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Can You Have a Customary and a Statutory Marriage?

To each other, yes. Section 71(8) allows parties to a customary marriage to go through a Part V ceremony with each other, provided neither is party to any other subsisting customary marriage. To different people, no — that is bigamy.

The family law series, no. 6 · Marriage: the two valid forms · 5 min read

The question arises constantly. The Marriage Act (Chapter 280) answers it in section 71(8), read with section 3(1).

To each other — yes

Section 71(8)

This section does not prevent the parties to a customary marriage from going through a form or ceremony of marriage under Part V, if neither of them is a party to any other subsisting customary marriage.

Why the provision is needed

Section 71(1) otherwise prohibits people already legally married to each other from going through a form or ceremony of marriage with each other, and prohibits a celebrant from purporting to solemnise such a marriage.

Because a customary marriage is a legal marriage — section 3(2) says so — without subsection (8) a customary couple could not have a church or registry wedding under Part V. Section 71(8) removes that obstacle.

The condition: no other subsisting customary marriage

Neither party may be party to any other subsisting customary marriage. So where a man is in a polygamous customary marriage, he cannot go through a Part V ceremony with any of his wives while the other customary marriages subsist.

The word “other” is doing the work: the customary marriage to the person he is marrying under Part V is not a bar; a customary marriage to anyone else is.

The practical effect is that section 71(8) accommodates monogamous customary marriage and excludes polygamous arrangements from the statutory system.

To different people — no

The bars on marrying a second person
SituationProvisionResult
Subsisting Part V marriage; wants a customary marriage to someone elses 3(1) — excludes “a native who is a party to a subsisting marriage under Part V”No capacity to enter the customary marriage
Subsisting customary marriage; wants a Part V marriage to someone elses 17 — void where either party is lawfully married to some other personThe second marriage is void
Either of the aboves 57Bigamy — a criminal offence
Section 3(1) works by removing capacity

Note the different techniques. Section 3(1) does not declare a later customary marriage void; it says that a person party to a subsisting Part V marriage is not among those who may enter a customary marriage. The person lacks the capacity.

Section 17 works the other way, declaring a Part V marriage void where either party is at the time lawfully married to some other person. A subsisting customary marriage is a lawful marriage for that purpose.

Either way the result is the same: one marriage at a time, once the statutory system is engaged.

A religious ceremony is different again

Two separate permissions

Section 4religious rites or ceremonies may be performed in connexion with a customary marriage. That is not a Part V marriage at all.

Section 71(5) — two people already legally married to each other may go through a religious ceremony of marriage, provided they produce a certificate of their existing marriage and a signed, witnessed written statement that they previously went through a ceremony, that they are the parties named in the certificate, and that they have no reason to believe they are not legally married.

The consequences of using section 71(5)

Where a ceremony is performed under section 71(5), section 71(6) provides that sections 37, 39 and 45 do not apply, and the person performing it must not issue a certificate of marriage under the Act, or any other document unless it describes the parties as already legally married to each other.

Section 71(7) then protects the celebrant: a person who is not an authorised celebrant does not commit an offence under section 64 merely by performing such a ceremony where the section 71(5) requirements were met.

So a couple already married may have a blessing without creating a second legal marriage — but no certificate is issued, and nothing about their legal status changes.

Practical guidance

  1. Decide what you want the ceremony to achieve. A Part V marriage under section 71(8) produces a certificate and puts the marriage in the statutory system. A section 71(5) religious ceremony produces neither.
  2. Tell the celebrant which it is. A celebrant who solemnises a Part V marriage between people he knows or has reason to believe are already legally married, otherwise than in accordance with section 71, is acting in breach of section 71(1)(b).
  3. Check for other customary marriages. Section 71(8) is unavailable if either party has another subsisting customary marriage.
  4. Never marry a different person while a marriage of either kind subsists. That is bigamy, and the second marriage is void.

Sources

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.