Section 56 of the Matrimonial Causes Act (Chapter 282) sets out how a matrimonial cause is begun.
Section 56(1) — by petition
A matrimonial cause of a kind referred to in paragraph (a) or (b) of the definition of “matrimonial cause” in section 1(1) shall be instituted by petition.
Those are the proceedings for a decree — dissolution, nullity, judicial separation, restitution of conjugal rights and jactitation of marriage — and declarations. They go to the National Court.
Section 56(2) — the respondent’s answer
In the answer to the petition, a respondent may seek any decree or declaration that the respondent could have sought in a petition.
A respondent need not file their own petition. Whatever they could have sought as petitioner, they may seek in the answer.
Section 1(1) defines “cross-petition” to include an answer in which the respondent seeks a decree or declaration of the kinds in paragraphs (a) or (b).
Two consequences follow:
- Section 31(3) — the three-year rule does not require leave for proceedings by way of cross-proceedings. A respondent served within three years may cross-petition on any ground;
- Section 25(7) — where both parties have petitioned, the Court shall not decree on the ground of separation if it can properly decree on the other petition on any other ground.
Sections 56(3) and (4) — maintenance, custody and property
Proceedings of a kind referred to in paragraph (c) of the definition — the ancillary proceedings — that relate to proceedings for a decree or declaration —
(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.
As far as practicable the Court shall hear and determine at the same time all proceedings instituted by the one petition.
Section 56(3)(b) is a real restriction. Claims for maintenance, custody and settlement of property that relate to the decree proceedings shall not be instituted in any other manner except as the Rules permit or by leave.
A petitioner who omits them and tries to bring them separately later will need leave. The prudent course is to plead everything sought in the one petition.
Section 56(4) then requires the Court, as far as practicable, to deal with it all together — which avoids the expense and delay of separate hearings, and allows the court to see the whole picture when exercising the Part VII powers.
Note that section 3(2) preserves the separate jurisdiction of a court of summary jurisdiction over maintenance, custody, access and separation orders — and section 3(1) provides that once a matrimonial cause has been instituted, relief of a kind available under this Act shall not be sought except under it.
Section 57 — entitlement to a decree
Except as provided by this Act, the Court shall, on being satisfied of the existence of a ground in respect of which relief is sought, make the appropriate decree.
Once a ground is established the Court shall make the decree. There is no residual discretion to refuse simply because the Court thinks the marriage should continue.
But the opening words — “except as provided by this Act” — pick up every qualification elsewhere:
- Sections 27 and 28 — the absolute bars;
- Section 29 — the discretionary bars;
- Section 25(4) to (7) — the separation conditions, including the mandatory refusal where a decree would be harsh and oppressive;
- Sections 37 and 38 — the nullity restrictions;
- Sections 21 to 24 — the conditions attached to particular grounds;
- Section 54 — the discretion to refuse a jactitation decree;
- Section 30 — nullity must be determined before dissolution where both are sought.
Section 55 — facts occurring outside the country
(1) A decree may be made, or refused, by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement date, or outside Papua New Guinea.
(2) For the purposes of this section, sections 18, 19 and 20 extend to matters that occurred before the commencement date.
So conduct abroad, and conduct before 8 July 1965, may be relied on — including for constructive desertion (s 18), refusal to resume cohabitation (s 19) and desertion continuing after mental disorder (s 20).
The sequence of a petition
- Check jurisdiction — sections 14 and 15, and remember section 4 excludes customary marriages.
- Check the three-year rule — section 31.
- File the petition, pleading the ground and all ancillary relief sought.
- Join any alleged adulterer — section 33.
- Serve it — section 94.
- Hearing — the Court considers reconciliation under section 10, and applies the evidence provisions in sections 80 to 85.
- Decree nisi — section 58.
- Children under 16 — section 59 must be satisfied.
- Decree absolute — sections 60 and 61.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 1–4, 10, 14–16, 21–33, 37, 38, 54–61, 72–79, 94
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.