Sections 12 to 14 of the Adultery and Enticement Act 1988 set the ceilings. Section 16 governs what is actually ordered.
In determining the amount of compensation that may be awarded against a defendant, the Court shall take into account —
(a) the defendant’s earning capacity; and
(b) any financial hardship likely to be suffered from the making of the order; and
(c) any other matters the Court considers to be relevant, including whether payment of compensation according to custom has been made in respect of the act of adultery or the act of enticement.
What the Court weighs
| Factor | What it directs attention to |
|---|---|
| (a) Earning capacity | What the defendant can earn — not only what they presently earn |
| (b) Financial hardship | The effect of the order on the defendant and their dependants |
| (c) Custom, and any other relevant matter | Whether customary compensation has already been paid for the same act |
All three factors look at the defendant’s circumstances. None asks how serious the adultery was, how long it lasted, or how much distress it caused.
That is deliberate, and it follows from the Act’s purpose. The object is a workable resolution, as a matter of national interest — not a graduated tariff of moral fault. An order the defendant cannot pay resolves nothing and, if anything, prolongs the dispute.
Earning capacity rather than actual income prevents a defendant reducing an award by presenting a low current income. Compare section 73(1) of the Matrimonial Causes Act (Chapter 282), which likewise directs regard to means, earning capacity and conduct.
Where compensation has already been paid according to custom for the same act, the Court must take that into account.
Most disputes of this kind are settled between families before any court is involved. Section 16(c) ensures a defendant who has already paid under customary arrangements is not made to pay twice.
It sits with section 10(1), under which the Court must endeavour to have the action settled by mediation before hearing it, and with Constitution Schedule 2.1, which adopts custom as part of the underlying law.
Section 17 — cash, goods or instalments
(1) Subject to subsection (2), compensation may be ordered to be made — (a) in cash; or (b) in goods specified in the order; or (c) partly in cash and partly in goods so specified.
(2) Alcoholic liquor of any kind shall not be regarded as goods for the purposes of subsection (1).
(3) Compensation may be ordered to be made — (a) at one time; or (b) subject to such conditions as the Court thinks proper, by instalments determined by the Court.
A great many defendants have little cash income. Allowing payment in goods specified in the order — pigs, garden produce, building materials, household items — makes an order enforceable against a subsistence household, and reflects how customary compensation is actually paid.
The same recognition appears in the maintenance provisions of the Lukautim Pikinini Act 2015: sections 108 and 109 allow an order for a fortnightly sum or in kind, and section 107 allows confinement expenses in cash or in kind.
Instalments under subsection (3)(b) serve the same end, and connect to the section 16(b) concern with financial hardship.
A short provision with an obvious purpose. Compensation paid in alcohol has, in practice, been a source of further conflict rather than a resolution of the original one.
The words “of any kind” leave no room for argument about traditional or home-brewed liquor.
Sections 18 and 20
A person who fails to comply with an order for compensation made against him under section 11 is guilty of an offence.
Penalty: a term of imprisonment not exceeding six months.
An order of a Court shall be enforced under the District Courts Act (Chapter 40).
The District Courts Act (Chapter 40) is not available on PacLII at the time of writing.
Section 18 is the sole offence created by the Act, and it punishes disobedience to a court order — not adultery, and not enticement. Neither is a crime in Papua New Guinea.
The penalty is imprisonment only, with no fine — which makes sense, since the defendant has already failed to pay money.
Section 18 is why the section 16 factors matter so much. An order beyond the defendant’s capacity exposes them to imprisonment for a debt they were never able to meet. Assessing by earning capacity and financial hardship, and allowing payment in goods or by instalments, is what keeps the order realistic.
Section 19
The standard of proof to be applied in proceedings under this Act shall be that applied in civil proceedings, namely, proof on the balance of probabilities.
Section 19 applies to proceedings under this Act generally — to proving the act of adultery or enticement under section 11(b), and equally to establishing a section 9 defence, which section 9(2) requires to be established on evidence.
Compare section 80 of the Matrimonial Causes Act (Chapter 282), under which a matter of fact is taken to be proved if it is established to the reasonable satisfaction of the Court — the same civil standard, differently expressed.
Sources
- Adultery and Enticement Act 1988 — ss 9–20
- Matrimonial Causes Act (Chapter 282) — ss 73, 80
- Lukautim Pikinini Act 2015 — ss 107–109
- Constitution — Sch 2.1
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.