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Matrimonial Causes Act (Cap 51) - Subsidiary Legislation

LAWS OF FIJI

[Subsidiary Legislation]

CHAPTER 51

MATRIMONIAL CAUSES

SECTION 110-MATRIMONIAL CAUSES (SUPREME COURT) RULES

Made by the Chief Justice

Rule 25th April 1969, 12th July 1971.

Short title

1. These Rules may be cited as the Matrimonial Causes (Supreme Court) Rules.

Application of the Supreme Court Rules

2. Subject to the provisions of these Rules, the Supreme Court Rules shall apply with the necessary modifications to the practice and the procedure in any cause or matter to which these Rules apply.

Interpretation

3.-(1) In these Rules, unless the context otherwise requires-

"address for service", in relation to a party to proceedings, means an address for service given in accordance with rule 9;

"application" means an application to a court for the purpose of instituting proceedings of a kind referred to in paragraph (2) or (3) of the rule 12 pr an application to the registrar made under these rules;

"certificate of means" means a certificate granted by the registrar under rule 201

"co-respondent" means a party to proceedings who is specified in the petition instituting the proceedings as a person with whom, the respondent is alleged to have committed adultery;

"court" means the Supreme Court of Fiji;

"filed" means filed in the appropriate office of a court;

"infant" means a person who has not attained the age of twenty-one years;

"intervener" means, in relation to proceedings, a person who becomes or has become a party to the proceedings by intervening under Part XII of the Act or under rule 111, 112 or 208;

"party cited" means a person specified in an answer to a petition as a person with whom the petitioner is alleged to have committed adultery;

"party named" means-

(a) in relation to a petition-a person named in the petition who has intervened, under subsection (2) of section 32 of the Act, in proceedings instituted by the petition; and

(b) in relation to an answer to a petition-a person named in the answer who has intervened, under subsection (2) of section 32 of the Act, in proceedings instituted by either the answer or the petition;

"petitioner" means the party who instituted or has instituted proceedings by petition;

"person named" means-

(a) in relation to a petition-a person specified in the petition as a person on or with who, the respondent is alleged to have committed rape or sodomy; and

(b) in relation to an answer to a petition-a person specified in the answer as a person on or with whom the petitioner is alleged to have committed rape or sodomy;

"proceedings" means proceedings constituting a matrimonial cause;

"pleading" means a petition, supplementary petition, answer, supplementary answer, reply or rejoinder;

"registrar" means the Chief Registrar of the Supreme Court;

"respondent" means, in relation to proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal rights, whether instituted by petition or by an answer to a petition, in relation to proceedings that relate to such proceedings-the spouse of the petitioner;

"sealed" means sealed with the seal of the Court;

"stamped envelope" means an envelope having impressed on it or affixed to it postage stamps that are valid in Fiji for the correspondence of private individuals the value of which is not less that the postage payable for the transmission of a letter, weighing not more than one ounce, posted in Fiji to an address in Fiji;

(2) In these Rules, references to a marriage shall be read as including references to a purported marriage and references to the spouse of a person shall be read as including references to the purported spouse of a person.

Designation of parties to proceedings

4.-(1) In the title of a document filed in, or issued out of, the office of the court in connexion with proceedings instituted by petition, a party to the proceedings who is the petitioner or respondent or a co-respondent, a party cited a party named or an intervener within the meaning of these Rules shall be designated by whichever of those expressions is applicable.

(2) For the purpose of paragraph (1), a document filed or issued for the purpose of proceedings that are instituted by application to the court and are in relation to proceedings instituted by a petition shall be deemed to have been filed or issued in connexion with the proceedings instituted by that petition.

(3) In the title of a document filed in or issued out of the office of the court in connexion with the proceedings of a kind referred to in paragraph (e) of the definition of "matrimonial cause", the party to the proceedings who institutes or instituted the proceedings shall be designated as the applicant and any other party to the proceedings shall be designated as the respondent.

(4) In any part (not being the title) of a document filed in or issued out of the office of the court in connexion with the proceedings-

(a) a party to the proceedings may be referred to by the designation by which the party is required by the preceding provisions of this rule to be designated in the title to the document; and

(b) a person, not being a party to the proceedings, who is a person named within the meaning of these Rules may be referred to by that designation.

Filing of documents

5.- (1) Subject to this rule, where a document relating to proceedings is required by these Rules to be filed, the document shall, unless the contrary intention appears, be filed in the office of the court.

(2) During the trial of proceedings by the court, a document relating to the proceedings may, by leave of the court, be filed to the court.

(3) During the hearing of an application by the registrar, a document relating to the application may, by leave of the registrar, be filed with the registrar.

Chambers

6. Proceedings of a kind referred to in paragraph (c), (d) or (e) of the definition of "matrimonial cause" may be heard by the court sitting in chambers.

Directions as to practice and procedure

7.-(1) Where the court is satisfied that-

(a) the provisions of the Act relating to practice and procedure and these Rules do not make provisions with respect to the practice and procedure applicable in the circumstance of a particular case,

(b) difficulty arises or doubt exists as to the practice or procedure applicable in the circumstances of a particular case,

the court may give such directions with respect to the practice and procedure to be followed in the case as the court considers necessary.

(2) Subject to any order made by the Court of Appeal, an act done or proceeding taken in accordance with a direction in force under paragraph (1) shall be deemed to have been duly done or taken.

(3) Where a direction given by the court under paragraph (1) is varied by the Court of Appeal, any act done or proceeding taken in accordance with the direction as so varied shall be deemed to have been duly done or taken.

On hearing of ancillary proceedings, further application may be made

8.-(1) Subject to this rule, where proceedings that are in relation to proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" (in this rule referred to as "the principal proceedings") are beard by the court before the trial of the principal proceedings, the court may, in addition to determining the first-mentioned proceedings-

(a) permit a party to the principal proceedings, whether or not he is a party to the first-mentioned proceedings, to make application for any order, required for the propose of preparing the principal proceedings for trial, that could be made upon the hearing of proceedings instituted for the purpose of seeking such an order;

(b) hear and determine the application in accordance with the provisions of this rule; and

(c) make, upon the determination of the application, the order sough by the application or such other order as to the court seems meet.

(2) An application for an order referred to in paragraph (1)-

(a) may be made orally to the court without the filing of any affidavit in support of the application; and

(b) may be so made to the court notwithstanding the fact that proceedings seeking the order have been instituted but have not been heard and determined by the court.

(3) Where an application for an order referred to in paragraph (1)is made to the court in a case where proceedings seeking that order have been instituted by not heard by the court-

(a) any affidavit filed for the purpose of those proceedings may, by leave of the court, be admitted in evidence upon the hearing of the application; and

(b) the order made by the court upon the determination of the application shall, unless the court otherwise orders, be deemed to be the order of the court upon the determination of those proceedings.

(4) Without limiting the generality of paragraph (1), application may be made to the court under this rule for an order with respect to-

(a) service of documents and dispensing with the service of documents;

(b) discovery and inspection of documents;

(c) admissions of fact or of documents;

(d) medical inspection of the petitioner and respond in the principle proceedings;

(e) the place, time and mode of trial;

(f) the furnishing of evidence of facts by affidavit at the trial of the principle proceedings; and

(g) the consolidation of the principal proceedings with other proceedings

(5) An application under paragraph (1) may be heard by the Court notwithstanding that any facts relied on in support of, or in opposition to the application are not verified by affidavit or by evidence given orally upon the hearing of the application.

(6) Nothing in the preceding paragraphs of this rule shall be taken to prevent the court-

(a) from requiring service of an application, or of notice of application under paragraph (1) to be effected on a party to the application; or

(b) from requiring the facts, or any of the facts, relied on or in support of, or in opposition to, such an application to be verified by affidavit or by evidence given orally upon the hearing of the application.

Address for service

9.-(1) Unless the court otherwise orders-

(a) a person shall not be entitled to file a document for the purposes of proceedings unless by that document, or by a document previously filed by him, he gives or has given an address for service that is, under this rule, his address for service for the purpose of those proceedings and

(b) a person shall not be entitled to be heard upon the trial of any proceedings, or upon the hearing of an application to the court or to the registrar in relation to any proceedings, unless he has previously given an address for service that is, under this rule, his address for service for the purposes of those proceedings.

(2) A person who does not have an address for service for the purpose of proceedings may give such an address by stating it as his address by stating it as his address for service-

(a) if the first document filed by him in those proceedings is a petition, answer or application-in that document; or

(b) in any other case-in a notice of address for service, in accordance with Form 1, filed for the purpose,

and, in the case of a notice referred to in sub-paragraph (b), serving a copy of the notice on each other party to the proceedings who has an address for service for the purpose of the proceedings.

(3) A person who has an address for service for the purpose of proceedings may change that address by filing a notice of change of address for service, in accordance with Form 2, and serving a copy of the notice on each other party to the proceedings who has an address for service for the purpose of the proceedings.

(4) The address given as a person's address for service shall be not more than five miles from the office of the court in which the document stating the address is filed and, subject to that requirement, shall, in the case of a person who is represented by a barrister and solicitor, be the address of the barrister and solicitor for that person, or of a barrister and solicitor acting as the agent of that barrister and solicitor.

(5) The address for service given, or last given, by a person in accordance with this rule in relation to any proceedings shall be his address for service for the purpose of those proceedings and also for the purpose of any other proceedings that constitute a matrimonial cause and are related to those proceedings, or to which those proceedings are related.

Schedule and forms

10. In these Rules, a reference to a Schedule by number shall be read as a reference to the Schedule so numbered to these Rules and a reference to a Form by number shall be read as a reference to the Form so numbered in the First Schedule.

Compliance with forms

11.-(1) Strict compliance with the Forms in the First Schedule shall not be necessary and substantial compliance, or such compliance as the circumstances of a particular case allow, shall be sufficient.

(2) Where a person referred to in a Form in the First Schedule is not represented by a barrister and solicitor, a reference in the Form to the barrister and solicitor for the person shall be read as a reference to the person.

(3) Where the word "Title" appears on a Form in the First Schedule, it shall be taken to indicate that a document required to be in accordance with that Form shall-

(a) if it is a document to which rule 13 applies-be instituted in accordance with that rule; or

(b) in any order case-bear an appropriate title.

(4) A Form in First Schedule shall be completed in accordance with such directions as are specified in the Form.

PART II - PROCEEDINGS

DIVISION 1 - COMMENCEMENT OF PROCEEDINGS

12.-(1) Proceedings required by subsection (1) of section 55 of the Act to be instituted by petition shall be instituted by filing a petition, addressed to the court-

(a) in the case of proceedings instituted in the court, in the registry; or

(b) in the case of proceedings instituted in a magistrate's court, in the office of that court.

(2) Where leave has been granted under subsection (3) of section 55 of the Act for the institution of proceedings of a kind to which that subsection applies otherwise than in the relevant petition or answer, the proceedings shall be instituted by filing an application to the court.

(3) Subject to paragraphs (1) and (2), proceedings in a matrimonial cause shall, except as otherwise provided in these Rules, be instituted by filing an application to a court having jurisdiction under the Act in the proper office of that court.

(4) Where proceedings to which paragraph (3) applies are instituted in relation to pending proceedings, the proceedings shall be instituted in the court in which those proceedings are pending.

(5) Subject to the Act and to these Rules, where proceedings to which paragraph (3) applies are instituted in relation to completed proceedings, the proceedings shall be instituted in the court in which the completed proceedings were heard and determined.

(6) An application under these Rules which is required or permitted to be made to the registrar shall be made by filing in the registry an application to the registrar.

(7) For the purposes of this rule, proceedings determined in the court shall be deemed to have been determined in the court or in the magistrate's court, as the case may be, in which the proceedings were instituted.

(8) Nothing in paragraph (3) shall be taken to authorise the institution of proceedings without the leave of the court in a case where such leave would be otherwise required.

How proceedings instituted

13.-(1) A document filed in, or issued out of, the office of a court in relation to proceedings instituted by petition shall be intituled in accordance with Form 3.

(2) Subject to these Rules, the title to a document referred to in paragraph (1) shall include the full name and the designation of every party to the proceedings instituted by the petition (including any person who, upon the filing of that document, will become a party).

(3) Where proceedings are or have been instituted under the Act for a decree of nullity of marriage on the ground that a marriage is void, the title to a document filed in, or issued out of, the office of a court in relation to the proceedings shall contain the surname, at the date of the institution of the proceeding of the female party to the purported marriage followed by the word "otherwise" and followed then by the name that was that party's surname immediately before the solemnisation of the purported marriage.

(4) Where a person intervenes in proceedings under subsection (2) of section 32 of the Act or under these Rules, the person becomes a party to the proceedings and the title to the proceedings shall be deemed to have been amended accordingly.

(5) Subject to Part VIII, where, after the institution of proceedings in a matrimonial cause, a pleading is filed, or an amendment to a pleading is made, by which the petitioner or respondent is alleged to have committed adultery with a specified person, whether or not a decree is sought on the ground of the adultery, that person becomes a party to those proceedings, and the title of those proceedings shall be deemed to have been amended accordingly.

(6) Where a party to proceedings is dismissed from the proceedings, the title to the proceedings shall be deemed to have been amended by omitting the name and designation of the party.

Proceedings to be numbered

14.-(1) Subject to paragraph (2), the registrar or the clerk of the magistrate's court in which proceedings are instituted, or to which proceedings are transferred, shall cause a distinguishing number to be allotted to the proceedings.

(2) Where, after the commencement of the Act, proceedings are instituted in a court in relation to concurrent, pending or completed proceedings to which a number has been allotted or is deemed to have been allotted under this rule, that number shall be deemed to have been allotted to those first-mentioned proceedings.

(3) A document filed in, or issued out of, the office of a court in connexion with proceedings or in connexion with a decree in respect of which a distinguishing number has been allotted, or is deemed to have been allotted, under this shall have that number endorsed by the document.

DIVISION 2 - APPLICATIONS TO THE COURT OR REGISTRAR

How applications instituted

15.-(1) Subject to these Rules-

(a) an application to a court referred to in paragraph (2) or (3) of rule 12, and an application to a registrar referred to in paragraph (6) of that rule shall be in accordance with Form 14; and

(b) the affidavits intended to be used in support of the application shall be filed at the same time as the application is filed.

(2) Subject to these Rules, an application-

(a) shall specify the date on which it is proposed that the application will be heard by the court or registrar or, if the registrar is unable to fix that at the time when the application is filed, shall state that the application will be so heard on a date to be fixed by the registrar;

(b) shall specify the place at which it is proposed that the application will be heard by the court or registrar;

(c) shall specify the order that the court or registrar will, on the hearing of the application, be asked to make; and

(d) shall be signed by the barrister and solicitor representing the applicant in connexion with the application, or if the applicant is not so represented by a barrister and solicitor, by the applicant.

(3) An application shall bear date the day on which it is filed.

(4) Notwithstanding paragraph (1), the court or registrar may permit the use, to support to an application, of an affidavit that was filed subsequently to the filing of the application.

Parties to applications

16. Where an application to a court or registrar relates to pending or completed proceedings, the applicant and each other party to those pending or completed proceedings who is affected by the application are parties to the application.

Service of copy of application

17.-(1) Subject to paragraphs (2) and (3), when an application to the court or to the registrar has been filed, the applicant shall cause service of the application to be effected on each other party to the application.

(2) It shall not be necessary for service of an application to be effected on a party to the application-

(a) in a case where the application is of a kind that is permitted by these Rules to be made ex parte; or

(b) in a case where service of the application on the party is dispensed with.

(3) Subject to any provisions of these Rules that expressly require service of an application to be effected on a party to the application, it shall not be necessary for service of the application to be effected on a party to the application unless that party has an address for service.

(4) Service of an application on a party shall be effected by serving a copy of the application on the party.

(5) Unless a judge or registrar, as the case may be, otherwise direct, there, shall be at least three clear days between the service of the application and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be.

Affidavits in support of application

18.-(1) The grounds on which the court or registrar, as the case may be will be asked to make the order specified in an application, and the facts on which the applicant proposes to rely in support of the application for that order, shall be stated in the affidavit filed in support of the application.

(2) Where service of an application is effected on a party to the application, a copy of each affidavit filed in support of the application shall be served on the party at the time of the service of the application or within a reasonable time before the hearing of the application.

Affidavits in answer and in reply

19.-(1) A party to an application other than the applicant may, before the hearing of the application or, by leave of the court or registrar by whom the application is heard, during the hearing of the application, file an affidavit in answer to an affidavit in support of the application.

(2) A party filing an affidavit in answer shall cause a copy of the affidavit in answer to be served on each other party to the application who has an address for service as soon as practicable after the affidavit in answer has been filed.

(3) A party on whom a copy of an affidavit in answer is served may, before the hearing of the application or, by leave of the court or registrar by whom the application is heard, during the hearing of the application, file an affidavit to reply to that affidavit

(4) A party filing an affidavit in reply to an affidavit filed by another party to the application shall cause a copy of the affidavit in reply to be served to each other party who has an address for service as soon as practicable after the affidavit in reply has been filed.

PART III - APPLICATIONS FOR LEAVE TO INSTITUTE PROCEEDINGS FOR DISSOLUTION OF MARRIAGE OR JUDICIAL SEPARATION

Application may be made ex parte

20. An application under section 30 of the Act for leave to institute proceedings may be made ex parte.

Affidavit in support of application

21. The affidavit in support of an application under section 30 of the Act for leave to institute proceedings for a decree of dissolution of marriage or of judicial separation shall-

(a) include particulars of the exceptional hardship that would be imposed on the applicant by the refusal to grant the leave or particulars of the exceptional depravity on the part of the other party to the marriage that is alleged, as the case may be;

(b) state the ground upon which, if leave is granted, the applicant intends to petition for the decree;

(c) state whether or not the applicant has made a previous application for leave, under section 30 of the Act, to institute proceedings for such a decree, and, if he has made a previous application, also state the date and grounds on which, and the court to which, the previous application was made and whether that application was granted;

(d) state whether or not a child of the marriage is living, and, if a child of the marriage is living, also state-

(i) the name of the child;

(ii) the date of birth of the child; and

(iii) the place at which, and persons with whom, the child is residing; and

(e) state whether an attempt has been made to effect a reconciliation between the parties to the marriage and, if such an attempt has been made, state particulars of the attempt; and

(f) state particulars of any other circumstances that may assist the court in determining whether there is a reasonable probability of a reconciliation between the parties before the expiration of the period three years after the date of the marriage.

Service of copy of order

22. A petitioner who institutes proceedings for dissolution of marriage or for judicial separation by leave of the court under section 30 of the Act shall cause service of a copy of the order of the court granting the leave to be effected on his spouse at the same time as service of the petition is effected on his spouse.

Marriage certificate to be filed with application

23. (1) At the time when an application under section 30 of the Act for leave to institute proceedings is filed, the applicant shall, unless he is unable to do so, also file a marriage certificate in respect of the marriage to which the application relates.

(2) If the marriage certificate filed in accordance with paragraph (1) is not written in the English language, a translation, in the English language, of the marriage certificate shall be filed at the same time.

(3) A translation of a marriage certificate filed in accordance with paragraph (2) shall be verified as a translation by the person who made the translation by an affidavit in which he also states that he is competent to make a translation of the marriage certificate.

(4) Where an applicant is unable, for any reason, to comply with paragraph (1), the applicant shall state in the affidavit filed in support of the application the circumstances by reason of which he is unable so to comply.

(5) In this rule "marriage certificate", in relation to a marriage whether solemnized in Fiji or elsewhere, has the same meaning as in rule 52.

PART IV - PETITIONS

DIVISION 1 - GENERAL

Particulars of parties, etc to be included in petition

24.-(1) A petition shall state the full name of each party to the proceedings and, in addition-

(a) the address and occupation of the petitioner;

(b) the address and occupation, so far as known to the petitioner, of each other party to the proceedings;

(c) the name of the wife immediately before the marriage, or alleged marriage, as the case may be; and

(d) the address and occupation, so far as known to the petitioner, of any person, not being a party to the proceedings, specified in the petition as a person with whom or on whom the respondent is alleged to have committed adultery, rape or sodomy.

(2) Where the address, at the date of the petition, of a party or person referred to in paragraph (1) is not known to the petitioner, the petition shall state that the address is not known to the petitioner and also state the last address (if any) of the party or person known to the petitioner

Contents of petition

25. A petition shall state-

(a) particulars of the marriage or purported marriage to which the petition relates;

(b) particulars relating to the birth of the parties to the marriage or purported marriage;

(c) particulars relating to the domicile or residence of the petitioner in Fiji;

(d) particulars of the cohabitation of the parties to the marriage;

(e) particulars relating to the children of the parties to the marriage and the children of either party to the marriage required by rule 30;

(f) particulars of previous proceedings between the parties to the marriage;

(g) the facts, but not the evidence by which the facts are to be proved, relied on as constituting the ground or each ground specified in the petition, stating, if more than one ground is so specified, the facts relating to each ground, as far as practicable, separately;

(h) in the case of a petition for a decree of dissolution of a marriage or judicial separation-the matters required by rule 32,

(i) in the case of a petition for a decree of dissolution of marriage or of nullity of a voidable marriage-particulars concerning the arrangements referred to in rule 39 or 40; and

(j) in the case of a petition instituting proceedings of a kind referred to in paragraph (c) of the definition of "matrimonial cause" - the matters required by rule 189.

Particulars relating to marriage

26.- (1) For the purpose of paragraph (a) of rule 25, the particulars of the marriage or purported marriage that are required to be stated in a petition are-

(a) the place at which and date on which the marriage or purported marriage was solemnized;

(b) the nature of the ceremony by virtue of which the marriage or purported marriage was solemnized;

(c) if that ceremony was a religious ceremony-the religious denomination according to the rites of which the marriage or purported marriage was solemnized; and

(d) the conjugal status of the petitioner and respondent, respectively, immediately before the solemnization of the marriage or purported marriage.

(2) Where a petitioner has been previously married, his petition shall state-

(a) the date of the previous marriage or of each previous marriage, as the case may be;

(b) the means by which the previous marriage or each previous marriage was dissolved; and

(c) if a previous marriage was dissolved by a court-the name of the court by which and the date when that marriage was dissolved.

(3) Where the respondent to a petition has been previously married, the petition shall, so far as those facts are known to the petitioner, state-

(a) the date of the previous marriage or of each previous marriage, as the case may be;

(b) the means by which the previous marriage or each previous marriage was dissolved; and

(c) if a previous marriage was dissolved by a court-the name of the court by which and the date when that marriage was dissolved.

Particulars of date and place of birth of parties

27.-(1) For the purpose of paragraph (b) of rule 24, the particulars relating to the birth of the parties to the marriage that are required to be stated in a petition are the date and place of birth of each party to the marriage.

(2) Where a party to the marriage was not born in Fiji, particulars of the date on which the party entered Fiji or, if the party has re-entered Fiji after having left Fiji, the date on which the party first entered Fiji shall be stated in a petition in addition to the particulars referred to in paragraph (1).

Domicile or residence

28.-(1) This rule relates to the particulars relating to the domicile or residence of a petitioner in Fiji that are required to be stated in a petition for the purpose of paragraph (c) of rule 24.

(2) The petition shall state that the petitioner is, within the meaning of the Act, domiciled or resident, as the case may be, in Fiji.

(3) The facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to find that the petitioner is, within the meaning of the Act, domiciled or resident, as the case may be, in Fiji shall be stated in the petition in as concise a form as the nature of the case allows.

Particulars of cohabitation

29.-(1) For the purpose of paragraph (d) of rule 24, the particulars of the cohabitation of the parties that are required to be included in a petition, subject to paragraph (2), are-

(a) particulars, to the best of the recollection of the petitioner, of the places at which and periods during which the parties to the marriage have cohabited; and

(b) the date on which, and circumstances in which, cohabitation between the parties ceased or last ceased, as the case may be.

(2) Where the parties to the marriage have never cohabited at a place of residence, the petition shall include a statement to that effect.

Particulars of children

30.-(1) This rule applies to-

(a) any child of the marriage living at the date of the petition who has not attained the age of twenty-one years;

(b) any child of the marriage who has attained the age of twenty one years and in respect of whom an order is sought under section 58, 84 or 86 of the Act;

(c) any child of the parties to the marriage who has been adopted by another person or other persons or has been placed by the parties in the care of a person or persons with a view to the adoption of the child by that person or those persons or by another persons or other person; and

(d) any child of a party to the marriage who-

(i) has, at any time since the marriage, ordinarily been a member of the household of the husband and wife; and

(ii) has been adopted by another person or other person or has been placed by that party in the care of a person or persons with a view to the adoption of the child by that person or those persons or by another person or other persons.

(2) The particulars relating to any child to whom this rule applies that are to be stated in a petition are-

(a) in the case of a child referred to in sub-paragraph (a) or (b) of paragraph (1) the full name and date of birth of the child and the name of the person with whom the child is residing; or

(b) in the case of a child referred to in sub-paragraph (c) or (d) of that paragraph-

(i) the full name (if any) under which the parties, or either of them, registered the birth of the child;

(ii) the date of birth of the child; and

(iii) the date on or about which consent to the adoption of the child was given or the child was placed in the care of another person or persons with a view to his adoption.

(3) If there are no children to whom this rule applies the petition shall include a statement to that effect.

(4) Where the petitioner disputes the parentage of a child born, since the solemnization of the marriage to which the petition relates, to the female party to the marriage, the petition shall also state that the parentage of the child is in dispute and the grounds on which the parentage of the child is disputed.

(5) Where a person who is deemed, by virtue of section 3 of the Act, to be a child of the marriage to which the petition relates is living at the date of the petition, the petition shall also state the circumstances that result in the person being so deemed to be a child of the marriage.

Particulars of previous proceedings

31.-(1) This rule relates to the particulars of previous proceedings that are required to be stated in a petition for the purpose of paragraph (f) of rule 25.

(2) Subject to paragraph (1), the petition shall state the particulars of-

(a) any proceedings that have, since the marriage to which the petition relates, been instituted whether in Fiji or elsewhere in any court between the parties to the marriage; and.

(b) any proceedings concerning the maintenance, custody, guardianship, welfare, advancement or education of a child of that marriage that have been instituted whether in Fiji or elsewhere in any court otherwise than between those parties.

(3) Where no proceedings referred to in paragraph (2) have been instituted, the petition shall include a statement of that effect.

(4) Where the petition includes particulars of any proceedings referred to in paragraph (2), being proceedings that have been heard and determined by a court-

(a) particulars of the order made in the proceedings, and the date on which and court by which the order was made, shall be stated in the petition; and

(b) the petition shall also state whether the parties to the marriage have cohabited since the making of that order.

(5) Where an order of a court, or an agreement, making provision of the payment of maintenance in respect of a party to a marriage or a child of a marriage is in force, a petition relating to the marriage shall state the amount of maintenance payable under the order or agreement and the total amount of the maintenance paid under the order or agreement.

Condonation connivance and collusion

32.-(1) A petition instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in any of paragraphs (a) to (k), inclusive, of section 14 of the Act shall contain-

(a) a statement that the petitioner has not connived at that ground; and

(b) a denial that he has condoned that ground, or a statement of all facts relevant to the question whether ha has condoned that ground, including any facts relevant to the question whether that ground has been revived.

(2) A petition instituting proceedings for a degree of dissolution of marriage or of judicial separation shall contain a statement that, in bringing the proceedings the petitioner has not been guilty of collusion with intent to cause a pervasion justice.

Particulars of other orders sought

33.-(1) Where a petitioner-

(a) institutes, by his petition, proceedings with respect to the maintenance of the petitioner, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage; or

(b) is seeking an order as to the costs of any proceedings instituted by his petition,

the petition shall set out particulars of the order sought in the proceedings or of the order sought as to costs, as the case may be.

(2) Where a petitioner is, by his petition, seeking an award of damages under section 31 of the Act, the petition shall specify the amount of damages sought.

Date and signature

34.-(1) A petition shall bear date the day on which it is filed

(2) Where a petition is settled by a barrister and solicitor, the name of such barrister and solicitor shall be written on the petition.

(3) A petition shall be signed-

(a) if the petitioner is represented by a barrister and solicitor, by the barrister and solicitor personally; or

(b) if the petitioner is not represented by a barrister and solicitor by the petitioner.

Petition to be verified

35.-(1) A petitioner shall by an affidavit written on his petition and sworn within twenty-one days before his petition is filed-

(a) verify the facts stated in his petition of which ha has personal knowledge; and

(b) depose as to his belief in the truth of every other fact stated in his petition.

(2) Where, for the purpose of complying with paragraph (1), it is necessary for a petitioner to certify the doing of, or the failure to do, an act within, throughout or for a period ending on the day immediately preceding the date of his petition, it shall be sufficient compliance with that paragraph if the petitioner verifies the doing of, or the failure to do, the act within, throughout or for, as the case may be, a period ending on the day immediately before the swearing of his affidavit.

(3) Where, for the purpose of complying with paragraph (1), it is necessary for a petitioner to verify that a certain circumstance existed at the date of his petition, it shall be sufficient compliance with that paragraph if the petitioner verifies the existence of the circumstance at the date of swearing his affidavit.

DIVISION 2 - PETITIONS FOR DISSOLUTION OF MARRIAGE

Form of petition for dissolution of marriage

36. A petition for a decree of dissolution of marriage shall be in accordance with Form 5.

Ground for relief to be stated in petition

37.-(1) A petition for a decree of dissolution of marriage shall state the ground on which the decree is sought.

(2) For the purpose of these Rules, a ground specified in a paragraph of section 14 of the Act specified in the first column of the following table may be stated in a pleading or affidavit in the terms set out in the second column of that table opposite the paragraph:-

Statement in petition when petitioner has committed adultery

38. Where a petitioner for a decree of dissolution of marriage on a ground specified in any of paragraphs (a) to (m), inclusive, of section 14 of the Act has committed adultery since the marriage but before the filing of his petition, his petition shall state that the court will be asked to make the decree notwithstanding the facts and circumstances set out in his discretion statement.

Arrangements for welfare of children

39.-(1) Where, at the date of a petition for a decree of dissolution of marriage, the children of the marriage to which the petition relate are living, the petition shall state-

(a) the arrangements proposed by the petitioner concerning the welfare, and, where appropriate, the advancement and education, of the children who are then living; or

(b) the petitioner's reasons for not stating in the petition the arrangements so proposed.

(2) In paragraph (1), "children of the marriage" means-

(a) children of the marriage who are not likely to have attained the age of eighteen years before the decree of dissolution of marriage is made; and

(b) any children of the marriage in relation to whom the petitioner seeks an order under the subsection (3) of section 58 of the Act.

Petition for dissolution of marriage on ground of separation

40. A petition for a decree of dissolution of marriage on the ground specified in paragraph (m) of section 14 of the Act may state the arrangement made or proposed by the petitioner for the provision of maintenance or other benefits referred to in sub-section (2) of section 23 of the Act for the respondent upon the decree becoming absolute.

Petition for dissolution of marriage on ground of presumption of death

41. A petition for a decree of dissolution of marriage on the ground specified in paragraph (n) of section 14 of the Act shall, in addition to the facts stated in pursuance of paragraph (g) of rule 24, state-

(a) the latest date on which the petitioner has reason to believe the respondent to have been alive and the circumstances in which the petitioner has reason so to believe; and

(b) particulars of any inquiries made by the petitioner for the purpose of locating the respondent.

Death of person specified in petition

42. Where a person specified in a petition for a decree of dissolution of marriage as a person with or on whom the respondent has committed adultery, rape or sodomy has, to the knowledge of the petitioner, died before the date of the petition, the petition shall state that the person so specified is dead and the date of his death.

DIVISION 3 - PETITION FOR NULLITY OF MARRIAGE

Form of petition

43. A petition for a decree of nullity of marriage shall be in accordance with Form 5.

Ground for relief to be stated in petition

44. A petition for a decree of nullity of marriage shall indicate whether the decree is sought on the ground that the marriage is void on the ground that the marriage is voidable, and shall state the nature of the defect in the marriage.

Petition to state domicile at the time of marriage

45. In a petition for a decree of nullity of marriage, if the domicile of either of the parties immediately before the marriage is relevant to the determination of the proceedings, the petition shall state that domicile.

Petition for nullity-voidable marriage

46.-(1) In a petition for a degree of nullity of marriage on the ground that a marriage is voidable by virtue pf paragraph (b), (c) or (d) of subsection (1) of section 9 of the Act, the date on which the petitioner discovered the existence of the facts constituting the ground and the date on which marital intercourse last took place with the consent of the petitioner shall be stated in addition to any other facts stated in pursuance of paragraph (g) of rule 25.

(2) A petition instituting proceedings for a decree of nullity of marriage on a ground referred to in paragraph (1) shall contain a statement that the petitioner was, at the time of the marriage, ignorant of the facts constituting the ground.

Arrangements for welfare of children

47. Rule 39 shall apply in relation to a petition for a decree of nullity of a voidable marriage as if the reference in that rule to a decree of dissolution of marriage were references to a decree of nullity of a voidable marriage.

DIVISION 4 - PETITION FOR JUDICIAL SEPARATION

Form of petition

48. A petition for a decree of judicial separation shall be in accordance with Form 5.

Application of certain rules to petition for judicial separation

49. The provisions of rules 37, 38 and 42, in so far as they are applicable to the circumstances of the particular case, shall apply in relation to a petition for a decree of judicial separation as if the references to a petition for a decree of dissolution of marriage were references to a petition for a decree of judicial separation.

DIVISION 5 - PETITIONS FOR RESTITUTION OF CONJUGAL RIGHTS

Form of petition

50. A petition for a decree of restitution of conjugal rights shall be in accordance with Form 6.

Petition for restitution of conjugal rights

51.-(1) In a petition for a decree of restitution of conjugal rights-

(a) date on which the petitioner and respondent last cohabited, and the circumstances in which cohabitation between the petitioner and respondent ceased or last ceased, as the case may be; and

(b) the date on which and the manner in which the written request for cohabitation was made to the respondent in accordance with paragraph (b) of section 49 of the Act or, if no such written request was made, particulars of the special circumstances that are alleged to justify the making of the decree notwithstanding that such a request was not made,
shall be stated in the petition in addition to any other facts that are stated in the petition in pursuance of paragraph (g) of rule 25.

(2) A petition for a decree of restitution of conjugal rights shall state-

(a) That the respondent still refuses, at the date of filing the petition, to cohabit with, and render conjugal rights to, the petitioner; and

(b) hat the petitioner sincerely desires conjugal rights to be rendered by the respondent and is willing to render conjugal rights to the respondent.

DIVISION 6 - FILING PETITIONS AND NOTICES OF PETITIONS

Marriage certificate to be filed with petition

52.-(1) Subject to the provisions of paragraph (2), at the time when a petition for a decree of-

(a) dissolution of marriage;

(b) nullity of marriage;

(c) judicial; separation; or

(d) restitution of conjugal; rights,

is filed, the petitioner shall, unless he is unable to do so, also file a marriage certificate in respect of the marriage to which the petition relates.

(2) This rule shall not apply in relation to a petition instituting proceedings in pursuance of leave granted under section 30 of this Act.

(3) If the marriage certificate filed in accordance with paragraph (1) is not written in the English language, a translation, in the English language, of the marriage certificate shall also be filed at the same time.

(4) A translation of a marriage certificate filed under paragraph (3) shall be verified as a translation by the person who made the translation by an affidavit in which he also states that he is competent to make a translation of the marriage certificate.

(5) Where a petitioner is unable, for any reason, to comply with paragraph (1), the petitioner shall state in the affidavit verifying the petition the circumstances by reason of which he is unable so to comply.

(6) In this rule, "marriage certificate", in relation to a marriage, whether solemnized in Fiji or elsewhere, means-

(a) an original certificate or record of the marriage; or

(b) a copy or photographic representation of an original certificate or record or of an entry of the marriage in an official register of marriages being a true copy or representation certified as a true copy or photographic representation by a person having the custody of the certificate or record, or of the register containing the entry, of which it purports to be a true copy or photographic representation.

Notice of petition or of proceedings

53.-(1) A notice of petition or notice of proceedings which, under these Rules, a petitioner or respondent is required to serve on another person shall be a notice signed by the registrar and sealed with the seal of the court and shall be in accordance with Form 7, Form 8 or Form 9 (whichever is appropriate).

(2) Where a form of notice is properly presented to the registrar by or on behalf of the petitioner or respondent and a copy of the form of notice is filed, the registrar shall sign and seal the form of notice for the purposes of this rule.

Time for answer or reply to be specified in notice of petition or notice of proceedings

54. The time to be specified in a notice of petition or notice of proceedings as the time limited for the filing of an answer or reply, as the case requires, by a person entitled so to do is-

(a) where the place of service of the notice is in Fiji - twenty-eight days; or

(b) in any other case - such reasonable time as is determined by the registrar, having regard to the place at which the notice is to be served and to the availability of air-mail services.

Notice of petition or of proceedings in force for twelve months

55.-(1) Subject to this rule, a notice of petition or a notice of proceedings, in relation to a petition or answer, remains in force, for the purposes of service, until the expiration of twelve months from the day on which the petition or answer was filed.

(2) The registrar may, upon being satisfied that it is reasonable so to do, grant an extension of the time within which the notice may be served until a date twelve months after the expiration of that period, or of that period as previously extended.

(3) The registrar may grant an extension of the time within which a notice may be served notwithstanding that the notice has ceased to be in force and not withstanding that the time has previously been extended.

(4) Where a registrar grants an extension of the time within which a notice may be served, he shall write on the notice, and on the copy of the notice that was filed in pursuance of paragraph (2) of rule 53, particulars of the extension, sign his name under those particulars and seal the particulars with the seal of the court.

(5) In this rule-

"answer" includes supplementary answer;

"petition" includes supplementary petition.

Lost notice

56.- (1) A petitioner or respondent may, at the time of, or at any time within twelve months after, the filing of the petition or answer, procure the issue of a concurrent notice of petition or a concurrent notice of proceedings, or of more than one such concurrent notices, addressed to a person to whom an original notice of petition or notice of proceedings was addressed.

(2) A concurrent notice of petition or notice of proceedings shall bear teste of the same day as the original notice of petition or notice of proceedings and shall be stamped with a stamp bearing the work "concurrent" and the date of issuing the concurrent notice.

(3) The provisions of rules 54, 55 and 56 apply to in relation to concurrent notices in like manner as they apply to and in relation to original notices.

PART V - SERVICE

DIVISION 1 - GENERAL PROVISIONS RELATING TO SERVICE OF DOCUMENTS

Manner of service

58. Where service of a document is required by these Rules to be effected on a person, service may, subject to the provisions of these Rules that limit the methods service of particular classes of documents, be effected, either in or outside Fiji-

(a) by delivering the document to the person personally;

(b) by serving the document on the person by post in accordance with rule 60;

(c) if the person has an address for service for the purpose of the proceedings-by delivering the document at that address or by posting the document (under prepaid postage) as a letter to the person, or his barrister and solicitor, as the case may be at that address; or

(d) by delivering the document at, or by properly addressing and posting (under prepaid postage) the document as a letter to the person at the last address of the person known to the person on whose behalf the document is being served.

Personal service

59.-(1) Subject to paragraph (2), service of a document on a person by delivering it to him personally shall not be effected by the party to proceedings on whose behalf the document is being served but may be effected by another person in the presence of that party.

(2) Where it is impracticable for service of a document on a person by delivering it to him personally to be effected by a person other than the party to the proceedings on whose behalf the document is being served, that party may effect service of the document on the person in that manner but, in such a case, he shall state in any affidavit of the service of the document sworn by him the circumstances that rendered it impracticable for another person to effect the service.

(3) Where service of a document on a person by delivering it to him personally is effected by the party on whose behalf the document is being served, that party shall obtain from the person a receipt for the document signed by the person unless the person refuses to sign and give a receipt for the document, and that party shall in any affidavit of the service of the document sworn by him, state whether the person signed or refused to sign a receipt for the document.

Service by post

60.-(1) For the purpose of paragraph (b) of rule 58, service of a document on a person shall be effected by properly addressing and posting (under prepaid postage) the document, together with-

(a) a form in accordance with Form 10 for acknowledging service of the document; and

(b) an envelope, being, in the case of service effected in Fiji, a stamped envelope, having written on it the name of the person on whose behalf the document is being served, or the name of his barrister and solicitor, and the address for service of that person,

as a letter, to the person at the last address of the person known to the person on whose behalf the document is being served.

(2) Subject to paragraph (3), where a document has been posted to a person in accordance with the provisions of paragraph (1), service of the document on the person shall be deemed not to have been effected unless the person signs and returns to the person on whose behalf the document is being served or to his barrister and solicitor an acknowledgement of the service in accordance with Form 11.

(3) Where a document instituting proceedings has been posted to a person in accordance with the provisions of paragraph (1), service of the document shall be deemed to have been duly effected on the person if, after the time when the document would in the ordinary course of post have been received by the person, the person files a document giving an address for service for the purpose of the proceedings.

(4) Where service of a document has been effected by posting the document to a person in accordance with the provisions of paragraph (1), the date on which the person received the document shall be taken to be the date on which the service was effected.

When service effected if posted to address for service, etc.

61. Where service of a document is effected on a person in accordance with paragraph (c) or (d) of rule 58 by posting the document to the person or to his barrister and solicitor, service of the document shall, unless the contrary is proved, be deemed to have been effected on the person at the time when the letter containing the document would, in the ordinary course of post, be delivered at the address to which it is posted.

Service out of jurisdiction

62. A document may be served out of the jurisdiction without leave in manner provided by these rules, or may be served in accordance with the procedure prescribed by Order 11 of the Supreme Court Rules and so however that the official certificate required by the rules of that Order shall, in the case of a document served personally, show the server's means of knowledge as to the identity of the person served.

Power to dispense with service

63.-(1) The court or the registrar may, upon application made ex parte, dispense with the service of any process under the Act on a person if the court or registrar thinks it necessary or expedient to do so.

(2) An order under paragraph (1) may be made subject to such conditions (if any) as the court or registrar thinks fit.

Substituted service

64.-(1) Where a registrar, upon application made ex parte by a party to proceedings for an order under this rule, is satisfied that it is not reasonably practicable for the party to effect service of a document in a manner specified in any paragraphs (a) to (d), inclusive, of rule 58 that is applicable, the registrar may, in his discretion, order that service of the document be effected in a manner specified in the order or that the giving of notice of the document and of its effect by advertisement or otherwise, as specified in the order, be substituted for service of the document.

(2) Where an order has been made by the court or by the registrar authorizing the giving of notice of a document by advertisement, the form of the advertisement shall be approved by the registrar.

(3) Where an order of a kind referred to in paragraph (1) has been made by the court or by the registrar in relation to service of a document on a person, compliance with the order shall, notwithstanding any other provision of these Rules, be deemed to be due service of the document on the person.

DIVISION 2 - SERVICE OF PETITIONS AND ANSWERS

Service of petitions

65.-(1) Subject to these Rules, a petitioner shall cause service of the petition be effected on-

(a) each other party to any proceedings instituted by the petition; and

(b) any person specified in the petition as a person on or with whom the respondent is alleged to have committed rape or sodomy.

(2) Service of a petition shall be effected on a person-

(a) by serving on the person, in the manner referred to in paragraph (a) of rule 58-

(i) a sealed copy of the petition; and

(ii) if the person served is the respondent, a notice of petition or, if the person served is not the respond, a notice of proceedings; or

(b) by serving on the person, in the manner referred to in paragraph (b) of rule 58-

(i) a sealed copy of the petition;

(ii) if the person served is the respondent, a notice of petition or, if the person served is not the respondent, a notice of proceedings;

(iii) a form, in accordance with Form 11 for acknowledgement service of the petition; and

(iv) an envelope, being, in the case of service effected in Fiji, a stamped envelope, having written on it the name of the petitioner or his barrister and solicitor and the address for service of the petitioner.

Service of answer

66.-(1) Subject to these Rules, a person on whose behalf an answer to a petition is filed shall cause service of the answer to be effected on-

(a) each other party to any proceedings instituted by the petition who has an address for service for the purpose of the proceedings; and

(b) any person specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy.

(2) Service of an answer to a petition shall be effected on a party to proceedings referred to in sub-paragraph (a) of paragraph (1) by serving, on the day on which the answer is filed or on the next following day, a copy of the answer on the person in a manner referred to in paragraph (c) of rule 58.

(3) Service of an answer to a petition shall be effected on a person referred to in paragraph (b) of paragraph (1)-

(a) by serving on the person, in the manner referred to in paragraph (a) of rule 58-

(i) a sealed copy of the answer; and

(ii) a notice of proceedings; or

(b) by serving on the person, in the manner referred to in paragraph (b) of rule 58-

(i) a sealed copy of the answer;

(ii) a notice of proceedings;

(iii) a form, in accordance with Form 11, for acknowledging service of the answer; and

(iv) an envelope, being, in the case of service effected in Fiji, a stamped envelope, having written on it the name of the respondent or his barrister or solicitor and the address for service of the respondent.

(4) Where a party to proceedings instituted by a petition files an address for service for the purpose of the proceedings on or after the day on which an answer to the petition is filed by another party to the proceedings, the party who filed the answer shall, upon request made by the first-mentioned party, cause service of a copy of the answer to be effected, in a manner referred to in paragraph (c) of rule 58, on the first-mentioned party on the day on which the request is made or on the next following day.

Stale petitions and answers

67.-(1) Service of a petition on a person is of no force and effect unless the notice of petition or notice of proceedings addressed to the person was in force, for the purpose of service, on the day on which service of the petition was effected.

(2) Where, under these Rules, service of an answer on a person is required to be effected by serving on the person a notice of proceedings addressed to the person in addition to a sealed copy of the answer, service of the answer on the person is of no force and effect unless the notice of proceedings addressed to the person was in force, for the purposes of service, on the day on which service of the answer was effected.

DIVISION 3 - SERVICE ON INFANTS AND PERSONS OF UNSOUND MIND

Service of petition, etc., on infant

68.-(1) Subject to this rule, service of a petition on an infant shall be effected by-

(a) serving a sealed copy of the petition and a notice of petition or notice of proceedings, as the case requires, on the infant in a manner referred to in paragraph (a) or (b) of rule 58; and

(b) serving a sealed copy of the petition and a notice of proceedings, in a manner referred to in paragraph (a) or (b) of rule 58, on a parent of the infant, a person with whom the infant is residing or such other person as a registrar specified in an order made under paragraph (3).

(2) Service of a sealed copy of a petition-

(a) if a parent of the infant is a party-on a parent of the infant;

(b) if a parent of the infant is not a party and service can be duly effected in Fiji on a parent of the infant-on a person with whom the infant is residing (not being his parent); or

(c) if a person with whom the infant is residing is under the age of twenty-one years or is not a kinsman of the infant-on that person.

is not sufficient compliance with sub-paragraph (b) of paragraph (1).

(3) Where the registrar is satisfied that, for any reason, a petitioner would otherwise be unable to comply with paragraph (b) of paragraph (1), the registrar may, by order, specify a person who, in the opinion of the registrar, is a proper person to advise the infant in connexion with the proceedings instituted by the petition as the person on whom a sealed copy of the petition may be served for the purpose of complying with that paragraph.

(4) Where the registrar is satisfied that, having regard to the age and the understanding of the infant, it is proper so to do, the registrar may, by order, dispense with compliance with sub-paragraph (b) of paragraph (1).

(5) An application for an order under paragraph (3) or (4) may be made ex parte

(6) The preceding paragraphs of this rule apply in relation to service of an answer on a infant who is specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy as if-

(a) references to a petition were references to an answer;

(b) references to a petitioner were references to a party on whose behalf an answer is filed;

(c) references to a notice of petition or notice of proceedings as the case requires, were references to a notice of proceedings; and

(d) the reference in paragraph (3) to proceedings instituted by the petition was a reference to the proceedings in answer to which the answer is filed and to any other proceedings instituted by the answer.

(7) In this rule-

"answer" includes supplementary answer;

"petition" includes supplementary petition.

Service of petition, etc., on person of unsound mind

69.-(1) Unless the court or registrar otherwise orders, service of a petition shall be effected on a person of unsound mind by serving, in a manner in a manner referred to in paragraph (a) or (b) of rule 58, a sealed copy of the petition and a notice of petition or notice of proceedings as the case requires-

(a) if there is a committee of the person of the person of unsound mind-on that committee;

(b) if there is no such committee but there is a committee of the estate of the person of unsound mind-on that committee;

(c) if there is no committee of the person, or committee of the estate of the person of unsound mind but the Attorney-General or an authorised person has signed a consent under rule 124 to act as the guardian ad litem of the person of unsound mind-on the Attorney-General or the authorized person, as the case may be; or

(d) in any other case-on a person with whom the person of unsound mind is residing or the person under whose care he is.

(2) Service of a petition shall be deemed not to have been effected on a person of unsound mind in accordance with paragraph (1)-

(a) unless the sealed copy of the petition so served had written on it a notice directing the person on whom it is actually served to bring the contents of the petition to the notice of the person of unsound mind if, after consultation with the medical practitioner responsible for the treatment of the person of unsound mind, he is satisfied that it would not be detrimental to the health of the person of unsound mind to do so; and

(b) unless the court is satisfied, by affidavit of the person on whom the petition is actually served or otherwise, that the contents of the petition were brought to the notice of the person of unsound mind or that the medical practitioner referred to in paragraph (1) has expressed the opinion that it would be detrimental to the health of the person of unsound mind to do so.

(3) For the purposes of paragraph (1), a person of unsound mind who is a patient in an institution shall be deemed to be in the care of the superintendent or other person in direct charge of the institution.

(4) The preceding paragraphs of this rule apply to the service of an answer on a person of unsound mind who is specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy as if-

(a) references to a petition were references to an answer; and

(b) references to a notice of petition or notice or proceedings, as the case requires, were references to an notice of proceedings.

(5) In this rule-

"answer" includes supplementary answer;

"petition" includes supplementary petition.

DIVISION 4 - PROOF OF SERVICE

Proof of personal service of documents

70 -Subject to paragraph (2), where service of a document is effected on a person in the manner referred to in paragraph (a) of rule 57, the due service of the document shall be deemed not to have been proved by affidavit unless the person who delivered the document to the person to be served states in an affidavit-

(a) the date on which and place at which the document was so delivered; and

(b) the means by which he established that the person to whom the document was delivered was the person required to be served with the document.

(2) Where service of a document, being a petition or answer, is effected on a person, being the respondent or the petitioner, as the case may be, in the manner referred to in paragraph (a) of rule 58 and proof of the due service of the document is required at the trial of proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause", the due service of the document shall be deemed not have been proved by affidavit unless-

(a) paragraph (1) has been complied with; and

(b) person other than the person who delivered the document has, in an affidavit or in evidence given orally at the trial, verified the signature on a receipt given by the person to whom the document was delivered or, in some other manner, corroborated the fact that the person to whom the document was delivered is the person required to be served with the document.

(3) An affidavit of service of a document on a person personally shall be in accordance with Form 11.

Proof of service of document by post

71.-(1) Subject to paragraph (2), where service of a document is effected on a person in the manner referred to in paragraph (b) of rule 58, the due service of the document shall be deemed not to have been proved by affidavit unless a person to whom an acknowledgement of service of the document was returned, being an acknowledgement that purports to be signed by the person to serve with the document, has deposed, in an affidavit to which the acknowledgement is annexed, to the manner in which the acknowledgement was returned to him.

(2) Where service of a document, being a petition or answer is effected on a person, being the respondent or the petitioner, as the case may be in the manner referred to in paragraph (b) of rule 58 and proof of the due service of the document is required at the trial of proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause", the due service of the document shall be deemed not to have been proved by affidavit unless-

(a) paragraph (1) has been complied with; and

(b) the signature appearing on the acknowledgement of service of the document is verified as the signature of the person to be served with the document by the affidavit of, or by evidence given orally at the trial by, a person conversant with that signature.

(3) The signature appearing on an acknowledgement shall not, for the purposes of paragraph (b) of paragraph (2), be verified by the party to proceedings on whose behalf the document was served unless-

(a) it is not reasonably practicable for the signature to be verified by some other person; and

(b) the party states in his affidavit or in his evidence, as the case may be, the circumstances by reason of which it is not so reasonably practicable.

Proof of service by posting document to an address

72. Where service of a document is effected on a person in accordance with paragraph (c) or (d) of rule 58 by posting the document to the person or to his barrister and solicitor, the due service of the document shall be deemed not to have been proved by affidavit unless-

(a) the person who posted the document has stated in an affidavit the manner in which the envelope containing the document was addressed, the day on which, and the time of the day and the place at which, the document was posted and that the documents was posted as a letter and postage was prepaid; and

(b) in a case where the document was posted to a person at an address other than the address for service of the person-the person on whose behalf the document was served has stated in an affidavit the last address of the person to be served that was known to him at the time of the posting.

Proof of service of document by advertisement

73.-(1) Where, in pursuance of an order of the court or of the registrar under these Rules, an advertisement is published in the Gazette or in a news paper, the person who obtained the order may deposit, in the proper office of the court, a copy of the page of the Gazette, or newspaper containing the advertisement.

(2) Where the page of a copy of the Gazette, or newspaper containing the advertisement is deposited under the paragraph (1), the registrar shall cause the advertisement to be cut out of the page and annexed to a memorandum, in accordance with Form 12, referring to, and giving the date of publication of, the advertisement.

(3) A memorandum referred to in paragraph (2) shall be filed by the registrar and shall be evidence that the advertisement, a copy of which is annexed to the memorandum, was published in the Gazette or newspaper specified in the memorandum on the date specified in the memorandum.

Affidavits of service

74. Where a person states in an affidavit that he delivered or posted a copy of an application or a notice of hearing to a person another copy of the application or notice shall be annexed to the affidavit.

Presumption of due service and date of service where notice of address for service filed

75. Where a respondent or a person specified in a pleading as a person, with or on whom a petitioner or respondent has committed adultery, rape or sodomy has given an address for service for the purpose of the proceedings, the petition or pleading shall be deemed to have been duly served on the respondent or that person without further proof of the service and, unless an affidavit, or certificate under rule 62, of the due service of the petition or pleading was filed before the document given the address for service was filed, the petition or pleading shall, for all purpose, be deemed to have been so served on the day on which the document given the address for service was filed.

PART VI - PLEADINGS

DIVISION 1 - ANSWERS

Answer

76. -(1) The respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, may, by filing an answer-

(a) deny a fact alleged in the petition;

(b) state that he does not know and cannot admit the truth of a fact alleged in the petition;

(c) alleged a fact; or

(d) admit the truth of a fact,

being a fact material to proceedings, instituted by the petition, to which he is a party or in which he is entitled to intervene under subsection (2) of section 32 of the Act or under Part VIII.

(2) Where the respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, desires to submit to the court that it should dismiss the proceedings, he shall, in an answer filed for the purpose, ask the court to dismiss the proceedings.

(3) Where the respondent or a co-respondent in proceedings instituted by a petition, or a person named in a petition, desires to submit to the court that, if it makes an order in favour of the petitioner, that order should be different from the order sought by the petitioner, he shall, in an answer filed for the purpose, set out particulars of the order that, in his submission, the court should make if it makes an order in favour of the petitioner.

(4) An answer shall be in accordance with Form 13 and shall be filed within the time limited by the notice of petition or notice of proceedings addressed to the person filing the answer.

(5) Where an answer to a petition contains an allegation that the petitioner has committed adultery, rape or sodomy with or on a specified person, the answer shall state the address and occupation, so far as known to the respondent, of that person.

(6) Where the address, at the date of the answer, of a person referred to in paragraph (5) is not known to the party filing the answer, the answer state that the address is not known to that party and also state the last address (if any) of the person known to that party.

Answer seeking dissolution, etc. of marriage

77.-(1) This rule applies to an answer by which a respondent to a petition institutes proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause".

(2) An answer to which this rule applies shall state that the respondent is, within the meaning of the Act, domiciled or resident, as the case may be, in Fiji, and, if the respondent relies, for the purpose of establishing his domicile or residence in Fiji, on any other facts other than facts included in the petition, the answer shall state those other facts.

(3) The facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought in proceedings instituted by an answer to which this rule applies shall be stated in the answer in as concise a form as the nature of the case allows.

(4) An answer instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in paragraphs (a) to (k), inclusive, of section 14 of the Act shall contain-

(a) a statement that the respondent has not connived at that ground; and

(b) a denial that he has condoned that ground, or a statement of all facts relevant to the question whether he has condoned that ground, including any facts relevant to the question whether that ground has been revived.

(5) An answer instituting proceedings for a decree of dissolution of marriage or of judicial separation shall contain a statement that, in bringing the proceedings the respondent has not been guilty of collusion with intent to cause of perversion of justice.

(6) The provisions of rules 33, 37, 38, 39, 40, 42 and 51, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of dissolution of marriage or of restitution of conjugal rights, as if-

(a) references to a petition were references to an answer;

(b) references petition were references to the respondent to a petition; and

(c) references to the respondent were references to the petitioner.

(7) The provisions of rules 33, 39, 44, 45 and 46, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of nullity of marriage, as if-

(a) references to a petition were references to an answer;

(b) references to a petitioner were references to the respondent to a petition;

(c) references to the respondent were references to the petitioner; and

(d) references to a petition for a decree of dissolution of marriage were references to a petition for a decree of nullity of avoidable marriage.

(8) The provisions of rules 33, 37, 38 and 42, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of judicial separation, as if-

(a) references to a petition were references to an answer;

(b) references to a petitioner were references to the respondent to a petition;

(c) references to the respondent were references to the petitioner; and

(d) references to a petition for a decree of dissolution of marriage were references to an answer by which the respondent to a petition is seeking a decree of judicial separation.

(9) An answer to which this rule applies shall be in Form 14.

Answer under protest

78.- (1) A respondent or co-respondent to a petition who desires to have the jurisdiction of the court to which the petition is addressed determined shall file an answer under protest, in accordance with Form 15, objecting to the jurisdiction of that court.

(2) An answer under protest shall state the grounds which the respondent or co-respondent objects to the jurisdiction of the court.

(3) Where an answer under protest has been duly served, the party filing the answer may, within fourteen days after the day on which the answer is filed, file an application to the court for directions as to the time and place at which the objection is to be determined by the court.

(4) It shall not be necessary for an application referred to in paragraph (3) to be supported by an affidavit.

(5) Upon the hearing of an application referred to in paragraph (3), the court may also give directions as to whether disputed questions of fact are to be determined upon evidence given orally or upon evidence given by affidavit.

(6) Where the party filing an answer under protest does not file the application referred to in paragraph (3) within the time limited by that paragraph, the party shall be deemed to have waived the objection.

(7) A petitioner in proceedings shall not, after an answer under protest has been filed and service of the answer has been effected on him, continue the proceedings against the party who filed the answer unless the court has overruled the objection to his jurisdiction or the party filing the answer under protest has waived the objection.

(8) Where a court has overruled an objection to its jurisdiction, the party who filed the answer under the protest may, within such time as the court allows, file a further answer to the petition.

DIVISION 2 - REPLIES AND REJOINDERS

Reply

79.-(1) Where an answer to a petition contains any allegation of fact, the petitioner may, by filing a reply-

(a) deny a fact alleged in the answer;

(b) state that he does not know and cannot admit the truth of a fact alleged in the answer;

(c) allege an additional fact that has become relevant to proceedings to which the reply relates by reason of some fact alleged in the answer; or

(d) admit the truth of a fact alleged in the answer.

(2) A party cited or a person named in an answer may, by filing a reply-

(a) deny a fact alleged in the answer;

(b) state that he does not know and cannot admit the truth of the fact alleged in the answer,

(c) allege a fact; or

(d) admit the truth of a fact alleged in the answer,

being a fact material to proceedings, instituted by the answer, to which he is a party or in which he is entitled to intervene under subsection (2) of section 32 of the Act or under Part VIII.

(3) Where proceedings have been instituted by an answer to a petition and the petitioner, a party cited or a person named in the answer desires to submit to the court that it should dismiss the proceedings, he shall, in a reply filed for the purpose, ask the court to dismiss the proceedings.

(4) Where proceedings have been instituted by an answer to petition and the petitioner, a party cited or a person named in the answer desires to submit to the court that, if it makes an order in favour of the party who filed the answer, that order should be different from the order sought by that party; he shall, in a reply filed for the purpose, set out particulars of the order that, in his submission, the court should make if it makes an order in favour of that party.

(5) A reply shall be in accordance with Form 16.

(6) The time limited for filing a reply to an answer shall be-

(a) in the case of a reply by the petitioner-fourteen day after service of the answer on the petitioner; and

(b) in the case of a reply by a party cited or a person name in the answer-the time so limited in the notice of proceedings served on the party cited or person named in relation to the answer.

Reply under protest

80.-(1) A petitioner who desires to have the jurisdiction of the court to hear any proceedings instituted by an answer to the petition determined, or a party cited in an answer to a petition who desires to have the jurisdiction of the court to which the petition is addressed determined, shall file a reply under protest, in accordance with Form 17, objecting to the jurisdiction of that court.

(2) A reply under protest shall set forth the grounds on which the petitioner or party cited objects to the jurisdiction of the court.

(3) Paragraphs (3) to (8), inclusive, of rule 78 apply in relation to a reply under protest as if-

(a) references to an answer under protest were references to a reply under protest;

(b) the reference in paragraph (7) of that rule to a petitioner in proceedings was a reference to a petitioner or respondent in proceedings; and

(c) the reference in paragraph (8) of that rule to a further answer to the petition was a reference to a further reply to the answer.

Rejoinder

81.-Where a reply contains any allegation of fact, the party who filed the answer in relation to which the reply was pleaded may, by filing a rejoinder-

(a) deny fact alleged in the reply;

(b) state that he does not know and cannot admit the truth of a fact alleged in the reply;

(c) allege an additional fact that has become relevant to proceedings to which the rejoinder relates by reason of some fact alleged in the reply; or

(d) admit the truth of a fact alleged in reply.

(2) The time limited for filing a rejoinder by a party is fourteen days after service of the reply on the party.

Further rejoinder

82.- (1) Where a rejoinder or further rejoinder (in this rule called "the pleading") contains any allegation of fact, the party who filed the reply, rejoinder or further rejoinder in relation to which the pleading was pleaded may, by filing a further rejoinder-

(a) deny a fact alleged in the pleading;

(b) state that he does not know and cannot admit the truth of a fact alleged in the pleading;

(c) allege an additional fact that has become relevant to proceedings to which the further rejoinder relates by reason of some fact alleged in the pleading; or

(d) admit the truth of a fact alleged in the pleading.

(2) The time limited for filing a further rejoinder by a party is fourteen days after service on the party of the pleading to which it is pleaded.

DIVISION 3 - PLEADINGS GENERALLY

Definition

83. In his Division, unless the contrary intention appears, "pleading" means an answer, reply, rejoinder or further rejoinder.

When allegations in pleadings deemed to be admitted

84. Where a person who is entitled to deny a fact alleged in a pleading filed in proceedings does not, in a pleading filed by him-

(a) deny the fact, either expressly or by necessary implication;

(b) state that he does not know and cannot admit the truth of the fact; or

(c) admit the truth of the fact,

the person shall be deemed to have admitted the truth of the fact for the purpose of the proceedings.

Date and signature of pleading

85.-(1) A pleading shall bear date the day on which it is filed.

(2) Where a pleading is settled by a barrister and solicitor, the name of such barrister and solicitor shall be written on the pleading.

(3) A pleading shall be signed-

(a) if the party filing the pleading is represented by a barrister and solicitor, by such barrister and solicitor personally; or

(b) if the party filing the pleading is not represented by a barrister and solicitor, by the party.

Affidavit verifying pleading

86.-(1) The party filing a pleading shall, by an affidavit written on his pleading and sworn within twenty-one days before his pleading is filed-

(a) verify the facts stated in his pleading of which he has personal knowledge; and

(b) depose as to his belief in the truth of every other fact stated in his pleading.

(2) Paragraphs (2) and (3) of rule 35 apply in relation to an affidavit verifying a pleading as if references to a petition and a petitioner were references to a pleading and a party filing a pleading, respectively.

(3) Where the party filing a pleading states in the pleading that does not know and cannot admit the truth of a particular fact, the party shall in his affidavit verifying the pleading, state that he does not know and cannot admit the truth of the fact.

Service of pleading

87.-(1) A party who files a pleading for the purpose of proceedings shall cause service of a copy of the pleading to be effected, in a manner referred to in paragraph (c) of rule 58, on each other party to the proceedings who has, at the day on which the pleading is filed, an address for service for the purpose of the proceedings.

(2) For the purpose of paragraph (1), a copy of the pleading shall be so served on the day on which the pleading is filed or on the next following day.

(3) Where a party files an address for service for the purpose of proceedings on or after the day on which a pleading is filed, the party who filed the pleading shall, upon request made by that first-mentioned party, cause service of a copy of the pleading to be effected in a manner referred to in paragraph (c) of rule 58 on that first-mentioned party on the day on which the request is made or on the next following day.

(4) This rule does not apply in relation to service of an answer to a petition.

DIVISION 4 - DISCONTINUANCE

Withdrawal of pleading

88.-(1) Subject to paragraph (2) a party to proceedings on whose behalf a pleading has been filed may withdraw the pleading by filing a notice in accordance with Form 18 and causing service of a copy of the notice to be effected, in a manner referred to in paragraph (c) of rule 58, on each other party to the proceedings who has an address for service for the purpose of the proceedings.

(2) Where an order pending the disposal of proceedings instituted by a petition is in force, the petition shall not be withdrawn under paragraph (1) except by leave the court.

(3) Where a petitioner withdraws his petition, the proceedings instituted by the petition, and any proceedings instituted in relation to these proceedings, are discontinued but the discontinuance of those proceedings does not affect the continuance of-

(a) any proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" instituted by the respondent to the petition by answer to the petition; or

(b) any proceedings of a kind referred to in paragraph (c) or (d) of that definition that are in relation to proceedings instituted by that answer.

(4) Where a party to proceedings withdraws a pleading other than a petition, the proceedings, other than any proceedings instituted by that pleading, may be continued as if the party had never filed the pleading.

(5) Where a party to proceedings withdraws a pleading, any other party to the proceedings who has filed a pleading for the purpose of the proceedings may make application to the court in which the proceedings are or were pending for an order as to the cost occasioned by the pleading and the withdrawal.

PART VII - AMENDMENT OF PLEADINGS, SUPPLEMENTARY PETITIONS AND SUPPLEMENTARY ANSWERS

DIVISION 1 - AMENDMENT OF PLEADINGS

Amendments that may be made

89.-(1) Subject to this rule, all such amendments may be made to a pleading as are made in accordance with the succeeding provisions of this Division and are necessary for the purpose of determining the real questions in controversy between the parties.

(2) An amendment shall not be made to a petition or answer if the amendment would have the effect of instituting proceedings of a kind referred to in paragraph (c) of the definition of "matrimonial cause".

(3) Paragraph (2) shall not apply to an amendment to a petition that has not been served on a party to the proceedings or on a person named in the petition.

(4). A party to a marriage shall not, by amending a pleading filed by him in connexion with proceedings, seek a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" upon a ground arising after the date on which the pleading was filed.

Amendments that may be made

90. A petition may be amended by the petitioner if it has not been served on a party to the proceedings or on a person named in the petition.

Amendment before service

91.- (1) Subject to paragraph (2), where a pleading filed on behalf of a party to proceedings has been served on another party to the proceedings, or on a person on whom service of the pleading is required by these Rules to be effected although the person is not a party to the proceedings, the pleading may be amended by the party who filed it-

(a) if it has not been amended after having been so served- without the leave of the court or the registrar; or

(b) if it has been amended on a previous occasion after having been so served-by leave of the court of the registrar.

(2) Except by leave of the court, a pleading in any proceedings shall not be amended after the proceedings have been set down for trial.

(3) Where the court or registrar gives leaves to amend a pleading, the court or registrar may also, by order-

(a) dispense with service of the amended pleading on a person, whether or not the person is a party to the proceedings;

(b) specify the manner in which service of the amended pleading may be effected on a person; and

(c) specify the time, after service of the amended pleading on a person, within which the person may, if the person so desires-

(i) amend a pleading already filed by him in reply to the pleading, or

(ii) file a pleading in reply to the amended pleading, as the case requires.

(4) Where the court or registrar gives a party leave to amend the pleading, the party may cause the pleading to be amended accordingly within seven days after the leave was given.

(5) Where service of an amended pleading is to be effected on a party who has an address for service for the purpose of the proceedings, the service shall be effected on the day on which the pleading is amended or on the next following day.

Verification of amendment

92.-(1) An amendment shall not be made to a pleading as to alter a fact alleged in the pleading or to include an additional fact in the pleading unless the party on whose behalf the pleading was filed has filed an affidavit-

(a) verifying the altered fact or additional fact, as the case may be; or

(b) deposing as to his belief in the truth of the altered fact or additional fact, as the case may be.

(2) An amendment shall not be made to a petition or answer so as to allege additional facts that constitute a ground for a decree of dissolution of marriage or of judicial separation specified in any of paragraphs (a) to (k), inclusive, of section 14 of the Act and to seek such a decree on that ground, unless the party who filed the petition or answer has filed an affidavit in which the party-

(a) denies that he has connived at that ground;

(b) denies that he has condoned that ground or states all facts relevant to the question whether he has condoned that ground, including any facts relevant to the question whether that ground has been revived; and

(c) states that, in bringing the proceedings for the decree on that ground he has not been guilty of collusion with intent to cause justice.

(3) A party shall be deemed to have complied with the requirements of the preceding provisions of this rule if the matters required by those provisions to be included in an affidavit are included in an affidavit by the party in support of an leave to amend the pleading.

Notice of application for leave to amend

93.-(1) subject to this rule, where application is made for leave to amend a pleading filed for the purpose of proceedings, the applicant shall cause service of the application to be effected on each other party to the proceedings who has an address for the purpose of the proceedings.

(2) Paragraph (1) shall not apply to an application that is made to the court upon the trial of the proceedings for the purpose of which the pleading was filed.

(3) An application to amend a pleading may be made ex parte if no party, other than the party who filed the pleading, has an address for service.

Method of amending pleading

94.-(1) A pleading shall be amended by writing the alterations or additions on the pleading in red ink or in such other manner as will distinguish the alterations or additions from the original pleading or from any previous amendment.

(2) Where a pleading is amended by a party by leave of the court or registrar, the barrister and solicitor for the party or, if the party is not represented by a barrister and solicitor, the party shall write at the top of the front page of the pleading, in red ink, particulars of the date on which leave to amend the pleading was given and the date on which the amendment is made to the pleading, in accordance with the following form:-

"Amended this... day of ........, 19..., in pursuance of leave granted by the ............ on the ..... day of....., 19... .".

(3) Where a pleading is amended by a party without the leave of the court or registrar, the barrister and solicitor for the party or, if the party is not represented by a barrister and solicitor, the party shall write at the top of the front page of the pleading, in red ink, particulars of the date on which the amendment is made to the pleading, in accordance with the following form:-

"Amended this... day of......., 19..., in pursuance of rule 90 (or 91(1)(a)).".

(4) A barrister and solicitor or party writing on a pleading the particulars required by either of paragraphs (2) and (3) shall sign his name immediately under those particulars and shall forthwith inform the registrar of the nature of the amendments made by him to the pleading.

(5) Where the amendments made to a pleading are so numerous or of such a nature that the pleading is difficult or inconvenient to read or where the making of amendments to a pleading in the manner provided by paragraph (1) make the pleading difficult or inconvenient to read, the party making the amendments-

(a) if the registrar so requests-shall; or

(b) in any other case-may,

file a copy of the pleading as amended.

(6) Compliance with paragraph (1) shall not be necessary if, before a party writes the alterations or additions on the pleading in accordance with that paragraph, the party files a copy of the pleading as amended, but every copy of the pleading as amended shall bear the notation referred to in paragraph (2) or (3), as the case may be.

Amendment not effective until served

95.-(1) Where a pleading is amended before service of the pleading has been effected on a person on whom service of the pleading is, by these Rules, required to be effected, service on the person of the pleading otherwise than as so amended shall not be due service for the purpose of these Rules.

(2) Subject to these Rules and to any order made under paragraph (3) of rule 91, where a pleading is amended after service of the pleading has been effected on a person, service of the amended pleading on the person shall be effected-

(a) if the person has an address for service - by serving, in the manner referred to in paragraph (c) of rule 58, a copy of the amended pleading on the person on the day on which the pleading is amended or on the next following day; or

(b) in any other case - by serving, in a manner referred to in paragraph (a) or (b) of rule 58, a copy of the amended pleading on the person as soon as practicable after the amendment is made.

(3) Where a petition is amended by adding an allegation that the respondent has committed adultery, rape or sodomy with or on a specified person, not being a person on whom service of the petition has been effected, or where an answer is amended by adding an allegation that the petitioner has committed adultery, rape or sodomy with or on a specified person, not being a person on whom service of the answer had been effected, service of a sealed copy of the amended petition or amended answer shall be effected on the person in a manner referred to in paragraph (a) or (b) of rule 58.

(4) These Rules apply in relation to service of a sealed copy of an amended petition or amended answer on a person referred to in paragraph (3) in like manner as they apply in relation to service of a sealed copy of a petition or answer on the person.

Pleading to amended pleading

96. Where a pleading has been amended, a person on whom service of a copy of the amended pleading has been effected shall not file a pleading in reply to the first-mentioned pleading but may file a pleading in reply to the amended pleading and, for the purposes of these Rules, the time limited for filing a pleading in reply to the amended pleading shall commence from the day on which service of the amended pleading was effected on the person.

Consequential amendment of subsequent pleading

97.-(1) Where a pleading is amended after a pleading (in this rules called "the subsequent pleading") has been filed in reply to that pleading, the party who filed the subsequent pleading may, within ten days after the day on which service of the amended pleading was effected on him or within such other time as is specified in an order under paragraph (3) of rule 91, amend the subsequent pleading in such manner as he considers desirable.

(2) An amendment of the subsequent pleading in accordance with paragraph (1) may be made without the leave of the court or registrar and shall not count as an amendment for the purposes of paragraph (1) of rule 91 but the other provisions of this Division apply to and in relation to the amendment.

DIVISION 2 - SUPPLEMENTARY PETITIONS AND SUPPLEMENTARY ANSWERS

Supplementary petitions and supplementary answers

98.-(1) Where a ground upon which a petitioner or respondent may seek a decree of dissolution of marriage or judicial separation arises after the petition was filed by the petitioner or an answer was filed by the respondent, as the case may be, the petitioner may, by filing a supplementary petition, or the respondent may, by filing a supplementary answer, as the case may be seek appropriate relief of a kind referred to paragraph (a) of the definition of "matrimonial cause".

(2) A supplementary petition shall be in accordance with Form 19.

(3) A supplementary answer shall be in accordance with Form 20.

Contents of supplementary petition

99.-(1) In a supplementary petition, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought by the supplementary petition shall be stated in as concise a form as the nature of the case allows.

(2) A supplementary petition shall state the address and occupation, so far as known to the petitioner, of any person specified in the supplementary petition as a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy.

(3) Where the address, at the date of the supplementary petition, of a person referred to in paragraph (2) is not known to the petitioner, the supplementary petition shall state that the address is not known to the petitioner and also state the last address (if any) of the person known to the petitioner.

(4) Subject to paragraph (6) the provisions of paragraphs (2) and (3) of rule 28 and of rules 34, 35, 37, 39, 40 and 42, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary petition for a decree of dissolution of marriage as if references in those provisions to a petition were references to a supplementary petition.

(5) Subject to paragraph (6), the provisions of paragraphs (2) and (3) of rule 28 and of rules 34, 35, 37 and 42, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary petition for a decree of judicial separation as if, in those provisions, references to a petition for a decree of dissolution of marriage were references to a supplementary petition for a decree of judicial separation.

(6) It is not necessary to include in a supplementary petition any matter that is included in the petition.

(7) In this rule, "the petition" means the petition instituting the proceedings in relation to which the supplementary petition is filed.

Contents of supplementary answer

100.-(1) In a supplementary answer, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought by the supplementary answer shall be stated in as concise a form as the rise allows.

(2) A supplementary answer shall state the address and occupation, so far as known to the respondent, of any person specified in the supplementary answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy.

(3) Where the address, at the date of the supplementary answer, of a person referred to in paragraph (2) is not known to the respondent, the supplementary answer shall state that the address is not known to the respondent and also state the last address (if any) of the person known to the respondent.

(4) Subject to paragraph (6), the provisions of paragraphs (2) and (3) of rule 28 and of rules 34, 35, 37, 39, 40 and 42, in so far as they are applicable to the circumstances of the particular case, apply to and in answer by which the respondent is seeking a decree of dissolution of marriage as if-

(a) references to a petition were references to a supplementary answer;

(b) references to a petitioner were references to the respondent to the petition; and

(c) references to the respondent were references to the petitioner.

(5) Subject to paragraph (6), the provisions of paragraphs 28 and of rules 34, 35, 37 and 42, in so far as they are circumstances of the particular case, apply to and in relation to a supplementary answer by which the respondent to a petition is seeking a decree of judicial separation as if-

(a) references to a petition were references to a supplementary answer;

(b) references to a petitioner were references to the respondent to the petition;

(c) references to the respondent were references to the petitioner; and

(d) references to a petition for a decree of dissolution of marriage were references to a supplementary answer by which the respondent to a petition is seeking a decree of judicial separation.

(6) It is not necessary to include in a supplementary answer any matter that is included in the answer or the petition.

(7) In this rule, "the answer" means the answer in the proceedings in relation to which the supplementary answer is filed and "the petition" means the petition in relation to which the answer is filed.

Condonation, connivance and collusion

101.-(1) A supplementary petition instituting proceedings fir a decree of dissolution of marriage or of judicial separation upon a ground specified in any of paragraphs (a) to (k), inclusive, of section 14 of the Act or alleging facts relied on as constituting such a ground shall contain-

(a) a statement that the petitioner has not connived at that ground, and

(b) a denial that he has condoned that ground, or a statement of all facts relevant to the question whether he has condoned that ground, including any facts relevant to the question whether been revived.

(2) A supplementary petition instituting proceedings for a decree of dissolution of marriage or of judicial separation or alleging facts relied on as constituting a ground for the making of such a decree shall contain a statement that, in bringing the proceedings or alleging the facts, the petitioner has not been guilty of collusion with intent to cause a perversion of justice.

(3) The preceding paragraphs of this rule apply in relation to a supplementary answer in like manner as they apply in relation to a supplementary petition and as if-

(a) references to the petitioner were references to the respondent; and

(b) references to a supplementary petition were references to a supplementary answer.

Particulars of other orders sought

102.-(1) Where a petitioner seeks-

(a) award of damages under section 31 of the Act against a person specified in a supplementary petition as a person with whom the respondent is alleged to have committed adultery; or

(b) an order as to costs related to proceedings for the decree sought by a supplementary petition,

the supplementary petition shall set out particulars of the award (including the damages) or order sought.

(2) Where a respondent seeks-

(a) an award of damages under section 31 of the Act against a person with whom the petitioner is alleged to have committed adultery; or

(b) an order as to costs related to proceedings for the decree sought by a supplementary answer,

the supplementary answer shall set out particulars of the award (including the amount of damages) or order sought.

Service of supplementary petitions and supplementary answers

103.-(1) Service of a supplementary petition shall, unless dispensed with, be effected on-

(a) the respondent;

(b) each person (if any) specified in the supplementary petition as a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy; and

(c) any other person who, being a party to the proceedings instituted by the petition, has an address for service for the purpose of those proceedings.

(2)Service of a supplementary petition shall be effected on a person who has an address for service by serving a sealed copy of the supplementary petition on the person in the manner referred to in paragraph (c) of rule 58.

(3) Service of a supplementary petition shall be effected on a person who does not have an address for service-

(a) by serving on the person, in the manner referred to in paragraph (a) of rule 58-

(i) a sealed copy of the supplementary petition; and

(ii) a notice of petition or a notice of proceedings, as the case requires, in relation to the supplementary petition; or

(b) by serving on the person in the manner referred to in paragraph (b) of rule 58-

(i) a sealed copy of the supplementary petition;

(ii) a notice of petition or a notice of proceedings, as the case requires, in relation to the supplementary petition;

(iii) a form, in accordance with Form 11, for acknowledging service of the supplementary petition; and

(iv) an envelope, being, in the case of service effected in Fiji, a stamped envelope, having written on it the name of the petitioner or his barrister and solicitor and the address for service of the petitioner.

(4) The preceding provisions of this rule apply in relation to a supplementary answer as if-

(a) references to a supplementary petition were references to a supplementary answer;

(b) references to the respondent were references to the petitioner;

(c) references to the petitioner were references to the respondent; and

(d) references to a notice of petition or a notice of proceedings, as the case requires, were references to a notice of proceedings.

Time for filing an answer to a supplementary petition or reply to a supplementary answer

104.-(1) The time limited for filing of an answer to a supplementary petition shall be-

(a) in the case of any other person on whom a notice of proceedings is served with the sealed copy of the supplementary petition - the time specified in that notice for the filing of an answer, and

(b) in the case of any other person on whom service of a supplementary petition is effected - fourteen days after service of the supplementary petition on the person.

(2) The time limited for the filing of a reply to a supplementary answer is-

(a) in the case of a person on whom a notice of proceedings is served with the sealed copy of the supplementary answer - the time specified in that notice for the filing of a reply; and

(b) in the case of any other person on whom service of a supplementary answer is effected - fourteen days after service of the answer on the person.

Pleading to supplementary petition or supplementary answer

105. For the purpose of Part VI, a supplementary petition shall be deemed to be a petition, and a supplementary answer shall be deemed to be an answer to a petition.

PART VIII - PARTIES

DIVISION 1-GENERAL

Certain persons not parties to proceedings

106. Subject to the Act, to these Rules and to any order made by a court upon the trial of proceedings or by the registrar upon the hearing of an application to a registrar, a person named in the title to a document instituting proceedings, or making an application to the registrar, is not a party to the proceedings or application unless he is affected by the proceedings or application notwithstanding that he may be a party to related proceedings by reason of which he is so named.

How certain persons named become parties

107. Where a person is entitled to intervene in proceedings under subsection (2) of section 32 of the Act, the person may intervene in the proceedings by filing, within the time limited for doing so-

(a) if the allegation by reason of which he is entitled to intervene is contained in a petition or supplementary petition-an answer to the petition or supplementary petition; or

(b) if that allegation that allegation is contained in an answer or a supplementary, answer-a reply to the answer or supplementary answer.

Allegation of adultery or sodomy with person unknown

108.-(1) Where the petitioner alleges, in a petition for a decree of dissolution of marriage or judicial separation, that the respondent has committed adultery or sodomy with or on a person whose name is unknown to the petitioner at the time of filing the petition, the suit shall not be set down for trial unless the court has made an order dispensing with the naming of the person.

(2) The petitioner shall make application for an order under paragraph (1) after service of the petition has been effected on the respondent or after such service has been dispensed with.

(3) The affidavit in support of an application for an order under paragraph (1) shall state particulars of any enquiries made by the petitioner for the purpose of ascertaining the name of the person.

(4) Service of an application for an order under paragraph (1) shall be effected on the respondent unless the court has dispensed with service of the petition on the respondent.

(5) In this rule, "suit" has the same meaning as in Part X.

(6) The preceding paragraphs of this rule apply to and in relation to proceedings in which the respondent alleges, in an answer to a petition, that the petitioner has committed adultery or sodomy with or on a person whose name is unknown to the respondent at the time of filing the answer as if-

(a) references to the petitioner were references to the respondent;

(b) references to the petition were references to the answer; and

(c) references to the respondent were references to the petitioner.

Amendment when name of adulterer, etc., becomes known

109.-(1) Where a petitioner who has, in a petition for a decree of dissolution of marriage or of judicial separation, alleged that the respondent has committed adultery or sodomy with or on a person whose name is unknown to the petitioner at the time of filing the petition becomes aware of the name of the person at any time before the making of the decree in the proceedings, the petitioner shall amend the petition accordingly.

(2) Where a petition is amended in pursuance of paragraph (1)-

(a) service of the amended petitions shall be effected on the respondent and on the person to whom the amendment relates; and

(b) if the petitioner alleges in the petition that the respondent committed adultery with that person, that person becomes, subject to this Part, a party to the proceedings for a decree of dissolution of marriage or of judicial separation.

(c) Where a respondent who has, in an answer to a petition, alleged that the petitioner has committed adultery or sodomy with or on a person whose name is unknown to the respondent at the time of filing the answer becomes aware of the name of the person at any time before the making of the decree in the proceedings in relation to which the answer was filed, the respondent shall amend the answer accordingly.

(4) Where an answer is amended in pursuance of paragraph 3-

(a) service of the amended answer shall be effected on the person to whom the amendment relates; and

(b) if the respondent alleges in the answer that the petitioner committed adultery with that person, that person becomes, subject to this Part, a party to any proceedings for a decree of dissolution of marriage or of judicial separation instituted by the petition or answer.

(5) These Rules apply in relation to the service of an amended petition or an amended answer on the person to whom the amendment relates in like manner as they apply to the service of a petition or answer on a person.

(6) An amendment of a petition or answer in pursuance of this rule-

(a) may be made without the leave of the court or registrar; and

(b) does not count as an amendment for the purpose of paragraph (1) of rule 91.

(7) Where a petition or answer is amended in pursuance of this rule, service of the amended petition or amended answer shall be effected on the respondent or petitioner, as the case many be, but need not be effected on any other person on whom service of the petition or answer, as the case may be has been effected before it was so amended.

(8) Subject to this rule, the provisions of Division 1 of Part VII apply in relation to an amendment made in pursuance of this rule.

Death of adulterer

110.-(1) Nothing in subsection (1) of section 32 of the Act shall require a deceased person to be made a party to proceedings.

(2) Where, in proceedings for a decree of dissolution of marriage or of judicial separation, a co-respondent, party cited or party named dies after the institution of the proceedings or the filing of the answer, as the case may be, but before the making of a decree in the proceedings, the petitioner shall amend the petition, or the respondent shall amend the answer, by alleging in the petition or answer the death of the person and the date on which he died.

(3) Where a petition or answer is amended in pursuance of paragraph (2) to allege the death of a person who is, at the date of the amendment, a party to the proceedings, the person alleged to have died ceases to be a party to the proceedings and the title to the proceedings and record of the proceedings shall be deemed to have been amended accordingly.

(4) An amendment of a petition or answer in pursuance of this rule-

(a) may be made without the leave of the court or the registrar; and

(b) shall not count as an amendment for the purposes of paragraph (1) of rule 91,

and the provisions of Division 1 of Part VII shall not apply to or in relation to the amendment.

(5) A petitioner who amends a petition, or a respondent who amends an answer, in accordance with the provisions of this rule shall, as soon as possible after the amendment is made, inform the registrar of the nature of the amendment made by him to the petition or answer and also give notice of the amendment, including a copy of each amended paragraph or new paragraph in the petition or answer, to each party to the proceedings who has an address for service for the purpose of the proceedings.

(6) Proceedings do not abate upon the death of a co-respondent, party cited or party named but the court shall not make a finding of adultery or sodomy, as the case may be, against such a party who has died.

Certain infants are not parties to proceedings

111.-(1) Where-

(a) in a petition for a decree of dissolution of marriage or of judicial separation-the respondent; or

(b) in an answer to such a petition or in an answer by which proceedings for such a decree are instituted-the petitioner,

is alleged to have committed adultery with a specified person who, at the date of the petition or answer, is under the age of fourteen years, whether or not such a decree is sought on the ground of the adultery, the person shall not be made a party to the proceeding except in accordance with paragraph (2), but service of the petition or answer, as the case may be, shall be duly effected on the infant.

(2) A person under the age of fourteen years with whom a petitioner or respondent is alleged to have committed adultery may intervene in the proceedings by filing, within the time limited for doing so-

(a) if the allegation is contained in a petition-an answer to the petition; or

(b) if the allegation is contained in an answer-a reply to the answer,

and shall then be deemed to have become a party to the proceedings.

(3) In this rule-

"answer" includes supplementary answer;

"petition" includes supplementary petition,

Incest with infant

112.-(1) Where-

(a) in a petition instituting proceedings for a decree of dissolution of marriage or of judicial separation - the respondent;

(b) in an answer to a petition instituting proceedings for such a decree - the petitioner; or

(c) in an answer instituting proceedings for such a decree - the petitioner,

is alleged to have committed adultery, whether or not such a decree is sought on the ground of the adultery, with a person (in this rule referred to as "the infant") who, at the date of the petition or answer, as the case may be, is under the age of twenty-one years and is, if the respondent or petitioner is a male person, a descendant or sister of, or a female child adopted by, the respondent or petitioner, as the case may be, or if the respondent or petitioner is a female person, a descendant or brother of, of a male child adopted by, the respondent or petitioner, as the case may be, this rule shall apply to those proceedings.

(2) Where this rule applies to proceedings, the infant shall not be made a party to the proceedings except in accordance with this rule, but service of the petition or answer, as the case may be, shall be duly effected on the infant.

(3) Where this rule applies to proceedings by reason of the fact that an allegation referred to in paragraph (1) is included in a petition, the petitioner shall, before service of the petition on any person, make application to the court for leave to serve the petition notwithstanding that the infant is not a party to the proceedings.

(4) Where this rule applies to proceedings by reason of the fact that an allegation referred to in paragraph (1) is included in an answer, the respondent shall, before service of the answer on any person, make application to the court for leave to serve the answer notwithstanding that the infant is not a party to the proceedings.

(5) An application referred to in either of paragraphs (3) or (4) may be made ex parte.

(6) Upon application made to a court under paragraph (3) or (4), the court shall-

(a) if it is satisfied that it is in the interest of the infant that he should not be a party to the proceedings - by order, grant to the petitioner leave to serve the petition, or grant to the respondent leave to serve the answer, as the case may be, notwithstanding that the infant is not a party to the proceedings; or

(b) if it is not so satisfied - by order, direct that the infant shall be made a party to the proceedings.

(7) Where a court makes an order under paragraph (6), the court may also, by order, specify an adult person on whom service of the petition or answer may be effected, and, for the purpose of paragraph (1) of rule 68, service of the petition or answer on the person so specified shall be deemed to be service on a person referred to in sub-paragraph (b) of that paragraph.

(8) Where, in proceedings to which this rule applies, a court has granted leave to serve a petition or answer notwithstanding that the infant is not a party to the proceedings, the infant may intervene in the proceedings by filing, within the time limited for doing so after service of the petition or answer on the infant, an answer to the petition or a reply to the answer, as the case requires.

(9) Where a court has directed that the infant shall become a party to the proceedings, the petitioner shall amend the title of the petition or the respondent shall amend the title of the answer accordingly, and the infant shall then be deemed to have been made a party to the proceedings.

(10) For the purpose of paragraph (1), it is immaterial whether the relationship is of the whole blood or half-blood, or whether it is traced through or to any person of illegitimate birth.

(11) In this rule-

"answer" includes supplementary answer;

"petition" includes supplementary petition.

DIVISION 2 - INFANTS

Institution of proceedings by infants

113.-(1) Where an infant desires to institute proceedings cause, a person may, on behalf of the infant, institute the proceedings.

(2) Proceedings referred to in paragraph (1) shall, unless the court otherwise orders, be deemed to be void and of no effect unless the person instituting then has been elected or appointed to be the guardian ad litem of the infant for the purpose of the proceedings-

(a) in the case of proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" - before service of the petition has been effected on any person;

(b) in the case of proceedings, being an application for leave to institute proceedings for such a decree - before the hearing of that application; or

(c) in any other case - before service of the application instituting the proceedings has been effected on any person.

Infant respondents, etc.

114.-(1) Subject to paragraph (4), where the respondent or a co-respondent in proceedings instituted by a petition, or a person named in a petition, is an infant, a guardian ad litem may, on behalf of the infant, file an answer to the petition or, if he does not desire to file an answer but desires to take any other action in the proceedings on behalf of the infant, file a notice of address for service.

(2) Subject to paragraph (4), where a party cited in proceedings, or a person named in an answer, is an infant, an guardian ad litem may, on behalf of the infant, file a reply to the answer or, if he does not desire to file a reply but desires to take any other action in the proceedings on behalf of the infant, file a notice of address for service.

(3) A guardian ad litem of an infant who has an address for service for the purpose of proceedings may take such further action in and in relation to the proceedings on behalf of the infant as the guardian thinks fit and the infant might have taken if he had been of full age.

(4) Where a co-respondent, party cited or person named is an infant, it shall not be necessary for a guardian ad litem to be elected or appointed in order that the infant may file an answer or reply or take any other action in relation to the proceedings, but the infant may file the answer or take the action either by his barrister or solicitor or in person.

Intervention by infant

115. A guardian ad litem may apply for leave to intervene, and may intervene under Part XII of the Act, in proceedings on behalf of an infant.

Application of these Rules to infants

116.-(1) Where an infant is a party to proceedings, references in these Rules to an affidavit of the parties shall, notwithstanding that a guardian ad litem of the infant has been elected or appointed, be read as references to an affidavit sworn by the infant.
(2). The Court may, in a particular case, order that an affidavit required by or under these Rules to be sworn by a party to proceedings who is an infant be sworn by the guardian ad litem of the infant.

DIVISION 3 - PERSONS OF UNSOUND MIND

Definition

117. In this Division, "committee" means committee of the person.

Institution of proceedings by persons of unsound mind

118.-(1) Proceedings in a matrimonial cause may be instituted on behalf of a person of unsound mind-

(a) if there is a committee of the person of unsound mind who is able and willing to act for the person of unsound mind in connexion with the proceedings-by that committee;

(b) if the Attorney-General or an authorised person files a consent under rule 124 by the Attorney-General or the authorised person; or

(c) in any other case-by a person intending to apply for appointment as guardian ad litem.

(2) Where proceedings referred to in paragraph (1) are instituted by a committee of a person of unsound mind, the committee shall be deemed, for the purpose of this Part, to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings.

(3) Where proceedings referred to in paragraph (1) are instituted by a person referred to in sub-paragraph (c) of that paragraph, the proceedings shall, unless the court otherwise orders, be deemed to be void and of no effect unless the person has been appointed to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings-

(a) in the case of proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" - before service of the petition has been effected on any person;

(b) in the case of proceedings, being an application for leave to institute proceedings for such a decree - before the hearing of that application; or

(c) in any other case - before service of the application instituting the proceedings has been effected on any person.

Respondents, etc., who are persons of unsound mind

119.-(1) Where the respondent or a co-respondent in proceedings instituted by a petition, or a person named in a petition, is a person of unsound mind, a committee of the person of unsound mind or a guardian ad litem may, on behalf of the person of unsound mind, file an answer to the petition or, if he does not desire to file an answer but desires to take other action in the proceedings on behalf of the person of unsound mind, file a notice of address for service.

(2) Where a party cited in proceedings, or a person named in an answer, is a person of unsound mind, a committee of the person of unsound mind or a guardian ad litem may, on behalf of the person of unsound mind, file a reply to the answer or, if he does not desire to file a reply but desires to take other action in the proceedings on behalf of the person of unsound mind, file a notice of address for service.

(3) A committee of a person of unsound mind or a guardian ad litem of a person of unsound mind who has an address for service for the purpose of proceedings may take such further action in and in relation to the proceedings on behalf of the person as the committee or guardian thinks fit and the person might have taken if he had not been of unsound mind.

Intervention by person of unsound mind

120. A committee or guardian ad litem of a person of unsound mind may apply for leave to intervene, and may intervene, under Part XII of the Act, in proceedings on behalf of the person of unsound mind.

Application of these Rules to persons of unsound mind

121.-(1) Where a person of unsound mind is a party to proceedings, references in these Rules to an affidavit of the party shall be read as references to an affidavit sworn by the guardian ad litem of the party, or by the person who is deemed, for the purpose of this Part, to be the guardian ad litem of the party, as the case may be.

(2) The court may, in a particular case, order that an affidavit required by or under these Rules to be sworn by the guardian ad litem of a party to proceedings who is a person of unsound mind be sworn by the party.

DIVISION 4 - GUARDIANS ad litem

Election of guardian by infant

122.-(1) Subject to paragraph (2), an infant may, by signing an election in accordance with Form 21, elect his father, mother or legal guardian to be his guardian ad litem for the purpose of proceedings.

(2) An election referred to in paragraph (1) shall not be effective until it is filed.

(3) An election referred to in paragraph (1) shall have written on it the consent of the father, mother or legal guardian, as the case may be, to act as guardian ad litem of the infant for the purpose of the proceedings.

Appointment of friend of infant as guardian ad litem

123.-(1) Where an infant desires some person other than his father, mother or legal guardian to be his guardian ad litem for the purpose of proceedings-

(a) the infant may consent, in writing, to the person being appointed to be his guardian ad litem for the purpose of the proceedings; and

(b) When the infant has done so, that person may make application to the registrar to be appointed the guardian ad litem of the infant for that purpose.

(2) There shall be filed in support of an application for appointment as guardian ad litem of an infant-

(a) an affidavit by the applicant setting forth the reasons why the infant did not elect his father, mother or legal guardian to be his guardian ad item; and

(b) an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the infant.

(3) The consent referred to in sub-paragraph (a) of paragraph (1) shall be annexed to the affidavit of the applicant in support of the application, and the signature appearing on that consent shall be verified as the signature of the infant by the affidavit of a person (who may be the applicant) conversant with the signature of the infant.

(4) An application under this rule may be made ex parte.

(5) Where, upon application made under this rule, the registrar is satisfied that the applicant is a fit and proper person to act as the guardian ad litem of the infant in the proceedings or proposed proceedings and that it is desirable that he be appointed so to act, the registrar shall appoint the applicant accordingly.

Attorney-General may act as guardian

124.-(1) Where the Attorney-General or an authorized person signs a consent, in accordance with Form 22, to act as the guardian ad litem of a party to proceedings or proposed proceedings who-

(a) is detained in an institution where persons may, in accordance with law, be confined for unsoundness of mind;

(b) is receiving treatment as a voluntary patient in such an institution; or

(c) has been a patient in such an institution and, not having being discharged from the institution, is absent from the institution,

the consent may be filed and the Attorney-General or authorized person, as the case may be, then becomes the guardian ad litem of the person for the purpose of the proceedings or proposed proceedings.

(2) A person desiring to intervene in proceedings shall be deemed, for the purpose of paragraph (1) to be a party to the proceedings notwithstanding that the person has not intervened in the proceedings.

(3) The Attorney-General may, by writing under his hand, appoint a person (including a corporation sole) to be an authorized person for the purposes of this rule either generally or in respect of a particular person of unsound mind.

Appointment of friend as guardian of person of unsound mind

125.-(1) Where-

(a) a party to proceedings is a person of unsound mind;

(b) the Attorney-General or an authorized person has not filed a consent under rule 124 to act as the guardian ad litem of the party for the purpose of the proceedings; and

(c) there is no committee of the party who is able and willing to act for the party,

a fit and proper person may apply to the registrar to be appointed the guardian ad litem of the party for that purpose.

(2) In paragraph (1), a reference to a party to proceedings shall be read as including a reference to a person desiring to intervene in the proceedings.

(3) Except where the application is made in pursuance of rule 127, there shall be filed in support of an application under this rule an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the person of unsound mind.

(4) An application under this rule may be made ex parte.

(5) Where, upon application made under this rule, the registrar is satisfied that the applicant is a fit and proper person to be appointed to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings and that it is desirable that he be appointed so to act, the registrar shall appoint the applicant accordingly.

(6) In this rule, "committee" means committee of the person.

Appointment of guardian in other circumstances

126.-(1) Where a person who is a party to proceedings or who desires to intervene in proceedings is an infant or a person of unsound mind, the court or the registrar may at any stage of the proceedings, if the court or registrar considers it advisable so to do, appoint a fit and proper person who consents to act as guardian ad litem of the person to be the guardian ad litem of the person for the purpose of the proceedings.

(2) An appointment under this rule may be made by the court or registrar upon application by another party to the proceedings or a person who consents to act as the guardian ad litem of the person or without any application being made.

(3) An application under this rule may be made ex parte.

(4) Where an application has been made to the court or the registrar under this rule, the court or registrar may adjourn the hearing of the application and direct that the application be served on such persons (if any) as the court or registrar thinks fit.

Appointment of Public Trustee to be guardian of persons of unsound mind

127. The Public Trustee or a trustee corporation registered under the provisions of the Trustee Corporations Act may make application under either of rules 125 or 126 to be appointed, and may be appointed, to be the guardian ad litem of a person of unsound mind for the purpose of proceedings.

(Cap. 66)

Order appointing guardian ad !item to be served

128. An order appointing a person to be the guardian ad litem of a party to proceedings or a person who desires to intervene in proceedings shall, unless the person appointed to be a guardian ad litem is the person on whose application the order was made, be served on the person appointed on the day on which it is made or on the next following day.

Removal of guardian ad litem

129. The court may, subject to such conditions as the court thinks fit, remove a person from the office of guardian ad litem of an infant or person of unsound mind if-

(a) the person makes application to retire from the office; or

(b) the court considers that it is desirable that the person should be removed from the office.

Notice of appointment of guardian ad litem

130.-(1) Subject to paragraph (4), a person who becomes the guardian ad litem of the respondent or a co-respondent in proceedings instituted by a petition, or of a person named in a petition, shall serve notice of the fact on the petitioner.

(2) Subject to paragraph (4), a person who becomes the guardian ad litem of a party cited in proceedings, or of a person named in an answer, shall serve notice of the fact on the petitioner and the respondent.

(3) Notice that a person has become a guardian ad litem shall be served on the day on which the person becomes the guardian ad litem or on the next following day.

(4)Where an order appointing a person to be a guardian ad litem is made upon the application of a party to proceedings, it is not necessary for the notice required by paragraph (1) or (2) to be served on that party.

Barrister and solicitor acting as guardian

131. Where a barrister and solicitor is the guardian ad litem of a party to proceedings, neither that barrister and solicitor nor a partner of that barrister and solicitor shall act in the proceedings as the barrister and solicitor for the party.

PART IX - DEFAULT IN PLEADING

Effect of failure to file pleading within due time

132.-(1) Where a pleading is filed on behalf of a party to proceedings after the time limited for the filing of the pleading has expired, any other party to the proceedings may, subject to these Rules, continue the proceedings as if the pleading had not been filed unless-

(a) the party filing the pleading in answer to which the first-mentioned pleading was filed consented to, or waived objection to, the late filing of the pleading; or

(b) a court otherwise orders.

(2) Consent to the filing of a pleading after the expiration of the time limited, for the filing of the pleading shall be endorsed on the pleading and signed-

(a) if the party on whose behalf the pleading is being filed is represented by a barrister and solicitor-by that barrister and solicitor; or

(b) if the party is not so represented-by the party.

Default of pleading by infant or person of unsound mind

133.-(1) Where-

(a) the respondent to a petition is an infant or person of unsound mind;

(b) service of the petition has been duly effected on the respondent; and

(c) an answer has not been duly filed by or on behalf of the respondent,

the petitioner shall not continue the proceedings instituted by the petitioner, or institute in relation to those proceedings any proceedings of a kind referred to in paragraph (c) or (d) of the definition of "matrimonial cause", unless-

(i) a person has become the guardian ad litem of the respondent for the purpose of the proceedings; and

(ii) the time limited for the filing of an answer by the guardian ad litem has expired.

(2) Where-

(a) an infant or person of unsound mind is specified in a petition as a person with or on whom the respondent has committed adultery, rape or sodomy;

(b) service of the petition has been duly effected on the person so specified; and

(c) an answer has not been duly filed by or on behalf of the person so specified,

the petitioner shall not continue the proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" instituted by the petition, unless-

(i) a person has become the guardian ad litem of the person so specified for the purpose of the proceedings; and

(ii) the time limited for the filing of an answer by the guardian ad litem has expired.

(3) Where-

(a) an infant or person of unsound mind is specified in an answer to a petition as a person with or on whom the petitioner has committed adultery, rape or sodomy;

(b) service of the answer has been duly effected on the person so specified;

(c) a reply has not been duly filed by or on behalf of the person so specified,

neither the petitioner nor the respondent shall continue the proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" instituted by the petition, or proceedings (if any) for such a decree instituted by the answer, unless-

(i) a person has become the guardian ad litem of the person for the purpose of the proceedings; and

(ii) the time limited for the filing of a reply by the guardian ad litem has expired.

(4) A petitioner or respondent shall not be deemed to continue proceedings for the purpose of any of the preceding paragraphs by reasons of his-

(a) making application for the appointment of a person to be the guardian ad litem of the infant or person of unsound mind for the purpose of those proceedings; or

(b) amending or making application for leave to amend the petition or sever by omitting the allegations contained in the petition or answer relating to the infant or person of unsound mind.

(5) In this rule-

"answer" includes supplementary answer;

"petition" includes supplementary petition.

Time for filing answer or reply by guardian

134. Where a person becomes the guardian ad litem of an infant or person of unsound mind who is the respondent, a co-respondent or a party cited in proceedings, or desires to intervene in proceedings, the guardian ad litem has the like time, after he becomes the guardian ad litem for filing an answer or reply, as the case requires, for the purpose of the proceedings as the infant or person of unsound mind had after service on him of the petition or answer in the proceedings.

PART X - PREPARATION FOR TRIAL

DIVISION 1 - PRELIMINARY

Interpretation

135. In this Part-

"defended suit" means-

(a) a suit for the purposes of which an answer has been duly filed; or

(b) a suit that includes proceedings instituted by application to the court under paragraph (2) or (3) of rule 12, if a party has duly filed in reply an affidavit in reply to the affidavit filed in support of that application;

"suit" means the proceedings instituted by a petition and includes any proceedings

(a) instituted by a supplementary petition filed in relation to that petition;

(b) instituted by an answer or supplementary answer to that petition or to a supplementary petition so filed; or

(c) ordered by the court under rule 163 or deemed by rule 188 or 208 to have been consolidated with any proceedings so instituted,

but does not include proceedings for an order pending the disposal of other proceedings;

"undefended suit" means a suit other than a defended suit.

Application to persons of unsound mind

136. Where a person of unsound mind is a party to proceedings, this Part applies as if references to the party were references to the guardian ad litem of the party.

Time when pleadings in a defended suit complete

137.-(1) Subject to this rule, in a defended suit, the pleadings are complete for the purposes of this Part when the pleadings between the petitioner and respondent are complete.

(2) Where, in a defended suit, a person has been specified in a pleading as a person with or on whom the petitioner or respondent is alleged to have committed adultery, rape or sodomy, the pleadings are not complete for the purposes of this Part unless the pleadings between the petitioner and the respondent are complete and the pleadings between the petitioner or the respondent (as the case may be) and the person so specified are complete.

(3) Where a petitioner in a defended suit has filed a supplementary petition, the pleadings are not complete for the purposes of this Part unless the pleadings in relation to the petition are complete, and in addition, the pleadings in relation to the supplementary petition are complete.

(4) For the purposes of this rule, the pleadings between two parties to a suit are complete-

(a) if a pleading filed on behalf of one of those parties in reply to a pleading filed on behalf of the other party does not contain any allegations of fact;

(b) if the time limited for the filing, on behalf of one of those parties, of a pleading in reply to a pleading filed on behalf of the other party has expired and the pleading in reply has not been filed; or

(c) if the court or the registrar has dispensed with service of a pleading being the petition or answer in the proceedings, on one of those parties.

(5) For the purposes of paragraph (4) a person on whom a petitioner or respondent is alleged to have committed rape or sodomy but who has not intervened in the suit shall be deemed to be a party to the suit.

DIVISION 2 - PARTICULARS, DISCOVERY AND INSPECTION OF DOCUMENTS

Particulars

138.-(1) A person on whom service of a pleading has been effected, being person who is a party to the proceedings for the purpose of which the pleading was filed or who is entitled to intervene in the proceedings under subsection (2) of section 32 of the Act or under rule 111 or 112, may serve on the party on whose behalf the pleading was filed a request to give further particulars of an allegation in the pleading.

(2) A party on whom a request under paragraph (1) is served shall, within ten days after service of the request on him, give to the person who served the request-

(a) the further particulars of the allegation requested or the grounds on which he objects to giving, or is unable to give, the further particulars; or

(b) such further particulars of the allegation as he is willing and able to give and the grounds on which he objects to giving, or is unable to give, any other particulars of the allegation.

(3) The court may, upon application made by a person who has served a request under paragraph (1) for further particulars of an allegation in a pleading or who is entitled to serve such a request, order the party on whose behalf the pleading was filed to give further particulars of an allegation in the pleading within a time specified in the order, and may further order-

(a) that the party shall not continue the proceedings until the further particulars are given or the court otherwise orders;

(b) that, if further particulars of the allegation are not given within the time so specified, the allegation be struck out of the pleading.

(4) Further particulars of an allegation in a pleading shall be given by a party, whether in pursuance of a request or of an order, by filing an affidavit to which a document containing the further particulars is annexed, being an affidavit by which the party-

(a) verifies the facts contained in the further particulars of which he has personal knowledge; and

(b) deposes as to his belief in the truth of every other fact contained in the further particulars;

and by serving copy of that affidavit on the person who requested the particulars or to whom the particulars were ordered to be given, as the case may be.

(5) Where further particulars are given in pursuance of a request, a copy of the request shall be annexed to the affidavit filed in pursuance of paragraph (4).

(6) Where the court makes an order under paragraph (3), the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied-

(a) that the application was made in a case of urgency; or

(b) that the applicant had served on the party on whose behalf the pleading a filed a request under paragraph (1) and that that party-

(i) failed to comply with the provisions of paragraph (2); or

(ii) complied with those provisions by stating that he objected to giving, or was unable to give, some or all of the further particulars requested.

Discovery

139.-(1) A party to proceedings who has filed a pleading for the purpose of the proceedings may, after the pleadings in the proceedings have been completed and before the proceedings have been set down for trial, serve on another party to the proceedings a request to make discovery on oath of the documents that are or have been in his possession, custody or power relating to any matter in question in the proceedings.

(2) For the purposes of paragraph (1), a person who has intervened in proceedings under Part XII of the Act shall be deemed to be a party to the proceedings who has filed a pleading for the purpose of the proceedings.

(3) A request under this rule shall be in accordance with Form 23.

(4) A party to proceedings on whom a request under this rule has been served shall make discovery of documents by filing an affidavit of discovery, and serving a copy of the affidavit on the party who made the request, within ten days after service of the request on him.

(5) Upon application made to a court by a party to proceedings who has duly served a request under this rule or is entitled to serve such a request, the court may make such order for the filing of an affidavit of discovery as the court considers necessary in order to dispose fairly of the matters in question or to save costs in the proceedings.

(6) Where the court makes an order under paragraph (5) the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied-

(a) that the application was made in a case of urgency; or

(b) that the applicant had served a request under this rule on the party ordered to make discovery and that that party refused or failed to comply with the provisions of paragraph (4).

(7) Where an order has been made requiring a person to file an affidavit of discovery, the person shall, within ten days of the date of the order or within such other time as the court orders, file the affidavit and serve a copy of the affidavit on the applicant for the order.

Affidavit of discovery

140.-(1) Subject to any order made under rule 139 in a particular case, a party's affidavit of discovery shall-

(a) specify the documents relating to matters in questioning the proceedings that are in the possession, custody or power of the party;

(b) specify the documents relating to matters in question in the proceeding that are not but have been in the possession, custody or power of the party and state, to the best of the knowledge and belief of the party, whether they are still in existence and, if so, who has possession of them;

(c) specify the documents that he objects to produce upon the ground that the documents are-

(i) professional communications of a confidential character made to the party by his barrister and solicitor, or made by the party to his barrister and solicitor, for the purpose of giving him legal advice;

(ii) cases for the opinion of counsel, instructions to counsel or opinions of counsel prepared and given in anticipation of or during the progress of the proceedings;

(iii) letters or copies of letters from the party to his barrister and solicitor, from the barrister and solicitor to the party or from his barrister and solicitor to another person in anticipation of or during the progress of the proceedings; or

(iv) drafts or memoranda made by the barrister and solicitor to the party for the purpose of the proceedings;

(d) specify the documents that he objects to produce on any other ground and the ground on which he so objects; and

(e) state that he has not at the time of sealing the affidavit and has never had in his possession, custody or power, or in the possession, custody or power of a barrister and solicitor, agent or other person on his behalf-

(i) any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing that relates to matters in question in the proceedings or in which an entry relating to such a matter has been made; or

(ii) a copy of or extract from any such deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing,

that is not specified in the affidavit.

(2) in an affidavit of discovery it is not necessary to specify each letter from a person to another person, but it is sufficient to specify the number of letters from the person to the other person and the dates of the first such letter and last such letter, respectively.

(3) Where the specifying in an affidavit of discovery of documents in respect if which privilege is claimed would derogate from the privilege attaching to documents, it is not necessary to specify each of the documents in the affidavit but it is sufficient if-

(a) the documents are tied in a bundle that is marked as an exhibit to the affidavit and are referred to in the affidavit as the documents in that bundle;

(b) the number of documents in that bundle is stated in the affidavit; and

(c) the documents in that bundle are numbered consecutively and each of those documents is initialled by the person before whom the affidavit is sworn.

(4) An affidavit of discovery shall be in accordance with Form 24.

Discovery of particular document

141.-(1) The court may, upon application made by a party to proceedings, order another party to make discovery, on oath, whether a document, or a document included in a class of documents, specified in the order is or has been in the possession, custody or power of the party and, if the document is not but has Possession, custody or power of the party, when the party parted with the document and to whom he gave the document.

(2) An order shall not be made under paragraph (1) unless the applicant for the order has, in an affidavit filed in support of the application, deposed that he believes that the party has, or has had, the document, or a document included in the class of documents, in his possession, custody or power, and that the document relates to a matter in question in the proceedings, and has set forth in the affidavit the grounds on which he so believes.

(3) An order may be made under paragraph (1) whether or not an affidavit of discovery has been filed by the party to whom the order is directed and whether or not that party has been requested or ordered under rule 139 to file such an affidavit.

Failure to discover document

142. Where-

(a) a party to proceedings has filed an affidavit of discovery;

(b) a document relating to matters in question in the proceedings was, at the time the party swore the affidavit, in the possession, custody or power of the party or such a document was not at that time, but had been, in the possession, custody or power of the party; and

(c) the document was not specified or referred to in that affidavit of discovery or in another affidavit of discover filed by the party in pursuance of an order of the court,

the party is not entitled, except by leave of the court, to put the document or a copy of the document in evidence, or to furnish or cause to be furnished evidence of the document, at the trial of the proceedings.

Inspection of documents

143.-(1) Subject to paragraph (2), a party to proceeding may, by notice in writing to another party, request the other party to produce, for inspection by the party giving the notice, a document specified in the notice, being a document that is referred to in a pleading or affidavit filed on behalf of that other party or in further particulars given by that party in pursuance of a request order under rule 138.

(2) A document referred to in an affidavit of discovery filed on behalf of a party shall not be specified in a notice given to the party under paragraph (1) if, in the affidavit, the party-

(a) objected to producing the document on a ground stated in the affidavit; or

(b) stated that the document was not in his possession, custody or power.

(3) A party to whom a notice under rule 142 has been given, shall within four days after receipt of the notice, specify, in writing to the party who gave the notice-

(a) the ground on which he objects to the production specified in the notice; or

(b) the time and place at which he will produce the document for inspection.

(4) A document produced for inspection in pursuance of a notice under paragraph (1) may be inspected and copied by the party to whom it is produced or by his barrister and solicitor.

(5) Where a party to proceedings to whom a notice to produce a document has been given under paragraph (1) fails to produce the document for inspection and copying, the party is not entitled, except by leave of the court, to put the document or a copy of the document in evidence, or to furnish or cause to be furnished evidence of the document, at the trial of the proceedings.

Order for production of documents generally

144.-(1) The court may, upon application made by a party to proceedings who has duly served a request under rule 143 or who is entitled to serve such a request, order another party to the proceedings to produce, at such time and place as the court thinks fit and specifies in the order, a document that was specified or could be specified in such a request.

(2) Where the court makes an order for the production of a document by a party under paragraph (1), the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied that-

(a) the application was made in a case of urgency; or

(b) the applicant had requested the party to produce the document under rule 143 and the party-

(i) did not comply with paragraph (3) of that rule;

(ii) objected to produce the document;

(iii) specified a time for the production of the document that was more than ten days after the making of the request;

(iv) did not specify a place at which he would produce the document-

(A) that, in the case of document, being a book in constant use for the purposes of trade or business, is the place at which the book is usually kept; or

(B) that, in the case of any other document, is the office of the barrister and solicitor (if any) representing the applicant or is a place that is not more than five miles from the office of the court; or

(v) did not produce the document at the time and place specified.

Order for production of particular documents

145.-(1) Where the court is satisfied that a document relevant to a matter in question in proceedings is in the possession, custody or power of a party to the proceedings and that the party is not excused by law from producing the document for inspection by another party, the court may order the first-mentioned party to produce the document, at a time and place specified in the order, for inspection by that other party.

(2) An order under paragraph (1) shall not be made in respect of a document that could be specified in a notice under rule 143.

Copies of certain book

146.-(1) Instead of ordering a party to proceedings to produce a book used for the purposes of trade or business, a court may order the party to furnish a copy of an entry in the book verified as a true copy of the entry by the affidavit of a person who has compared the copy with the entry of which it purports to be a copy.

(2) Where an entry in a book contains an erasure, alteration or interlineation and a copy of the entry is furnished in pursuance of an order referred to in paragraph (1), the copy shall be deemed not to have been verified as a true copy of the entry unless particulars of the erasure, alteration or interlineation are clearly shown in the copy or set forth in the affidavit of the person who compared the copy with the entry of which it purports to be a copy.

(3) An order for the production of a book may be made by a court notwithstanding that a copy of an entry in the book has been furnished in pursuance of an order of the court.

Privilege

147.-(1) A party to proceedings who is requested or ordered under these Rules to make discovery of documents or to produce documents is not excused from making discovery of or producing a particular document by reason only of the fact-

(a) that the document relates solely to, and does not tend to impeach, the case of the party and that the document does not relate to, or tend to support, the case of the party to whom the discovery of documents is to be made or documents are to be produced, as the case may be;

(b) that there is, in the document, an admission by the party that he has committed adultery proof of which would be material to the decision in the suit; or

(c) that there is, in the document, any statement or other matter tending to show that the party has committed adultery proof of which would be material to the decision in the suit.

(2) Where, upon application for an order for the production of documents, a respondent to the application claims that he is excused, by reason producing a particular document, the court may require the respondent to produce that document to the court, and the court may inspect the document for the purpose of determining whether the respondent is so excused.

Non-compliance with order for discovery, etc

148. Where a party to proceedings fails to comply with an order to give particulars, to file an affidavit of discovery, to make discovery or to produce documents, the court may order that-

(a ) if the party is the petitioner-the proceeding instituted by the petition be stayed or dismissed for want of prosecution,

(b) if the party is the respondent-any proceedings instituted by him by an answer to the petition, and any other proceedings instituted by him in relation to proceedings instituted by the petition, be stayed or dismissed for want of prosecution; or

(c) if the party is any other party-his answer or reply, as the case may be, be struck out.

Interrogatories

149. An order shall not be made by the court or the registrar authorising the delivery of interrogatories in writing for the examination of a person.

DIVISION 3 - ADMISSIONS AND NOTICES TO PRODUCE

Admission of facts

150.-(1) A party to proceedings may file an admission of the truth of a fact alleged in the proceedings by another party.

(2) Where a party files an admission under paragraph (1), a copy of the admission shall be served on each other party to the proceedings who has filed a pleading for the purpose of the proceedings.

Notice to admit documents

151.-(1) A party to proceedings may at any time not later than ten days before the trial of the proceedings, by notice, in accordance with Form 25, served on another party to the proceedings, call upon that other party to make the admissions with respect to a document that are indicated in that form, and that other party may, by notice served on the first-mentioned party, make such of those admissions as he is willing to make.

(2) If the other party desires to challenge the authenticity of the document, the party shall, within seven days after service on him of the notice to admit, serve on the party giving the notice that he does not admit the document and requires it to be proved at the trial.

(3) If the other party refuses or fails to serve notice under paragraph (2) within the time prescribed by that paragraph and fails to serve, before the trial of the proceedings, a notice under paragraph (1), the party shall be deemed to have made the admissions indicated in the notice served on him, unless the court otherwise orders.

(4) Where a party to proceedings does not admit a document after service on him of a notice under paragraph (1), the costs of proving the document shall, unless the court certifies that the refusal to admit was reasonable, be payable by the party.

(5) Where a notice to admit a document has not been given by a party to proceedings, the party shall not be entitled to the costs of proving the document unless the taxing officer is of the opinion that the omission to give the notice saved expense.

(6) An admission made or deemed to have been made under this rule with respect to a document does not prevent the party who made or is deemed to have made the admission from objecting to the admission of the document in evidence on a ground that is not inconsistent with his admission.

Notice to admit facts

152.-(1) Subject to paragraph (5), a party to proceedings may at any time not later then ten days before the trial of the proceedings, by notice in writing serve on another party to the proceedings, call upon the other party to admit, for the purpose of the proceedings, any specific fact or facts mentioned in the notice, and that other party may, by notice in writing, admit the fact or any of those facts.

(2) If the party on whom a notice to admit has been served refuses or fails to admit in writing a fact mentioned in the notice within seven days after service of the notice on the party, or within such further time as is allowed by the court, the court may order that party to pay the costs of -proving the fact.

(3) An admission made by a party to proceedings in pursuance of a notice to admit served under paragraph (1) shall be deemed to be made only for the purpose of the proceedings and shall not be used-

(a) against the party in any other proceedings; or

(b) in favour of any person other than the party giving the notice.

(4) A court may at any time allow the party to amend or withdraw an admission made under this rule upon such terms as the court thinks fit.

(5) Nothing in this rule shall be deemed to authorize a party to proceedings to call upon another party to admit a fact which that other party has denied in a pleading filed for the purpose of the proceedings.

(6) A notice referred to in paragraph (1) shall be in accordance with Form 26, and an admission of a fact in answer to such a notice shall be in writing and in accordance with Form 27.

(7) An admission made under this rule with respect to a fact does not prevent the party who made the admission from objecting to the admission of the fact in evidence on a ground that is not inconsistent with his admission.

Affidavit of signature to admissions

153. An affidavit by the barrister and solicitor representing a party, or by a clerk of that barrister and solicitor, of the due signature of admissions made by that party in pursuance of a notice to admit documents or facts is sufficient evidence of those admissions, if that evidence is required.

Notice to produce documents

154.-(1) A party to proceedings may, by notice in writing served on another party to the proceedings, require the other party to produce, at the trial of the proceedings, a document specified in the notice, being a document that is in the possession, custody or power of that other party.

(2) A notice referred to in paragraph (1) shall be in accordance with Form 28.

DIVISION 4 - MEDICAL EXAMINATION OF PARTIES

Medical examination in nullity proceedings

155.-(1) This rule applies to proceedings for a decree of nullity of marriage on the ground that a party to the marriage is incapable of consummating the marriage.

(2) In proceedings to which this rule applies, the petitioner or respondent may make application to the registrar for an order under paragraph (4).

(3) An application referred to in paragraph (2) shall not be made to the registrar-

(a) if the petitioner in the proceedings is seeking the decree of nullity of marriage-before the time limited for the filing of an answer by the respondent has expired or, if the respondent files an answer before the expiration of that time, before the filing of an answer by the respondent; or

(b) if the respondent in the proceedings is seeking the decree-before the time limited for the filing of a reply by the petitioner has expired or, if the petitioner files a reply before the expiration of that time, before the filing of a reply by the petitioner.

(4) Where, in proceedings to which this rule applies, application is made to the registrar for an order under this paragraph, the registrar may, by order-

(a) appoint a medical inspector or two medical inspectors to examine the petitioner and respondent;

(b) appoint a medical inspector or two medical inspectors to examine the petitioner, and another medical inspector or two other medical inspectors to examine the respondent;

(c) appoint a medical inspector or two medical inspectors to examine either the petitioner or the respondent and dispense with the examination of the other of those parties; or

(d) dispense with the examination of the petitioner and respondent by a medical inspector appointed by the registrar.

Appointment of medical inspector upon the trial of proceedings

156. Notwithstanding that the registrar has dispensed with the examination of the petitioner or respondent by a medical inspector appointed under rule 155, where the court, upon the trial of proceedings to which rule 155 applies, thinks it desirable that the petitioner or respondent in the proceedings be examined or re-examined by a medical inspector or two medical inspectors appointed by the court, the court may appoint a medical inspector or two medical inspectors to examine or re-examine the petitioner or respondent, as the case may be.

Medical examination in divorce proceedings

157. In proceedings for a decree of dissolution of marriage on the ground that a party to the marriage has wilfully and persistently refused to consummate the marriage, a registrar may, upon application made by either party to the marriage-

(a) appoint a medical inspector or two medical inspectors to examine the parties, or a party, to the marriage; or

(b) appoint a medical inspector or two medical inspectors to examine one of those parties and another medical inspector or two other medical inspectors to examine the other party.

Service of notice of appointment of medical inspector

158.-(1) Where, under rule 155, 156 or 157, an order has been made, upon application by the petitioner in proceedings, for the appointment of a medical inspector to examine the respondent in the proceedings, the petitioner shall cause a copy of the order to be served on the respondent.

(2) Where, under rule 155, 156 or 157, an order has been made, upon application by the respondent in proceedings, for the appointment of a medical inspector to examine the petitioner in the proceedings, the respondent shall cause a copy of the order to be served on the petitioner.

(3) Where, upon the trial of proceedings, a court has of its own motion made an order under rule 156 for the appointment of a medical inspector to examine a party, being the petitioner or the respondent, to the proceedings an the party was not before the court at the time when the order was made, another party, being the respondent or petitioner, to the proceedings who was before the court either in person or by his barrister and solicitor at that time shall cause a copy of the order to be served on the first-mentioned party.

(4) Service of a copy of an order referred to in any of the preceding paragraphs shall be deemed not to have been duly effected on a party on whom it is required to be served, unless-

(a) a notice specifying the time, day and place appointed by the medical inspector for the examination of the party is served on the party at the same time as the copy of the order is served; and

(b) there are at least seven clear days between service of the notice and the day specified in the notice for the examination of the party.

(5) Unless the court or registrar, as the case may be, otherwise orders, service of a copy of an order referred to in this rule and of a notice referred to in paragraph (4) shall not be effected otherwise than in a manner specified in paragraph (a), (b) or (c) of rule 58.

Medical inspector's oath and identification of person to be examined

159.-(1) A medical inspector appointed under this Division to examine a person shall not carry out the examination unless the medical inspector has made and subscribed, before the registrar or before a person authorized by the registrar for the purpose, an oath, in accordance with a form approved by the registrar, that he will well and truly examine the person, or each person who submits himself for examination in accordance with an order made under this Division, and will make to the court a correct report of the examination or of each such examination.

(2) Before a person is examined by a medical inspector appointed under these Rules-

(a) the person shall satisfy the medical inspector as to his identity by being identified by a barrister and solicitor, or, if he is not represented by a barrister and solicitor, by some other credible person; and

(b) the person, and the barrister and solicitor or credible person by whom he is identified, shall each write his address and sign his name on a paper in the presence of the medical inspector who shall also sign his name on the paper and annex it to the report of the result of the examination.

Report on medical examination

160.-(1) When a medical inspector appointed under these Rules to examine a person has examined the person, the medical inspector shall report the result of the examination to the court.

(2) When a party to proceedings has failed to submit to examination by the medical inspector appointed under these Rules to examine him or has failed to comply with rule 159, the medical inspector shall report to the court accordingly.

(3) A report referred to in either of paragraphs (1) or (2) shall be forwarded by the medical inspector to the registrar.

(4) A report referred to in paragraph (1) or (2) shall be filed-

(a) if the order appointing the medical inspector was made on the application of a party to proceedings-by that party; or

(b) if the order appointing the medical inspector was made by the court of its own motion-by the petitioner in the proceedings or, if the petitioner was not before the court, either in person or by his barrister and solicitor, when the order was made, by the respondent in the proceedings.

(5) Each party to the proceedings shall, upon request to the register, be entitled to be furnished with a copy of the report.

Failure to comply with provisions of this Division

161.-(1) Proceedings to which rule 155 applies shall not be set down for trial unless-

(a) application has been made to the registrar under that rule; and

(b) except in a case where the examination of the petitioner and respondent by a medical practitioner appointed under that rule has been dispensed with - the provisions of rules 158 and 160 have been complied with.

(2) Where, in proceedings to which rule 157 applies, the court has, under that rule, appointed a medical inspector or two medical inspectors to examine the parties or a party, the proceedings shall not be set down for trial unless the provisions of rules 158 and 160 have been complied with.

(3) Where, in proceedings referred to in either of paragraphs (1) or (2) a copy of an order appointing a medical inspector to examine a party to the proceedings is required, under rule 158, to be served on the party, the proceedings shall not be set down for trial unless-

(a) a report of the result of the medical examination of the party has been filed; or

(b) proof, by affidavit, of the due service of a copy of the order n the party has been filed.

DIVISION 5 - DISCRETION STATEMENTS

Discretion statement to be filed

162.-(1) A petitioner or respondent in proceedings-

(a) who is seeking a decree if dissolution of marriage on a ground specified in any of paragraphs (a) to (m), inclusive, of section 14 of the Act or a decree of judicial separation on a ground specified in any of paragraphs (a) to (l), inclusive, of that section; and

(b) who has committed adultery since the marriage, shall file a discretion statement-

(i) if the adultery was committed before the filing of the petition or answer, as the case may be, by which the proceedings for the decree are instituted-at the time when the petition or answer was filed; or

(ii) if the adultery was committed after the filing of the petition or answer but before the trial of the proceedings-as soon as practicable after committing the adultery.

Form and contents of discretion statements

163.-(1) A discretion statement, which shall be in accordance with Form 29, shall state particulars of the acts of adultery committed by the petitioner or respondent, as the case may be, since the marriage (other than acts stated in any other discretion statement filed by him for the purposes of the proceedings), the circumstances giving rise to the commission of the acts of adultery and the grounds upon which the court will be asked to make a decree of dissolution of marriage or judicial separation notwithstanding the adultery.

(2) Where a petitioner or respondent alleges that an act of adultery set forth in his discretion statement has been condoned, he shall state in the discretion statement particulars of the facts that are alleged to constitute condonation of the adultery.

(3) Where, in a discretion statement filed by a petitioner or respondent, the petitioner or respondent states that he has committed adultery and that he and the person with whom he has committed adultery are living together as if they were husband and wife, it is not necessary for a further discretion statement to be filed setting forth particulars of any further acts of adultery committed by him with that person.

(4) A discretion statement of party to proceedings shall not be filed unless-

(a) it is signed by the party;

(b) the matters set forth in it have been verified by the affidavit of the party written on it; and

(c) it is enclosed in a sealed envelope having written on it the words "Discretion Statement", the number of the proceedings and a certificate-

(i) if the party is represented by a barrister and solicitor-signed by the barrister and solicitor; or

(ii) if the party is not so represented-signed by the party, certifying that the statement is duly signed and verified, and that it bears the date on which it was signed.

Service of notice of allegation on spouse

164.-(1) Where a discretion statement of a party to proceedings contains an allegation that the party's spouse has committed adultery or another matrimonial offence, not being adultery or an offence particulars of which have been included in a pleading filed on behalf of the party for the purposes of the proceedings, the party shall cause service of notice of the allegation to be effected on his spouse before the proceedings are set down for trial.

(2) The court may, on the hearing of proceedings, excuse a party who has failed to serve notice of an allegation on his spouse in accordance with paragraph (1) if it is satisfied that the failure has not prejudiced the spouse in connection with the proceedings.

Service of notice of spouse

165.-(1) Where a petitioner whose petition does not contain the statement referred to in rule 38 files a discretion statement after the filing of his petition-

(a) service of notice of his intention to ask the court to make the decree notwithstanding the facts and circumstances set out in the discretion statement shall be effected-

(i) if the respondent has an address for service for the purpose of the proceedings or if the petitioner is claiming custody of a child of the marriage - on the respondent; and

(ii) if a party to the proceedings, other than the petitioner or respondent, has an address for service for the purpose of the proceedings - on that party; and

(b) the barrister and solicitor for the petitioner or if the petitioner is not represented by a barrister and solicitor, the petitioner shall write on the petition, in red ink, immediately after the signature to the petition, a notation in accordance with the following form, and sign his name immediately under that notation:-

"Discretion statement filed the .... day of .........,19... ."

(2) Where a petitioner is claiming custody of a child of the marriage and the respondent does not have an address for service, paragraph (1) shall not require the service of the notice on a respondent-

(a) if the court dispensed with service of the petition on the respondent; or

(b) if service of the petition was effected on the respondent by advertising notice of the petition, but in no other manner,

unless the petitioner is aware of the address of the respondent.

(3) Where-

(a) service of a notice under paragraph (1) would be required to be effected on a respondent but for the fact that the court dispensed with service of the petition on the respondent; and

(b) the court, as a condition of dispensing with service of the petition on the respondent, required a copy of the petition to be sent to or served on some other person,

the notice referred to in that paragraph shall be sent to or served on that person.

(4) Paragraph (1) shall apply to and in relation a respondent who files a discretion statement after the filing of his answer as if-

(a) references to a petitioner were references to a respondent;

(b) references to a petition were references to an answer; and

(c) references to a respondent were references to a petitioner.

Disclosing discretion statement

166- (1) The court may, if it considers it proper so to do in the circumstances of the particular case, require a discretion statement filed by a party to a suit to be tendered in evidence, read out in open court or produced for inspection by another party to the suit-

(a) at any stage of the trial of the suit; or

(b) at any stage of the hearing of proceedings with respect to the custody of a child of the marriage to which the suit relates.

(2). Except as provided in paragraph (1), a discretion statement shall not be open to inspection by a person other than the Attorney-General, or a person authorized in writing by the Attorney-General to inspect the discretion statement, without the leave of the Court.

(3). An authorization by the Attorney-General under paragraph (2) may be either general or in relation to a particular suit or class of suits.

(4). In paragraphs (2) or (3), references to the Attorney-General shall be read as including references to a person to whom the Attorney-General has, by a delegation that is in force, delegated all or any of his powers and functions under Part XII of the Act.

DIVISION 6 - CONSOLIDATION OF PROCEEDINGS

Consolidation of proceedings

167.-(1) The court or the registrar may, upon application made by the petitioner or respondent in proceedings, order that the proceedings be consolidated and with other proceedings that are pending in the court and to which that petitioner and respondent are parties, and that both proceedings be tried together.

(2) An order may be made under paragraph (1) notwithstanding that a party to one of the proceedings is not a party to the other proceedings.

(3) The court or registrar shall specify, in an order made under paragraph (1), the party who shall be deemed to be the party having the carriage of the consolidated proceedings.

DIVISION 7 - SETTING SUITS DOWN FOR TRIAL

Setting undefended suit down for trial

168.-(1) Subject to rules 108 and 161 and to this rule, the registrar of the court in which an undefended suit is pending may, upon the petitioner filing a request and a certificate that the suit is ready for trial, set the suit down for trial.

(2) A request and certificate referred to in paragraph (1) shall be in accordance with Form 30 shall be signed by the barrister and solicitor for the petitioner or, if the petitioner is not represented by a barrister and solicitor, by the petitioner.

(3) Subject to rule 172, the registrar shall not set an undefended suit down for trial unless-

(a) proof, by affidavit, of the due service of the petition on the respondent, and on each named person (if any) with or on whom the respondent is alleged to have committed adultery, rape or sodomy, has been filed;

(b) the time limited for the filing of an answer by each person on whom service of the petition has been effected has expired and no answer has been filed by such a person;

(c) in the opinion of the registrar, the particulars of the marriage stated in the petition are consistent with the particulars shown in the marriage certificate (if any) filed in pursuance of rule 52;

(d) the facts alleged in the petition would, if true, establish, in the opinion of the registrar, the domicile or residence, as the case may be, of the petitioner in Fiji, within the meaning of the Act, at the time of the institution of the suit; and

(e) in a case where the petitioner is seeking an order with respect to the maintenance of himself or a child of the marriage(not being and order for maintenance pending the disposal of the suit) or an order relating to the settlement of property-

(i) the registrar is satisfied that it would not be unreasonable for the petitioner to proceed to the trial of the suit without obtaining a certificate of means; or

(ii) the petitioner has, in pursuance of a direction f the registrar, made application for, and been granted, a certificate of means.

(4) Subject to rule 172, where service of a petition on a person, whether or not that person is the respondent, has been dispensed with subject to a compliance with a condition, the registrar shall not set the suit down for trial unless proof, by affidavit, of the due compliance with the condition has been filed.

(5) A suit shall not be ready for trial for the purpose of paragraph (1) unless-

(a) any request for discovery or inspection of documents that the petitioner desires to make for the purpose of preparing for the trial has been made;

(b) any interlocutory application that the petitioner desires to make for the purpose of preparing for the trial has been made, heard and determined; and

(c) so far as practicable, a proof of the evidence of each person to be called by the petitioner as a witness upon the trial of the proceedings has been obtained.

(6) Where an undefended suit includes proceedings in which there is a claim with respect to-

(a) the maintenance of the petitioner of the child of the marriage (not being a claim for maintenance pending the disposal of proceedings); or

(b) the settlement of property,

the registrar shall consider the facts alleged in the petition with respect to the claim and any reasons for obtaining a certificate on means stated in the request and, if he is satisfied that it would be unreasonable for the petitioner to proceed to the trial of the suit without obtaining a certificate of means, shall direct the petitioner, in writing, to make application for a certificate of means.

(7) This rule shall apply to an undefended suit that consists only of proceedings instituted by the respondent to a petition as if-

(a) references to the petitioner were read as references to the respondent;

(b) references to the petition were read as references to the respondent's answer to the petition;

(c) references to the respondent were read references to the petitioner;

(d) references to an answer were read as references to a reply; and

(e) references to the petition in sub-paragraph (c) or (d) of paragraph (3) were read as references to the petition and the answer.

Request to set defended suit down for trial

169.-(1) A request to set a defended suit down for trial shall not be made by a party other than the petitioner where a period of less then fourteen days has elapsed since the pleadings were completed.

(2) Where in the case of a defended suit a period of less than twenty-eight days has elapsed since the pleadings were completed, a request to set the suit down for trial shall not be made by a party other than the petitioner or the respondent.

(3) Where a request to set a defended suit down for trial has been duly made by a party, another party shall not make a request to set the suit down for trial unless the first-mentioned request has been withdrawn by the party by whom it was made or has been refused.

Setting defended suit down for trial.

170.-(1) Subject to rules 108 and 161 and to this rule, the registrar may, upon a party who has filed a pleading filing a request and a certificate that the suit is ready for trial, set a defended suit down for trial.

(2) A request and a certificate referred to in paragraph (1)-

(a) shall be in accordance with Form 31;

(b) shall state an estimate of the length of the trial; and

(c) shall be signed by the barrister and the solicitor for the party or, if the party is not represented by a barrister and solicitor, by the party.

(3) The registrar shall not set a defended suit down for trial upon the request of a party unless-

(a) the pleadings are complete;

(b) in the opinion of the registrar, the allegations in the petition relating to the marriage are consistent with the particulars shown in the marriage certificate (if any) filed in pursuance of rule 52;

(c) the facts alleged on the petition would, if true, establish, in the opinion of the registrar, the domicile of residence, as the case may be, of the petitioner in Fiji, within the meaning of the Act at the time of the institution of the suit; and

(d) in a case where the respondent has, in an answer, sought a decree of a kind referred to in paragraph (a) of the definition of the "matrimonial cause" - the facts alleged in the petition and answer would, if true, establish, in the opinion of the registrar, as the case may be, of the respondent in Fiji, within the meaning of the Act, at the time of the institution of the proceedings for that decree.

(4) A suit shall not be ready for trial for the purpose of paragraph (1) unless-

(a) any request or order for the furnishing of particulars by or to the party, for the making for discovery by or to the party of for the inspection of documents has been complied with;

(b) the party has instituted all such interlocutory applications, and made all such requests for particulars, discovery or inspection of documents, as the party desires to make for the purpose of preparing for the trial of the suit;

(c) so far as practicable, a proof of evidence of each person to be called by the party as a witness upon the trial of the suit has been obtained, and

(d) if, upon trial of the suit, the party proposes to call an expert witness to give evidence in relation to any proceedings included in the suit-the party has furnished a copy of a proof of the witness's evidence to each other party to those proceedings who has filed a pleading.

(5) For the purpose of sub-paragraph (a) of paragraph (4), a party shall be deemed to have complied with a request or order referred to in that sub-paragraph of the party who made the request or was the applicant for the order, as the case may be, has waived compliance with the request or order.

(6) A suit that includes defended proceedings in which there is a claim with respect to the maintenance of a party to the suit or of a child of the marriage (not being a claim for maintenance pending the disposal of the suit) or the settlement of property shall not be set down for trial upon request made by a party to the suit, being the petitioner or the respondent, unless-

(a) application has been made for a certificate of means;

(b) the request to set the suit down for trial states that that the parties to the marriage have agreed, whether or not subject to conditions-

(i) with respect to the payment of maintenance, the payment of an amount in place of maintenance of the settlement of property; or

(ii) on a statement of their means,

and the terms of that agreement are set out in that request or in another document referred to in that request and filed in the proceedings; or

(c) the registrar is satisfied, for a reason stated in the request (not being the reason that the parties have so agreed) that it is unnecessary for a certificate of means to be obtained.

(7) where the parties to a marriage have agreed to the payment of maintenance in accordance with terms and conditions set out in an order of a court or in an agreement in writing entered into between the parties, it is sufficient compliance with sub-paragraph (b) of paragraph (6) if the request states that the parties have so agreed and refers to the order or agreement, as the case may be.

Service of request to set suit down for trial

171. A party who makes a request to set a defended suit down for trial shall, on the day on which the request is filed or on the next following day, cause a copy of the request to be served on each other party who has an address for service.

Request to set suit down for trial

172.-(1) Where a request to set a suit down for trial has been made to the registrar but the registrar is not satisfied that the suit is in order for trial, the registrar shall inform the party who made the request of the matters that, in his opinion, are not in order and, if such a matter relates to a pleading filed, or an application made or required to be made, by a party other than that first-mentioned party, shall also inform that party of the matter.

(2) Where under paragraph (1), the registrar has informed the party who made the request that he is not satisfied that the suit is in order for setting down for trial, that party may request the registrar, in writing, to set the suit down for trial notwithstanding that the registrar is not so satisfied, and the registrar shall, on receipt of the request, set the suit down for trial.

(3) Where a period of not less than twenty-eight days has elapsed after the registrar informed the party who made the request that he is not satisfied that a suit is in order for setting down for trial and the suit has not been set down for trial, any other party entitled to make a request to set the suit down for trial may request the registrar, in writing, to set the suit down for trial, and the registrar shall, on receipt of the request, set the suit down for trial.

(4) Where the registrar sets a suit down for trial in pursuance of a request under either of paragraphs (2) or (3), the registrar shall state on the certificate filed in pursuance of rule 175 the matters that in his opinion are not in order.

Place at which suit may be set down for trial

173. Subject to the provisions of these Rules, the place at which a suit shall be set down for trial shall be determined by the court.

Date of trial

174.-(1) When the registrar sets a suit down for trial, the registrar shall, if it is in accordance with the practice of the court so to do, set the suit down for trial on a particular date or at a sittings of the court commencing on a particular date.

(2) Unless the court or registrar otherwise orders under rule 176, a defended suit shall not be-

(a) set down for trial on a date;

(b) set down for trial at a sittings of the court commencing on a date; or

(c) tried by the court on a date,

that is less than fourteen clear days after the date on which the suit is set down for trial by the Registrar.

Notice of trial

175.-(1) Subject to paragraph (2), a party who requests the registrar to set a suit down for trial shall deposit with the registrar, a form of notice, in accordance with Form 32, for signature by the registrar, and a copy of that form of notice for each party to the suit.

(2) Paragraph (1) shall not require the deposit of a copy of a form of notice for a party-

(a) if the court dispensed with service of the petition or answer on the party; or

(b) if service of the petition or answer was effected on the party by advertising notice of the petition or answer but in no other manner, unless the party has an address for service, unless the party making the request is aware of an address of the party or unless the court, as a condition of dispensing with the service, required a copy of the petition or answer to be sent to or served on some other person.

(3) A copy of a form of notice for a party to proceedings shall have the name and address of the party endorsed upon it and, with the form, there shall be deposited with the registrar a stamped and addressed envelope in which the form can be enclosed and posted to that party. The envelope shall also be endorsed with a notation as required by paragraph (7).

(4) For the purpose of paragraph (3), the address of a party that is to be written on a copy of a form of notice and envelope shall be -

(a) if the party has an address for service-that address; or

(b) in any other case-the address of the place at which the party is residing or working or, if the person on whose behalf the copy is deposited with the registrar does not know where the party is residing or working, any other address of the party known to the person, the address of the place at which service of the petition or answer. As the case may be, was effected on the party or the address of the person or on whom a copy of the petition or answer was sent or served as a condition of dispensing with service on the party.

(5) Where the registrar sets a suit down for trial, he shall-

(a) insert in each copy of the form of notice deposited under paragraph (1) the name of the place at which the suit has been set down for trial and, if he has, in accordance with the practice of the court set the proceedings down for trial on a particular day or for a sittings of the court commencing on a particular day, also insert particulars of that day or sittings;

(b) post each copy of the notice to the party whose address appears on it at that address (postage being prepaid); and

(c) certify, in accordance with Form 33, that-

(i) the suit is ready for trial or has been set down for trial in pursuance of a request under paragraph (2) or (3), as the case may be, of rule 168; and

(ii) that he has complied with the preceding sub-paragraph of this paragraph,

and file that certificate.

(6) In proceedings in a court, a certificate under paragraph (5) relating to a suit and under the hand of the registrar, shall be evidence that the provisions of sub-paragraph (a) or (b) of that paragraph have been duly complied with in relation to the suit.

(7) To form of the notation required by paragraph (3) to be endorsed on a form of notice deposited by a party is as follows:-

"If not delivered within 7 days, return to (name of the barrister and solicitor for that party or name of that party, as the case may be, and address for service of that party)."

Expediting trial of suit

176.-(1) Where the court or the registrar is satisfied that it is, by reason of special circumstances, proper so to do, the court or registrar may, by order-

(a) set the suit down for hearing on, or for hearing at a sitting of the court commencing on, a date that is less than fourteen days after the day on which the suit was down for trial; or

(b) fix a specified day (which may be more or less than fourteen days after the day on which the suit shall was set down for trial) as the day on which the trial of the suit shall take place.

(2) An application for an order under paragraph (1) may be made by any party who has filed a pleading.

PART XI - DECREES

Decree of dissolution of marriage

177. Decree of dissolution of marriage shall be in accordance with Form 34.

Decree of nullity

178. Decree of nullity of marriage shall be in accordance with Form 35 or Form 36 (whichever is appropriate).

Decree of judicial separation

179. A decree of judicial separation shall be in accordance with Form 37.

Decree of restitution of conjugal rights

180. A decree of restitution of conjugal rights shall be in accordance with Form 38.

Adultery of party who has established ground for dissolution of judicial separation

181. Where, upon the trial of proceedings for a decree of dissolution of marriage or of judicial separation, the court is satisfied of the existence of-

(a) a ground (not being the ground specified in paragraph (n) of section 14 of the Act, in respect of which the decree may be granted; and

(b) ground on which the court may, under subsection (3) of section 23, or under section 27, of the Act, refuse to make the decree,

the court shall state accordingly in its decree and shall also state that a decree of dissolution of marriage or of judicial separation -

(c) was refused by the court in the exercise of its discretion under subsection (3) of section 23, or under section 27, of the Act, as the case may be; or

(d) was granted by the court notwithstanding that last-mentioned ground, as the day may be.

Death of party after decree nisi but before decree becomes absolute

182.-(1) Where, after a decree of dissolution of marriage or a degree of nullity of a voidable marriage has been made but before the degree has become absolute-

(a) it comes to the notice of a party to the proceedings who has an address for service that a party to the marriage died before, or has died after, the making of the decree; or

(b) it comes to the notice of the barrister and solicitor representing a party to the marriage that the party died before, or has died after, the making of the decree,

the party or barrister and solicitor, as the case may be, shall make an file an affidavit stating such particulars of the date and place of the death and place as are known him.

(2) Where the registrar is satisfied that the party is death, he shall file a memorandum to that effect.

Decree absolute

183.-(1) A memorandum referred to in subsection (1) of section 60 of the Act shall be in accordance with Form 39.

(2) A certificate referred to in subsection (2) of section 60 of the Act-

(a) shall be in accordance with Form 40; or

(b) shall be a certificate, endorsed on a copy of the decree nisi, in accordance with the following form:-

"I certify that the decree nisi of which this decree is a copy became absolute on the........day of ..............19......

Dated this......day of...............,19...

Registrar."

Rescission where parties reconciled

184.-(1) An application under section 61 of the Act of a party to a marriage to rescind a decree nisi on the ground that the parties to the marriage have become reconciled may be made ex parte if the parties to the marriage have, by a joint affidavit or by their respective affidavits filed in support of the application, verified the grounds of the application.

(2) Subject to paragraph (1), service of an application, referred to that paragraph shall be effected on the other party to the marriage in a manner referred to in paragraph (a) or (b) of rule 58.

Rescission on ground of miscarriage of justice

185.-(1) A party to proceedings who makes application for the rescission, under section 62 of the Act of a decree nisi shall cause service of the application to be effected on each other party to the proceedings, except a party service on whom of the application is dispensed with.

(2) Service of an application referred to in paragraph (1) shall be effected in a manner referred to in paragraph (a) or (b) of rule 58.

PART XII - INTERVENTION BY PERSONS NOT PARTIES TO PROCEEDINGS

Intervention by Attorney-General

186.-(1) Where the Attorney-General is entitled to intervene in proceedings under section 76 or 77 of the Act, the Attorney-General may do so by causing to be filed a notice of intervention, in accordance with Form 41, stating whether he is intervening under section 76 or 77 of the Act.

(2) Where the Attorney-General intervenes in proceedings under section 77 of the Act, the Attorney-General shall, at the time of intervening or as soon after that time as practicable, file a statement containing particulars of the matters relevant to the proceedings that the Attorney-General has reason to believe have not been, may not be, but ought to be, made known to the court.

(3) A copy of a notice of intervention, and a copy of a statement filed in pursuance paragraph (2), shall, as soon as possible after it has been filed, be served on each other party to the proceedings who has an address for service.

(4) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom, by a delegation under section 77 of the Act that is in force, the Attorney-General has delegated a power or function under Part XII of the Act.

Intervention by Attorney-General after decree nisi

187.-(1) Where the Attorney-General intervenes in proceedings after a decree nisi has been made-

(a) the Attorney-General shall, as soon as practicable after intervening, make application to the court for directions with respect to matters arising out of the intervention; and

(b) party to the proceedings may, in an affidavit filed for the purpose of the proceedings, deny an allegation contained in the statement filed in pursuance of paragraph (2) of rule 186 or state a fact that has become relevant to the proceedings by reason of some matter alleged in that statement.

(2) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom, by a delegation under section 78 of the Act that is in force, Attorney-General has delegated a power or function under Part XII of the Act.

Intervention by other person

188.-(1) Service of an application under section 79 of the Act for leave to intervene in proceedings shall, on the day on which the application is filed or on the next following day, be effected on each party to the proceedings who has an address for service.

(2) Where the court makes an order under section 79 of the Act entitling a person to intervene in proceedings-

(a) the court shall give such directions as it thinks proper with respect to the service of copies of the order, the filing of affidavits and the hearing or the further hearing of the proceedings as it thinks necessary for the proper determination or review of the proceedings; and

(b) the person shall, on the day on which the order is made or on the next following day, intervene in the proceedings by filing a notice of intervention in accordance with Form 42.

PART XIII - PROCEEDINGS FOR ANCILLARY RELIEF

DIVISION 1 - PRELIMINARY

Interpretation

189. In this Part, unless the contrary intention appears-

"application for ancillary relief", in relation to proceedings for ancillary relief, means-

(a) if the proceedings for ancillary relief are instituted by petition-that petition;

(b) if the proceedings for ancillary relief are instituted by an answer to a petition - that answer; or

(c) if the proceedings for ancillary relief are instituted by application to a court - the affidavit in support of that application;

"claimant" means a person who institutes or has instituted proceedings for ancillary relief;

"defence to the proceedings", in relation to proceedings for ancillary relief, means-

(a) if the proceedings for ancillary relief were instituted by petition - the respondent's answer to the petition;

(b) if the proceedings for ancillary relief were instituted by an answer to a petition - the petitioner's reply to the answer; or

(c) if the proceedings for ancillary relief were instituted by the application to a court - an affidavit filed in reply to the affidavit in support of the application;

"proceedings for ancillary relief" means proceedings of a kind referred to in paragraph (c) of the definition of "matrimonial cause" that are in relation to proceedings for principal relief;

"proceedings for principal relief" means proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause".

Application of this Part

190. This Part does not apply to proceedings for ancillary relief pending at the commencement of the Act.

Certain proceedings may be instituted without the leave of the court

191.-(1) Where proceedings for principal relief have been instituted by petition, the respondent may, by filing an answer to the petition, institute proceedings for ancillary relief that are in relation to those proceedings for principal relief without the leave of the court.

(2) Proceedings for ancillary relief may be instituted by application and without the leave of the court if the proceedings relate to-

(a) proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause" that were pending at, or were completed, before the commencement of the Act; or

(b) an order made by a court whether before or after the commencement of the Act, in proceedings of a kind referred to in paragraph (c) of that definition.

Application for leave to institute proceedings for ancillary relief

192.-(1) Where a party to proceedings for principal relief makes application to a court for leave, under section 55 of the Act, to institute proceedings for ancillary relief, service of the application shall, unless the court dispenses with the service, be effected on the spouse of the party in a manner referred to in paragraph (a), (b) or (c) of rule 58.

(2) A party proceedings for principal relief who makes application for leave to institute proceedings for ancillary relief shall state in the affidavit in support of the application his reasons for not instituting the proceedings for ancillary relief by his petition or answer, as the case may be.

(3) Where, before the making of the decree in proceedings for principal relief, proceedings for ancillary relief are instituted by leave of the court or under paragraph (2) of rule 191 the proceedings for ancillary relief shall be deemed to have been consolidated with the proceedings for principal relief to which they are related and, as far as is practicable, shall be heard and determined by the court at the same time as the proceedings for principal relief.

(4) Where proceedings for ancillary relief are instituted by leave of the court, the court shall not make an order with respect to the costs of the proceedings in favour of the claimant unless the court is satisfied that there were good reasons for not instituting the proceedings by the petition by which the proceedings for principle relief to which those proceedings for ancillary relief relate were instituted or by an answer to that petition, as the case required.

Particulars to be included in application for ancillary relief

193.-(1) A claimant shall state in his application for ancillary relief-

(a) the order sought by him; and

(b) the facts upon which the court will be asked to make that order.

(2) In proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the claimant shall state in his application for ancillary relief particulars of-

(a) the property, income and financial commitments of the claimant;

(b) capability of the claimant to earn income;

(c) the property, income and financial commitments of the spouse of the claimant, so far as they are known to the claimant;

(d) the capability of the spouse of the claimant to earn income, so far as that capability is known to the claimant;

(e) any financial arrangements in operation between the claimant and the spouse of the claimant;

(f) any order of a court under which one of the parties to the marriage is liable to make payments to the other; and

(g) the ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.

(3) Where the pecuniary resources of the parties to the relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in paragraph (2), the claimant shall state in his application for ancillary relief particulars of such of the matters referred to in paragraph (a) to (g), inclusive, of that paragraph as are relevant to those proceedings.

(4) Where any particulars referred to in paragraph (c) or (d) of paragraph (2) are included in a petition or answer, particulars of the claimant's means of knowing those first-mentioned particulars shall be stated in the petition or answer as the case may be.

(5) Where any particulars referred to in paragraph (c) or (d) of paragraph (2) are included in an affidavit, the person swearing the affidavit shall state in the affidavit particulars of his means of knowing those first-mentioned particulars.

Defence to proceedings for ancillary relief

194.-(1) Where proceedings for ancillary relief have been instituted, the spouse of the claimant may, in a defence to the proceedings-

(a) admit or deny an allegation in the application for ancillary relief that relates to the proceedings for ancillary relief; or

(b) state any facts relevant to the proceedings for ancillary relief that the spouse wishes to be considered upon the determination of the proceedings.

(2) Without limiting the generality of paragraph (1), in proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the spouse shall, if he wishes to oppose the making of the order sought, state in his defence to the proceedings particulars of-

(a) the property, income and financial commitments of the spouse;

(b) the capability of the spouse to earn income;

(c) the property, income and financial commitments of the claimant, so far as they are known to the spouse;

(d) the capability of the claimant to earn income, as far as that capability is known to the spouse;

(e) any financial arrangements in operation between the spouse and the claimant;

(f) any order of a court under which one of the parties to the marriage is liable to make payments to the other; and

(g) the ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.

(3) Without limiting the generality of paragraph (1), where the pecuniary resources of the parties to the marriage are relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in paragraph (2), the spouse shall, if he wishes to oppose the making of the order sought, state in his defence to the proceedings particulars of such of the matters referred to in sub-paragraphs (a) to (g), inclusive, of that paragraph as are relevant to those proceedings.

(4) Where any particulars referred to in sub-paragraph (c) or (d) of paragraph (2) are included in an answer or reply, particulars of the spouse's means of knowing those first mentioned particulars shall be stated in the answer or reply, as the case may be.

(5) Where any particulars referred to in sub-paragraph (c) or (d) of paragraph (2) are included in an affidavit, the persons swearing the affidavit shall state in the affidavit particulars of the means of knowing those first-mentioned particulars.

(6) Where the spouse of a claimant states in his defence to the proceedings that any particulars of a matter referred to in paragraph (2) that are stated in the claimant's application for ancillary relief are true and correct, this rule does not require the spouse to state those particulars in his defence to the proceedings.

Forms of application for ancillary relief

195.-(1) This rule shall not apply to proceedings for ancillary relief that are instituted by petition or by answer to a petition.

(2) Subject to paragraphs (3) and (4), an application to a court for the purpose of instituting proceedings for ancillary relief shall be in accordance with Form 43.

(3) Subject to paragraph (3), an application to a court for the purpose of instituting proceedings for ancillary relief-

(a) being proceedings for relief pending the disposal of proceedings; or

(b) being proceedings for relief in relation to completed proceedings for principal relief, including proceedings for principal relief completed .before the commencement of the Act,

shall be in accordance with Form 4.

(4) An application to a court for the purpose of instituting proceedings for ancillary relief pending the disposal of proceedings shall be in accordance with Form 44.

(5) Subject to paragraph (6), service of an application instituting proceedings for ancillary relief shall be effected on the spouse of the claimant in a manner referred to in paragraph (a), (b), or (c) of rule 58.

(6) Where proceedings for ancillary relief are instituted in relation to completed proceedings of a kind referred to in paragraph (a) of the definition of "matrimonial cause", service of the application shall not be effected in the manner referred to in paragraph (c) of rule 58 unless the address for service of the spouse of the claimant is the address of a barrister and solicitor representing that spouse and that barrister and solicitor is, at the time of the service, representing that spouse in connexion with those proceedings for ancillary relief.

DIVISION 2 - MAINTENANCE PENDING SUIT

Order for maintenance pending suit to be made where order of superior court in force

196. Where an order with respect to the maintenance of a party to a marriage or of a child of a marriage is in force, being an order made by a court in Fiji, a court shall not make an order, under subsection (2) of section 84 of the Act, for the maintenance of the party or the child, as the case may be, pending the disposal of proceedings.

Assessment by the Registrar

197.-(1) This rule applies in a case, not being a case to which rule 196 applies, where proceedings for ancillary relief have been instituted seeking a decree with respect to the maintenance, pending the disposal of proceedings, of the claimant, of a child of the marriage or of the claimant and a child of the marriage.

(2) Where, in a case to which this rule applies, no defence to the proceedings has been filed although the time for filing a defence has expired, the claimant may, by filing a request in accordance with Form 47, request the registrar to make an assessment for the purpose of this rule, and the registrar shall, as soon as practicable after the filing of the request-

(a) if the particulars included in the application for ancillary relief are sufficient to enable him to do so - make the assessment or; or

(b) in any other case - inform the claimant that he is unable to make the assessment until a certificate of means has been issued under the rule 205.

(3) Where, in a case to which this rule applies, a defence to the proceedings has been filed, the claimant may, by filing a request in accordance with Form 47, request the registrar to make an assessment for the purpose of this rule, and the registrar shall, as soon as practicable after the filing of the request-

(a) if the particulars included in the application for ancillary relief and the particulars in the defence to the proceedings are sufficiently consistent and give sufficient information to enable him to do so - make the assessment; or

(b) in any other case - inform the claimant that he is unable to make an assessment until a certificate of means has been issued under rule 205.

(4) Where, in a case to which this rule applies a certificate of means is issued after the registrar has informed the claimant that he is unable to make an assessment, the registrar shall, as soon as practicable after the certificate of means is issued, make an assessment for the purpose of this rule having regard to the matters specified in that certificate.

(5) An assessment made by the registrar for the purpose of this rule shall specify-

(a) the rate (if any) per week at which the registrar considers maintenance should be payable for the claimant or the child, as the case may be, pending the disposal of proceedings;

(b) the date, not being a date earlier than the day on which the petition, answer or application to the court for ancillary relief was filed, as from and including which maintenance at that rate should be payable;

(c) whether the registrar considers maintenance should be paid to the claimant, into court or to a person or public authority on behalf of the claimant; and

(d) the rate per week at which the registrar considers any maintenance for the claimant or the child in respect of the period commencing on the date specified in pursuance of sub-paragraph (b) an ending on the date of the assessment, less any amount paid as maintenance of the claimant or the child, as the case may be, in respect of that period, should be payable.

(6) The Registrar, in making an assessment for the purpose of this rule, shall not have regard to any allegation concerning the conduct of the claimant or the spouse of the claimant, whether or not that conduct is in question in the proceedings for principal relief unless that conduct is relevant to the means or financial needs of the claimant or his spouse or to the capability or his spouse to earn income.

(7) Registrar shall not, in proceedings for ancillary relief, make an assessment for the purpose of this rule specifying a rate per week for the maintenance of a claimant or a child if an order under rule 202 has been made concerning the maintenance to be paid for the claimant or child, as the case may be.

(8) An assessment for the purpose of this rule shall be in accordance with Form 47.

Service of assessments

198.-(1) Subject to paragraph (2), a claimant who requests the registrar to make an assessment for the purpose of rule 197 in relation to proceedings for ancillary receipt shall deposit with the registrar a form of assessment, in accordance with Form 49, for signature by the registrar and two copies of that form for the claimant and the spouse of the claimant, respectively.

(2) Paragraph (1) shall not require the deposit of a copy of a form of assessment for the spouse of the claimant if service of the application for ancillary relief on the spouse-

(a) was dispensed with; or

(b) was effected by publishing notice of the application in a newspaper, but in no other manner,

unless the spouse filed a defence to the proceedings or the court, as a condition of dispensing with the service, required a copy of the application to be sent to or served on some other person.

(3) A copy of a form of assessment for a person shall have the name and address of the person endorsed on it and there shall also be deposited with the registrar a stamped and addressed envelope, in which the form can be enclosed and posted to that person. The envelope shall, in addition to having the name and address of the person written on it, be endorsed with a notation in accordance with the form set out in paragraph (8).

(4) For the purpose of paragraph (3), the address of a person that is to be written on a copy of a form of assessment is-

(a) if the person is the claimant - the address for service of the claimant; or

(b) if the person is the spouse of the claimant - the address for service of the spouse, the last address of the spouse known to the claimant, the address of the place at which the spouse was served with the application for ancillary relief or the address of the person to or on whom a copy of that application was sent or served as a condition of dispensing with service on the spouse.

(5) As soon as practicable after the registrar makes an assessment under rule (4), the registrar-

(a) shall complete, sign and file the form of assessment deposited under paragraph (1); and

(b) shall then complete and sign the copies of that form and cause each copy to be served on the person to whom it is addressed by posting it to that person as a letter, postage being prepaid.

(6) Service of a copy of an assessment shall, unless the contrary is proved, be deemed to-have been effected on a person at the time when the letter containing the copy of the assessment would, in the ordinary course of post, be delivered at the address to which it is posted.

(7) In any proceedings, a certificate, under the hand of the registrar and written on an assessment, stating that a copy of the assessment was posted as a letter (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified person at a specified address shall be evidence of the facts stated in the certificate.

(8) The form of the notation required by paragraph (3) to be endorsed on a form of assessment deposited by a claimant shall be as follows:-

"If not delivered within 7 days, return to (name of the barrister and solicitor for that claimant or name of that claimant, as the case may be, and address for service of that claimant.)"

Reference of claim to the court

199.-(1) When, in a case to which rule 193 applies, the registrar has made an assessment for the purpose of that rule, the petitioner or respondent may, not later than ten days after service of a copy of the assessment on him, by filing a request in accordance with Form 49, request the registrar to refer the proceedings to the court, and the registrar shall refer the proceedings accordingly.

(2) Where a person on whom a copy of an assessment has been served does not duly file a request under paragraph (1) the person shall be taken to have consented to the court making, in the proceedings in relation to which the assessment was made, an order in accordance with the terms of the assessment but that consent shall not be taken to prejudice the person in any other proceedings.

Default in payment of amount assessed

200.-(1) Subject to paragraph (2), where, in proceedings with respect to maintenance, a claimant and his spouse are taken to have consented to the making of an order by the court in accordance with the terms of an assessment the claimant may, by filing a request in accordance with Form 49, request the registrar to refer the proceedings to the court under this rule, and the registrar shall refer to the proceedings accordingly.

(2) Paragraph (1) does not require the registrar to refer proceedings to the court unless the registrar is satisfied, by affidavit, that the total amount of the payments (including payments in respect of a period preceding the date of the assessment) that would have become due and payable on or before the date on which the request is filed if the assessment had been an order for the payment maintenance in accordance with its tenor exceeds, by more than the amount of the weekly rate, or the sum of the weekly rates, specified in the assessment in pursuant of sub-paragraph (a) of paragraph (5) of rule 197, the total amount paid by the spouse of the claimant for the maintenance of the claimant, of the child or of the claimant and the child, as the case may be, since the date of the assessment (excluding so much of any maintenance so paid as relates to a period preceding the date specified in the assessment in pursuance of sub-paragraph (b) of that paragraph).

(3) Where the registrar is required to refer proceedings to a court under paragraph (1), the registrar shall bring the proceedings before the court which, if it thinks fit, may, without any application being made to it and without a hearing, order the payment of maintenance in accordance with the terms of the assessment less any amount paid as maintenance in respect of the period covered by the assessment.

(4) Where a court does not think fit to make an order under paragraph (3), the registrar shall refer the proceedings to the court for hearing and determination and the spouse of the claimant may withdraw the consent that, under rule 199, he is taken to have given.

(5) Where, in proceedings for ancillary relief, an order under rule 202 has been made for the payment of maintenance for the claimant in the proceedings or for a child of a marriage, an order shall not be made under this rule for the payment as maintenance for the claimant or child, as the case may be, in accordance with the terms of an assessment made under rule 197.

Notice of hearing

201.-(1) The party at whose request proceedings for ancillary relief are referred to the court under rule 199, or the claimant in proceedings for ancillary relief that are referred to the court under paragraph (4) of rule 200, shall cause to be served on the spouse of the party or claimant, as the case may be, a notice, in accordance with Form 50.

(2) Paragraph (1) shall not require service of a notice referred to in that paragraph to be effected on the spouse if service on the spouse of the application for ancillary relief instituting the proceedings-

(a) was dispensed with; or

(b) was effected by publishing notice of the application in a newspaper, and the spouse did not file a defence to the proceedings.

Consent order for maintenance pending the disposal of proceedings

202.-(1) Where the parties to proceedings for ancillary relief, being proceedings for an order with respect to the maintenance, pending the disposal of proceedings, of one of those parties or of a child of a marriage, agree as to the maintenance that should be paid for the party or the child pending the disposal of the proceedings, a form of order may be deposited with the registrar providing for one or more of the following-

(a) the payment of maintenance in accordance with the agreement; and

(b) the payment of the costs of the proceedings.

(2) A form of order shall not be deposited under paragraph (1) unless it has endorsed on it the consent, signed by each of the parties either personally or by his barrister and solicitor, to the making of an order in the terms of the form.

(3) Where a form of order is duly deposited with the registrar, the registrar shall bring the proceedings to which the form of order relates before the court which, if it thinks fit, may, without any application being made to it and without a bearing, make an order, or orders, in the terms of the form.

(4) Where, after the registrar has made an assessment under rule 197 specifying the rate per week at which the registrar considers maintenance should be paid for the person pending the disposal of proceedings, an order is made under paragraph (3) with respect to the maintenance payable for the person pending the disposal of those proceedings, the assessment ceases to have effect for the purpose of rule 199 or 200.

Determination of claim for maintenance by the court

203.-(1) The court may, in determining proceeding for ancillary relief being proceedings seeking an order with respect to the maintenance, pending the disposal of proceedings, of a party to a marriage or of a child of a marriage, have regard to the conduct of the parties to the marriage other than conduct that is in the question in the proceedings for principal relief.

(2) Notwithstanding paragraph (1), a court may take into account allegations concerning the conduct of a party to the marriage that is in question in the proceedings for principal relief if the truth of the allegation has been admitted by the party in a pleading or affidavit filed for the purpose of the proceedings for ancillary relief or in a pleading filed for the purpose of the proceedings for principal relief.

(3) Where proceedings for ancillary relief are referred to a court in pursuance of a request under rule 199, the court shall not make an order with respect to the costs of the proceedings in favour of the party who made the request unless the court is satisfied that the reference of the proceedings to the to the court was satisfied.

DIVISION 3 - CERTIFICATES OF MEANS

Application for certificate of means

204.-(1) This rule applies to proceedings for ancillary relief in which-

(a) a party to a marriage is seeking a decree with respect to the maintenance of a party to the marriage, settlements or the maintenance of a child of the marriage; or

(b) the registrar has informed the claimant that the registrar is unable to make an assessment under rule 197 until a certificate of means has been granted.

(2) In proceedings for ancillary relief to which this rule applies, a party to the marriage may make application to the registrar for a certificate of means with respect to the pecuniary resources of the parties to the marriage and the capability of each of those parties to earn income.

(3) Except by leave of the court or the registrar, an application referred to in paragraph (2) shall not be made-

(a) after the date on which the proceedings for principal relief has been set down for trial; or

(b) if a certificate of means has already been issued in relation to the proceedings for ancillary relief.

(4) An application for a certificate of means shall be in accordance with Form 51.

(5) Unless the court or the registrar otherwise directs, it shall not be necessary for an application for a certificate of means to serve the application on the other party to the marriage unless that party has an address for service for purpose of the proceedings.

(6) Service of an application under paragraph (2) by a party to a marriage shall be effected on the other party to the marriage in a manner referred to in paragraph (a), (b) or (c) of rule 58.

(7) On the hearing of an application for a certificate of means in relation to proceedings for ancillary relief, the application for ancillary relief, and the defence to the proceedings (if any), filed for the purpose of those proceedings are each evidence of any facts relevant to the first-mentioned application that are stated in it.

(8) It shall not be necessary for the party making application for a certificate of means to file an affidavit in support of his application.

(9) Notwithstanding paragraph (8), either party to an application for a certificate of means may file affidavits for the purpose of the application, and paragraph (2) of rule 18 and rule 19 apply to and in relation to affidavits so filed.

Issue of certificate of means

205.-(1) The registrar shall, upon application made under rule 204 or at the direction of the court, inquire into the pecuniary resources of the parties to the marriage to which the application relates and into the capability of each of those party to earn income, and issue a certificate of means, in accordance with Form 52, with respect to those resources and capabilities.

(2) Where a certificate of means is issued upon an application made after such a certificate has already been issued, the certificate already issued shall, be deemed to have been revoked.

(3) Where a judge directs an inquiry by the registrar into the pecuniary resources of the parties to a marriage and the capability of each of those parties to earn income, the judge may give such directions as he thinks fit with respect to service of notice of the date fixed for the hearing of the inquiry by the registrar and the filing and serving of affidavits for the purpose of that inquiry, and the parties of the marriage shall comply with any such directions.

Certificate of means to be evidence

206. A certificate of means shall be evidence of the matters specified in the certificate.

DIVISION 4 - CUSTODY

Notice of application for interim order

207.-(1) Where proceedings for ancillary relief, being proceedings seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of a marriage pending the disposal of proceedings, are instituted by a petition or by an answer to a petition, the petitioner or respondent, as the case may be, may, at any time after the filing of the petition or answer, set the proceedings for ancillary relief down for hearing by filing a request in accordance with Form 45.

(2) A party who files a request referred to in paragraph (1) shall cause service of notice, in accordance with Form 46, of the place, date and time fixed for the hearing of the proceedings to be effected, in a manner referred to in paragraph (a), (b) or (c) of rule 58, on each other party to the proceedings for ancillary relief, other than a party service on whim the petition or answer instituting the proceedings was dispensed with.

(3) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of the notice and the day named in the notice for the hearing of the proceedings for ancillary relief.

(4) Where a notice referred to in paragraph (2) is served in a respondent who has not filed an answer to the petition or an a petitioner who has not filed a reply to the answer, the respondent or petitioner, as the case may be, may, in an affidavit filed for the purpose of the proceedings-

(a) deny any allegation in the petition, or answer, that relates to that proceedings for ancillary relief; and

(b) state any facts relevant to the proceedings for ancillary relief that the respondent or petitioner wishes to be considered by the court upon the determination of those proceedings.

Respondent may make application for custody pending disposal of proceedings

208.-(1) The respondent to a petition instituting proceedings for principal relief may, at any time before the filing of an answer to the petition on behalf of the respondent but later than the expiration o the time limited for the filing of such an answer, make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of a child of the marriage pending the disposal of the proceedings.

(2) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of an application referred to in paragraph (1) and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be.

Application for custody pending disposal of proceedings

209.-(1) Where, after proceedings for principal relief have been instituted, a dispute arises with respect of the custody, guardianship, welfare, advancement or education, as the case may be, of a child pending the disposal of the proceedings, the petitioner or respondent may make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of the child pending the disposal of the proceedings.

(2) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of an application referred to in paragraph (1) and the day named in the application for the hearing of the application, or as the case may be.

Ex parte application for custody

210.-(1) Where proceedings for ancillary relief have been instituted seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of the marriage pending the disposal of proceedings, the court may, in a case of urgency hear the proceedings, and make an order in the proceedings, ex parte.

(2) The petitioner or respondent in proceedings for principal relief may, in a case of urgency, institute, by filing an application or, with the leave of the court, by making application orally to the court, proceedings for ancillary relief seeking an order of a kind referred to an paragraph (1) and the court may hear the proceedings for ancillary relief, and make an order in those proceedings, ex parte.

(3) Where the court gives leave under paragraph (2) to make an application orally to the court, the court may give the leave upon condition that the claimant gives the court an undertaking to file, as soon as practicable, an application and such affidavits and other documents in support of the application as the court thinks fit.

(4) Where a court makes an order of a kind referred to in paragraph (1) upon an application that was made ex parte, the court shall-

(a) specify in the order the period during which the order shall remain in force;

(b) give directions with respect to the service of copies of the order, the application and such other documents as it thinks fit on the spouse of the claimant and if a person other that the claimant or the spouse of the claimant, has the custody, or the care or control, of the child, on that person; and

(c) give directions with respect to the further hearing of the proceedings for ancillary relief.

Respondent who claims custody to disclose any adultery

211.-(1) This rule shall apply in relation to a respondent to proceedings for principal relief-

(a) who, before the determination of those proceedings institutes or has instituted proceedings for ancillary relief with respect to the custody of a child of the marriage;

(b) who has committed adultery since cohabitation between the parties to the marriage ceased or last ceased, as the case may be, but before the hearing of those proceedings for ancillary relief; and

(c) who has not requested the court to exercise its discretion in respect of his own adultery.

(2) A respondent to whom this rule applies shall file a statement concerning the adultery-

(a) if the adultery was committed before the application for ancillary relief is filed-at the time the application is filed; or

(b) in any other case-as soon as practicable after committing the adultery.

(3) A statement referred to in paragraph (2) shall state particulars of the acts of adultery committed by the respondent since cohabitation between the parties to the marriage ceased or last ceased, as the case may be, (other than acts stated in any other statement filed by him for the purposes of the proceedings in accordance with paragraph (2)) and the circumstances giving rise to the commission of the acts of adultery.

(4) Where, in a statement filed by a respondent in accordance with paragraph (2), the respondent states that he and the person with whom he has committed adultery are living together as if they were husband and wife, it is not necessary for a further statement under that paragraph to be filed setting forth particulars of any further acts of adultery committed by him with that person.

(5) A statement under paragraph (2) shall not be filed by or on behalf of a respondent to proceedings unless-

(a) it is signed by the respondent;

(b) the matters set forth in it have been verified by the affidavit of the respondent written on it; and

(c) it is enclosed in a sealed envelope having written in it the words "statement under rule 211", the number of the proceedings and a certificate-

(i) if the respondent is represented by a barrister or solicitor-signed by such barrister and solicitor; or

(ii) if the respondent is not represented by a barrister and solicitor-signed by the respondent,

certifying that the statement is duly signed and verified, and that it bears the date on which it was signed.

(6) Where a respondent to whom this rule applies files a statement under paragraph (2), the barrister and solicitor for the respondent or, if the respondent is not represented by a barrister and solicitor, the respondent-

(a) shall write on the application for ancillary relief, in red ink, a notation in accordance with the following form, and sign his name immediately under that notation:-

"Statement under rule 211 of the Matrimonial Causes Rules filed the day of.........., 19....."; and

(b) shall give notice of the filing of the statement to the petitioner as soon as practicable after the filing of the statement.

(7) Where a notation in accordance with paragraph (6) has been written on an application for ancillary relief before service of the application is effected on the petitioner, notice of the filing of the statement under paragraph (2) shall be deemed to have been given to the petitioner if the copy of the application served on him has a copy of that notation written on it.

(8) Where a respondent has requested the court to exercise its discretion in respect of his own adultery, and he and the person with whom he has committed adultery are living together as if they were husband and wife, nothing in this rule shall be taken to require the respondent to file a statement concerning any further acts of adultery committed by the respondent with that person.

DIVISION 5 - PROCEEDINGS FOR ANCILLARY RELIEF INSTITUTED
BY A PERSON NOT A PARTY TO THE MARRIAGE

Application for custody of a child by a person other than a parent of the child

212.-(1) Where a person who is not the petitioner or respondent in proceedings for principal relief institutes, in relation to those proceedings and by leave of the court, proceedings for ancillary relief, being proceedings with respect to the custody, guardianship, maintenance, welfare, advancement or education of a child of the marriage to which the proceedings for principal relief relate, this rule shall apply to those proceedings for ancillary relief, but the provisions of Division 2, Division 3 and Division 4 of this Part do not apply to or in relation to those proceedings for ancillary relief.

(2) Where a person institutes proceedings for ancillary relief to which this rule applies-

(a) the title to the proceedings for principal relief shall be been deemed to have been amended by adding the full name and designation of the person:

(b) such of the parties to the marriage as are living on the date of the institution of the proceedings for ancillary relief are parties to the proceedings for ancillary relief;

(c) subject to paragraph (3), the person shall cause service of the application instituting the proceedings for ancillary relief to be effected, in a manner referred to in paragraphs (a), (b) and (c) of rule 58, on such of the parties to the marriage as are living on that date;

(d) subject to paragraph (5), it is not necessary for service of a pleading, or .of a copy of a document, filed for the purpose of the proceedings for principal relief after the institution of the proceedings for ancillary relief to be effected on the person unless the pleading or document relates to other proceedings with respect to the custody of the child; and

(e) a judge may give such directions with respect to the filing of affidavits and the trial of the proceedings for ancillary relief as he thinks necessary for the proper determination of the proceedings for ancillary relief.

(3) Where proceedings for ancillary relief to which this rule applies are instituted in relation to completed proceedings for principal relief, service of the application instituting the proceedings for ancillary relief shall not be effected on a party in a manner referred to in paragraph (c) of rule 58 unless the address for service of the party is the address of a barrister and solicitor representing that party and that barrister and solicitor is, at the time of the service, representing the party in connexion with those proceedings for ancillary relief.

(4) Where proceedings for ancillary relief to which this rule applies are instituted before the trial of the proceedings for principal relief, the proceedings for ancillary relief shall, subject to any directions given under sub-paragraph (e) of paragraph (2), be deemed to have been consolidated with, and shall so far as is practicable, be heard and determined by the court at the same time as the proceedings for principal relief.

(5) Where proceedings for ancillary relief to which this rule applies are instituted before the proceedings for principal relief are set down for trial-

(a) a copy of any request to set the proceedings for principal relief down for trial; and

(b) any application, or any document filed for the purpose of an application, with respect to the date on which or place at which the trial of the proceedings for principal relief shall taken place,

shall be served on the person who instituted the proceedings for ancillary relief.

(6) Subject to this rule and to any directions given under sub-paragraph (e) of paragraph (2), the provisions of rules 17, 18 and 19 apply to and in relation to proceedings for ancillary relief to which this rule applies.

DIVISION 6 - VARIATION OF ORDERS

Variation of orders

213.-(1) Where application is made to the court for the variation of an order made in respect of a matter referred to in section 84 of the Act so as to increase or decrease any amount ordered to be paid by the order, the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of rule 18-

(a) the changed circumstances relied on by the applicant;

(b) the material facts that are alleged by the applicant to have been withheld from the court; or

(c) the material evidence previously given before the court that is alleged by the applicant to have been false,

as the case may be.

(2) Where application is made to the court for an order increasing or decreasing-

(a) the security for the payment of a periodic sum ordered to be paid; or

(b) the amount of a lump sum or periodic sum ordered to be secured, the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of rule 18, the material facts that are alleged by the applicant to have been withheld from the court or the material evidence previously given before the court that is alleged by the applicant to have been false, as the case may be.

(3) Where a party has made application to the court for the variation of an order, another party to the application may, in an affidavit filed for the purpose and without filing an application to the court, request the court to vary the order in a manner specified in the affidavit, and the court shall then determine the request upon the hearing of the application.

(4) Where a party makes a request referred to in paragraph (3), the affidavit of the party shall state whichever of the matters referred to in sub-paragraph (a), (b) or (c) of paragraph (1), or in sub-paragraph (a) or (b) of paragraph (2) are relevant to the request.

PART XIV - APPEALS

Appeal and time for appealing

214.-(1) An appeal to the Court of Appeal shall be in accordance with the provisions of the Court of Appeal Rules applicable to civil cases.

(2) Notwithstanding the provisions of rule 16 of the Court of Appeal Rules, the time within which an appeal may be instituted under subsection (1) of section 91 the Act shall be-

(a) in the case of an appeal from an interlocutory order, 21 days,

(b) in any other case, six weeks, after the order is made or the decree nisi is pronounced.

(Substituted by Rules 12th July, 1971.)

PART XV - EVIDENCE

DIVISION 1-GENERAL

Evidence to be given orally

215.-(1) Subject to this Division, testimony at the trial of proceedings shall be given orally.

(2) Nothing in this Division shall be taken to prevent the admission in evidence, in accordance with the practice of the court, at the trial of proceedings-

(a) of evidence taken at a previous trial of the proceedings;

(b) of evidence taken in other proceedings; or

(c) of the depositions of a witness taken by virtue of a commission to examine the witness.

Proof of service of documents

216. Unless the court otherwise orders at the trial of proceedings or the registrar otherwise orders at the hearing of an application to the registrar, proof of the due service of a pleading or other document may be given by affidavit.

Circumstances in which proof of service of petition or answer unnecessary

217. Nothing in these Rules shall require proof, at the trial of proceedings-

(a) of the service of a petition on a person who has filed an answer to the petition or a notice of address for service; or

(b) of the service of an answer on a person who has filed a reply to the answer or, since the answer was filed, has filed a notice of address for service.

Evidence of when letter delivered in ordinary course of post

218.-(1) In any proceedings, a certificate under the hand of a person occupying, or performing the duties of, the office under the Post Office Act of Permanent Secretary for Posts and Telecommunications, or a person authorized in writing by such a person to give certificates under this paragraph, stating that a letter posted (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified address would, in the ordinary course of post, have been delivered at that address on a specified day is evidence of the facts stated.

(2) For the purposes of paragraph (1), a document purporting to be a certificate referred to in that paragraph shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.

Affidavit evidence on the trial of proceedings

219.-(1) This rule shall apply to proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause" and to any related proceedings that are heard and determined by the court at the same time as the proceedings for such a decree.

(2) Subject to paragraph (3), the court may by order, grant leave to a party to proceedings to which this rule applies to furnish at the trial evidence of a particular fact by the affidavit of a person, whether a party to the proceedings, or not who has, of his own knowledge, deposed to the fact.

(3) An order referred to in paragraph (2) may be made by the court-

(a) before the trial of the proceedings - upon application made by a party to the proceedings; or

(b) at the trial of the proceedings - upon oral application made during that trial.

(4) Where the court makes an order referred to in paragraph (2) before defended proceedings to which this rule applies are set down for trial-

(a) an affidavit proposed to be used on the trial of the proceedings in pursuance of leave granted to the party by the order shall, unless the court otherwise orders, be filed within eight days after the making of the order, and a copy of the affidavit shall, on the day on which it is filed or the next following day be served on each other party to the proceedings who has filed a pleading;

(b) a party on whom a copy of an affidavit is so served may, within eight days after the service, file an affidavit in reply;

(c) the party who obtained the order may, within four days after an affidavit in reply is served on him, file a further affidavit in reply; and

(d) a copy of an affidavit in reply shall, on the day on which it is filed or on the next following day, be served on the party who filed the affidavit in reply to which it is filed.

(5) Where the court makes an order referred to in paragraph (2) after defended proceedings to which this rule applies have been set down for trial, the order shall specify the time within which an affidavit may be filed and served, and the time within which affidavits in reply may be filed and served.

Affidavit evidence on the hearing of other proceedings

220.-(1) Evidence shall be given by affidavit upon the hearing of proceedings of a kind referred to in paragraph (c), (d) or (e) of the definition of "matrimonial cause" (not being proceedings to which rule 219 applies), or on the hearing of an application to the registrar, unless the court or registrar, as the case may be, orders otherwise.

(2) Where an affidavit intended to be used upon the hearing of proceedings or an application to which paragraph (1) applies is filed on behalf of a party to the proceedings or application the party shall, on the day on which the affidavit is filed or on the next following day, serve a copy of the affidavit on each other party who has an address for service.

(3) Where a party to proceedings or to an application has served on another party to the proceedings or application a copy of an affidavit intended to be used upon the hearing of the proceedings or application, the party on whom the affidavit was served may, within the time limited for replying to the affidavit or, if no such time is limited, within four days after service of the affidavit on the party served on the party who served the affidavit notice that he desires upon the hearing of the proceedings, or application, to cross-examine the person who made the affidavit.

(4) A party who serves a notice that he desires to cross-examine the person who made an affidavit shall, unless that person is or has been the husband of the party, pay or tender reasonable expenses for the attendance of the person at the hearing.

(5) Where a notice has been served under paragraphs (3) and (4) has been complied with, the affidavit in relation to which the notice was served shall not be admitted in evidence upon the hearing of the proceedings or application unless-

(a) the person who made the affidavit is available at the hearing for cross-examination; or

(b) the court or registrar, as the case may be, is satisfied that there are special circumstances justifying the admission of the affidavit in evidence.

DIVISION 2 - AFFIDAVITS

Contents of affidavits

221.-(1) Where an affidavit states facts to which the deponent is unable depose of his own knowledge-

(a) the affidavit shall not be admissible as evidence of those facts upon the trial of proceedings to which rule 219 applies; and

(b) unless the affidavit states the deponent's belief in the truth of those facts and particulars of his means of knowing those facts, the affidavit shall not be admissible as evidence of those facts upon the hearing of any other proceedings or of an application to the registrar.

(2) The costs of a part of an affidavit that unnecessarily sets forth matters of hearsay, argumentative matter or copies of, or extracts from, documents are payable by the party filing the affidavit.

Document to be produced if extract set forth in affidavit

222. Where a document or a portion of a document is set forth in an affidavit, the party filing the affidavit shall produce the document, or cause the document to be produced, upon the trial of the proceedings in connexion with which the affidavit is filed-

Exhibits

223. A document, object or thing referred to in an affidavit as an exhibit shall have written on it, or on a paper attached to it, the title and number of the proceedings in connexion with which the affidavit is filed and a certificate signed by the person before whom the affidavit is sworn certifying that the exhibit is the particular exhibit referred to in the affidavit.

Use of figures

224. In an affidavit, dates and sums of money shall be written in figures and not in words.

Before whom affidavit may be sworn

225.-(1) An affidavit may be sworn at a place in Fiji before a person having authority to administer an oath at that place.

(2) An affidavit may be sworn at a place outside Fiji before a person having authority to administer an oath for use in the court under the provisions of the Supreme Court Rules.

(3) The title of the person before whom an affidavit is sworn, and the date on which and place at which the affidavit is sworn, shall be stated in the jurat to the affidavit.

(4) Where an affidavit purports to have been sworn at a place before a person before whom an affidavit is permitted to be sworn at that place, the affidavit shall, without proof of the signature of that person or of his title, be deemed, unless the contrary is proved, to have been sworn before such a person.

(5) Notwithstanding paragraph (1) or (2), an affidavit shall not be admissible in evidence if sworn by the deponent before-

(a) the barrister and solicitor acting for the party on whose behalf the affidavit is to be used;

(b) the agent or correspondent of the barrister and solicitor so acting;

(c) the party on whose behalf the affidavit is to be used; or

(d) a clerk or partner of that barrister and solicitor, agent, correspondent or party.

Form of affidavit

226.-(1) An affidavit shall be drawn up in the first person and shall be divided into paragraphs.

(2) Where an affidavit contains more than one paragraph, the paragraph shall be numbered consecutively.

(3) Each paragraph shall, so far as practicable, be confined to a distinct part of the subject.

(4) An affidavit shall be in accordance with Form 53.

(5) Costs shall not be allowed for an affidavit departing substantially from this rule.

Affidavit to contain occupation and address of deponent

227. An affidavit shall state the address and occupation of the deponent.

Signing affidavit

228. An affidavit shall be signed on each page by the deponent and by the person before whom the affidavit is sworn.

Affidavit made by two or more deponents

229.-(1) Subject to paragraph (2), where an affidavit is sworn by two or more deponents, the full name of each deponent shall be stated in the jurat.

(2) If all the deponents swear the affidavit at the same time and before the same person, it is sufficient for the jurat to show that the affidavit was sworn or affirmed by all of the "abovenamed" deponents.

Affidavits to be filed before being used

230.-(1) An affidavit to be used in proceedings before the court shall, unless the court otherwise directs, be filed before it is so used.

(2) An affidavit to be used in connexion with an application to the registrar shall, unless the registrar otherwise directs, be filed before it is so used.

Endorsements on affidavit

231.-(1) There shall be endorsed on an affidavit the name of the deponent, the date on which the affidavit is sworn and the party on whose behalf the affidavit is filed.

(2) An affidavit that does not have endorsed on it the particulars referred to in paragraph (1) shall not be used in proceedings, or on the hearing of an application to the registrar, unless the court, or the registrar, as the case may be, otherwise directs.

Irrelevant matter

232. The court may, upon application by a party to proceedings, order that any scandalous or irrelevant matter included in an affidavit filed for the purpose of the proceedings to be struck out, and may further order that cost of the application be paid as between barrister and solicitor and client.

Alterations in affidavits

233. When an affidavit filed for the purpose of proceedings, or of an application to the registrar, contains, in the jurat or in the body of the affidavit, an interlineations, alteration or erasure, the affidavit shall not be used in the proceedings, or on the hearing of the application, without the leave of the court, or the registrar, as the case may be, unless-

(a) in the case of an interlineations or alteration, not being an alteration by erasure-the interlineation an or alteration is authenticated by the initials of the person before whom the affidavit is sworn; or

(b) in the case of an erasure-the words or figures appearing at the time the affidavit is sworn to be written on the erasure are written in the margin of the affidavit and initialled by the person before whom the affidavit is sworn.

Affidavit by illiterate or blind persons

234.-(1) Where an affidavit is sworn by a deponent who appears to the person before whom it is sworn to be illiterate or blind, that person shall certify, in the jurat to the affidavit, that-

(a) the affidavit was read in his presence to the deponent;

(b) the deponent appeared to understand the matter contained in the affidavit; and

(c) the deponent signed the affidavit (whether by making his mark or otherwise) in the presence of that person.

(2) Where an affidavit that is sworn by a person who is illiterate or blind does not hear the certificate referred to in paragraph (1), the affidavit shall not be admissible in evidence in proceedings, or on the hearing of an application by the registrar unless the court, or the registrar, is satisfied that the affidavit was read over to the deponent and that the deponent appeared to understand the matter contained in the affidavit.

Affirmation

235. Where the deponent to an affidavit objects to swearing on oath to the truth of the statement contained in the affidavit, he may solemnly and sincerely declare and affirm that he objects to swearing an oath and that the statements contained in the affidavit are true, and the jurat to the affidavit shall be altered accordingly.

Defective affidavits

236. Where, in an affidavit filed for the purpose of proceedings or of an application to the registrar, there is a defect, by misdescription of parties or deponent or otherwise, in the title to, or jurat in, the affidavit, or there is any irregularity in the form of the affidavit, the court, or the registrar, may direct that a memorandum be written on the affidavit authorizing the use of the affidavit notwithstanding the defect or irregularity, and the affidavit may then be used in the proceedings, or on the hearing of the application.

PART XVI - ENFORCEMENT OF DECREES

DIVISION 1 - GENERAL

Enforcement of decrees

237.-(1) Subject to paragraph (4), a decree made under the Act is not enforceable against a person unless-

(a) service of a copy of the decree has been effected-

(i) on the person-in the manner referred to in paragraph (a) of rule 58 or in accordance with the terms of an order for the substituted service of the decree; or

(ii) on the barrister and solicitor representing the person in connexion with the enforcement of the decree-in the manner referred to in paragraph (a) of rule 58;

(b) subject to paragraph (2), at the time service of a copy of the decree was so effected the decree was shown to the person to whom the copy was delivered;

(c) a notice, in accordance with the form of notice contained in paragraph (2), addressed to the person is written in the copy f the decree that is served on the person; and

(d) subject to rule 238, demand, in writing, for compliance with the decree has been made on the person.

(2) Sub-paragraph (b) of paragraph (1), shall not apply to the endorsement of a decree against a person in a case where an order has been made substituting for service of the decree on the person the giving of notice f the decree to the person by advertisement or otherwise.

(3) The form of notice referred to in sub-paragraph (c) of paragraph (1) shall be as follows-

"To..........................................

Take notice that if you fail to carry out the acts required of you by the within decree (or order) within the time specified in the decree (or order) for carrying out those acts, further legal proceedings may be taken against you for the purpose of compelling you to carry out those acts.".

(4) Paragraph (1) shall not apply to the endorsement of a decree against a person if the court or the registrar, has dispensed with the service of a copy of the decree on the person.

Demand for compliance with decree

238.-(1) Where a person is ordered by a decree to pay within a time specified in the decree-

(a) into court; or

(b) to a person, and at the place, specified in the decree,

a sum or sums of money for maintenance, costs or damages, the making of a demand for compliance with the decree is not necessary for the purpose of rule 237.

(2) Where the person ordered by a decree to do an act, not being the payment of a sum or sums of money for maintenance, costs or damages, within a time specified in the decree, or to refrain from doing an act, the making of a demand for compliance with the decree shall not be necessary for the purpose of rule 237.

DIVISION 2 - ATTACHMENT AND SEQUESTRATION

Leave to enforce decree by attachment or sequestration

239.-(1) A decree shall not be enforced by attachment or sequestration without the leave of the court.

(2) Subject to paragraph (3), where application is made for leave to enforce, by attachment or sequestration, a decree for the payment of maintenance or costs, the affidavit in support of the application shall, in addition to any other facts stated in pursuance of rule 18, state particulars of the amounts that have become payable under the decree and of any amounts paid in reduction of those amounts, and, as for as practicable, the respective dates on which any amounts so paid were paid.

(3) An affidavit shall be deemed to have stated the particulars referred to in paragraph (2) if the affidavit-

(a) states that, at a specified date, all amounts that had become payable under the decree on or before that date had been paid; and

(b) states particulars of the amounts that have become payable under the decree after that date and of any amounts paid in reduction of the amounts so payable and, as far as practicable, the respective dates on which any amounts so paid were paid.

(4) A party to proceedings who makes application for leave to enforce a decree by attachment or sequestration against another party to the proceedings shall cause service of the application to be effected on the other party in a manner referred to in paragraph (a) or (b) of rule 58.

When sequestration may be ordered

240.-(1) Where a person who has been arrested in pursuance of a writ of attachment is brought before the court, the court may, with the consent of the person on whose application the person was arrested, order the sequestration of the person's estate instead of ordering the person to be kept in custody.

(2) The court may, under section 100 of the Act, enforce a decree by sequestration notwithstanding that an attempt has not been made to enforce the degree by attachment.

Discharge of writ of sequestration

241. The court may, upon application made by a person whose estate has been sequestrated in pursuance of a writ of sequestration issued under an order of the court, discharge the writ of sequestration upon such terms and conditions as the court thinks fit.

DIVISION 3 - ATTACHMENT OF EARNINGS ORDERS

Interpretation

242.-(1) Unless the contrary intention appears, expressions used in this Division have the same meanings as in the Maintenance (Prevention of Desertion and Miscellaneous Provisions) Act.

(Cap. 53)

(2) In this Division, "the prescribed officer" means-

(a) relation to the court - the registrar; and

(b) in relation to a magistrate's court - the clerk of that magistrate's court.

Application for attachment of earnings order

243.-(1) An application for an attachment of earnings order may be made ex parte.

(2) The affidavit in support of an application referred to in paragraph (1) shall, addition to any other facts stated in pursuance of rule 18, state-

(a) particulars of the maintenance order;

(b) the amount of the arrears due to the applicant under the maintenance order;

(c) particulars of any proceedings taken by or on behalf of the applicant to be the enforcement for the maintenance order;

(d) the name and address of the person believed by the applicant to be the employer of the defendant; and

(e) such of the following particulars as are known to the applicant-

(i)the place at which the defendant resides

(ii) the age of the defendant;

(iii) the place at which the defendant works; and

(iv) the nature of the work performed by the defendant and the works number (if any) of the defendant.

Form of attachment of earning order

244. An attachment of earnings order shall be in accordance with Form 54.

Service of orders

245.-(1) Subject to paragraph (2), where the court or Magistrate Court makes an attachment of earnings order, or an order varying or discharging an attachment of earnings order, the prescribed officer of the court shall cause service of a sealed copy of the order to be effected on-

(a) the person entitled to receive payments under the maintenance order;

(b) the defendant; and

(c) the person to whom the attachment of earnings order is directed, by properly addressing and posting, postage being prepaid, the copy, as a letter, to the person at the last place of residence of the person known to the prescribed officer, or, in the case of the person to whom the attachment of earnings order is directed, at a place of business of the person.

(2) Paragraph (1) shall not require service of a copy of an order to be effected on the applicant for the order.

(3) Where the prescribed officer of a court has caused a sealed order referred to in paragraph (1) to be posted, in accordance with that paragraph, to the person to whom the attachment of earnings order is directed at a place of business of the person, the copy shall be deemed to have been served on the person on the day on which the copy would, in the ordinary course of post, be delivered at that place.

(4) Where the court or a Magistrate's Court makes an order copy of an paragraph (1), the applicant for the order shall deposit with the registrar or the clerk of the Magistrate's Court, as the case may be, a copy of the order for each person on whom service of a copy of the order is required by this rule to be effected, being a copy that has written on it the name of the person and either the place of residence or a place of business of the person.

(5) In all courts, a certificate under the hand of the prescribed officer of a court stating that a sealed copy of an order a copy of which is attached to the certificate, being an order of a kind referred to in paragraph (1), was posted as a letter (postage being prepaid) at a specified time, on a specified day at a specified place and addressed to a specified person at a specified address is evidence of the facts stated and is also evidence that that specified address was, at the time of the posting, at the last place of residence of the person known to the prescribed officer or, if the person to whom the attachment of earnings order is directed, was, at the time of the posting, a place of business of the person.

(6) For the purposes of paragraph (5), a document purporting to be a certificate referred to in that paragraph shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.

(7) In this rule, "the person entitled to receive payments under the maintenance order", in relation to a maintenance order, means-

(a) if the maintenance order requires payments to be made into a court for payment out to a person-that person;

(b) if the maintenance order requires payments to be made to a person for transmission to another person-that first-mentioned person; or

(c) in any other case-the person to whom the payments are required to be made under the maintenance order.

Notice that attachment of earnings order has ceased to have effect

246. A notice referred to in subsection (2) of section 14 of the Maintenance (Prevention of Desertion and Miscellaneous Provisions) Act shall be in accordance with Form 55.

(Cap. 53)

Notice that defendant not employed by person

247.-(1) Where a person to whom an attachment of earnings order is directed is required by subsection (4) of section 15 of the Maintenance (Prevention of Desertion and Miscellaneous Provisions) Act to give notice of a matter referred to in that paragraph, the person shall furnish to the prescribed officer of the court that made the order a notice, in accordance with Form 56, containing particulars of the matter, together with a copy of that notice, and the attachment of earnings order shall then be deemed to have been discharged.

(Cap. 53)

(2) The prescribed officer of a court who receives a notice under subsection (4) of section 15 of the Maintenance (Prevention of Desertion and Miscellaneous Provisions) Act, shall cause a copy of the notice to be addressed and posted as a letter, postage being prepaid, to the person entitled to receive payment under the maintenance order to which the attachment of earnings order relates.

(3) In this rule, "the person entitled to receive payments under the maintenance order" has the same meaning as in rule 245.

Service of application

248. Where application is made to a court under subsection (1) of section 17 of the Maintenance (Prevention of Desertion and Miscellaneous Provisions) Act, the applicant shall cause service of the application to be effected on each other person affected by such order.

(Cap. 53)

Practice and procedure of courts of summary jurisdiction

249. Subject to this Division, the practice and procedure of Magistrates' Court shall apply to and in relation to an application to that court under Part III of the maintenance (Prevention of Desertion and Miscellaneous Provisions) Act, and to the service, hearing and determination of such an application to that court.

PART XVII - PROCEEDINGS CONSEQUENT ON DECREES OF RESTITUTION OF CONJUGAL RIGHTS

Interpretation

250. In this Part-

"decree" means a decree of restitution of conjugal rights;

"petition" includes an answer by which a respondent institutes proceedings for a decree of restitution of conjugal rights;

"the petitioner", in relation to a decree, means the party, whether the petitioner or respondent in the proceedings for the decree, in whose favour the decree is made;

"the respondent", in relation to a decree, means the party, whether the petitioner or respondent in the proceedings for the decree, against whom the decree is made.

Service of copy of decree

251. Where the court makes a decree, the petitioner shall, as soon as practicable after the making of the decree, cause service of a copy of the decree to be affected on the respondent in a manner referred to in paragraph (a) or (b) of rule 58.

Notice of home to be given by husband

252.-(1) Subject to paragraph (3), where the court has made a degree upon the petition of a husband, a notice given by the petitioner to the respondent under section 50 of the Act-

(a) shall specify the address of the home to which the respondent is to return to the petitioner in order to comply with the degree;

(b) shall-

(i) state that the petitioner will within a reasonable time, specified in the notice, after the respondent informs him of her intention to return home to the petitioner and of the date on and after which she will be ready so to return, provide a home for the respondent to return to and give the respond notice of the address of that home; and

(ii) specify an address where the respondent may communicate with the petitioner by post; or

(c) shall specify-

(i) the address of a home to which the respond is to return to the petitioner in order to comply with the decree;

(ii) the date on which that home will cease to be the home to which the respondent is to return to the petitioner for that purpose and

(iii) an address where the respondent may communicate with the petitioner by post,

and also state that, if the respondent does not return home to the petitioner before that date, the petitioner will, within a reasonable time, specified in the notice, after the respondent informs him that she intends to comply with the decree, and of the date on and after which she will be ready so to return, provide a home for the respondent to return to, and give the respondent notice of the address of that home.

(2) A notice referred to in paragraph (1) shall also state that the petitioner will-

(a) if the respondent informs him of her intention to return home to the petitioner and of the date on and after which she will be ready so to return;

(b) if the respondent's usual place of residence at that date is more than twenty miles from the home to which she is to return; and

(c) if the respondent so requests him,

pay to the respondent, in advance, a reasonable sum for her expenses of returning home to the petitioner.

(3) Where the court has, upon the petition of a husband, made a decree by which the respondent is ordered to take back the petitioner and render to the petitioner conjugal rights, a notice given by the petitioner to the respondent under section 50 the Act shall specify an address where the respondent can communicate with the petitioner by post and shall state that, if the respondent intends to comply with the decree, she should inform him accordingly, and that the petitioner will then return to the matrimonial home.

Notice to be given by wife

253. Where the court has made a decree upon the petition of a wife, the petitioner shall, as soon as practicable after the making of the decree, give to the respondent a notice specifying an address where the respondent can communicate with the petitioner by post and stating that, if the respondent intends to comply with the decree, he should inform her of the manner in which he intends to comply with the decree.

Cancellation of notices

254.-(1) A notice under section 50 of the Act or under rule 253 that has been served on the respondent shall remain in force until it is cancelled by a notice in writing served on the respondent.

(2) A petitioner may, at any time while a notice under section 50 of the Act or under rule 253 is in force, serve on the respondent a notice cancelling that notice and shall do so if-

(a) the home, the address of which is specified in that notice, ceases to be the home to which the respondent is to return to the petitioner; or

(b) the address specified in that notice as the address where the respondent may communicate with the petitioner by post ceases to be an appropriate address for that purpose,

as the case may be.

(3) Where a petitioner specifies, in a notice under section 50 of the Act, the date on which a specified home will cease to be the home to which the respondent is to return to the petitioner for the purpose of complying with a decree, paragraph (2) shall not be taken to require the petitioner to cancel that notice upon that home ceasing, on that date, to be the home to which the respondent is to return for that purpose.

(4) Whenever, within a period of twelve months after service of a copy of a decree is effected on the respondent in pursuance of rule 251, the petitioner cancels a notice under section 50 of the Act or under rule 253, the petitioner shall serve on the respondent, at the same time, a further notice under section 50 of the Act or rule 253, as the case may be.

(5) The further notice referred to in paragraph (4) may be included in the notice cancelling the previous notice or may be a separate notice.

Service of notice of home

255. A notice under section 50 of the Act or under rule 253 or 254 shall be served on the respondent in a manner referred to in paragraph (a) or (b) of rule 58.

Conduct money

256.-(1) Where-

(a) the respondent, being the wife, named in a decree informs the petitioner of her intention to return home to him and of the date on and after which she will be ready to return;

(b) the respondent's usual place of residence at that date is more than twenty miles from the home to which the respondent is to return; and

(c) the respondent so requests the petitioner,

the petitioner shall pay to the respondent, in advance, a reasonable sum of money for her expenses of returning home to the petitioner.

(2) Where a petitioner has paid moneys to his wife in pursuance of paragraph (1) and his wife fails to comply with the decree within a reasonable time after the payment of the moneys, the moneys shall be a debt due and payable by the wife to the petitioner and recoverable by action in a court of competent jurisdiction.

PART XVIII - REGISTRARS AND REGISTRIES

DIVISION 1 - POWERS OF REGISTRARS

Power of registrar to send for witness and documents

257. (1) The registrar may, at the request of a party to an application to the registrar, summon a person to attend before the Registrar at the time and place specified in the summons and then and there to give evidence and to produce any books or documents in his custody or control which he is required by the summons to produce.

(2) A summons under paragraph (1) shall be in accordance with Form 57.

(3) Service of a summons under paragraph (1) shall be effected on a person by serving a copy of the summons on the person in the manner referred to in paragraph (a) of rule 58 and by showing the summons to the person at the time service of the copy is effected on him.

Duty of witness to continue in attendance

258. A person who has been summoned to attend before the registrar as a witness shall appear and report himself at the time and place specified in the summons and then from day to day, unless excused by the registrar.

Arrest of witness failing to attend

259. (1) If a person who has been summoned to attend before the registrar fails to attend before the registrar as required by rule 258, the registrar may, on being satisfied that the summons has been duly served and that reasonable expenses have been paid or tendered to that person, bring the failure to the notice of a judge of the court who, if he thinks fit, may, without any application being made to him, issue a warrant under his hand for the apprehension of that person.

(2) A warrant so issued shall authorize the apprehension of the person and his being brought before the registrar and his detention in custody for that purpose until he is released by order of the court or the registrar.

(3) A warrant so issued may be executed by any police officer, by the Sheriff or an officer of the Sheriff or by any person to whom it is addressed, and the person executing it shall have power to break and enter any place, building or vessel for the purpose of executing the warrant.

(4) The apprehension of a person under this rule shall not relieve him from any liability incurred by him by reason of his failure to attend before the registrar.

Witness Fees

260.-(1) A person who attends in obedience to a summons to attend as a witness before the registrar shall be entitled to be paid witness fees and travelling allowances according to the scale of fees and allowances payable to witnesses in the Supreme Court or, in special circumstances, such fees and allowances as the registrar directs (less any amount previously paid to him for his expenses of attendance).

(2) The fees and allowances shall be payable by the person at whose request the witness was summoned.

Power to examine on oath or affirmation

261.-(1) The registrar may administer an oath to a person appearing as a witness before the registrar, whether the witness has been summoned or appears without being summoned, and the witness may be examined on oath.

(2) Where a witness conscientiously objects to take an oath, he may make an affirmation that he conscientiously objects to take an oath that he will state the truth, the whole truth and nothing but the truth to all questions that are asked him.

(3) An affirmation so made shall be of the same force and effect, and shall entail the same liabilities, as an oath.

Failure to answer questions

262.-(1) If a person appearing before the registrar as a witness refuses to answer, or fails to answer to the satisfaction of the registrar, any question that the registrar puts, or allows to be put, to the person, the registrar may report the refusal in a summary way to the court and, upon the report being made to the court, the person may be dealt with by the court as if the question had been put to the person by the court and the person had refused to answer the question or had made to the court the answer to the question that he made to the registrar, as the case may be.

(2) A report of a registrar under paragraph (1) shall be in writing, in accordance with Form 58, and shall state the question put to the witness and the answer, if any, to the question made by the witness, and may refer to any other evidence before the registrar.

(3) Where the registrar decides to report to the court the refusal or failure of a witness to answer a question, the registrar shall inform the witness, before the conclusion of the examination of the witness, the day on which, and time and place at which, the report of the registrar will be made to the court.

Representation by barrister and solicitors

263.-(1) At the hearing of an application made under these Rules to the registrar, the parties to the application are each entitled to be represented by a barrister and solicitor.

(2) A barrister and solicitor appearing before the registrar on behalf of a party may examine or cross-examine witnesses and may address the registrar.

Protection of registrars, barristers and solicitors and witnesses

264.-(1) The registrar shall have, in the performance of his duties in connexion with the hearing and determination of an application to the registrar under these Rules, the same protection and immunity as a judge of the court.

(2) A barrister and solicitor appearing before the registrar shall have the same protection and immunity as a barrister and solicitor has in appearing for a part in proceedings in the court.

(3) A party who is not represented by a barrister and solicitor who appears before the registrar shall have the same protection and immunity as a party to proceedings in that court has in appearing before that court when not so represented.

(4) A witness summoned to attend or appearing before the registrar shall have the same protection as a witness in proceedings in the court.

Submission of doubtful matters to court

265.-(1) If, either before or after the registrar has given his decision on an application made to him under these Rules, a matter arises which the registrar and a party to the application wish to have determined by the court, the registrar shall-

(a) state the matter in writing for the opinion of the court; and

(b) refer the matter so stated for hearing and determination by the court.

(2) Where a matter is referred to a court under paragraph (1), the registrar may give directions with respect to the giving of notice of the day on which, and time and place at which, the matter will be heard by the court to the parties to the application who have an address for service for the purpose of the proceedings to which the application relates, and the parties shall comply with any such directions.

(3) Where a matter referred to a court under paragraph (1) is heard and determined by a court, the court may dispose of the matter or refer it back to the registrar with such directions as it may think fit.

DIVISION 2 - APPEALS FROM REGISTRARS

Review of decision of registrar

266.-(1) Where the registrar hears and determines an application made to him under these Rules, a party to the application who is aggrieved by the decision of the registrar may, within ten days after the decision is given, file a request, in accordance with Form 59, for a review of the decision by the court.

(2) A party to an application who files a request under paragraph (1) shall, unless the application was made to the registrar ex parte, cause service of a notice of hearing, in accordance with Form 60 to be effected, as soon as practicable after the request is filed, one each other party to the application who has an address for service.

(3) The review, by a court, of a decision of the registrar shall be by way of re-hearing, and the court may, in its discretion, permit evidence other than evidence that was before the registrar to be given on the re-hearing.

(4) Upon the review of a decision of the registrar, a court may affirm, reverse or vary the decision the subject of the review and may make such order as, in the opinion of the court, ought to be made in all the circumstances.

DIVISION 3 - REGISTRIES

Seal

267.-(1) In these Rules, a reference to the seal of the court shall be read as a reference to the seal used by the court in the exercise of its matrimonial causes jurisdiction.

(2) Where the registrar has in his custody a stamp the design of which is, as nearly as practicable, the same as the design of the seal of the court, a document or copy of a document required, for the purpose of proceedings, to be sealed with the seal of the court may be marked with that stamp.

(3) A document or copy of a document marked with a stamp referred to in paragraph (2) shall be as valid and effectual as if it had been sealed with the seal of the court.

(4) All courts exercising jurisdiction under the Act shall take judicial notice of the mark of a stamp referred to in paragraph (2) affixed on a document or copy of a document relating to proceedings and, in the absence of proof to the contrary, shall presume that it was affixed by proper authority.

Sealing of documents

268.-(1) Where a person requires a sealed document or a sealed copy of a document for the purpose of proceedings, that person may prepare the document or a copy of the document and present it, for sealing, to the registrar.

(2) If it appears that the document is in proper form, or that the copy is a true copy of the document, as the case may be, and that the person presenting it for sealing does require the document or copy to be sealed for the purpose of proceedings, the registrar shall cause it to be sealed with the seal of the court.

Date of filing

269. The Registrar shall cause the date of filing to be written on every pleading or other document that is filed.

Indexes to be kept

270. Proper indexes to the files or bundles of documents filed in an office of the court shall be kept so that they may conveniently be referred to when required.

Searches

271.-(1) Subject to these Rules, a party to proceedings, the Attorney-General and, in special circumstances, a person who satisfies the registrar that he has good reason for doing so or obtains the permission of a judge of the court to do so may, upon furnishing to the registrar sufficient particulars and paying the appropriate fee, cause a search to be made for an entry in the records of the court or for a document that has been or might have been filed for the purpose of proceedings and to receive a certificate of the result of the search.

(2) Subject to these Rules a person who has, under this rule, caused a search to be made for an entry in the records of the court is entitled to inspect any document filed for the purpose of proceedings to which the entry relates, and a person who has caused a search to be made for a document is, if the document has been filed, entitled to inspect the document.

(3) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom the Attorney-General has, by a delegation under section 78 of the Act that is in force, delegated any of his powers and functions under Part XII of the Act.

PART XIX - FEES

Fees

272.-(1) The court fees specified in the Second Schedule shall be charged in respect of the matters in relation to which they are specified.

(2) Except as provided in the Second Schedule, no court fee shall be charged in respect of the following matters:-

(a) filing an affidavit in support of an application to the court or the registrar;

(b) filing any other affidavit, not being an affidavit that is filed in connexion with the enforcing of a decree or order;

(c) filing a pleading;

(d) searching for a pleading or other document if the time filing the pleading or document has expired and the search is made for the purpose of establishing that the pleading or document has not been filed;

(e) sealing a copy of a document;

(f) drawing up, settling or signing a decree or order;

(g) amending a pleading;

(h) filing or making an application or request under these Rules; or

(i) filing, depositing, giving, issuing or serving any other document required by these Rules to be filed, deposited, given, issued or served in connexion with proceedings.

Marking of fees

273. The proper officer of a court shall, immediately upon payment of a fee or in respect of a document, or in respect of filing, issuing, sealing or otherwise dealing with a document, mark upon the document the amount of the fee paid and the date of payment.

Registrar to decide disputed fees

274. If a question arises as to which, if any, of the fees is applicable in a particular case, the question shall be determined by the registrar, that a person affected by the determination of the registrar may have the decision reviewed under rule 266.

Court may remit fees

275. The court or registrar may, in a particular case for special reasons, direct-

(a) that a fee shall not be taken, or that part only of a fee shall be taken, or, if taken, that the whole or a part of the fee shall be remitted; or

(b) that the payment of the whole or a part of a fee be postponed until such time, and upon such conditions, if any, as the court or registrar thinks fit.

PART XX - EFFECT OF NON-COMPLIANCE WITH THESE
RULES OR WITH AN ORDER

Application

276. In this Part, a reference to proceedings shall be read as including a reference to a step in proceedings.

Non-compliance with rules not to render proceedings void

277. Subject to these Rules, non-compliance with these Rules, or with a rule of practice and procedure of a court applicable under the Act to proceedings, does not render proceedings void unless the court so directs, but the proceedings may be set aside, either wholly or in part as irregular, or may be amended or otherwise dealt with in such manner and upon such terms as the court thinks fit.

Court or registrar may relieve from consequences of non-compliance

278. Subject to the Act and to these Rules-

(a) the court may at any time, upon such terms as the court thinks fit, relieve a party from the consequences of non-compliance with these Rules, with a rule of practice and procedure of the court applicable to the proceedings or with an order made by the court or registrar; and

(b) the registrar may at any time, upon such terms as he thinks fit, relieve a party to an application to the registrar from the consequences of non-compliance with these Rules in relation to the application, with a rule of practice and procedure of the court applicable to the application or with an order made by the registrar in relation to the application.

Application to set aside for irregularity

279.-(1) An application to set aside proceedings for irregularity shall not be allowed-

(a) if the application is not made within a reasonable time; or

(b) if the party making the application has taken a relevant step after knowledge of the irregularity

(2) Nothing in paragraph (1) shall be taken to prevent the court from exercising, of its own motion, any of the powers conferred on it by rules 277 and 278.

(3) Where application is made to set aside proceedings for irregularity, the several objections intended to be relied upon shall be stated in the application.

PART XXI – PROCEEDINGS FOR JACTITATION OF
MARRIAGE, DECLARATIONS ETC.

DIVISION 1 - APPLICATION

Application of this Part

280.–(1) This Part applies to and in relation to-

(a) proceedings for a decree of jactitation of marriage;

(b) proceedings for a decree of nullity of a void marriage instituted by a person who is not a party to the marriage;

(c) proceedings for a declaration or order of a kind referred to in paragraph (b) of the definition of "matrimonial cause"; and

(d) proceedings that constitute a matrimonial cause and relate to any proceedings referred to in the proceeding sub-paragraphs,

and, to the extent and in the manner provided in this Part but not otherwise, these Rules, other than this Part, apply to and in relation to any such proceedings.

(2) Where-

(a) a party to a marriage institutes, by petition, proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal rights and also institutes, by the same petition, proceedings for a declaration or order of a kind of referred to in paragraph (b) of the definition of "matrimonial cause"; and

(b) no person other than the parties to the marriage are parties to those last-mentioned proceedings,

these Rules, other than this Part, apply in addition to this Part to and in relation to those last-mentioned proceedings and to any other proceedings that constitute a matrimonial cause and relate to those last-mentioned proceedings.

DIVISION 2 - PETITIONS FOR JACTITATION OF MARRIAGE

Form of Petition

281. A petition for a decree of jactitation of marriage shall be in accordance with Form 61.

Contents of petition

282.-(1) A petition for a decree of jactitation of marriage-

(a) the dates on which and the times and places at which the respondent is alleged to have boasted and asserted that a marriage had taken place between the petitioner and the respondent; and

(b) particulars of those boastings and assertions.

(2) A petition for a decree of jactitation of marriage shall state that the petitioner is not married to the respondent and that the petitioner has not acquiesced in the alleged boastings and assertions.

DIVISION 3 - PETITIONS FOR DECLARATIONS

Application

283. This Division applies to-

(a) proceedings for a decree of nullity of a void marriage instituted b a person who is not a party to the marriage; or

(b) proceedings for a declaration or order of a kind referred to in paragraph (b) of the definition of "matrimonial cause".

Form of petition and parties to petition.

284.- (1) A petition instituting proceedings to which this Division applies shall be in accordance with Form 62.

(2) Subject to paragraph (3) and to any order made by the court in a particular case, a petitioner instituting proceedings to which this Division applies shall make each other person affected by the proceedings a respondent to the proceedings.

(3) Where persons included in a class of persons are affected by proceedings to which this Division applies, a court may, if it is satisfied that it is expedient so to do either by reason of the difficulty in ascertaining the persons who are included in that class of persons or for the purpose of saving expense, by order, appoint a person of persons included in that class of persons to represent all the persons included in that class of persons.

(4) An order under paragraph (3) may be made upon the trial of the proceedings to which the order relates.

Contents of petition

285.-(1) A petition instituting proceedings of a kind referred to in paragraph (a) of rule 283 shall comply with such of the provisions of Divisions 1 and 3 of Part IV as are applicable to petitions for a decree of nullity of a void marriage and are applicable to the circumstances of the particular case

(2) A petition for a declaration or order of a kind referred to in paragraph (b) of the definition of "matrimonial cause" shall-

(a) specify the declaration or order that the petition is seeking; and

(b) set out, in as concise a form as the nature of the case allows, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the declaration or order.

Application of Rules

286.-(1) Subject to this Part, these Rules apply, as far as practicable and with the necessary modifications, to and in relation to proceedings to which this Division applies in like manner as they apply to proceedings for a decree of a kind referred to in paragraph (a) of the definition of "matrimonial cause"

(2) The provisions of these Rules that apply to and in relation to proceedings of a kind referred to in paragraph (c) or (d) of the definition of "matrimonial cause" that relate to proceedings of a kind referred to in paragraph (a) of that definition apply, as far as practicable and with the necessary modifications, to and in relation to proceedings of a kind referred to in paragraph (c) or (d) of that definition that relate to proceedings to which this Division applies.

PART XXII - MISCELLANEOUS

Consent orders

287. Nothing in these Rules shall be taken to prevent the court or the as the case may be, from making, with the consent of the parties to proceedings and in accordance with the practice of the court, an order (not including an order of a kind referred to in paragraph (a) or (b) of the definition of "matrimonial cause") determining the proceedings or relating to the proceedings.

Court or registrar may extend time

288.-(1) Up an application made by a party to proceedings or by a person entitled to intervene in proceedings under subsection (2) of section 32 of the Act or under these Rules, the court or registrar may extend the time limited by those Rules, or fixed by an order made by the court or the registrar, for the doing of an act or the taking of a step in proceedings.

(2) Application under paragraph (1) may be made whether or not the time limited for the doing of the act or the taking of the step in proceedings has expired.

(3) Subject to paragraph (4), an extension of time may be granted under paragraph (1) of this rule upon such conditions as the court or registrar thinks fit.

(4) Unless a court otherwise orders, the costs of an application under paragraph (1) shall be borne by the applicant.

(5) An application under paragraph (1) may be made orally to a court upon the trial of proceedings by the court or to the registrar upon the hearing of an application by the registrar.

Extension of time by consent

289. The time limited for the doing of an act or the taking of a step in proceedings may be extended by consent, in writing, without application to the court or registrar.

Documents to be in writing

290.-(1) A pleading, application, affidavit, disposition, certificate, decree, notice or other document required or allowed by these Rules to be filed or delivered to or served on a person for use in or in connexion with proceedings shall, unless the nature of the document renders it in any respect impracticable or these Rules otherwise provide-

(a) be legibly and clearly written, typewritten or printed, without blotting, erasure or such alterations as cause material disfigurement;

(b) have a space of not less than one quarter of an inch between each line;

(c) be upon white folio foolscap paper of good and durable quality and capable of receiving ink writing;

(d) have a margin not less than one and a half inches wide, to be left blank on the left side of each sheet;

(e) be folded lengthwise;

(f) have such each page numbered; and

(g) have a backsheet upon which appears the number and short title of the proceedings, a short description of the document and the name, address and telephone number of the barrister and solicitor (if any) filing, delivering or serving the document or, if the person on whose behalf the document is filed, delivered or served is not represented by a barrister and solicitor, the name, address for service and telephone number (if any) of that person.

(2) A typewritten copy of a document to which paragraph (1) applies shall not be filed unless it is a first black ink copy.

Copies of affidavits on ex parte Applications

291.-(1) Where, upon an ex parte application, an order is made by the court or registrar against, or affecting the rights of, a person, that person may request in writing the applicant or his barrister and solicitor to furnish him with a copy of each affidavit filed in support of the application.

(2) Upon receipt of a request under paragraph (1) and upon payment of the proper charges, the party who made the application shall furnish a copy of each affidavit filed in support of the application to the person who made the request.

Change of barrister and solicitor

292.-(1) A party to proceedings who is represented in the proceedings by a barrister and solicitor is, subject to paragraph (3), at liberty to change his barrister and solicitor without an order for that purpose upon filing notice of the change and serving a copy of the notice on each other party to the proceedings who has an address for service for the purpose of the proceedings and on his former barrister and solicitor.

(2) Until such a notice is filed and copies are served in accordance with paragraph (1) the former barrister and solicitor shall be considered the barrister and solicitor of the party.

(3) A party to proceedings who is proceeding as a poor person shall not discharge the barrister and solicitor representing him in the proceedings without the leave of the court or registrar.

(4) A notice under paragraph (1) shall be signed by the new barrister and solicitor for the party, and shall state the place of business of that barrister and solicitor and the address for service of the party for the purpose of the proceedings.

(5) The address stated as the party's address for service shall be not more than five miles from the office of the court in which the notice is filed, and may, subject to that requirement, be the address of the new barrister and solicitor for the party or of a barrister and solicitor acting as the agent of that barrister and solicitor.

Notice of appointment of barrister and solicitor

293.-(1) Where a party to proceedings who is not represented by a barrister and solicitor appoints a barrister and solicitor to represent him in the proceedings, the party may, either personally or by his barrister and solicitor, give notice of the appointment.

(2) The provisions of rule 292 relating to notice of change of barrister and solicitor, to service of such a notice and to the stating of an address for service in such a notice apply, with the necessary modifications, in the case of notice of appointment of barrister and solicitor.

Notice of intention to act in person

294.-(1) Where a party to proceedings who is represented by a barrister and solicitor intends to act in person in the proceedings, the party may give notice as to his intention to act in person.

(2) The provisions of rule 292 relating to notice of change of barrister and solicitor, to service of such a notice and to the stating of an address for service in such a notice apply, with the necessary modifications, in the case of notice of intention to act in person.

Barrister and solicitor ceasing to act for party

295.-(1) Where-

(a) the address for service of a party to proceeding is the address of a barrister and solicitor who has represented, but is no longer representing, the party in the proceedings;

(b) the barrister and solicitor has served on the party a notice, in accordance with Form 63, signed by the barrister and solicitor, personally and a period of not less than seven days has elapsed after service of that notice; and

(c) the party has not, since the barrister and solicitor ceased, or last ceased to represent him in the proceedings, filed a notice under rule 288 or 290,

the barrister and solicitor may file a notice, in accordance with Form 64, of his having ceased to represent the party.

(2) Where a barrister and solicitor who has represented a party files a notice in accordance with Form 66, the barrister and solicitor shall, on the day on which the notice is filed or on the next following day, cause a copy of the notice to be served on each other party who has an address for service.

(3) Where a barrister and solicitor who has represented a party in proceedings has duly complied with paragraph (1), the party may give notice, in accordance with these Rules, that he is represented by a barrister and solicitor or that he intends to act in person and, in default of his doing so, shall be deemed not to have an address for service for the purpose of the proceedings.

Barrister and solicitor not to act for adverse parties

296. A barrister and solicitor, shall not represent any two or more parties having adverse interests in the proceedings.

Disallowance of costs of improper, vexatious or unnecessary matter in documents or proceedings

297.-(1) The court may, at the trial of a matrimonial cause or upon application to the court, whether or not objection is taken-

(a) direct that any costs which have been improperly, unnecessarily or negligently incurred be disallowed; or

(b) direct the registrar to examine the costs incurred, and to disallow such costs as he finds to have been improperly, unreasonably or negligently incurred.

(2) A party whose costs are so disallowed shall pay to the other parties the costs incurred by those parties in relation to the matter in respect of which his costs have been disallowed.

________________

FIRST SCHEDULE
______________

FORM 1

NOTICE OF ADDRESS FOR SERVICE

R.9

(Title)

Take notice that the address for service of the abovementioned is ................................

Dated this...............day of........., 19...

Barrister and Solicitor for the..................

(Address of barrister and solicitor for party)

To the Petitioner and to .....................................................

___________

FORM 2

NOTICE OF CHANGE OF ADDRESS FOR SERVICE

R.9

(Title)

Take notice that the address for service of the abovementioned .................................
will on the .....................day of ......, 19..., be changed to ..................

Dated this .........day of ....., 19...

Barrister and Solicitor for the ...............
(Address of barrister and solicitor for party)

To ...........................

___________

FORM 3

TITLE OF PROCEEDINGS

R.13

Matrimonial Causes Act

In the Supreme Court.......................................................................................... of ................... No...19...

Between........................................

Petitioner
(or Applicant)
Respondent
and
Co-respondent
(or as the case may be)

_________

FORM 4

APPLICATION TO COURT OR REGISTRAR

Rr. 15 and 191 (3)

(Title)

Application is made to the court (or the registrar) on behalf of the .................................... or (here set out the order sought).

This application has been set down for hearing by the court (or registrar) at the Supreme Court,................................, (or as the case may be) on the ...............day of ............ 19..., at the hour of.................o'clock in the .............noon, or as soon thereafter as the course of business will permit (or on a date and time to be fixed by the registrar).

Dated this...............day of.........19...

Barrister and Solicitor for the........................

This application is filed by ................................on behalf of the ....................., whose address for service is ........................................................................................

It is intended to effect service of this application on ........................ and .........................

__________

FORM 5

PETITION FOR DECREE OF DISSOLUTION OF MARRIAGE, NULLITY OF MARRIAGE OR JUDICIAL SEPARATION

Rr. 36, 43 and 48

(Title)

To the Supreme Court.

The petitioner whose address is ............................... and whose occupation is ................, petitions the court for a decree of ..................... against the respondent, whose address is ........................ and whose occupation is .................. on the ground of .....................

MARRIAGE

1. The petitioner, then a (conjugal condition), was lawfully married to (or went through a ceremony of marriage with) the respondent, then a (conjugal condition), at ............... on the ............ day of ............,19..., according to the rites of the ........................... (as appropriate) ........ .

2. The surname of the .................. immediately before the marriage (or purported marriage was ........................

3. (Here insert any particulars required by paragraph (2) or (3) of rule 26).

BIRTH OF PETITIONER AND RESPONDENT

4. The petitioner was born at ............... on the ............... day of .........., 19..., and the respondent was born at ........................ on the .............day of .........., 19... .

5. (Here insert any particulars required by paragraph (2) of rule 27).

DOMICILE OR RESIDENCE

6. The petitioner is, within the meaning of the Act, domiciled (or resident) in Fiji. The facts on which the court will be asked to find that the petitioner is so domiciled (or resident) are as follows:-

COHABITATION

7. Particulars of the places at which and periods during which the petitioner and respondent have cohabitated are as follows:-

or

7. The petitioner and respondent have never cohabited.

8. The date on which and circumstances in which cohabitation between the petitioner and respondent ceased (or last ceased) are as follows:-

(Leave out if the Petitioner and respondent have never cohabited)

CHILDREN

9. There are no children to whom rule 30 applies.

or

9. Particulars relating to the children to whom rule 30 applies are as follows:-

PREVIOUS PROCEEDINGS

10. Since the marriage (or ceremony of marriage) there have not been any previous proceedings in a court between the petitioner and the respondent.

or

10. The following are particulars of previous proceedings between the petitioner and the respondent since the marriage (or ceremony of marriage):-

11. Since the marriage (or ceremony of marriage) there have not been any proceedings, instituted otherwise than between the parties to the marriage, concerning the maintenance, custody, guardianship, welfare, advancement or education of a child of the marriage.

or

11. The following are particulars of proceedings that have been instituted since the marriage (or ceremony of marriage), otherwise than between the parties to the marriage, concerning the maintenance, custody, guardianship, welfare, advancement or education of a child of the marriage:-

FACTS

12. The facts relied on by the petitioner as constituting the ground (or each ground) specified above are as follows:-

CONDONATION, CONNIVANCE AND COLLUSION

(Leave out in the case of a petition for nullity of marriage.)

13. The petitioner has not condoned or connived at the ground (or any of the grounds) specified above, and is not guilty of collusion in presenting this petition.

or

13. The petitioner has not connived at the ground (or any of the grounds) specified above, and is not guilty of collusion in presenting this petition; the following facts are furnished in relation to condonation:-

PROPOSED ARRANGEMENTS FOR CHILDREN

(Leave out if rule 39 does not apply.)