A Microcosm of Comparative Law: the Overlay of Customary, French and English Family Law in Present Day Vanuatu1
by Sue Farran*
Table of contents
The Pacific republic of Vanuatu is an archipelago of islands located off the East coast of Queensland, Australia, at 16 00 S and 167 00 E. To most people it is a speck on the map (Fig. 1). However, Vanuatu has a unique legal history,2 and it is this and the present challenges faced by an imperfect legal system which may be of interest to comparative lawyers. Vanuatu was ruled for just under eighty years by the joint government of France and Britain. The two colonial powers applied their own legal systems, modified in varying degrees to the southern hemisphere countries brought under their respective control or influence. In the case of France, the law as applied in New Caledonia was most influential in the New Hebrides, and in the case of Britain the countries of the South West Pacific such as Fiji and Solomon Islands. But these French or British laws applied only to French or British subjects or non-indigenous people who ‘opted’ into one system or the other. The indigenous people were left largely to their own devices, their customs and customary law. Only in the areas of public interest or security did the joint powers intervene and make rules for the indigenous people by way of Joint Regulations. The consequence was that while some customs were suppressed through the combined forces of missionaries, colonial administration and social and economic change, others remained. Some customary laws were modified to adapt to colonial rule, others were unchanged. Not only were there separate systems of law but also separate systems of administration under the Condominium powers. The result was that some parts of the country were more francophone and others more Anglophone. This influenced the language of schooling, local services and also religion.
On independence in 1980, the country achieved its own constitution which attempted, among other things, to provide a smooth transition from the legal system which had existed to that which was to exist in the future. Provision was made that laws in force at the date of independence should remain applicable but also that wherever possible account should be taken of custom, and when in doubt the court should be guided by substantial justice. The consequence has been that Vanuatu is left with a medley of laws to which have been added in recent years the obligations of international treaties, national legislation and the influence of a growing body of regional jurisprudence. Place this against the context of rapid social and economic change in a country of just over 200,000 people spread over 80 islands where there is an increasingly big divide between urban and rural dwellers and the difficulties multiply, especially when it comes to private law and law reform.
Vanuatu today is a country with a plural legal system in which different sources of law apply unevenly not only to different topics but also to different people. For example, in urban areas where people have better access to courts, a monetary economy and access to information, an unmarried mother may succeed in getting an order for maintenance from the father of her child. In rural areas this matter will be dealt with by the village chief or head and probably entirely according to custom. Although Native courts had been established by the Condominium powers under Article 22 of the 1922 Protocol, these did not survive independence. This process of adjudication therefore takes place entirely outside the formal system. This may – depending on local custom - mean that recognition by the father also means a claim to custody of the child and a denial of any rights of the mother. This is particularly the case if bride price – which is common in Vanuatu - has been exchanged.3 There is considerable need for greater attention to be given to family law if only to try and ensure that all parties are subject to the same laws so that their chances of receiving equal treatment before the law are improved, and to eradicate some of the inconsistencies which currently arise. Whether actual reform is needed is less clear because it could be argued that within the plural legal sources available in the existing legal system there is no shortage of tools for improving the current system. There is scope therefore, for the application of what might be called internal comparative legal thinking so that the range of possible solutions may be considered and compared and the most appropriate advocated to meet needs which are not currently being met. There are also however, a number of obstacles to this process in the context of this small Pacific island republic.
This article looks at how this might be done in the context of certain aspects of family law where to date there has been very little post-independence national legislation and where the diverse personal customary laws of parties remain of great importance and influence. It is also an area of law where the voice of lobbying groups – some strongly influenced by western normative values, others tenaciously conservative and traditional - impose their own demands on policies and frameworks for any proposed reforms, often pulling in opposite directions, and where at the same time international treaties seek to establish universal standards in many areas of family law.
According to the Constitution, until the national Parliament passed its own legislation French and English law would continue to be applicable in varying degrees.4 This included all Joint Regulations made when Vanuatu was the New Hebrides under the Condominium government of France and Britain, and also British and French Laws in force or applied in Vanuatu immediately before the day of Independence unless expressly revoked or incompatible with the independent status of Vanuatu.
Exactly what law was in force at the date of independence is not very clear. In the case of law which was introduced from Britain it seems that it was probably written law – statutes of general application - up until 1976, and Queen’s Regulations passed for the Western Pacific by the British High Commissioner of the Western Pacific, and Regulations made by the Resident Commissioner for the New Hebrides.
In the case of law from France then it would seem that it was written law in force in France, including Regulations made by the French High Commissioner of the Pacific and applicable to Vanuatu up until 1980. This includes the French Civil Code at that date except where the provisions of the Code had been replaced by a Joint Regulation.5
The law in force in 1980 also included such Joint Regulations, and subsidiary legislation - which were made by the British and French Resident Commissioners for the New Hebrides and from 1977 through resolutions passed by the elected Representative Assembly which were approved by the Resident Commissioners and, enacted as Joint Regulations.
Apart from legislation drawn from Britain and France, the jurisprudence of the courts was also relevant – and remains so until today. Under Article 95 of the Constitution general principles of law and equity (which derive from case law) are a source of law – subject to compatibility with the independent status of Vanuatu, the provisions of the Constitution and considerations of custom where applicable - until replaced by legislation. This means that the courts may have recourse to decisions of United Kingdom courts and to decisions of the French courts up until independence in 1980. Unlike the situation with legislation the 1976 cut off date applicable to English statutes does not seem to have applied to general principles of law and equity which means that an additional four years of case-law is part of the received law.6 General principles which have developed through case law after 1980 may be persuasive as may those from other jurisdictions, especially from the close neighbouring common law countries of Australia and New Zealand, and the more scattered countries of the Commonwealth.
As has been indicated, besides those aspects of law introduced under the influence of the two colonial powers customary law remains important, and this is stressed in the Constitution.7 Furthermore, when applying the written law which existed at the time of independence, ‘due account’ must be taken of custom wherever possible. Custom is defined in the Schedule to the Interpretation Act Cap 132 as: ‘the customs and traditional practices of the indigenous peoples of Vanuatu’. However ascertaining custom is not easy. Firstly most custom is unwritten and secondly there is no uniform national custom.8 Under Article 51 of the Constitution, ‘Parliament may provide for the manner of the ascertainment of relevant roles of custom, and may in particular provide for persons knowledgeable in custom to sit with the judges of the Supreme Court or the Court of Appeal and take part in its proceedings.’ However, apart from the provisions made for the appointment of assessors knowledgeable in local customs to assist in land matters9 little has been done in this respect. The National Council of Chiefs (the Malvatumauri) also has power under Article 30 of the Constitution to discuss and to make recommendations, particularly on any question relating to tradition and custom.10 Although it does discuss such matters and sometimes makes recommendations these are rarely published and appear to have no binding authority.
Lawyers may bring matters of custom to the attention of the courts but any claims based on custom must be adequately proved to the satisfaction of the court. Although the usual rules of evidence may be waived, and in particular the rule against admissibility of hearsay evidence11 the court must still be sufficiently convinced that the custom is as claimed. An indication of how customary law may be argued has been indicated in the case of Banga v Waiwo where the judge stated: ‘The most common means of ascertaining and proving customary law is by oral testimony of expert witnesses or by witnesses who are not experts in customary law that is, witnesses of fact. The difference being that the latter are not qualified to give opinions on what customary laws are, but are limited to testifying as to certain historical events from which a Court may reach a decision as to law.12 With the movement of people across islands, inter-marriage, and re-settlement the question of conflicts within customary law are increasingly likely to arise but there is little indication in existing reported case-law as to how such conflicts might be resolved.
It has recently been suggested by the Court of Appeal of Vanuatu that where there is no provision made in national legislation to deal with a matter then the law in force at independence must be referred to.13
The case of Joli v Joli was a matrimonial property case. The national divorce legislation the Matrimonial Causes Act 198614 governs a number of matters concerning divorce but does not make any reference to the division of property except where this is done as part of orders made regarding maintenance or alimony. There is therefore a lacuna in the Vanuatu divorce legislation with respect to property. Alongside the Matrimonial Causes Act, applicable law in force at independence and not yet repealed or replaced includes the power of the court to determine property interests under either the English Married Women’s Property Act 1882 (section 17) or its inherent powers to determine property interests according to principles of law or equity. While the Married Women’s Property Act enables the court only to determine disputed property interests – not to adjust them or set them aside – the equitable jurisdiction of the court would allow it to establish property interests under, for example, trust or estoppel principles. Even here, however, the court cannot re-allocate property once the legal or beneficial interest is established.
As the Vanuatu legislation did not expressly revoke the divorce laws in force at independence, regard may also be had to the relevant British laws, i.e. the Matrimonial Causes Act 1973, together with certain residual sections of the Matrimonial Causes Act 1965 and 1967, and parts of the Matrimonial Proceedings and Property Act 1970 (Schedule 3 Matrimonial Causes Act 1973). By implication and in line with the words ‘unless otherwise provided by parliament’ in Article 95, provisions of the Vanuatu legislation which cover substantially the same ground as the legislation in force at independence will supplant the latter. So, for example, because the Matrimonial Causes Act Cap 192 makes provision for the nullity of marriage and for the dissolution of marriage the former provisions found in the English legislation – or for that matter any French legislation – would no longer apply. Where this is not the case, however, then, in line with the transitional arrangements stipulated in the Constitution, pre-independence laws may apply.
The Joli case went first to the Supreme Court – which is superior to the first level courts, the Magistrates’ Courts - and then, on appeal, to the highest court, the Court of Appeal, which has only appellate jurisdiction. In the Supreme Court the judge approached the problem from a rights and equity angle. The judge took as his starting point the general original jurisdiction power which the court had to make orders regarding legal or equitable interests which the parties may have in property.15 Applying the fundamental principles of equality of treatment stated in the Constitution and in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which has been ratified by Vanuatu16 the judge took the ‘original jurisdiction’ acknowledged in Kong a step further and adopted the view that there was a rebuttable presumption that all the property under consideration was subject to joint beneficial ownership. His legal basis for this was the non-discrimination provisions of Article 5 and Article 1(k) of the Vanuatu Constitution and the provisions of CEDAW.
The Court of Appeal rejected the approach of the Supreme Court, finding itself unable to agree with either the process of reasoning adopted or the presumption of joint or equal ownership of matrimonial property. The court was therefore faced with the question of what law, if any applied to this problem. Counsel for the husband argued that the English legislation ceased to have any effect with the passing of the Vanuatu Matrimonial Causes Act. Counsel for the wife argued that in the absence of any relevant provisions in the national statute, parts of the Matrimonial Causes Act 1973 should be applied. In the end the Court decided that the English legislation – the 1973 Matrimonial Causes Act – applied in so far as it had not been replaced by the Vanuatu Act.
The suggestion that part of an Act or written law in force at independence may apply rather than the whole is not an entirely new idea.17 However, the approach endorsed by the Court of Appeal in Joli opens up new possibilities for minute comparison of statutory provisions across different legal systems. Indeed, the Joli case presented an ideal opportunity for comparative thinking, not only because the Constitution states ‘(I)f there is no rule of law applicable to a matter before it, a court shall determine the matter according to substantial justice’18 but also because the litigating spouses were in fact francophone residents of Vanuatu.19 Crucially, however, neither of the parties based their arguments on French law, nor did they resort to the law of other Pacific or common law jurisdictions. In both courts there was comment from the bench about the lack of any argument based on French law. This was an opportunity missed – largely because of the inability of the lawyers to engage in presenting comparative legal argument before the court.
This case also illustrates a serious problem and poverty within the Vanuatu legal system, i.e. the inability of lawyers to engage in comparative legal argument drawing on resources either already at hand within the national legal system where that system is a plural one, or on external sources. While courts in young independent states may be hesitant to refer all too frequently to the laws and legal developments in the legal systems of former colonial powers or of powerful dominant neighbours, and while it is too early to identify a distinct or cohesive Pacific jurisprudence, there is scope for greater comparative thinking within existing legal sources to fill apparent lacunae. In the case of Vanuatu, reference to certain aspects of French law may not only be very useful for filling the gaps which presently exist in national legislation, but also, although they originate from another time and another place, some dimensions of French family law may be particularly suited to the Vanuatu context. The following discussion of some aspects of French family law may help to illustrate this point.
The family law which is relevant is that found in the provisions of the Civil Code – modified by legislation - as it existed in 1980, except in so far as these provisions had been altered or replaced by regulations made by the French High Commissioner of the Western Pacific, or regulations made by the Resident French Commissioner of the New Hebrides.20
Although prior to independence French law – like English law – only applied to French citizens and optants, following independence and – eventually - the definitive judgment of the Court of Appeal in the case of Banga v Waiwo21 "under Article 95 of the Constitution, the French and English laws that applied on the day before the Day of Independence applied to everyone in Vanuatu, irrespective of Nationality and irrespective as to whether they were indigenous ni-Vanuatu or not."22 This marked an important development in the national law, namely the transition from a system which invoked different sets of rules depending on the status of parties (nationality or choice; locality not having been such a criterion) to a system of overlay of rules which originate in different legal cultures: French law, English law, and customary law. How were litigants or their legal advisers to proceed?
From the outset, little guidance was available as to when French law might be followed or English law might be applied. If a case was started under French law under the Condominium then it tended to be resolved under French law post-independence and vice versa.23 Alternatively the nationality of the defendant might be relevant24 although this would appear to contradict the reasoning in Banga v Waiwo of one (pluralistic) system for all regardless of nationality,25 and also those subsequent cases where aspects of both French and English law have been applied next to each other.26
And indeed, where there is no national law on the matter then it would seem that there is the option – stated in Banga v Waiwo - for the courts to ‘proceed under the existing Vanuatu English or French laws’. If there is a conflict, or perhaps a choice of two alternative paths to follow, then the courts have a constitutional duty to resolve the matter and do substantial justice.27 Arguably in order for the courts to do this counsel must present the full range of options, including of course reference to custom where possible and also to international conventions.28
That a comparative approach is permissible is not only supported by the Constitution but also by dicta from cases. For example, referring to other common law jurisdictions, Chief Justice d’Imecourt stated that ‘the courts of Vanuatu are not bound by any decisions of any of those courts …It can thus enrich its own jurisprudence by putting to good use and effect, those rules of law which have proved wise and successful and to have been well tested in other jurisdictions.’29
The Family Law of the Civil Code30
Reference to the French Civil Code is found in cases decided during the 1980s, indicating that it clearly was part of the law post-independence.31 Although in France much of the Code has been amended over the years by legislation and elaborated upon by the jurisprudence of the French courts, the family law which applied in Vanuatu pre-independence in 1980 remained untouched by the changes which occurred in 1985, and again in the 1990s and already in the first years of this new century.32 It was therefore a family law grounded in ideas which observed the husband as head of the family but which had also been adapted in 1965 to recognize the autonomy and ability of a wife to earn her own living and to participate in the administration and management of family matters including family finances. It was a family law which took into account principles of equality of the sexes but also recognized the reality of inequality in terms of earning capacity, material wealth and likely financial dependency. It was a family law in which marriage remained central and cohabitation was not yet equated with marriage. However, this was also a period of family law when increasingly children were being perceived as needing equal protection and as having equal claims on their parents regardless of their birth status, i.e. whether they were considered legitimate or illegitimate. In many ways, therefore, French law pre-1980 reflected many of the aspects of the family which are found in Vanuatu today, where strong traditional patriarchal structures prevail but are having to be modified by equal rights provisions in the Constitution and pressures to observe standards articulated in the international conventions to which Vanuatu is a signatory, notably the Convention on the Rights of the Child and, as has been mentioned above, the Convention on the Elimination of Discrimination Against Women.33
If the principle of Joli v Joli is to be taken in its widest sense, consideration of certain aspects of the Civil Code which remain potentially applicable may illustrate why there is a case to be made for bringing French law back into the courts even if the interpretation of that law may need to be modified to meet the local context. To this end the focus will be on French law and children, the relationship between spouses, and vulnerable people. These are all areas where very little national legislation exists and where there may well be scope for enlarging the law by referring to what already exists within recognized sources of law, rather than waiting for parliament to take action.
The law relating to children in Vanuatu is underdeveloped. Although Vanuatu is a signatory to the Convention on the Rights of the Child, little has been done in the way of national legislation to make specific provisions in order to give effect to the Convention.34 A person is considered a child until he or she reaches the age of eighteen.35 Under the Constitution a parent has a fundamental duty to:
Support, assist and educate all his children, legitimate and illegitimate, and in particular to give them a true understanding of their fundamental rights and duties and of the national objectives and of the culture and customs of the people of Vanuatu.36
Children are an important human resource in Vanuatu where it is estimated that 37% of the fast growing population is under the age of 14.37 Yet there is no compulsory education and national reports published by the United Nations Children’s Fund (UNICEF) indicate that while 96% of children attend primary school only 26-31% of these proceed to secondary school.38
Domestic legislation relating to children includes provisions in the criminal law directed at punishing the neglect of children and sexual offences against children, but also provisions on the maintenance of children. The Maintenance of the Family Act Cap 42 governs maintenance of legitimate children, while the Maintenance of Children Act Cap 46, governs that of illegitimate children. The latter Act contains fairly limited provisions regarding affiliation of such children.39 The Matrimonial Causes Act Cap 192 also contains provisions relating of the maintenance of children in the case of divorce. Most of this legislation is brief in outline and often needs to be supplemented either by the jurisprudence of the courts – for example by reference to the general principles found in international law – or by reference to pre-independence law.40
There is no national legislation on matters of adoption, guardianship, custody or access in cases other than divorce, or which would elaborate on the general constitutional rights and duties owed by a parent to a child. In most cases, custom and customary law will govern the rights of children and the duties of parents, in accordance with the constitutional provision that wherever possible custom must be taken into account.41 Sometimes, however, customary law is either not pleaded before the court42 or is found to be incompatible with the Constitution43 or must give way to international standards or norms.44
In this context, French law offers some useful provisions which could not only assist the courts in determining disputes involving children but help to clarify the rights and status of children.
Firstly, the Civil Code contains provisions relating to the apparent status of children based on the facts surrounding a child’s upbringing, naming and relationship with the apparent parents.45 Given that informal, customary adoption is quite common in Vanuatu, especially among members of the extended family or clan, this might provide a way of formalising the status of a child, a step which can be particularly important for the child when claiming land or title rights.
Secondly, French law includes the notion of voluntary acknowledgment of paternity or maternity where made in accordance with the personal law of the person making that acknowledgement.46 Thus paternity acknowledged in custom can be accommodated. There are also very clear guidelines regarding the rebuttable presumption of paternity47 and the law relating to the legitimation of children who are born illegitimate.48 Neither legal issues is provided for by national law in Vanuatu, but extremely important for the purposes of inheritance, especially of land.
A further area which is neglected by national law is the establishment of paternity separate from a claim for maintenance by the unmarried mother. French law allows a claim for paternity to be brought either by the child or the mother, against the purported father or his heirs, within two years of the child’s birth.49 This claim is separate from a claim for support, which in French law can be brought even if paternity is not established.50
French law also stipulates very clearly the duties which parents owe to their children and the powers which they have over them.51 While in Vanuatu custom and the influence of the church will guide many parents, in a society facing rapid social and economic change, family relations are increasingly under pressure. Moreover, expectations have been created by the Convention of the Rights of the Child, i.e. that Vanuatu will ensure that all children will receive the protection of the law.52 Indeed this may well be an area where Vanuatu may be expected to introduce reform, and certainly there is some lobbying for this by non-governmental organisations.
The provisions of the Civil Code complement both the Constitution and the Convention.53 Children are expected to respect their parents regardless of age, and to be governed by them until majority. In return, children have the right to expect their parents to safeguard their personal security, health and moral well-being, and to have their educational needs taken into account. Moreover, parents have a duty to ensure that contact with grandparents is maintained – an important consideration in the Melanesian extended family.54 Equally relevant to today’s circumstances in Vanuatu which is witnessing urban drift of young people at an alarming rate, is that under Article 371.3 Civil Code, a child cannot leave the family home without the permission of his or her parents.
Not only does the law establish these parental duties, but it also provides sanctions and procedures whereby breaches or abuse can be addressed. The advantage here is that disputes between parents may be referred to an independent and objective arbitrator – an approach which may be particularly important in a society which is still strongly patriarchal and where women tend to be dominated and intimidated by men. Arguably, in the Vanuatu context, the adjudicative forum need not be a court, and there may be scope here for incorporating some kind of traditional forum exercising powers in accordance with national guidelines, and working with the family members.55
French law also provides a formal means whereby a tutor or guardian can be appointed by a court either when both parents are dead, cannot be found or are in some way incapable; or, in the case of an illegitimate child where only the mother has recognized the child, the mother is dead, cannot be found or is incapable.56 While in practice in Vanuatu, the next of kin may take on this role informally, there is merit in having some formality, not only in order to avoid later confusion or uncertainty, but also in order to ensure that the best interests of the child are being observed. This is particularly important as parental authority confers the right to administer the minor’s property and represent the minor in legal matters.57 Again, there is no reason why the extended family should not be involved in such an appointment, and indeed, French law gives an important role to the family council.58
The Civil Code also makes extensive provision for the process and consequences of adoption, especially the rights of the adopted child.59 While in Vanuatu custom adoption is recognized alongside formal adoption through the court60 no national legislation has been passed to govern formal adoption and procedures for custom adoption vary from one community to another.61 Because custom changes and is not consistent, and because increasingly people from different custom groups are inter-marrying and people are moving from one location to another, there can be uncertainty about the status of a custom adoption. It is increasingly common to find applications for adult adoption coming before the court which seek to formalize informal or custom adoption which may have taken place sometime previously. English law does not provide for adult adoption, whereas French law does.62 Moreover, as in the appointment of a tutor or guardian, in the case of adoption under French law the family council has an important role to play, and the impact of the adoption on third parties’ rights is considered. While, due to the influence of the Convention on the Rights of the Child, the welfare of the child will be the predominate concern in cases involving adoption63 it may be important to construe this within the specific context of Vanuatu, lacking as it does any social services network which could otherwise provide a safety net.64 There may well be a conflict between custom and international treaty obligations. The involvement of the family council within a structured framework could help to achieve a balance which both ensures the best interests of the child and addresses those interests realistically, taking into account where necessary traditional or customary approaches.
Marriage in Vanuatu is regulated by the Marriage Act Cap 60 and the Control of Marriage Act Cap 45. Neither Act indicates the rights and duties of the spouses towards each other.65 In English law these rights and duties have emerged in a fragmented fashion through decisions of the courts over the centuries, often strongly influenced by religious creeds. In French law, while such influences also have their place, the Civil Code contains very specific provisions detailing the relationship between husband and wife, and furthermore has extensive provisions concerning matrimonial property.
Articles 203-226 of the Civil Code stipulate the obligations arising from marriage. In particular, the law emphasises the mutuality and reciprocal nature of rights and obligations between spouses, thereby giving support to ideals of equality between the sexes as found in the Constitution of Vanuatu and in the provisions of CEDAW.66 At the same time, the reality of possible inequality, especially in a material sense, is recognized and addressed, so for example need and ability to provide are balanced.67
As regards the administration of matrimonial matters, French law veers towards the patriarchal model – found in the customary law of the region - but has built in safeguards to prevent the abuse of that power, for example requirements of consent,68 and the possibility of applying to the court to annul the exercise of a power which amounts to an abuse of that power.69 Furthermore, the imposition of joint and several liability of parents for the maintenance and education of their children and of spouses towards the expenses of the household makes it clear that the family and the partnership of two individuals is central to marriage.70
Also, unlike English law where marriage does not alter the property interests of the individual spouses.71 French law recognizes from the outset the practical property consequences of marriage. Although questions of matrimonial property arise most often in the case of the termination of the marriage – by divorce or death – they can also arise as regards third party creditors during the marriage. Vanuatu law makes no provision for the consequences of marriage on the spouses’ property during the marriage, and very limited provisions for the allocation of property on divorce or death. In the case of divorce, there is provision relating to the payment of alimony to the wife and maintenance to the children but no reference to the allocation of matrimonial property.72 As concerns inheritance, there is national legislation which covers testate succession73 but none which deals with intestate succession.74
French law, however, makes detailed provision for marital property, which apply unless they are replaced by an agreement between spouses which opts for a different arrangement.75 Either way, French law can provide clear rules on powers of administration and management of the property as well as relationships and rights of spouses towards third parties, and the portion which each spouse will be entitled to on divorce or dissolution of the matrimonial regime, or on death. In short, the Civil Code provides a formula which addresses most of the property consequences and expectations of marriage.
Vanuatu, like any country, has its share of people who, due to mental or physical incapacity, infirmity of age, intellect or body, lack the ability to function fully and independently. Such people may require assistance when engaged in legally relevant conduct and, because they are potentially more vulnerable to harm, they may also require specific legal protection. Similarly, they may be less able to realise or anticipate the legal consequences of their actions, and the public at large may need to be protected against them.
While the law in Vanuatu gives limited recognition to vulnerable people76 absence of any state provision and very limited medical facilities for those who are mentally impaired in any way means that the burden and responsibility of caring for vulnerable people falls on the family. Where such people come to the attention of the courts – either as victims or perpetrators – the courts are often at a loss as to how to deal with them. The courts, especially the Supreme Court, has jurisdiction ‘to hear and determine any civil or criminal matter,77 and using its inherent power may make a person a ward of court.78 Again, French law has detailed provisions for the protection – either total or partial – of vulnerable people. While not all of these would be practical in the circumstances of Vanuatu (this applies in particular to those based on the assumption of State provision), a number of others would be entirely adequate, in particular those which involve the participation of the family, or of individuals as being responsible for the vulnerable person.
In particular, French law recognizes that there are situations which fall short of insanity or certifiable mental illness where persons may need protection against themselves or others.79 It is not necessary under French law that an adult be insane to justify the appointment of a tutor or guardian. Any evidence of an inability to look after his or her affairs sensibly may be sufficient, for example profligacy, wastefulness, intemperance, greed, or excessive generosity may all be grounds, if this weakness of character or inclination threatens to cause destitution or prevents the person affected from meeting his or her family obligations. It is also recognized in French law that these moments of incapacity may be of temporary or permanent duration, and that adjustments have to be made accordingly. Similarly, the gravity of the impairment may vary considerably, and so different limits to the exercise of the normal rights and duties of an adult have to be provided for. To this end, several different protection regimes are provided for.
As with children, the family council is involved in the protection of adults with impaired capacity, both in the application for a protection regime and in the appointment of a suitable person, and also in many cases in determining the powers which are given to that person, and in overseeing the exercise of these powers.80 In a country where there are no mental institutions, extremely little psychiatric health care and no social services to support the families of impaired adults, the possibility of arriving at a solution through the co-operation of the court and the family is an important one. While at present the burden rests on the family and the local community, a more formalised system could result in better protection of vulnerable adults, who at present may be subject to abuse, social ostracism and denial of fundamental rights. At the same time those striving to live with or look after such an adult may be unsure of the extent to which they can interfere with that adult’s affairs.
I have argued repeatedly above that French law in particular might be suitable to fill existing lacunae in Vanuatu law today. Anglophile readers in particular may wonder why I have not presented a stronger case for using English law for the same purpose. Apart from the constitutional provisions which clearly give French law equal status with English law as regards laws in force at independence – and which subjects them to the same caveats – it can be argued that because French law is codified it is immediately more accessible.81 Although codification rarely achieves the sometimes stated aim of making the law available to the people, it certainly makes the law more easily available to lawyers who are not particularly familiar with either legal system.82 Compare, for example, the law on guardianship in English law, where more than five different statutes may apply83 with the provisions to be found together in the Civil Code.84 Similarly in the case of the English law of adoption reference must be made to at least four pieces of legislation85 whereas in the Civil Code the law can be found in Articles 343-370.86 It could also be argued that given the diversity of customary law in the country greater reference to a codified system of law - which French law is able to provide whereas English law is not – might encourage law reformers to consider how this diversity might be made more homogenous and accessible.
Of course, it can be argued – for both French and English law - that this one time colonial regime is neither compatible with nor suitable for the circumstances of Vanuatu. It is indeed true that are many differences as to the context in which French law developed until 1980 which operate in and present day Vanuatu. The difficulties of legal transplants87 should not be forgotten nor should the hazards of crossing time zones be underestimated. However, French law, although foreign, is not entirely alien to Vanuatu. Although prior to independence the law only applied to French subjects and other foreigners who opted to come under French law (optants) and not to indigenous people, the influence of French language, culture, religion and education over several generations have resulted in just under half the population of modern Vanuatu being francophone. There are many links with New Caledonia and with Metropolitan France. It cannot be said, therefore, that Vanuatu has emerged from seventy years of French influence unscathed, any more than this could be said of British influence. The society that shaped and was shaped by French law has left its mark, so that any influence which the revival of French law might have on Vanuatu may not be as radical as might be feared.88 It is not, therefore, an entirely foreign system, although it could be argued that through neglect, disuse and a gradual process of marginalisation French law has become peripheral to the current legal system.
If the provisions of Article 95 are read together with the Court of Appeal’s approach to filling legal lacunae in the case of Joli v Joli, it is not necessary to apply introduced law in its entirety but is possible to select as and when necessary. This suggests the possibility of choice. So that whereas both English common law and French civil law were originally imposed on the country, today this is no longer the case.89 Further, as indicated above, there are aspects of French law which appear to have the potential to accommodate and complement existing customary aspects of society and family organization thereby observing the combined provisions of Article 95 of the Constitution. Aspects of French law may therefore either be resorted to as an interim ‘gap-filling’ expedient, or, when law reformers get around to family law, as a possible model to be considered.90
The legal system of Vanuatu offers its people a wealth of potential legal solutions and approaches to family issues which are not being utilized as effectively as they could. This deficit is not just limited to family law, which rather offers a particularly good illustration. Ignorance on the part of lawyers, including legislative draftsmen, is largely to blame. With insufficient resources for a law reform commission and reliance on ad hoc drafting consultants for new legislation there is a real danger that comparative approaches will not be taken. Lawyers and indeed magistrates and judges prefer to stick with what they know and what they are used to. Despite the Constitutional provisions relating not only to French law as a source of law but also the equality given to the French language, in practice both are, by and large, ignored in the courts. There is a strong possibility that as a result of disuse French law will simply cease to be a source of law in the not so distant future. This is a pity, not least because there are a number of young francophone lawyers entering practice, albeit largely trained in common law.91 If French law is to survive, Vanuatu will need more lawyers who can offer this knowledge to their clients and bring it to the attention of the courts. This can be done either by increasing the number of lawyers who are francophone, or bilingual – and perhaps it should be a professional requirement that all lawyers are conversant with at least two of the three official languages; and trained in the civil law – provided they can focus on pre-1980 law92 or by encouraging those lawyers currently in practice – common law lawyers – to become more familiar with French civil law.93 The latter would require some kind of continuing education programme supported by political and professional will.94 There also needs to be more consumer/client awareness that indeed they have a right to look to French law if there is no national law on the matter, and that they have a right to expect to be able to find a lawyer who can assist them in their quest. It cannot be assumed that lawyers will willingly adopt a comparative approach. There are many obstacles. Despite the global exchange of ideas and information Vanuatu is not Europe or North America. If these large land masses have problems in arriving at a ‘ius commune’ especially in private law of a non-commercial character, what hope is there for small scattered islands? Nevertheless some practical steps can be taken.
One practical solution would be to create consultancy partnerships between common law and civil law lawyers, either both located in Vanuatu or located in different countries.95 This is a solution which is not uncommon to legal practice in respect of sharing expertise, and such partnerships often cross geographical boundaries. At present Vanuatu lawyers are by and large isolated from civil law lawyers and vice versa.96 Similarly efforts should be made to create legal education programmes which specifically address the needs of Vanuatu lawyers, for example by way of combined undergraduate and post-graduate provision for law students and/or those already practicing.97 Legal literacy in the region needs to encompass accessible information about all the laws available and not just some of them, a task which requires financial and human resources.98 Some initiatives have been undertaken in this respect, notably the translation and consolidation of the laws of Vanuatu into French. This is an ongoing task. Not only is there a backlog of early national legislation still to be translated. There is also pre-independence legislation which still needs to be located and incorporated.99 If Anglophone lawyers are to use this pre-independence law, then this also will have to be translated – from French to English. This is a considerable challenge as not only words but also concepts require translation. Leaving aside practical considerations, ideally emerging Pacific island countries would benefit from the adoption of comparative legal research in the same way as Turkey, post-war Japan and the former eastern bloc and soviet countries have, not least because although there is the understandable wish to throw off the yoke of former colonialism and assert a national legal identity, there is also the very real need and desire to modernise, to participate in global economies and to acquire status in the international community.
It will be some time before the national legislature has replaced all the laws which were in force at independence, especially in the field of family law. The legacy of Condominium rule together with adherence to customary law presents current practitioners and future law reformers with a potentially wide choice, although the above may perhaps be regarded as only a first step in the application of comparative law to family law in Vanuatu. Certainly further consideration needs to be given to the detailed content, interpretation and application of the various possible solutions to family law problems and also to the support structures which might be needed to complement and facilitate their operation. More also needs to be known about the response of custom to certain issues and how extra-legal phenomena might affect either certain problems or certain solutions.100 There needs to be detailed comparison between potential common law, civil law and indeed customary solutions before decisions can be made as to which should be adopted or applied, bearing in mind also the practical constraints and realities of Vanuatu, for example, the lack of specialist courts, social welfare officers, support services or mental health provision. Nevertheless, Vanuatu, and indeed the Pacific region, offers those interested in comparative law much to think about.
* Sue Farran is a Senior Lecturer at the University of Dundee, Scotland and was formerly an Associate Professor of Law at the University of the South Pacific, Emalus Campus, Vanuatu.
1 This article is a revised version of ‘Family law and French law in Vanuatu: an opportunity missed?’ 35 Victoria U of Wellington L Review 2 (2004), 367-383.
2 More details about the legal system of the former New Hebrides can be found in K Roberts-Wray, Commonwealth and Colonial Law, Stevens, London 1966, and on present day Vanuatu in J Corrin Care, T Newton and D Paterson, Introduction to South Pacific Law, Cavendish, London, 1999 and M Ntumy, South Pacific Island Legal Systems University of Hawaii Press, Honolulu, 1993.
3 A point raised in Re the Constitution, Infant Vorongo  VUSC 4.
4 95. (1) Until otherwise provided by Parliament, all Joint Regulations and subsidiary legislation made thereunder in force immediately before the Day of Independence shall continue in operation on and after that day as if they had been made in pursuance of the Constitution and shall be construed with such adaptations as may be necessary to bring them into conformity with the Constitution.
(2) Until otherwise provided by Parliament, the British and French laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom.
5 Colardeau v Mammelin [1980-94] Van LR 1; Luthier v Kam [1980-94] Van LR 116; Pentecost Pacific Ltd v Hnaloane 1980-1994 Van LR 134; My v Societe Sariani [1980-94] Van LR 163. Note, there are no official publications of Vanuatu Law Reports. Case citations are either taken from the hard copy collections of reported judgments – Van LR, or from the electronic data base Paclii – http://paclii.org.vu.
6 Section 3 of the Queen’s Regulation No 2 of 1976 which established the High Court of the New Hebrides refers to ‘statutes of general application in force in England on the 1st day of January, 1976’, not general principles of law and equity.
7 Article 95 (3).
8 There are approximately 110 different cultures or groups within the 80 islands of Vanuatu.
9 Under the Island Courts Act No 10 of 1983, there is provision for the appointment of assessors to sit in the Supreme Court when it sits as an appeal court: Section (2) the court hearing an appeal against a decision of an island court shall appoint two or more assessors knowledgeable in custom to sit with the court.
10 Under Article 30 of the Constitution the National Council of Chiefs (1) has a general competence to discuss all matters relating to custom and tradition and may make recommendations for the preservation and promotion of ni-Vanuatu culture and language and (2) may be consulted on any question, particularly any question relating to tradition and custom, in connection with any bill before Parliament.
11 Banga v Waiwo  VUSC 5.
12 As above.
13 Joli v Joli  VUCA 27.
14 Legislation in Vanuatu is frequently referred to by its chapter number in the Consolidated Laws of Vanuatu. This is Cap 192.
15 This had been recognised in an earlier case of Kong v Kong  VUCA 8 and upheld by the Court of Appeal.
16 Act No 34 of 1995.
17 Coombe v White [1980-1988] 1VanLR 340.
18 Article 49.
19 Although both lawyers were resident in Vanuatu, one of them was originally from New Zealand, and the other from Australia. The judge in the Supreme Court was from England and the judges of the Court of Appeal from New Zealand, Fiji, Australia and Vanuatu. The Court of Appeal is not a permanent court and until recently Vanuatu lacked a sufficient number of judges to make up a bench to make up this highest court of appeal. Consequently judges are empanelled to sit twice a year. The Vanuatu judge was Chief Justice Lunabek, himself a francophone who received some of his legal training in France. He is the first indigenous person to hold the position of Chief Justice.
20 The New Hebrides appear to have been regarded as French territory – Dihn van Tho v Etat Francaise [1980-1988] 1 Van LR 16.
21  VUSC 5.
22 Banga v Waiwo  VUSC 5 para 14.
23 Banga v Waiwo  VUSC 5; T v R [1980-1988] 1 Van LR7; Selb Pacific Ltd v Mouton  VUSC 4.
24 Pentecost Pacific Ltd v Hanaloane [1980-1988] 1 VanLR 134.
25 Per Justice d’Imecourt: ‘it is clear that under Article 95 of the Constitution, the French and English laws that applied on the day before the Day of Independence applied to everyone in Vanuatu …They were no longer French of English laws but they became the law of Vanuatu.’ Banga v Waiwo (above note para 14.
26 Leigh v Societe Civile Inter-Continental and Groupement Francais d’Assurance [1980-1988] 1 Van LR 76 and Societe Civile Familiale Guadrou v Prouds South Seas Ltd [1980-1988] 1 Van LR 100. See further the cases cited in Banga v Waiwo (above) and J Care ‘Colonial Legacies’ (1997) 21 Journal of Pacific Studies 33.
27 There is no right of election. This was abolished when the Protocol of 1914 establishing the Condominium was repealed on the Day of Independence. This does not, however, mean that lawyers cannot present different alternatives to the court.
28 M Pruss points out that the French version of what is now Article 95 of the Constitution states that English and French laws will apply “in so far as they are not incompatible with custom” (emphasis added) which places greater emphasis on custom than the English version which states that “due account of custom” should be taken “wherever possible”. Unpublished LLM Thesis ‘French Law in the New Hebrides’ USP p.77, Emalus Library, University of the South Pacific, Vanuatu.
29 Timakata v Attorney General [1989-1994] 2 Van LR 575. The judge appears to have been referring solely to common law jurisdictions but there is no reason why a broader approach cannot be taken by an independent country.
30 The primary source of family law is the French Code Civil, available nowadays in electronic form on http://www.legifrance.gouv.fr/html/codes in a number of languages. This needs to be treated with a degree of caution as it is regularly updated and so does not reflect the law as it was in 1980. Writing on French family law is ever increasing and earlier editions of classics such as G Cornu, Droit Civil: La Famille Montchristien; A Benabent, Droit Civil: La Famille Litec; J Carbonnier, Droit Civil, La Famille, L’Enfant,le Couple Thémis; or F Terré, Le Droit de la Famille PUF, exist to assist researchers as well as more specific texts such as L Gareil, L’Exercise de ‘autorité parentale LGDJ.
31 Colardeau v Mammelin [1980-94] Van LR 1; Luthier v Kam [1980-94] Van LR 116; Pentecost Pacific Ltd v Hnaloane 1980-1994 Van LR 134; My v Societe Sariani [1980-94] Van LR 163
32 For example, the disadvantages previously experienced by illegitimate children have been largely eradicated – Act No. 96-604 and Act No 2002-305; greater equality between spouses in terms of both parental rights and property rights have been introduced – Act 85-1372 and Act 2002-305, and so have provision for the legal consequences of medically assisted procreation - Act No. 94-653.
33 These are the most relevant for family law. The Convention on the Rights of the Child (7/7/93) was ratified by Act No 26 of 1992, and the Convention on the Elimination of all Forms of Discrimination Against Women (7/9/95) was ratified by Act No 34 of 1995.
34 Some protection can be found in the Penal Code Cap 135 and in the Employment Act Cap 160.
35 Interpretation Act Cap 132 Schedule 2.
36 Article 7(h).
37 1999 Population and Household Census. The total population then was 186,678. It is now estimated to be 200,000. The growth rate estimated in the census was 1.74%
38 UNICEF Country Programme Overview http://www.unicef.org/infobycountry/vanuatu_statistics.html. These figures represent the period 1995-2001. Unpublished figures presented at a Symposium in 2001 suggest the rate is lower. D Hughes, ‘Qualitative Study on Child Protection Practices: Vanuatu Draft Report’ USP, 2001.
39 Under section 3, an unmarried mother may bring a claim for maintenance against the alleged father of the child if there was either evidence that during the period of conception there was an offer of marriage, or during the same period the parties lived together as husband and wife, or that the man alleged to be the father at some time provided for the child’s maintenance and upbringing in a paternal capacity or that the man alleged to be the father admitted paternity.
40 As was the case in Joli v Joli  VUCA 27, where, because the Matrimonial Causes Act makes no reference to the allocation of matrimonial property on divorce, the court referred back to English pre-independence law. For a more detailed analysis of the approach taken in the case see S Farran, ‘The Joli Way to Resolving Legal Problems: A New Vanuatu Approach?’ (2003) 7 Journal of South Pacific Law 2, http://law.vanuatu.usp.ac.fj/jspl/2003%20Volume7Number2/JoliWay.
41 Article 95(2) Constitution.
42 For example, in the case of In Re Chelsea Lee  VUSC 22 - even though this was a case where an indigenous child was being adopted by an Australian couple; and in Re the Constitution, Infant Vorongo  VUSC 4 – where the customary consequences of bride-price payment were noted but not customary adoption even though the child appeared to have be ‘placed’ for adoption before any formal adoption took place.
43 As in Public Prosecutor v Kota and Others  VUSC 8.
44 As in Molu v Molu  VUSC 15.
45 Article 311 CC.
46 Article 311-17 C.C.
47 Articles 312-328 C.C.
48 Articles 329-333 C.C.
49 Article 340 C.C. (pre 1993 version). The right to establish paternity is important for claiming land rights under patterns of customary land tenure. The period of two years is longer than that provided for under national legislation – which is one year.
50 Article 342 C.C. This probably does not apply in Vanuatu as national legislation regarding maintenance has been passed – Maintenance of Children Act Cap 46.
51 Articles 371-389 C.C
52 Preamble to the Convention and Article 4.
53 Article 571 C.C.
54 These duties and obligations apply equally between parents whether married or not, provided, in the latter case, that both parents recognize the child within a year of birth and live together, or on application to the court – an important point in a country where an increasing number of relationships are not formalized even in custom. Parental authority can also be removed by the court in certain circumstances (Article 373 and 378).
55 There are no family courts or specialist judges or lawyers in Vanuatu. At the same time there is no such thing as national custom as custom is not homogenous throughout the Republic, hence the need for clear national guidelines.
56 For example, due to insanity, absence or disappearance or involvement in criminal activity – Article 378-7 C.C.
57 Article 382-387 C.C.
58 See for example, Articles 407-41 C.C.
59 Articles 343-372 C.C
60 See for example, M v P Re the Child G [1980-1994] Van LR 333.
61 See Tebahai v Habi  VUSC 9.
62 Article 360 C.C.
63 Article 21.
64 See further S Farran ’Approaches to Child Custody in the Pacific Region’ Law School Occasional Papers No. 3, 2003; K Brown ‘Customary Law and the Welfare Principle’ (1997) 21 The Journal of Pacific Studies 83.
65 By implication the duty of support arises because failure to support attracts criminal and civil sanctions under the Penal Code Cap 135 and the Maintenance of Family Act Cap 42.
66 Convention for the Elimination of Discrimination Against Women (see note 16).
67 For example, in Articles 207-215 C.C.
68 Articles 217-219 C.C
69 Article 220-1 C.C.
70 Articles 212and 213 C.C.
71 Under the Married Women’s Property Act 1882, the property of a married woman, whether brought to the marriage or acquired thereafter remains her own and separate from that of her husband as does his.
72 Matrimonial Causes Act Cap 192, considered in Joli v Joli  VUCA 27.
73 Wills Act Cap 55.
74 In many cases custom will govern this especially in the case of customary land, which cannot be alienated.
75 See S Farran ‘What is the Matrimonial Property Regime in Vanuatu?’ (2001) 5 JSPL Working Paper 4, http://law.vanuatu.usp.ac.fj/jspl/2001%20Volume5/Farran.
76 Notably through the criminal offence of neglect (Section 104 Penal Code) and procedural safeguards under the Rules of Civil Procedure No 49 of 2002 (Rule 3.8).
77 Article 49(1).
78 Mermer v Mermer  VUSC 13.
79 Articles 488-514 C.C.
80 See for example Article 493 and 497 C.C.
81 Language is not a viable argument against using French law, because there is no hierarchy between French and English under the Constitution, which preserves both languages and adds a third, Bislama.
82 Collecting the law into one volume is certainly not an alien idea in Vanuatu. A consolidation of the laws of Vanuatu (legislation) was made in 1985. This is not to suggest that codification is the same as consolidation, simply that facilitating accessibility is part of the legal culture of the county.
83 Guardianship Act 1986, Guardianship Act 1925, Guardianship and Maintenance of Infants Act 1951 Guardianship of Minors Act 1971 and Guardianship Act 1973.
84 Articles 389-514 C.C.
85 The Adoption of Children Act 1926, the Adoption of Children (Regulation) 1939, the Adoption Act 1958 the Children Act 1975 and the Adoption Act 1976 (which consolidated the law).
86 Moreover copies of the Code Civil often include reference to the jurisprudence which interprets or enlarges the scope of articles, as well as statutes which have modified the provisions of the Code.
87 The dangers of legal transplants have been clearly exposed by A Watson, Legal Transplants Scottish Academic Press, Edinburgh, 1974. Some of these dangers may be ameliorated by fostering a system in which the recipient exercises the choice of transplant.
88 A Watson makes the point that “if one society copies the rules, institutions, concepts and structures of another, then it is profoundly influenced by the society’s law’ ‘Legal Transplants and European Private Law” (2000) vol 4.4. Electronic Journal of Comparative Law http://www.ecjl.org/44/art44-2.html (last accessed 07/10/2004) Part VII. However my point is that in the case of Vanuatu, society had already been changed by this type of contact in the period prior to independence.
89 The importance of legitimacy conferred by the exercise of choice is a point made by E Örücü Critical Comparative Law p.84, cited by Watson A in his EJCJ article (note 88) Part III.
90 At present new legislation tends to be strongly influenced by Australian models, sometimes to the extent of inappropriate cut and paste techniques, due largely to heavy reliance on Australian donor-funded consultants engaged in legal drafting. This, I would suggest, is enforced legal transplantation in which invariably the transplant is rejected, if not outright then in effect because it is not fully functional. Intellectual property laws of the region are an example.
91 Most are graduates of the University of the South Pacific but there are also some law graduates who have studied civil law in New Caledonia or indeed in France. It is very rare to find a lawyer trained in both common law and civil law.
92 Such lawyers have to be admitted to practice, and in order to achieve this have to overcome the hurdles created by the Legal Practitioners Act Cap 119 amended by Act No 18 2001, and Legal Practitioners (Qualifications) Regulations Act No 22 of 1996.
93 The recent arrival in the country of a French notaire may have helped but even he found it hard to obtain a copy of a pre-1980 Code.
94 Given that there is no mandatory requirement for continuing professional development in Vanuatu – compared to many other more developed countries – it is difficult to see how lawyers could be persuaded to enrol unless this was provided for free, or unless the currently passive Law Society decided to initiate such a programme.
95 Provided such civil lawyers are mindful of the need to refer to pre-1980 French law.
96 Although they may well have links with Australian and New Zealand law firms for consultancy purposes.
97 Initiatives at post-graduate level are being explored by the University of the South Pacific and the New University of Polynesia. It is also possible for francophone common law students registered at the University of the South Pacific to receive part of their undergraduate studies in French via the University of Moncton in Canada and Université Jean Moulin (Lyon 3) in France under the Campus Numerique programme transmitted to the Agence Universitaire Francaise in Port Vila.
98 Some legal literacy is now being produced in the three official languages of Vanuatu, notably by the Community Legal Centre of the University of the South Pacific, and other NGOs.
99 This is a task being undertaken by a combination of young French civil law graduates and Francophone consultants from Canada. The question of similar language, different concepts would be an article in itself.
100 K Zweigert and H Kötz, An Introduction to Comparative Law, translated by T Weir, 3rd ed. Clarendon Press, Oxford 1998, pp 38-43.