- Laws of Fiji

Last Updated: 1 December 2016

[FAM 162] Factors to be taken into account162

162

(1) In considering what order (if any) should be made under section 161 in proceedings with respect to any property of the parties to a marriage or either of them, the court must take into account—

(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of the last mentioned property, whether or not the last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
(d)the eligibility of either party for a pension, allowance or benefit under—
- (i)any law of Fiji or of another country; or
- (ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Fiji.

(2) For the purposes of subsection (1) the contribution of the parties to a marriage is presumed to be equal, but the presumption may be rebutted if a court considers a finding of equal contribution is on the facts of the case repugnant to justice, (for example as a marriage of short duration).

(3) The court must also take into account—

(a)the age and state of health of the parties;
(b)the income, property and financial resources, including any interest in inalienable property, of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care and control of a child of the marriage who has not attained the age of 18 years;
(d)the commitments of each of the parties that are necessary to enable the party to support—
- (i)himself or herself; and
- (ii)a child or another person that the party has a legal or customary duty to support.
(e)a standard of living that in all the circumstances is reasonable;
(f)the financial resources available to a person if cohabiting with another person;
(g)the duration of the marriage;
(h)the terms of any order for spousal or child maintenance made in favour of or against a party;
(i)any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

(4) If, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies—

(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the rules of the respective Division may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b)if the court is of the opinion—
- (i)that it would have made an order with respect to property if the deceased party had not died; and
- (ii)that it is still appropriate to make an order with respect to property,
the court may make such order as it considers appropriate with respect to any of the property of the parties to the marriage or either of them; and
(c)an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or, as the case may be, against the estate of the deceased party.

(5) A court must not make an order under this section in proceedings with respect to the property of the parties to a marriage or either of them (other than an interim order made with the consent of all the parties to the proceedings) unless—

(a)the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a registrar of the respective Family Division;
(b)the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c)the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).

(6) Evidence of anything said or of any admission made at a conference referred to in subsection (5) or at any conference with a registrar in proceedings under this Part is not admissible in any court or in proceedings before a person authorised by law, or by consent of parties, to hear evidence.

(7) A person who files an application seeking an order under section 163(1) in relation to land is deemed to have a beneficial interest in the land within the meaning of section 106 of the Land Transfer Act 1971. Such beneficial interest will cease on the proceedings being finalised by order or the withdrawal of the application.