¹ R David and J Brierley, Major Legal Systems in the World Today (2nd edn, Stevens, London, 1978) 4 and T Weir (tr), K Zweigert and H Kötz, An Introduction to Comparative Law (2nd edn OUP, Oxford, 1987) 15.

² See for example concerns expressed by A Watson, ‘Legal Transplants and European Private Law’ Vol 4.4. Electronic Journal of Comparative Law, December 2000 http://www.ejcl.org/ejc/44/44-2.html accessed 7 October 2004.

³ From a ‘Western’ perspective.

⁴ Comparative law itself reveals such tendencies, see for example, the use of the common law case-law method to teach civil law in R Schelsinger Comparative Law Cases and Materials (1950)—criticised by A Sereni, ‘On Teaching Comparative Law’ (1951) 64 Harvard Law Review 770, and comments by T Bingham, ‘There is a World Elsewhere: The Changing Perspectives of English Law' (1992) 41 ICLQ 513, 514.

⁵ David, and Brierley (n 1) 531.

⁶ See Wi Parata v Bishop of Wellington 3 NZ. Jur (N.S.) SC 72 in which the Supreme Court held that that there was no customary law of the Maoris at the time of the advent of Europeans of which Courts could take cognizance. This state of affairs was contrasted with that of Samoa in the case of Samoan Public Trustee v Collins [1961] WSNZCA 1.

⁷ Effective between 1914 and 1980.

⁸ Significant for Family Law has been the Convention on the Rights of the Child (CRC) and the Convention for the Elimination of Discrimination Against Women (CEDAW).

⁹ The University of the South Pacific which serves the Pacific Island States of the region has offered a four year LLB for a number of years now as well as a Certificate in Law. The Law School is based in Vanuatu but there is also a large distance learning programme.

¹⁰ With students from at least twelve different countries (Cook Islands, Fiji, Kiribati, Marshall Islands, Niue, Nauru, Samoa, Solomon Islands, Tokelau, Tuvalu, Tonga, Vanuatu, and non-members: Federated States of Micronesia and Palau, a comparative approach to legal study at the University of the South Pacific is pervasive.

¹¹ Based in Vanuatu this publishes on the internet under www.paclii.org.

¹² See for example, Cheffers v Cheffers [1993] HBSC 2, Koroiwaca v Bakosa [2004] FJHC 207.

¹³ Banga v Waiwo [1996] VUSC 5.

¹⁴ Devi v Singh [1985] FJCA 2. Now replaced by the Family Law Act 2003.

¹⁵ Tonga became a British protectorate in1900, but remained a constitutional monarchy.

¹⁶ See, for example, Divorce Act (Cap 29) 1927 Tonga, Divorce and Matrimonial Causes Act 1961 Samoa.

¹⁷ For a comprehensive overview see J Corrin Care, ‘Colonial Legacies?’ A study of received and adopted legislations applying in the University of the South Pacific Region (1997) 21 The Journal of Pacific Studies 33.

¹⁸ Article 95 Constitution of the Republic of Vanuatu 1980. See similarly section 5 Solomon Islands Constitution 1978, Section 3 Article XV Constitution of the Republic of Palau and Part XI of the Constitution of Nauru.

¹⁹ As applied in the cases of Molu v Molu [1998] VUSC 15 and in Kong v Kong [2000] VUCA 8.

²⁰ paras 26–27.

²¹ Sections 3–4 Civil Law Act Cap 25 as amended by the Civil Law (Amendment) Act No 9 of 2003 sections 2 and 3.

²² See sections 58, 66 and 80 of the Land Act (Tonga) Cap 132.

²³ Hayward v Giordani [1983] 1 NZLR 140, Pasi v Kamana [1986] 1 NZLR 603, Oliver v Bradley [1987] 1 NZLR 586. Gillies v Keogh [1989] 2 NZLR 327.

²⁴ Muschinski v Dodds [1985] 160 CLR 583, Baumgarter v Baumgarter [1987] 164 CLR 137.

²⁵ Murdoch v Murdoch [1975] 1 SCR 423, Rathwell v Rathwell [1978] 2 SCR 436, Pettkus v Becker [1980] 2 SCR 834, Sorochan v Sorochan [1986] 2 SCR 38.

²⁶ Grant v Edwards [1986] 2 All ER 426 (obiter per Sir Nicholas Browne-Wilkinson at 439) and Gillies v Keogh [1989] 2 NZLR 327.

²⁷ Pettit v Pettit [1970] AC777, Gissing v Gissing [1971] AC 886, Grant v Edwards [1986] 2 All ER 426, Lloyds Bank v Rosset [1990] 1 All ER 111 (HC).

²⁸ See L v L [1994] WSCA 3 where Sir Robin Cooke stated ‘in determining the common law applicable in Western Samoa (now Samoa), the courts of this country are free to draw on decisions in common law jurisdictions other than England itself … the Western Samoan Courts will select or evolve the solution which they adjudge to be most suitable for the society of Western Samoa.’

²⁹ Advocated in Appleton v Appleton [1965] 1 WLR 25, but rejected in Gillies v Keogh [1989] 2 NZLR 327 and Baumgarter v Baumgarter [1987] 164 CLR 137.

³⁰ [2003] VUSC 63, [2003] VUCA 27, [2004] VUSC 91.

³¹ Article 47(1) read with Article 49(1) which confers civil and criminal jurisdiction on the court. This positive obligation on the court may have been influenced by principles of French law when the Constitution was drafted.

³² In Re the Constitution, Timakati v Attorney-General [1992] VUSC 9, (1980–1994] Van LR 691.

³³ French laws were also in force but these were not raised in the case, despite the fact that the parties were French. The husband later raised a complaint about this.

³⁴ Article 5(1) read with Article 1(k).

³⁵ Ratified by Act No 3 of 1995, which makes the Convention part of the domestic law of Vanuatu.

³⁶ For an analysis and comment on the case see Farran, S, ‘The Joli Way to Resolving Legal Problems: A New Vanuatu Approach?’ (2004) 1 Journal of South Pacific LawGoogle Scholar <http://www.vanuatu.usp.ac.fj/jspl>accessed 14 September 2007.

³⁷ Joli v Joli [2004] VUSC 91.

³⁸ Only Fiji and Samoa have official law reports at present. However electronic resources such as PacLII and AustLII are an invaluable means for accessing the law from elsewhere.

³⁹ A drawback highlighted by B Markesinis, ‘Judge, Jurist and the Study and Use of Foreign Law’ (1993) 109 LQR 622, 624.

⁴⁰ Compared to, for example, regional initiatives under the auspices of the Pacific Islands Forum or the Pacific Islands Secretariat.

⁴¹ Only matai (chiefs or heads of extended families) could vote and it continues to be the case that only matai can sit in Parliament. Women may hold such titles but the majority are male.

⁴² Zweigert and Kötz (n 1) 15. See also P de Cruz, Comparative Law in a Changing World (2nd edn, Cavendish, London 1999) 20.

⁴³ Law Reform Commission Act Cap 15 section 6(g) indicates that the commission has the power ‘to obtain information on the laws and legal systems of other countries as a means of providing ideas for the reform and development of the law of Solomon Islands’. The Samoa Law Reform Commission Act 2002 is less specific, conferring on the Commission the power ‘To conduct or sponsor such studies and research as it thinks expedient for the proper discharge of its functions’, section 7(b).

⁴⁴ Law Reform Commission Act 1975 s11 (g) ‘obtain information on the laws and legal systems of other countries as a means of providing ideas for the reform and development of the law of Papua New Guinea’.

⁴⁵ For further detail on the stages leading up to the law reform see I Jalal, ‘A woman's quest for Equality’ The Fiji Times (25 November 2003) http://rrrt.org/page.asp?active_page_id=142, accessed 20 September 2007.

⁴⁶ See the address to the Fiji Law Society by Justice Stephen Thackray July 2006, in which he states ‘your new Act adopts the most important provisions of the Australian Family Law Act 1975. … One thing that is very similar to our law is the method Fiji has adopted to deal with division of property following marriage breakdown’. Author's copy.

⁴⁷ Including new rules for the division of matrimonial property on divorce which incorporate more guidelines for the exercise of court discretion and the possibility of taking into account non-financial contribution.

⁴⁸ ‘Vice President Ratu Joni opens new Family Law Court Nov 2, 2005, http://www.fiji.gov.fj/publish/printer_5678.shtml accessed 20 September 2007.

⁴⁹ ‘I Jalal, ‘State on Track with new Act’ The Fiji Times (27 July 2004) <http://rrrt.org/page.asp?active_page_id=172> accessed 20 September 2007. See also Jalal's personal mission statement in ‘Why Fiji needs a Family Law Bill’ The Fiji Times (18 November 2003).

⁵⁰ See for example Graycar, R, ‘Law Reform by Frozen Chook: Family Law Reform for the New Millennium?’ [2000] Melbourne University Law Review 29Google Scholar.

⁵¹ See for example, R Field, ‘Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-Separation Informal Dispute Resolution’ (2005) QUT Law and Justice Journal 2.

⁵² Especially from church representatives but also from the more conservative sectors of Fiji society.

⁵³ As ascertained by the author in conversation with Justice Mere Pulea, Judge of the Family Court, Fiji, July 2007.

⁵⁴ Fiji has a history of political coups, the most recent being in late 2006. At the time of writing the physical location of the family court in the capital Suva, was shared with military personnel and vehicles. It is perhaps pertinent to recall the words of C E McGuire: ‘The easy migration of ideas and the borrowed refinement of legal processes thrive best in the calmer years’ in ‘The Legislator's Interest in Comparative Legal Studies’ (1932) Tulane Law Review 171.

⁵⁵ V Buadromo ‘FWRM Congratulates Government on Establishment of Family Court’ Press Release 2 November 2005, Fiji government <http://www.fiji.gov.fj/publish/page_5681.shtml> accessed 27 July 2007.

⁵⁶ These defining criteria of a legal system are discussed by de Cruz (n 33) Chapter 2.

⁵⁷ Indeed the relegation of such societies to ‘legal ethnology’ rather than comparative law has stigmatised them as not quite worthy of comparative study.

⁵⁸ See for example, the interesting account of family law in Egypt by L Abu-Odeh ‘Modernising Muslim Family Law: The Case of Egypt (2004) Oxford U Comparative L Forum 3 <http:ouclf.iuscomp.org>accessed 1 November 2004.

⁵⁹ See for example reservations expressed by Kahn-Freund, O, ‘On the uses and misuses of Comparative Law’ (1974) 37 Modern Law Review 1CrossRefGoogle Scholar and Watson, A, ‘Legal Transplants and Law Reform’ (1976) 92 Law Quarterly Review 79Google Scholar and Markesinis, B, ‘The Destructive and Constructive Role of the Comparative Lawyer’ (1993) RabelZ 438, 442–443Google Scholar.

⁶⁰ See D Bradley, ‘Convergence in Family Law: Mirrors, Transplants and Political Economy’ (2001) Oxford U Comparative L Forum 2 http://ouclf.iuscomp.org/articles/bradley accessed 8 September 2004.

⁶¹ Misquoting O Kahn Freund who stated: ‘(O)n the professor of comparative law the gods have bestowed the most dangerous of all their gifts, the gift of freedom’, ‘Comparative Law as an Academic Subject’ (1966) 82 LQR 40, 41.

⁶² As advocated by Markesinis (n 45) 447.