Koroiwaca v Bakoso [2004] FJHC 207; HBA0003.2004 (26 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: HBA0003 OF 2004
{Magistrate’s Court MTC Case No.: 180 of 2001}

BETWEEN:

INISE B. KOROIWACA
APPELLANT

AND:

RATU GEORGE R.S. BAKOSO
RESPONDENT

Mr. E. Veretawatini for the Appellant
Mr. V. Maharaj for the Respondent

JUDGMENT

“Divorce creates many problems. One question always arises. It concerns how the property of the husband and wife should be divided and whether one of them should continue to support the others. Stated in the most general terms the answer is obvious. Every one would accept that the outcome on these matters, whether by agreement or court order, should be fair, more realistically, the outcome ought to be as fair as it possible in the circumstances. But every one’s life is different. Features which are important when discussing fairness differ in each case. And sometimes different minds can reach different conclusions on what fairness requires. Then fairness like beauty lies in the eyes of the beholder.” – White v. White (2000) 1 ALL ER 1.

Counsels in the appeal before me argued with great deal of moderation. They both concluded that the proceedings in the Magistrate’s Court were irregular. I agree and was minded to send the case back for rehearing by another Magistrate. However, they requested that some guidelines are warranted in Divorce cases for resolutions of property matters by magistrates.

FACTS:

The parties were married in April 1986. It appears from ages of children that the parties had lived in de-facto relationship prior to the marriage. The petition names three children born in August 1983, September 1984 and June 1986. The petition was filed in December 2002 by which time one child was over 19 years, another over 18 years and third one 16 years.

On 13th February 2003 Decree Nisi was ordered to become absolute on expiry of forty days. The custody of all three children (two of whom were over 18 years) was granted to the petitioner with reasonable access to the respondent. The respondent husband was ordered to pay maintenance of $100.00 fortnightly for the children, until further order of the court. The petitioner and three children were permitted to occupy the matrimonial home. The matrimonial property was ordered to be transferred to the three children and even though it is not very clear the petitioner and respondent were to be trustees.

On 24th March 2003 the decree was made absolute. The court records show that the respondent/appellant had agreed to various orders being made including orders for transfer of property. He was unrepresented.

On 28th February 2003 the respondent/appellant wrote a letter directly to the Magistrate (not the Magistrate who had heard the formal proof) asking for review of orders made on Decree Nisi. This application was entertained. The respondent’s wife was called to court. Affidavits were ordered to be filed by both parties. No oral evidence was called for. A fresh order was made in respect of matrimonial property under which the matrimonial property was ordered to be sold, mortgage paid off, the respondent husband’s contribution be paid back to Fiji National Provident Fund and surplus to be shared equally between the petitioner and the respondent.

NEED TO EXAMINE TITLE BEFORE MAKING ORDERS:

There are certain features of this case which are quite disturbing. The husband was unrepresented. He may have consented to the orders but the issue remains did he really understand the implication of property orders which were going to be made. The records show that no evidence was led about the matrimonial property. No copy of title was called for. The court was not even aware whether it was Crown Land, Native Land or freehold. Enquiries regarding the nature of title are always relevant in Fiji as in case of State land and native land and Housing Authority land the consent to transfer must be obtained from the relevant authorities before transfer of property can be done. The obtaining of consent to transfer from these authorities in a statutory requirement which cannot be overridden by the courts. At times properties are mortgaged to Banks which might oppose certain transfers unless they are paid off. Their view must be taken instead of only later finding that orders made cannot be put into practice. The court must always insist on counsels or parties producing a certified true copy of a title which shows current endorsements on title as there may be mortgages, charges or caveats against the title and which cannot be ignored when property matters are being dealt with. Existence of such interests on the title must be addressed before transfers to one party or children can be ordered.

The husband’s application for review of Decree Nisi by letter is equally disturbing. I was at a loss how the second magistrate had reheard the property matter. It was Mr. Vijay Maharaj, counsel for the applicant who made a copy of that letter available to me. The letter was not part of the record. There might have to be insistence on proper applications as it has implications for the revenue. No filing fees was paid on this letter so the application was not properly before the court. It also appears from the record that the second magistrate was not merely carrying out a variation of the property order but looking at it de novo leaving two seemingly contradictory orders in respect of the matrimonial properly on the title. I set aside both the orders so far as they relate to the property at 34 Velau Drive which parties agree is matrimonial property held jointly by the parties.

Parties agree that divorce was properly granted so that is not an issue.

PARTIES MUST UNDERSTAND CONSEQUENCES OF ORDERS:

In matrimonial matters the court is not there merely to rubber stamp the wishes of the parties. The court must comply with the requirements of the Matrimonial Causes Act. Facts must be proved to the reasonable satisfaction of the court – see Section 93 of the Act and also Ivan Harold Gibson v. Salaseini Nakacia – HBA0017 of 2001 judgment of Scott J. where he has gone to great length to explain the requirements of the Act and the need for court to be reasonably satisfied on evidence before making the orders.

Property settlements are done under Section 86 of the Matrimonial Causes Act. The court can make such orders it “considers just and equitable in the circumstances of the case”. The court has a discretion in making such orders. The section grants the court the discretion. Very often both parties or a party in divorce proceedings are unrepresented. They may be tired of a relationship which has turned out to be tumultuous. Their minds may be focused on one thing – to bring an end to that relationship without appreciating other consequential orders. Accordingly great care ought to be taken to see that parties fully appreciate the type of orders and their consequences. The court must ensure that the party to be affected is aware of the nature of the orders sought against him and adequate opportunity is given to him/her to present his/her case in opposition to making such orders. As Barwick CJ in Sanders v. Sanders [1967] HCA 33; 1968 ALR 43 at 48 put it:

“Great care ought to be exercised to ensure that opponent parties are fully apprised of what is claimed against him or them before the court’s powers are exercised. Substantial adherence to the Matrimonial Causes Rules will no doubt be the most efficacious way of ensuring both that knowledge and adequate opportunity to meet the claims in fact being made.”

FACTORS TO LOOK AT:

When an order for settlement of property is sought, then it becomes important to decide how and when the property was acquired as these factors might decide whether the property is a matrimonial property. Factors to look at would be :

(a) whether the property was acquired by a party before marriage.

(b) whether the property had been inherited by a party by disposition in a will from his parents or a relative. This would suggest that such a property does not form part of the matrimonial property.

(c) Thirdly, we have situation where property is acquired during marriage but transferred into the name of one party. The Matrimonial causes Act gives no criteria or factors to look at when deciding whether a property is a matrimonial property or when making orders under Section 86(1).

Respective contributions can be taken into account in consideration of an appropriate order under Section 86(1) – Protima Devi v. Rajeshwar Singh – Fiji Court of Appeal 29 of 1985. Contribution is not solely confined to financial contribution. It is much more than that. There must also be an end to the obsolete assertion that a breadwinner’s contribution weighs heavier than the one who looks after the home. The nature of a breadwinner’s and a homemaker’s contributions are intrinsically different. Each should be recognized as no less valuable than the other. A wife who stays home and looks after the children contributes in her own special way to the family. Motherhood too is a profession. There is no basis for discriminating between a breadwinner’s and a homemaker’s contributions. What is expected by legislature is for court to make a fair and just property settlement.

The final order is that the property settlement orders in respect of 34 Velau Drive are set aside. The matter is to be reheard by a different magistrate.

[ Jiten Singh ]
JUDGE

At Suva
26th May 2004