Navara v Tange [2003] PGDC 22; DC238 (6 May 2003)

DC238

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1184 OF 2003

BETWEEN

Mary Navara
Complainant

V

Henry Tange
Defendant

Lae: Ipang Martin
2003: 6 May.

Family Law - Expenditure incurred during marriage term whether recoverable by action

Contract Law - No intention to create legal relationship - whether expenditure during marriage recoverable.

Held:

There is no cause of action under which an aggrieved wife may recover the every day expenditure incurred during the course of the marriage relationship because they are not matters to which the Courts attribute a contractual relationship.

The following cases are cited in the judgement.

Balfour -v- Balfour [1919] 2KB 571 Bulage -v- Ben [1990] PNGLR 20

COUNSELS
Complainant appeared in person
Defendant appeared in person

6TH MAY 2003

IPANG Magistrate: This is a Private Prosecution matter which came through this Court by way of Summons upon Information filed by the Complainant.

The wording in the summons states that the defendant is living unlawfully in the Complainant's house, which is situated at Peter Block, Kamkumung, Lae without the consent of the Complainant as the block owner or title holder.

The Complainant then seek the following relief from this Court and I restate them:

1. That defendant be ordered to vacate the premises within 07 days.

2. That if the defendant fails to vacate the said premises than a warrant be issued, authorising members of Police Force to forcefully evict defendants out of the premises.

It became apparent to this Court during the hearing that the Complainant and Defendant are husband and wife living together.

Further to that Defendant produced a copy of their marriage certificate which is a conclusive evidence that both are legally married.

1 Whether or not a marriage certificate as proof of legal marriage can be a bar to further proceeding to evict defendant as legal husband out of marriage home.

BRIEF FACTS:

At the beginning of the case, the Complainant alleged to her marriage to the Defendant was of a defacto relationship.

She claimed she signed the marriage certificate so that Defendant who was a police officer at the time could get a married accommodation at the Bumbu Police Barracks.

Complainant's version of evidence was support by Rafael Huafolo and Peter Tiba. Mr Huafolo is the complainant's paternal uncle who claimed he was never aware of complainant's relationship with a man from Chimbu.

Peter Tiba said in 1998, complainant approached him and paid K400-00 for the block of land. So she claimed to be the owner of the said property.

Defendant filed a sworn affidavit in Court and said that he is legally married to the complainant as of the 16th March, 1994. He told the Court that since 2001, his wife, the complainants behaviour changed. That she comes home late from work. She goes out on weekends and comes home late. She also refuses to have sexual intercourse with the defendant.

Defendant further alleged that on 2nd January 2003, complainant went to work and never returned. He said she is now having extra marital affair with Anthony Basagel.

LAW:

On my findings, I am satisfied and convinced that Complainant and Defendant were married in church on the 16th March, 1994. Basically, marriage is an agreement by which we see Defendant and Complainant entered in to a certain legal relationship with each other and which creates and imposes mutual rights and duties.

Complainant being an educated lady (not illiterate) understood very well the nature of marriage ceremony which was performed and so she could not after several years denied she was not married to the Defendant.

In this case I do find the Complainant's marriage to Defendant is still valid. What would then be the legal implication. I would follow the principle applied in Bulage -v- Ben which states - " If a man enters in to a relationship with a woman and in order to keep her happy and himself happy too, spends money on her, then he can not claim that money back if she eventually leaves him. The same would apply to a woman who laid out money in her relationship with a man".

The Complainant who wanted to help improve her happy living with the Defendant expended her money by buying a piece of land. She could not quite possible evict the Defendant out of the said block of land when the marriage is still valid.

I do find there is no recognised cause of action in law. I therefore dismiss the case and discharge the defendant