Section 17(l) of the Matrimonial Causes Act (Chapter 282) is one of only two grounds that does not depend on fault.
Section 17(l)
That the other party to the marriage —
(i) is, at the date of the petition, of unsound mind and unlikely to recover; and
(ii) since the marriage and within the period of six years immediately preceding the date of the petition, has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than one such institution.
A decree shall not be made on the ground in section 17(l) unless the Court is satisfied that, at the commencement of the hearing of the petition, the respondent was still confined to such an institution and was unlikely to recover.
Four conditions, tested at two different times
| Condition | Assessed at |
|---|---|
| Of unsound mind | The date of the petition — s 17(l)(i) |
| Unlikely to recover | The date of the petition and the commencement of the hearing — ss 17(l)(i) and 24 |
| Confined 5 years in the preceding 6 | Measured back from the date of the petition — s 17(l)(ii) |
| Still confined | The commencement of the hearing — s 24 |
The requirement that the respondent be still confined and still unlikely to recover at the hearing means the ground can be lost between filing and trial.
A respondent who is discharged into community care, or who improves, defeats the petition — even though the five years of confinement plainly occurred.
Note the aggregation permitted by section 17(l)(ii): the five years may be made up of periods, and in more than one institution. So intermittent admissions count, provided they total five years within the six-year window.
“An institution where persons may be confined for unsoundness of mind in accordance with law”
The paragraph does not ask whether the respondent received treatment. It asks whether they were confined in a place where confinement for unsoundness of mind is authorised by law.
Care at home, however extensive, does not satisfy it. Nor does voluntary residence in a facility that has no legal power to confine.
That is a substantial practical limitation in Papua New Guinea, where institutional psychiatric provision is limited and most people with severe and enduring mental illness are cared for by family.
A petitioner in that position cannot use section 17(l). The realistic alternatives are five years’ separation under section 17(m), or desertion where section 20 applies.
Section 20 — a related provision
Where a party has been wilfully deserted, the desertion shall not be deemed to have been terminated merely because the deserting party has become incapable of forming or having an intention to continue the desertion, if the Court considers the desertion would probably have continued had they not become incapable.
So where a spouse deserted and then became mentally incapacitated, the deserted party may proceed under section 17(b) rather than being forced into section 17(l) with its confinement requirement.
The respondent’s participation
By definition the respondent is of unsound mind. The proceedings must still be conducted fairly:
- The petition must be served — section 94 deals with service of process, and the Matrimonial Causes Rules with the manner of it;
- The court will ordinarily require the respondent to be represented, by a guardian ad litem or next friend;
- Sections 65 to 71 allow intervention — including by the Principal Legal Adviser on the Court’s request under section 65, which is a protection where a respondent cannot advance their own case.
A respondent in this position is likely to be wholly dependent. The Part VII powers are important:
- Section 73 — maintenance;
- Section 75 — settlement of property;
- Section 76 — the general powers of the Court.
Note that section 25(5) makes provision a precondition of a decree on the separation ground. There is no equivalent express requirement for section 17(l), but the court’s Part VII powers remain available and a petitioner should expect the question to be raised.
Unsoundness of mind also appears in section 22 of the Marriage Act as a ground on which a marriage is voidable — but that concerns the position at the time of the marriage, and the remedy is a decree of nullity, not dissolution.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 17, 20, 24, 25, 65–71, 73–76, 94
- Marriage Act (Chapter 280) — s 22
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.