Section 23 of the Marriage Act (Chapter 280) closes Part IV by limiting the reach of the void and voidable provisions.
Section 23
(1) Except as expressly provided in this Part, this Part does not affect the validity or invalidity of a marriage that took place before the commencement date.
(2) Subject to section 24, no provision of this Act affects the validity or invalidity of a marriage where it would not be in accordance with the common law rules of private international law to apply that provision in relation to the marriage.
Subsection (1) — marriages before 21 January 1965
Section 2 provides that the Act does not affect the validity or invalidity of a pre-commencement marriage. Section 23(1) makes the same point about Part IV in particular — with the qualification “except as expressly provided in this Part”.
The express provision it refers to is section 18(2): a marriage solemnized before the commencement date is not voidable on the ground of consanguinity or affinity unless the parties were, at the time of the marriage, within one of the degrees set out in Schedule 2. Section 18(3) then confirms that this does not make voidable a marriage that would not otherwise be so.
So the effect of the two provisions read together is protective: an old marriage cannot be attacked on relationship grounds unless the parties were within the modern Schedule 2 degrees.
Note also section 54(3), which applies the legitimacy protection to children of void marriages whenever born, whether the ceremony was before or after the commencement date, and whether inside or outside the country.
Subsection (2) — the private international law saving
No provision of the Act affects validity or invalidity where it would not be in accordance with the common law rules of private international law to apply that provision.
| Question | Governing law |
|---|---|
| Formal validity — the ceremony | The law of the place of celebration |
| Essential validity or capacity | The law of each party’s domicile at the time of the marriage |
Subsection (2) is expressed to be subject to section 24, and other provisions override it directly:
- Section 24(1) applies the prohibited degrees to marriages in the country, wherever the parties are domiciled or intend to make their home;
- Section 6(1) applies Part III notwithstanding any common law rule of private international law to marriages under Division V.2;
- Section 6(2)(b) applies section 7 to the marriage of a person domiciled in the country, wherever it takes place.
Section 24(2) then preserves the common law rules for a marriage taking place outside the country, other than one under Part V of the Marriage Act 1961 of Australia.
The overall scheme: for a marriage here, this Act governs, whatever the parties’ domicile. For a marriage abroad, the conflict rules govern — except that a PNG-domiciled person must still satisfy the marriageable age rules. See foreign marriages.
Section 43 — procedural defects do not invalidate
Section 43 is headed “Invalidity of certain marriages” and governs when a failure to comply with the solemnisation requirements affects the validity of a marriage.
Part V imposes a series of formal requirements — notices and declarations under section 37, two witnesses under section 39, the prescribed words under section 40, the explanation under section 41, and certificates under section 45.
If every departure invalidated the marriage, couples would be exposed to the consequences of a celebrant’s error — discovered, typically, many years later when it matters most.
Section 43 addresses that by identifying which defects have that effect and which do not. The corresponding sanctions fall on the celebrant instead, under sections 62 to 69.
Note the same technique in section 14(2): hearing an application in contravention of the six-month bar does not affect the validity of an order made or the effectiveness of a consent given.
In practice
- Check the date first. For a marriage before 21 January 1965, sections 2 and 23(1) mean the Act is largely irrelevant to validity — the law at the time governs.
- Then check where it took place. A marriage in Papua New Guinea is governed by this Act; one abroad is governed by the conflict rules, subject to sections 6(2)(b) and 24.
- Do not assume a procedural slip is fatal. Section 43 determines that, and most defects do not invalidate.
- Where doubt remains, use section 71. Section 71(2) allows a second ceremony where there is a doubt whether the parties are legally married, whether a foreign marriage would be recognised here, or whether the marriage could be proved — on a statutory declaration with a lawyer’s certificate.
Sources
- Marriage Act (Chapter 280) — ss 2, 6, 14, 17, 18, 23, 24, 43, 54, 62–69, 71
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.