QUESTION

a) ” How do the courts of your jurisdiction determine the property rights of

the parties to a long standing de facto relationship? “

Property law of de-facto couples are in the Pacific are governed by common
law. Exceptions being Fiji and Samoa, who have provisions expressly
mentioned within their legislation. In Fiji’s case, it is under the Family law Act
2003 of Fiji. Under Sections 161 and 162 of the Act outlines the matrimonial
property rights for married couples. Laws of Fiji also recognises de-facto
couples which means de-facto couples might also be able to claim those
benefits, even though they are not legally registered as a married couple.
Section 154 of Fiji’s Family Law Act defines and gives recognition to de-facto
couples, allowing them to share some of the benefits afforded to married
couples in matters such as probate, succession, etc.

b) ” How do the courts determine matrimonial property of married parties

about to obtain a divorce?”
Courts in Fiji utilize Section 162 of the Family Law Act as a guideline to
ascertain and assess property rights of married couples. This allows the Courts
to take into account financial contributions made by the parties when it came
to property, other contributions that may have lead to the welfare,
improvement or conservation towards the property, among other reasons.

c) ” Should the property of married couples and those in de-facto

relationships be governed by the same laws? Why or why not?”

I am personally of the opinion that both de-facto and married couples should
be given equal rights in relation to property rights. This is because de-facto
couples tend to wait longer when it comes to marriage. During this period of
the relationship, they usually work, save money and build themselves in order
to be financially stable during the marriage phase of their lives. Therefore, it
think that the laws should allow for both de-facto and marriage couples to
have equal property rights, especially if both have contributed towards the
growth and progress of one another.

However, I also think that this should be applicable for for de-facto couples in
longer term relationships. Otherwise it would give rise to people getting in
short-term relationships with the intention of extorting money from the other
party. Hence, I believe that the length of the relationship should also play a
major role in allowing property rights for de-facto couples.

Greetings Varunesh, thank you for your submission; I share the same views
as you. Although, I would like to add on to the discussion for part (a); you
have mentioned that the Act recognizes the de facto relationship therefore
allowing them to share some of the benefits afforded to married couples. In
my opinion, de facto couples and married couple both have same rights
because Section 154 of the Family Law Act 2003 of Fiji interprets “party to a
marriage” as including a party to a de facto relation. Thus, the courts in Fiji
determine the property rights of the parties to a long-standing de facto
relationship just as they determine the matrimonial property of married
parties about to obtain a divorce, that is, applying Section 162 (1) of the
Family Law Act 2003, provided that the de facto partners establish in court
that they were in a de facto relationship.

DISCUSSION FORUM 9

QUESTION A

In accordance with Section 154A of the Family Law Act of 2003, "all the facts of the
relationship, including but not limited to the following as may be relevant in a given
situation, are to be taken into account in establishing whether two persons are in a de
facto relationship;

(a) Duration of the relationship

(b) Nature and extent of common residence

(c) Existence of sexual relationship

(d) Degree of financial dependence

(e) Ownership, use and acquisition of property

(f) Degree of mutual commitment to shared life

(g) Care and support of any existing children

Performance of household duties

(i) Reputation and public aspect of the relationship.

The case of Maharaj v. Devi [2020] FJHC 377 is cited, which describes how the
property was distributed. Since the deceased had abandoned the plaintiff and her
children, the deceased and the plaintiff were not a couple. When it rejected the money
claim, the court conducted a fair hearing. The ex-wife and ex-defacto partner do not
have any claim to the deceased person's assets under Section 6(1)(c), as she was not a
defacto partner.

QUESTION B

The Family Law Act's Section 162 is a guideline that the Fijian courts use to
determine marital assets. These include any financial contributions, direct or indirect;
the ages and health conditions of both parties; the resources available to maintain a
fair level of living; and factors such as child custody. Common law remedies are also
used by courts in the region, which treat the responsibilities of a husband and wife or
earner and housekeeper equally.
QUESTION C

As per my understanding, Fiji's existing legal system makes explicit provisions for
married couples but less so for cohabitating couples. This should continue to be kept
apart, and possibly de facto couples will have their own set of laws. This is due to the
fact that a marriage typically involves a protracted process involving the society and
the courts. The fact that they were legally married still matters, regardless of how
brief a marriage may be. Contrary to de facto partnerships, the length of a relationship
may vary, making it risky to apply the same laws to all parties regardless of how long
they were together. Therefore, there shouldn't be any distinctions made as doing so
will provide married couples and those in de facto relationships an equal chance to
exercise their property rights.

Kushagra Ayush Lachman

Student Id No. s11156918

Reference

1. Family Law Act 2003 (Fiji) [online] Available

at https://laws.gov.fj/Acts/DisplayAct/919# [Accessed 29 October 2022].

2. Maharaj v. Devi [2020] FJHC 377.

DISCUSSION FORUM 9

QUESTION A

In accordance with Section 154A of the Family Law Act of 2003, "all the facts of the
relationship, including but not limited to the following as may be relevant in a given
situation, are to be taken into account in establishing whether two persons are in a de
facto relationship;

(a) Duration of the relationship

(b) Nature and extent of common residence

(c) Existence of sexual relationship

(d) Degree of financial dependence

(e) Ownership, use and acquisition of property

(f) Degree of mutual commitment to shared life

(g) Care and support of any existing children

Performance of household duties

(i) Reputation and public aspect of the relationship.

The case of Maharaj v. Devi [2020] FJHC 377 is cited, which describes how the
property was distributed. Since the deceased had abandoned the plaintiff and her
children, the deceased and the plaintiff were not a couple. When it rejected the money
claim, the court conducted a fair hearing. The ex-wife and ex-defacto partner do not
have any claim to the deceased person's assets under Section 6(1)(c), as she was not a
defacto partner.

QUESTION B

The Family Law Act's Section 162 is a guideline that the Fijian courts use to
determine marital assets. These include any financial contributions, direct or indirect;
the ages and health conditions of both parties; the resources available to maintain a
fair level of living; and factors such as child custody. Common law remedies are also
used by courts in the region, which treat the responsibilities of a husband and wife or
earner and housekeeper equally.

QUESTION C

As per my understanding, Fiji's existing legal system makes explicit provisions for
married couples but less so for cohabitating couples. This should continue to be kept
apart, and possibly de facto couples will have their own set of laws. This is due to the
fact that a marriage typically involves a protracted process involving the society and
the courts. The fact that they were legally married still matters, regardless of how
brief a marriage may be. Contrary to de facto partnerships, the length of a relationship
may vary, making it risky to apply the same laws to all parties regardless of how long
they were together. Therefore, there shouldn't be any distinctions made as doing so
will provide married couples and those in de facto relationships an equal chance to
exercise their property rights.

Kushagra Ayush Lachman

Student Id No. s11156918

Reference

1. Family Law Act 2003 (Fiji) [online] Available

at https://laws.gov.fj/Acts/DisplayAct/919# [Accessed 29 October 2022].

2. Maharaj v. Devi [2020] FJHC 377.

a)

In the Fiji jurisdiction, under the Famiy Law Act 2003 sections 160 -162 it
covers what the Court has to take into account when awarding the rights of
a property to a party. In section 154 of the Family Law Act, it states the
definition of de-facto relationship and marriage, and later mentions ‘party of
a marriage’ which states that it includes a party to a de-facto relationship.
In Sections 160-162 one could see that the Act does not separate the
parties but uses ‘party to a marriage’ which includes both parties, so, it
could be said that there is no separate section that governs a de-facto
relationship. Section 161 states under what circumstances can a Court make
alterations of property interests.

Section 162 states the Factors to be taken into account when awarding
property rights, such as: the financial contribution made, other contributions
made, any laws of the Fiji Islands or of other country, financial resources;
and age and state of health of the parties, to name a few.

b)

In section 154 of the Family Law Act, it states the definition of de-facto
relationship and marriage, and later mentions ‘party of a marriage’ which
states that it includes a party to a de-facto relationship. So, the Act does not
separate the 2 categories but see’s it as one. What applies to the de-facto
relationship also applies to married couple.

c)

Yes, I believe that married couples and de-facto relationships should be

governed by the same laws when concerning the allocation of property after
separation. I firmly believe that the only thing that separates these 2
categories is a piece of paper saying they are married, besides that the
parties go through the same situations. So, why make a separate law to
govern a de-facto relationship when the factors are so similar in nature.

As seen in the case of Gillies v. Keegh [1989] 2 NZLR 327 “although the
Court has used different concepts to address de-facto property cases
(contructive trust, unjust enrichment, common intention, estoppel)
ultimately the same factors must be taken into account” So, the case also
used the same factors that govern a married couple.