Section 17(j) of the Matrimonial Causes Act (Chapter 282) turns a persistent failure to support into a ground for ending the marriage.
Section 17(j)
That the other party has habitually and wilfully failed, throughout the period of two years immediately preceding the date of the petition, to pay maintenance for the petitioner that has been —
(i) ordered to be paid under an order of, or an order registered in, a court in Papua New Guinea or in Australia; or
(ii) agreed to be paid under an agreement between the parties to the marriage providing for their separation.
| Element | What must be shown |
|---|---|
| An order or an agreement | A court order (PNG or Australia, or registered in one), or a separation agreement providing for maintenance |
| Maintenance for the petitioner | The words are “for the petitioner” — see below on child maintenance |
| Habitually and wilfully | A settled pattern, and deliberate — not mere inability |
| Throughout two years | The whole period immediately before the petition |
| Reasonable enforcement attempts | Section 23 — see below |
“Habitually and wilfully”
Both words qualify the failure. Habitually requires a settled pattern rather than occasional default; wilfully requires that the failure be deliberate.
A respondent who has lost employment, become ill, or genuinely cannot pay has not wilfully failed. The proper course for such a person is to apply to vary the order — and the ability to do so is itself relevant, because a respondent who could have sought a variation and did not may be found to have failed wilfully.
Note also that the failure must run throughout the two years. Payments made during the period, even irregularly, may defeat the ground — though token payments made to frustrate a petition would not.
Section 23 — enforcement must be attempted first
A decree shall not be made on the ground in section 17(j) unless the Court is satisfied that reasonable attempts have been made by the petitioner to enforce the order or agreement under which the maintenance was ordered or agreed to be paid.
Section 23 makes clear that section 17(j) is a last resort. A petitioner who simply allowed arrears to accumulate for two years without acting cannot rely on the ground.
What counts as reasonable attempts will depend on the order. The enforcement machinery includes:
- Section 88 — summary enforcement of orders for maintenance;
- Section 89 — enforcement by attachment of earnings;
- Section 86 — attachment; section 87 — recovery under decrees; section 90 — enforcement by other means;
- Where the order was made by a court of summary jurisdiction, that court’s own enforcement powers, preserved by section 3(2);
- The Maintenance Orders Enforcement Act (Chapter 279), which deals with enforcement across jurisdictions.
Keeping a record of what was attempted — applications made, warrants sought, correspondence sent — is what satisfies section 23 at the hearing.
Maintenance “for the petitioner”
Section 17(j) speaks of maintenance for the petitioner. A failure to pay maintenance ordered for the children does not, on the words, establish the ground.
That does not leave a parent without a remedy. Child maintenance is separately enforceable, and a persistent failure to support the family may found:
- Section 17(g), where a husband has habitually left the petitioner without reasonable means of support alongside frequent convictions;
- Constructive desertion under section 18, where the failure to support gave just cause to live apart;
- Child maintenance under Division 7 of Part XII of the Lukautim Pikinini Act 2015, which is independent of any divorce.
Bars and related provisions
- Sections 27 and 28 — condonation, connivance and collusion. Accepting late payment and resuming the relationship may amount to condonation.
- Section 29(d) — conduct of the petitioner that conduced or contributed to the ground; for example, conduct that caused the respondent to lose employment.
- Section 31 — leave is required in the first three years, and in any event the ground requires two years.
- Section 17(k) — a related ground: failure for one year to comply with a decree of restitution of conjugal rights.
Because section 17(j) requires an existing order or agreement, it is available only to a petitioner who has already obtained one. A spouse who separated without any maintenance arrangement has nothing for the section to bite on.
Obtaining an order early — from a court of summary jurisdiction under section 3(2), or recording the arrangement in a written separation agreement — therefore preserves the option.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 3, 17, 18, 23, 27–29, 31, 86–91
- Maintenance Orders Enforcement Act (Chapter 279); Lukautim Pikinini Act 2015
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.