman full capacity over her property — with one preserved exception.
Section 5(1) does not interfere with or make inoperative a restriction on anticipation or alienation attached to the enjoyment of property by a married woman.
Subject to this section, this Act does not —
(a) interfere with or affect a settlement or an agreement for a settlement made or to be made, whether before or after marriage, respecting the property of a married woman; or
(b) interfere with or make inoperative a restriction against anticipation attached to the enjoyment of any property or income by a woman under a settlement, agreement for a settlement, will or other instrument.
The device explained
A restraint on anticipation is a clause in a settlement or will providing that a married woman may not sell, mortgage, charge or otherwise deal in advance with property given to her, or with income before it falls due.
Equity developed it for a specific reason. Property could be settled to a married woman’s separate use, putting it beyond her husband’s control — but a husband could still press her to sell it or borrow against it and hand over the money. The restraint made that impossible: she could not deal with the capital at all, only receive the income as it accrued.
So it limits her power in order to protect her from pressure. That is why sections 5(2) and 19(1)(b) preserve restraints the Act might otherwise have swept away with everything else.
Sections 19(2) and (3) — creditors come first
A restriction against anticipation in a settlement, or an agreement for a settlement, of a woman’s own property to be made or entered into by herself, is not valid as against debts contracted by her before marriage.
Such a settlement has no greater force or validity against creditors of the woman than a like settlement made or entered into by a man would have against his creditors.
Note what subsection (2) is confined to: a settlement of her own property, made by herself. Where a third party — a parent, a testator — settles property on her with a restraint, the restraint stands.
Where she settles her own property on herself, however, the restraint gives way to debts contracted before her marriage — the very debts section 13 preserves.
Subsection (3) states the equality principle directly: her settlement is worth no more against her creditors than a man’s would be against his. Compare section 9(2), which denies validity as against a husband’s creditors to a gift remaining in his order and disposition, or to a deposit in his wife’s name in fraud of them.
Section 20 — costs out of restrained property
In an action or proceeding instituted by a woman, or by a next friend on her behalf, the court before which it is pending —
(a) has jurisdiction to order, by judgement or order, payment of the costs of the opposite party out of any property that is subject to a restraint on anticipation; and
(b) may enforce the payment by (i) the appointment of a receiver and (ii) the sale of the property or otherwise, as seems just.
A restraint prevents property being reached. Without section 20, a woman with substantial restrained property could sue, lose, and leave the successful defendant with an unenforceable costs order.
The section restores the balance, but narrowly: it applies only where the proceeding was instituted by her (or by a next friend on her behalf). A woman who is sued and loses does not expose her restrained property under this section.
That distinction fits the protective purpose. The restraint shields her from pressure and from others’ claims; it is not a shield she may use as a sword.
Sections 19(4) and (5) — settlements by a husband
Subject to subsection (5), a settlement or agreement for a settlement made by a husband or intended husband, whether before or after marriage, respecting the property of a woman whom he has married or intends to marry, is not valid unless it is executed by her, if she is of full age — or, if she is not of full age, confirmed by her after she attains full age.
If such a woman dies an infant, a covenant or disposition by her husband in the settlement binds or passes an interest in any of her property to which he is entitled on her death, and which he could have bound or disposed of if this Act had not been passed.
Subsection (4) prevents a man dealing with his wife’s or intended wife’s property without her. The settlement is not valid unless she executes it — or, if she was under age, confirms it on reaching full age.
That is consistent with section 5(1), under which property belonging to a woman at her marriage, or acquired by or devolving on her, belongs to her in all respects as if she were not married; and with section 2(a), her capacity to dispose of property herself.
Note that these provisions concern marriage settlements — trusts made in contemplation of or during a marriage. The National Court has a separate power over such settlements on a divorce: section 75(2) of the Matrimonial Causes Act (Chapter 282) allows it to order how property dealt with by ante-nuptial or post-nuptial settlements is to be applied for the benefit of the parties and children.
Formal marriage settlements with restraints on anticipation are uncommon in Papua New Guinea today. The provisions matter chiefly where an older instrument is still operating — and where they do, sections 19 and 20 set out precisely how far the protection extends.
Sources
- Married Women’s Property Act (Chapter 281) — ss 2, 5, 9, 13, 19, 20
- Matrimonial Causes Act (Chapter 282) — s 75
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.