Section 32 of the Matrimonial Causes Act (Chapter 282) preserves, in statutory form, a claim against the third party.
Section 32(1)
A party to a marriage may, in a petition for a decree of dissolution on the ground that the other party has committed adultery with a person, or on grounds including that ground, claim damages from that person on the ground that that person has committed adultery with the other party — and, subject to this section, the Court may award damages.
This is not a separate action. The claim is brought within the dissolution petition, against the person named as the adulterer.
Section 33(1) requires that person to be made a party to the proceedings where they are named — whether or not a decree is sought on the ground of the adultery. So the mechanism for bringing them before the court already exists.
Section 33(3) allows that person to apply, after the close of the case for the party alleging the adultery, to be dismissed from the proceedings if there is not sufficient evidence that they committed adultery with the other party.
Sections 32(2) and (3) — three restrictions
| Provision | Restriction |
|---|---|
| s 32(2)(a) | Where the adultery of the respondent with that person has been condoned — whether subsequently revived or not |
| s 32(2)(b) | Where a decree of dissolution is not made on the ground of adultery with that person, or on grounds including that ground |
| s 32(3) | For an act of adultery committed more than three years before the date of the petition |
For the divorce itself, condonation under section 27 can be revived by later misconduct, and section 29(a) expressly contemplates revival.
For damages, section 32(2)(a) says “whether subsequently revived or not”. Once the adultery with that person has been condoned, no damages may be awarded against them — even if the condonation is revived and the divorce succeeds.
The logic is that the third party should not be exposed to a money claim for conduct the petitioner had forgiven.
No decree on the adultery ground, no damages. So if the petition succeeds on some other ground, or fails entirely, the claim against the third party goes with it.
That is a real constraint given the absolute bars in sections 27 and 28 and the discretionary bars in section 29. A petitioner whose own adultery leads the court to refuse a decree loses the damages claim too.
Section 32(4) — where the money goes
The Court may direct in what manner the damages awarded shall be paid or applied and, if it thinks fit, may direct that they be settled for the benefit of the respondent or the children of the marriage.
This is a significant provision. The court may direct that the money be settled for the benefit of the respondent — the spouse who committed the adultery — or of the children of the marriage.
“Children of the marriage” has the extended meaning in section 2, which includes children ordinarily members of the household.
The provision reflects the character of the award. It is compensatory rather than punitive, and where the family’s need is greater than the petitioner’s the court can direct the money accordingly. It works alongside the Part VII powers over maintenance and settlement of property.
Section 32(5) — criminal conversation abolished
No action for criminal conversation lies, whether under this Act or otherwise.
The old common law action by a husband against his wife’s lover is abolished. Section 32 is the only route to damages for adultery under this Act, and it exists only within a dissolution petition.
The separate action under the Adultery and Enticement Act 1988
The Adultery and Enticement Act 1988 creates a standalone statutory action for compensation that does not depend on any divorce proceeding.
| MCA s 32 | Adultery and Enticement Act 1988 | |
|---|---|---|
| Requires a divorce | Yes — a decree must be made | No — a free-standing action |
| Customary marriage | No — s 4 excludes it | Yes |
| Court | The National Court | As that Act provides |
| Mediation | — | Section 10 — mediation |
| Time limit | Adultery within 3 years of the petition | Section 7 |
For most people in Papua New Guinea the 1988 Act is the practical remedy, because it applies to customary marriages and does not require a divorce. See who may bring an action for adultery and how much compensation may be ordered.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 2, 4, 17, 27–29, 32, 33, 72–79
- Adultery and Enticement Act 1988
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.