The Marriage Act (Chapter 280) does not contain a general recognition provision. Recognition follows from three sections working together.
Section 17(1)(c) — form governed by the place of celebration
A marriage is void if it is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages.
Section 17(1)(c) is expressed as a ground of invalidity, but its effect is a rule of recognition: a marriage that did comply with the form required by the law of the place of celebration is not void on that account.
This is the orthodox private international law rule — locus regit actum. A marriage celebrated in a registry office in Australia, a church in the Philippines or a court in Fiji is recognised here if it was validly celebrated there.
Note the limit: the paragraph concerns form of solemnization only. Capacity is a separate question.
Paragraph (c) does not apply to a marriage solemnized under the Marriage (Overseas) Act 1955 of Australia, or under Part V of the Marriage Act 1961 of Australia, or to any other marriage recognized in Australia by virtue of either Act or their regulations.
These are Australian consular and overseas marriage provisions. Because such a marriage may be celebrated in a place whose own law it does not satisfy, subsection (2) removes paragraph (c) so that it is not void here on that ground. The provision reflects the pre-Independence relationship, and the Act notes that the Australian Marriage Act 1961 has since been repealed and replaced.
Capacity — the rules that still apply
| Requirement | Applies to a marriage abroad? |
|---|---|
| Marriageable age — s 7 | Yes, for a person domiciled in the country, wherever the marriage takes place — s 6(2)(b) |
| Existing lawful marriage — s 17(1)(a) | Yes — a bigamous marriage is void |
| Prohibited degrees | For marriages in the country — s 24(1). For marriages abroad, the common law rules of private international law apply — s 24(2) |
| Real consent — s 17(1)(d) | Subject to s 23(2) and the private international law rules |
| Consent of a minor’s parents — s 8 | No — s 6 applies the consent provisions to Division V.2 marriages, not to marriages abroad |
Section 6(2) applies section 7 to the marriage of a person domiciled in the country, wherever it takes place — and section 6(1) does so notwithstanding any common law rule of private international law.
So a person domiciled in Papua New Guinea who marries overseas below the marriageable age contracts a marriage that is void here under section 17(1)(e), even if the local law permitted it.
Section 23 — the general saving
(1) Except as expressly provided in this Part, this Part does not affect the validity or invalidity of a marriage that took place before the commencement date.
(2) Subject to section 24, no provision of this Act affects the validity or invalidity of a marriage where it would not be in accordance with the common law rules of private international law to apply that provision in relation to the marriage.
It directs that the Act’s provisions are not applied to a marriage where the common law conflict rules would not apply them.
Those rules distinguish between formal validity — governed by the law of the place of celebration — and essential validity or capacity, governed by the law of each party’s domicile at the time of the marriage.
So a marriage between two people domiciled abroad, celebrated abroad, is generally recognised here if valid by those laws — even if it would not have satisfied the requirements of this Act. See also the article on section 23.
Two harder cases
A marriage validly polygamous under the law of the place and of the parties’ domicile raises questions the Act does not answer directly. Section 23(2) points to the common law rules; section 17(1)(a) makes a marriage void where a party is lawfully married to some other person.
Papua New Guinea is in an unusual position here, because its own law recognises polygamous customary marriage under section 3. The point should be taken on advice in any particular case.
The practical obstacle is usually evidence rather than law. Section 84 of the Matrimonial Causes Act (Chapter 282) deals with proof of marriage in matrimonial proceedings, and proving a marriage sets out the practical approach.
Where the records cannot be obtained, section 71(2)(b) allows a second ceremony here on a doubt about whether the foreign marriage would be recognized as valid by a court in the country, or could be proved in legal proceedings — supported by a statutory declaration and a lawyer’s certificate.
Foreign divorces are dealt with separately, by Part VIII of the Matrimonial Causes Act — see recognition of foreign decrees.
Sources
- Marriage Act (Chapter 280) — ss 6, 7, 17, 23, 24, 46–50, 71
- Matrimonial Causes Act (Chapter 282) — ss 79, 84
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.