Section 56 of the Matrimonial Causes Act (Chapter 282) requires a matrimonial cause to be instituted by petition. This article sets out what goes into it.
Check that the Act applies. Section 4 provides that the Act does not apply to or in relation to a customary marriage. If you were married by custom only, there is no petition to file — see how a customary marriage ends.
Check jurisdiction. Section 14 requires domicile in Papua New Guinea at the date of the petition, with the deeming rules in section 15 for a deserted wife and for a wife resident here three years.
Check the three-year rule. Section 31 bars a petition for dissolution within three years of the marriage without leave.
Obtain the current Rules. The Matrimonial Causes Rules 2022 prescribe the forms. A petition not in the prescribed form will be rejected at the registry.
What must be pleaded
1. The parties — full names, addresses and occupations of petitioner and respondent.
2. Jurisdiction — the facts establishing domicile, or the facts bringing the petitioner within section 15.
3. The marriage — date, place, and the manner in which it was solemnised, supported by the marriage certificate. Section 84 allows the Court to receive a certified copy as evidence.
4. Cohabitation and separation — where the parties lived together, and when and how they separated.
5. The children — every child of the marriage as defined in section 2, with dates of birth, and where and with whom each lives. This is the material the Court needs for section 59.
6. The ground — which of the fourteen section 17 grounds is relied on, and the facts that establish it, pleaded with enough particularity for the respondent to know the case.
7. Absence of bars — that there has been no condonation, connivance or collusion.
8. The relief claimed — the decree, and every ancillary order sought.
Section 56(3) — ancillary claims go in the same petition
Proceedings of a kind referred to in paragraph (c) of the definition “matrimonial cause” that relate to a petition for a decree —
(a) may be instituted by the same petition; and
(b) except as permitted by the Rules, or by leave of the Court, shall not be instituted in any other manner.
(4) As far as practicable the Court shall hear and determine at the same time all proceedings instituted by the one petition.
Paragraph (c) covers maintenance, custody and settlement of property. Subsection (3)(b) is a prohibition: they are not to be brought separately except as the Rules allow or by leave.
And section 78(4) bars a Part VII order where the petition is dismissed unless the ancillary proceedings were heard at the same time as, or immediately after, the petition.
A petitioner who leaves maintenance for later, loses the divorce, and then applies, will be met by section 78(4). Plead it in the petition.
What is filed with the petition
| Document | Why |
|---|---|
| Marriage certificate (or certified copy) | Proof of the marriage — s 84 |
| Birth certificates of the children | Identifies children of the marriage for s 59 |
| Discretion statement, sealed | Discloses the petitioner’s own adultery under s 29 |
| Leave order, where applicable | Leave to petition within three years — s 31 |
| Statement of arrangements for the children | Material for the s 59 declaration |
| Affidavit(s) as the Rules require | Verification and supporting evidence |
| Filing fee | Prescribed by the registry |
Where the petitioner has committed adultery, section 29(a) makes it a discretionary bar: the Court may refuse the decree unless, in the circumstances, it should be granted.
The way to invoke that discretion is to disclose the adultery in a discretion statement, filed in a sealed envelope so it is available to the Court but not aired publicly.
Concealment is dangerous. Under section 69 a decree nisi may be rescinded where material facts have not been brought before the Court — and under section 63 where there has been a miscarriage of justice by suppression of evidence.
Naming a co-respondent
Where adultery is alleged, the person with whom it is said to have been committed must be made a party, unless the Court otherwise orders.
That person may face a claim for damages under section 32. It is a serious step, and section 98(2) allows a person against whom frivolous or vexatious allegations are made to be dismissed from the proceedings — with costs.
Once filed, the petition must be served. The respondent may file an answer, and under section 56(2) may seek in the answer any decree or declaration that the respondent could have sought in a petition — so an answer may itself be a cross-petition. On what happens next, see the hearing.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 2, 4, 14, 15, 17, 27–33, 56, 57, 59, 63, 69, 78, 84, 98
- Marriage Act (Chapter 280)
- Matrimonial Causes Rules 2022 (National Court) — obtain from the registry
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.