Family Law
Family Law
General Overview and Trends
Family law in Fiji governs various aspects of family relationships, including marriage, divorce, custody, child support, property division, and domestic violence. The legal system in Fiji combines both customary law (traditional practices and customs) and statutory law (enacted legislation). Fiji has seen certain trends in family law, such as an increasing focus on alternative dispute resolution methods like counseling and mediation to resolve family disputes amicably and reduce the burden on the courts.
Legal Framework
Family law in Fiji is governed by the Family Law Act 2003 and the Family Law Regulations 2005. Before the FLA, family law in Fiji was based on nine pieces of legislation imported from the United Kingdom between 1892 and 1973. The FLA was passed in 2003 and became effective in 2005.
The FLA establishes the family division of the Magistrates’ Court and the High Court, has provisions relating to dissolution of marriage, spousal and child support, parenting responsibility and spousal property, marriage counselling and reconciliation and other related family matters.
Counselling
Counselling plays an essential role in family law matters in Fiji. It is often recommended or required in cases involving divorce, child custody, and domestic violence. Counselling services are provided by various government agencies, NGOs, and religious organizations. The primary objective of counseling is to help individuals and families resolve conflicts, improve communication, and explore options for reconciliation or amicable resolution of disputes. Counsellors aim to provide emotional support, guidance, and mediation to assist families in coping with the challenges they face.
Mediation
Mediation is an increasingly utilized method for resolving family disputes in Fiji. It is a voluntary and confidential process in which a neutral third party, the mediator, assists the parties in reaching a mutually acceptable agreement. Mediation can be used in various family law matters, including divorce, child custody, and property division. The Family Law Act specifically encourages the use of mediation as an alternative to litigation.
The Fiji Mediation Centre, established by the Fiji Women’s Rights Movement, offers mediation services for family law disputes. It promotes a collaborative and non-adversarial approach to resolving conflicts, with a focus on empowering the parties involved to make their own decisions.
Overall, Fiji’s family law framework emphasizes the importance of alternative dispute resolution methods, such as counseling and mediation, to promote peaceful resolutions and minimize the negative impacts of litigation on families. These approaches aim to prioritize the best interests of the children and foster cooperation and communication between family members.
Dissolution of Marriage
Divorce
Eligibility
In order to be eligible to file an application for dissolution of marriage in Fiji, the parties need to be separated for one year at least. During this period of separation, the parties should not have been living together and they should not have any intimate relation with each other.
Process
In Fiji, family law applications are mostly made by merely filling out forms which are readily available at the Family Court registry. For divorce, you will need to fill out “Form 1”. This is a easy to follow form which requests you for certain details of both parties. These forms are available on Fiji’s judicial website and can also be accessed at the links provided in this platform. Once the form is filled, you will need to get it witnessed by a commissioner for oaths. Once it is witnesses, you may then lodge it at the Family Court registry.
The court clerks at the family court registry will assist you further on what needs to be done. You will need to serve the form to your partner and/or husband/wife.
Annulment
Like a divorce, the purpose of an Annulment is to end a marriage. However, Annulments are only an option in specific cases. An Annulment can occur at any time after the marriage as there is no minimum time period before an application can be submitted. Along with an Annulment, you can also apply for an order relating to children or finances.
An annulment is a declaration that a marriage or a civil partnership was never in fact legally valid or that it became invalid. It is capable of erasing a marriage as though it never existed.
Unlike a divorce or a dissolution, where there is a one-year minimum waiting period before proceedings can commence, a marriage or civil partnership can be annulled at any time. Nevertheless, you might be required to provide an explanation if an Annulment is applied for years after the ceremony.
Void and Voidable Annulments
There are two types of Annulment – one for void marriages and one for voidable marriages.
‘Void’ means that your marriage was never legally allowed from the beginning and after the Annulment, it is as if it had never taken place. Reasons for void marriages include:
- The parties being related to one another more closely than allowed by law
- One of the parties being underage
‘Voidable’ means that your marriage includes some kind of defect in the eyes of the law. Some examples for this are:
- The marriage was never consummated (i.e. you did not have sex after the marriage took place)
- There was no proper consent to marry (i.e. you were forced into it or were drunk)
- One of you had a sexually transmitted disease or was pregnant by someone else at the time you got married
Under Section 32 of the Family Law Act, a party can apply to have the marriage nullified on the grounds that the marriage is void. A marriage is void if and only if:
- Either of the parties is, at the time of the marriage, lawfully married to some other person;
- The parties are within a prohibited relationship (close blood relationships);
- The marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;
- The consent thereto of either of the parties is not a real consent because it was obtained by duress or fraud or one party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or the other party is mentally incapable of understanding the nature and effect of the marriage ceremony; or
- Either of the parties is not of marriageable age.
Each country’s law will specify how a marriage must be solemnized. In Fiji, the rules governing solemnization is listed in the Marriage Act, sections 16 to 28. If those rules are not complied with, a marriage is void.
The provision on what constitutes a prohibited relationship is set out in section 32(3). The section provides that a person cannot marry his or her ancestor or descendant, or brother or sister of the whole or half blood.
Process for Annulment
Filing the Petition
To initiate the annulment process, you would need to file a petition with the Family Court of Fiji. The petition should outline the grounds for annulment and provide supporting evidence.
Serving the Petition
After filing the petition, you must ensure that a copy of the petition is served to the other party involved in the marriage. This allows them to respond and participate in the annulment proceedings.
Court Proceedings
Once the petition is served, the court will schedule hearings to review the case. Both parties may present evidence, witnesses, and arguments to support their positions. The court will consider all the evidence and make a decision based on the merits of the case.
Annulment Order
If the court determines that the grounds for annulment are valid, it will issue an annulment order. This order declares the marriage null and void from its inception, as if it never legally existed.
Spousal and Child Support
Spousal Maintenance
In Fiji, spousal maintenance, also known as alimony or spousal support, is governed by the provisions of the Family Law Act. Spousal maintenance refers to financial support provided by one spouse to the other following separation or divorce. The general outline of the procedure for seeking spousal maintenance in Fiji is:
Application
The spouse seeking spousal maintenance can file an application with the court. The application should include relevant details about the financial circumstances of both spouses, including income, assets, and financial needs.
Disclosure of Financial Information
Both spouses are required to provide full and accurate disclosure of their income, assets, and financial resources. This includes employment details, business income, investments, and any other sources of income or assets.
Appearance before the Registrar
Before the matter proceeds to court, the court may encourage the spouses to participate in discussions before the Registrar to reach an agreement on spousal maintenance. This process allows them to discuss and consider the financial needs and earning capacity of the spouse seeking maintenance.
Court Proceedings
If an agreement cannot be reached through mediation or negotiation, the matter may proceed to court. The court will consider various factors, including the financial needs and earning capacity of both spouses, the length of the marriage, the standard of living during the marriage, and any other relevant circumstances. The court aims to achieve a fair and equitable outcome.
Court Order
After considering all relevant factors, the court will issue a maintenance order specifying the amount and duration of spousal maintenance payments. The order may also include provisions for adjustments in the future, such as when the financial circumstances of either spouse change.
Child Maintenance
When a family breaks down, one of the key considerations is the financial needs of the separating couple and any children. Child maintenance is a set payment made from one parent to another to cover living expenses and is calculated based on different criteria and circumstances. Ideally, parents will negotiate and agree on the amount of maintenance and what it will cover between themselves. If this is not possible, then generally parties are referred to the Registrar for counseling and to sort out these issues in the presence of their counsels. If the discussions before the Registrar are not successful, then the court on its own accord conducts a means test and thereafter makes orders as to how much maintenance should be paid. The general outline of the procedure for seeking child maintenance in Fiji is:
Application
The custodial parent or legal guardian of the child can file an application with the court seeking child maintenance from the non-custodial parent. The application should include relevant details about the child, such as their age, financial needs, and any specific circumstances.
Disclosure of Financial Information
Both parents are required to provide full and accurate disclosure of their income, assets, and financial resources. This includes employment details, business income, investments, and any other sources of income.
Appearance before the Registrar
Before the matter proceeds to court, the court may encourage the parents to participate in proceedings before the Registrar who will help both parties negotiate to reach an agreement on child maintenance. This process allows them to discuss and consider the financial needs of the child and agree on a suitable amount of maintenance.
Court Proceedings
If an agreement cannot be reached before the Registrar, the matter may proceed to court. The court will consider factors such as the financial needs of the child, the income and financial capacity of each parent, and any other relevant circumstances. The court may also consider the child’s educational and medical expenses.
Court Order
After considering all relevant factors, the court will issue a maintenance order specifying the amount and frequency of child maintenance payments. The order may also include provisions for medical expenses, education, and other necessary costs related to the child’s upbringing.
Child Residence and Contact
General Overview
Agreeing on child custody after a separation can be tough. Emotions can run high and decisions can be made without the best interests of your children in mind.
In Fiji, child custody matters are primarily governed by the provisions of the Family Law Act. When parents separate or divorce, the court’s primary consideration is the best interests of the child. The court aims to ensure that arrangements for child custody are in line with the child’s welfare and overall well-being.
Process
Application
Either parent or a guardian may file an application with the court for child custody. The application should include relevant details about the child, such as their age, health, educational needs, and any specific requirements.
Appearance before the Registrar
Before the matter proceeds to court, the court may require the parties to participate in proceedings before the Registrar who could help both parties reach an agreement in terms of the residency and access of the child. The objective is to encourage the parents to reach a mutually agreed-upon parenting plan that serves the best interests of the child.
Assessment and Investigation
In some cases, the court may order a social welfare assessment or an investigation into the child’s circumstances. This may involve interviews with the child, the parents, and any other relevant individuals. The assessment helps provide the court with a comprehensive understanding of the child’s needs and the suitability of each parent’s proposed custody arrangements.
Court Proceedings
If the parties are unable to reach an agreement before the Registrar, the matter may proceed to court. Each parent will present their case, and the court will consider various factors, such as the child’s age, health, and preferences (if the child is of an appropriate age to express their views). The court will also consider the capacity of each parent to meet the child’s physical, emotional, and developmental needs.
Court Order
After considering all relevant factors, the court will issue a custody order specifying the arrangements for the child’s custody and visitation. The order may include details about where the child will primarily reside, visitation schedules, and decision-making authority.
Spousal Property
General Overview
In Fiji, the distribution of matrimonial property upon the dissolution of a marriage is primarily governed by the Family Law Act.
If you are legally married and/or in a de-facto relationship and wish to separate from your partner, you also have the option to apply for property settlement. The Family Law Act encourages you to reach an agreement over the sharing of the matrimonial property.
Matrimonial Property Distribution
Matrimonial property covers all the assets and debts acquired by the spouses, jointly or individually during the marriage but before the relevant date, excluding gifts from a third party or inheritances.
Matrimonial property can include savings, life insurance policies, rights under pension schemes, bank accounts, timeshares and debentures. It also includes a house acquired before the marriage for use as a family home, as well as its contents, however generally not any other property already owned by either spouse before the marriage.
Fijian Law requires that the division of matrimonial property should be based on fairness which means that the net asset ‘pot’ is divided equally between the parties unless there is a very good reason for not doing so. Such reasons may include the economic burden of caring after divorce for a child under 16 or the fact that one spouse gave up work to look after the other spouse and/or their children.
Process
Application
Either spouse can file an application with the court requesting the division of matrimonial property. The application should include details about the assets, liabilities, and any relevant financial information.
Disclosure of Assets and Liabilities
Both parties are required to provide full and accurate disclosure of all assets, liabilities, and financial resources they possess. This includes properties, bank accounts, investments, debts, and any other relevant financial information.
Negotiation and Mediation
Before the matter proceeds to court, the parties may be referred to the Registrar for the purposes of engaging in negotiations to try and reach a mutually agreed-upon division of property. This process allows them to discuss and consider various factors, such as their financial contributions, needs, and future prospects.
Court Proceedings
If an agreement cannot be reached through negotiation, the matter may proceed to court. The court will consider various factors in determining a fair and equitable division of property, such as the length of the marriage, financial contributions of each spouse, their respective needs, and any other relevant circumstances.
Court Order
After considering all relevant factors, the court will issue a property settlement order, specifying the division of matrimonial property. The order will outline how the assets and liabilities are to be distributed between the parties.
Marriage Counselling
Legal framework
In Fiji, marriage counselling plays a crucial role in promoting reconciliation and resolving conflicts within marriages. While there is no specific legislation dedicated solely to marriage counselling, various legal provisions and initiatives support and encourage the use of counselling services.
The Family Law Act acknowledges the importance of reconciliation and provides for the opportunity for couples to attend counselling before divorce proceedings are finalized. The Act allows the court to adjourn divorce proceedings for a specified period to provide an opportunity for reconciliation through counselling or other means.
The Domestic Violence Act 2009 also recognizes the significance of counseling in cases involving domestic violence. It encourages the court to consider ordering counseling or mediation as part of protection orders or as a condition for the perpetrator to attend counseling programs to address violent behavior.
Further, Fiji’s legal system promotes alternative dispute resolution methods, including mediation, which can be utilized for resolving marital conflicts. Court-annexed mediation programs provide a platform for couples to engage in facilitated discussions and seek assistance in resolving their disputes. Mediation aims to promote reconciliation, cooperation, and mutually satisfactory solutions.
Reconciliation
Reconciliation is an important aspect of family law in Fiji, as it promotes the preservation and restoration of marital relationships. The legal framework in Fiji encourages parties to consider reconciliation before pursuing divorce or legal separation.
Various organizations, both governmental and non-governmental, provide marriage counselling services in Fiji. These services aim to facilitate open communication, identify issues, and assist couples in developing strategies for reconciliation. Counsellors provide guidance, support, and mediation to help couples address their concerns and work towards rebuilding their relationship.
It’s important to note that while reconciliation is encouraged, it may not always be possible or in the best interest of the individuals involved. In cases of domestic violence or situations where the relationship has become irreparable, separation or divorce may be the most appropriate course of action.
Adoption
General overview
The adoption process in Fiji aims to ensure that prospective adoptive parents are suitable and capable of providing a loving and stable home environment for the child. It involves various steps, including the assessment of prospective adoptive parents, consent from the biological parents, and court approval.
Process
The process for adoption in Fiji is regulated by the Adoption of Infants Act 1944. The general outline of the adoption process is:
Eligibility
Prospective adoptive parents must meet certain eligibility criteria, including being at least 25 years old, being at least 21 years older than the child, and being of good character and reputation.
Application
The first step is to file an application in the Family Court. The application should include personal details, background information, references, and supporting documents, such as marriage certificates, birth certificates, and passport copies.
Social Welfare
The court might seek the assistance of the Social Welfare Department to evaluate the suitability of the prospective adoptive parents. This assessment involves interviews, home visits, and gathering information about the prospective parents’ financial stability, living conditions, and ability to provide a nurturing and safe environment for the child.
Consent and Court Proceedings
The biological parents’ consent to adoption is generally required, unless they are deceased, cannot be found, or their parental rights have been terminated. If consent is obtained, or if the court determines that consent is not required, the court will review the application, conduct necessary hearings, and make a decision based on the best interests of the child.
Adoption Order
If the court is satisfied that adoption is in the best interests of the child, it will issue an adoption order, officially granting legal adoption. After the adoption order is granted, the child becomes a legal member of the adoptive family.
The Hague Convention on the Civil Aspects of International Child Abduction
The purpose of the Convention is to protect children from the harmful effects of international abduction by a parent by encouraging the prompt return of abducted children to their country of habitual residence and to organize or secure effective rights of access to a child. If the country where your children have been taken to is a signatory to the Hague Convention, you may be able to seek their return through the Convention’s procedures.
The Hague Convention aims to secure the prompt return of children to their habitual residence, provided certain conditions are met. The procedure for seeking the return of children under the Hague Convention on the Civil Aspects of International Child Abduction involves the following general steps:
Central Authority
In Fiji, the Attorney General’s Office is the government department responsible for handling international child abduction cases. The Permanent Secretary for Justice often takes carriage of such types of matters. They will provide guidance and initiate the legal process under the Hague Convention.
Application
The AG’s office will apply for the return of your children. The application typically includes information about the children, the circumstances of the abduction, and any relevant court orders or agreements. The application will be forwarded the application to the Central Authority in the country where your children have been taken. They will initiate proceedings in the abducting country to seek the return of the children.
Court Proceedings
The court in the abducting country will review the application and assess whether the conditions for the child’s return under the Hague Convention are met. The court will consider factors such as habitual residence, objections from the abducting parent, and the child’s best interests.
Investigation and Hearings
The court may conduct investigations or hold hearings to gather evidence and hear arguments from both parties involved. This may involve collecting witness statements, assessing the child’s well-being, and evaluating the circumstances surrounding the abduction.
Return Order
If the court determines that the conditions for the child’s return are met, it will issue a return order, requiring the immediate return of the children to their habitual residence. The order aims to restore the status quo before the abduction occurred.
Enforcement
If the abducting parent does not voluntarily comply with the return order, the Central Authority in the abducting country, in coordination with local authorities, may take steps to enforce the order and facilitate the safe return of the children.
Domestic Violence Restraining Order
General overview
A domestic violence restraining order, also known as a protection order, is a legal tool that aims to protect individuals from domestic violence and ensure their safety. It is an order issued by the court that restricts the abusive party from engaging in certain behaviors and may include provisions such as prohibiting contact, approaching the victim, or entering specific premises.
Legal Framework
The legal framework for domestic violence restraining orders in Fiji is primarily governed by the Domestic Violence Act 2009. This act provides a comprehensive legal framework to address domestic violence and protect victims. It sets out the procedures, rights, and responsibilities of parties involved in domestic violence cases.
The procedure to apply for a domestic violence restraining order involves several steps to ensure the safety and protection of the victim. The general outline of the procedure is:
Report the Incident
If you are a victim of domestic violence, the first step is to report the incident to the police. Provide them with detailed information about the abuse, including dates, times, and any evidence you may have, such as photographs or witness statements.
Seek Medical Assistance (if necessary)
If you require medical attention due to physical injuries, seek medical assistance at a hospital or health center. They can document your injuries, which can serve as evidence of the abuse.
Approach a Lawyer
Contact the Legal Aid Commission or any private counsel in Fiji to seek legal assistance. They can provide guidance on the process and help you understand your rights and options.
Obtain an Application for a Restraining Order
You can find the relevant forms at the Legal Aid Commission or the Magistrates’ Court to apply for a restraining order. These forms typically include an application form and an affidavit where you can provide details of domestic violence incidents. There is a link below in this platform as well where the forms can be accessed.
Complete the Application
Fill out the application form and affidavit, providing accurate and detailed information about domestic violence incidents, the relationship between you and the abuser, and any witnesses or evidence you may have.
File the Application
Submit the completed application form and affidavit to the Magistrates’ Court in the jurisdiction where the domestic violence occurred. Ensure that you have multiple copies so that you can keep one for your records and provide copies to relevant parties.
Court Hearing
Once the application is filed, the court will schedule a hearing to review your application. At the hearing, you will present your case and any evidence supporting your request for a restraining order. The court will assess the evidence and consider the best interests of your safety and well-being.
Restraining Order Issuance
If the court is satisfied that you are in need of protection, they may issue a domestic violence restraining order. The order will specify the restrictions and conditions to be imposed on the abuser, such as maintaining a certain distance, ceasing contact, or other appropriate measures.
Fiji Women’s Rights Movement
The Fiji Women’s Rights Movement (FWRM) is a prominent non-governmental organization (NGO) in Fiji that actively works towards promoting gender equality, empowering women, and addressing issues related to domestic violence. FWRM has played a significant role in advocating for women’s rights and raising awareness about domestic violence in Fiji.
FWRM has established the Fiji Women’s Crisis Centre, which provides support services to survivors of domestic violence, including counseling, legal advice, and assistance in obtaining protection orders. They also contribute to public education and training programs to combat domestic violence and promote gender equality.
FWRM, along with other NGOs and civil society organizations, has been instrumental in lobbying for legislative reforms and policy changes to strengthen legal protections and support mechanisms for victims of domestic violence in Fiji.
Family Court Forms
The relevant forms for the Family Court can be accessed on the Judiciary of Fiji website via the link below: https://judiciary.gov.fj/forms/