A petition has no effect on a respondent who does not know about it. Section 94 of the Matrimonial Causes Act (Chapter 282) governs service.
(1) Service of process of a court under this Act may be effected in or outside Papua New Guinea in accordance with the Rules.
(2) The Court may dispense with service where the Court thinks it necessary or expedient.
Why service is fundamental
Natural justice. A respondent must know of the proceedings and have an opportunity to answer. Constitution section 59 makes natural justice a rule of the underlying law, and its minimum requirement is to act fairly and be seen to act fairly.
Recognition abroad. A decree obtained without notice may not be recognised elsewhere — and, by the same logic, section 79(7) refuses recognition here to a foreign decree where a party had been denied natural justice.
The answer. Under section 56(2) a respondent may seek in the answer any decree or declaration that the respondent could have sought in a petition. A respondent who is never served loses that right.
The ordinary methods
| Method | When used |
|---|---|
| Personal service | The normal rule — the document is handed to the respondent, who acknowledges receipt |
| Service on a lawyer | Where a lawyer has been instructed and accepts service |
| Service outside PNG | Expressly authorised by s 94(1); the Rules prescribe the manner |
| Substituted service | Where personal service cannot be effected — by post, advertisement, or service on a relative or employer, as the Court directs |
| Dispensation | Under s 94(2), where service is impossible or pointless |
The Rules provide for a document served by post to bear on the envelope a direction such as “If not delivered within seven days, return to…”, so that non-delivery is known rather than assumed.
They also provide for an acknowledgment of service, and for proof of service by affidavit. The discretion statement, by contrast, is filed sealed and is not served in the ordinary way.
Serving a respondent who has left the country
Migration for work — to Australia, to a mine site, to another province far from the petitioner — is common. If the Act required service within Papua New Guinea, a spouse could defeat a petition by leaving.
Note the interaction with jurisdiction: section 14 founds jurisdiction on domicile, not on the respondent’s presence. A person may be domiciled here while living abroad. Section 94(1) makes that workable.
And section 15 allows a deserted wife, and a wife resident here for three years, to petition here even though her husband’s domicile is elsewhere — which necessarily contemplates serving him abroad.
Section 94(2) — dispensing with service
Dispensation means the case proceeds without the respondent ever being notified. It should be sought only after substituted service has been considered and shown to be futile.
Typical cases: the respondent disappeared years ago and no relative knows where they are; the respondent is deliberately evading service; there is no address anywhere in the world at which a document could be directed.
The test is what the Court thinks necessary or expedient — a discretion, and one the Court will expect to be supported by evidence of the searches actually made.
Where service of an order is dispensed with under section 94, the Court may appoint a person to execute a deed or instrument in the absent party’s name.
So a property order is not defeated by the absence of the party who must sign.
What happens after service
Defended. The respondent files an answer within the time the Rules allow. The petitioner may file a reply, and there may be a rejoinder. The suit is set down as a defended suit.
Undefended. No answer is filed. The suit proceeds as an undefended suit — but the petitioner must still prove the case. Section 57 requires the Court to be satisfied of the existence of a ground, and section 80 requires reasonable satisfaction. A divorce is not granted by default.
Third parties may also be brought in: a named adulterer must be made a party under section 33(1), and others may seek leave to intervene under section 68.
Service also matters at the other end of the case. Schedule 2.6(6) provides that an attachment of earnings order does not come into force until seven days after a copy is served on the employer, and Schedule 2.11(2) applies the same seven days to a variation.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 14, 15, 33, 56, 57, 68, 77, 79, 80, 94 and Schedule 2
- Constitution — s 59
- 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.