The prohibited degrees in Schedule 2 of the Marriage Act (Chapter 280) are not absolute. Two sections allow a Judge to permit a marriage that would otherwise be void.
Section 20 — prohibited degrees of affinity
(1) Where two persons who are within the prohibited degrees of affinity wish to marry one another, they may apply, in writing, to a Judge for permission to do so.
(2) If the Judge is satisfied that the circumstances of the particular case are so exceptional as to justify the granting of the permission sought, he may, by order, permit the applicants to marry one another.
(3) Where persons marry under such a permission, the validity of their marriage is not affected by the fact that they are within the prohibited degrees of affinity.
Affinity is relationship created by marriage — a wife’s mother, a husband’s son, a father’s wife. There is no blood relationship, so the biological objection does not arise.
The prohibitions on affinity exist to protect the integrity of the family unit created by the earlier marriage. Where that marriage has ended long ago and the circumstances are exceptional, section 20 allows the position to be reconsidered.
Note that the Schedule 2 affinity prohibitions apply where the person “is, or has been” the relevant relative — so they survive the death of the spouse or a divorce. That is what makes section 20 necessary.
Section 21 — degrees created only by adoption
(1) Where two persons are within the prohibited degrees of consanguinity by reason only of the operation of section 19, they may apply in writing to a Judge for permission to marry.
(2) Subject to subsection (3), if the Judge is satisfied that the circumstances are so exceptional as to justify the permission, he may by order permit them to marry.
(3) This section does not authorize the granting of permission where the relationship, by reason of section 19, is that of parent and child or brother and sister.
(4) Where persons marry under such a permission, the validity of their marriage is not affected.
The two closest adoptive relationships cannot be permitted at all, however exceptional the circumstances:
- Adoptive parent and adopted child;
- Adoptive siblings — whether two adopted children of the same adopters, or an adopted child and a natural child of the adopters.
What section 21 can permit are the more remote adoptive relationships: an adopted child and an adoptive parent’s sibling, or an adopted child and an adoptive grandparent.
The two powers compared
| Section 20 — affinity | Section 21 — adoption | |
|---|---|---|
| Applies to | Prohibited degrees of affinity | Degrees of consanguinity created only by section 19 |
| Who applies | Both parties, in writing, to a Judge | Both parties, in writing, to a Judge |
| Test | Circumstances so exceptional as to justify | Circumstances so exceptional as to justify |
| Absolute exclusions | None | Parent/child and brother/sister |
| Effect | Validity not affected by the relationship | Validity not affected by the relationship |
There is no power at all to permit a marriage within the prohibited degrees of consanguinity arising from actual blood — a sister, an aunt, a niece, an ancestress or a descendant.
Section 20 is confined to affinity; section 21 is confined to degrees arising only from section 19. A blood relationship falls outside both, and Schedule 2.3 makes clear that half-blood and illegitimate lines count fully.
Making the application
- Both parties apply. Sections 20(1) and 21(1) both say “they may apply”.
- In writing, to a Judge — the National Court, not a Magistrate.
- Section 76(b)(ii) allows regulations prescribing the practice and procedure for the hearing of applications under sections 20 and 21, including summoning witnesses, producing documents, taking evidence on oath and payment of witnesses’ expenses.
- Establish the exceptional circumstances. The test is not hardship or convenience but circumstances so exceptional as to justify departing from the Schedule.
- Obtain the order before the ceremony. Sections 20(3) and 21(4) protect the validity of a marriage entered into under a permission granted. A marriage first, permission afterwards, is void under section 17(1)(b) — and section 17(1) is expressly “subject to … sections 20 and 21”, which assumes the permission preceded the marriage.
- Produce the order to the celebrant. Solemnising a marriage knowing of a legal impediment is an offence under section 63; the order is what removes the impediment.
Note that section 24(1) applies sections 17, 18 and 20 and Schedule 2 to marriages in Papua New Guinea wherever the parties are domiciled or intend to make their home — so a foreign couple marrying here must satisfy them, or obtain a section 20 order.
Sources
- Marriage Act (Chapter 280) — ss 17–24, 63, 76, Schedule 2
- Adoption of Children Act (Chapter 275)
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.