Section 3(2) of the Marriage Act (Chapter 280) is short and unqualified in its reach.
Section 3(2)
Subject to this Act, a customary marriage is valid and effectual for all purposes.
Some legal systems recognise customary or religious marriage for limited purposes only. Papua New Guinea does not. The words “for all purposes” mean that wherever a law attaches a consequence to being married, a customary marriage attracts it.
The only qualification is “subject to this Act”, which brings in section 5 — the power of a Local Court Magistrate to forbid or annul a customary marriage where a woman objects.
Where the recognition operates
| Area | Effect |
|---|---|
| Matrimonial causes | The one exception. Section 4 of the Matrimonial Causes Act provides that that Act does not apply to or in relation to a customary marriage. Dissolution is by custom instead |
| Bigamy | A subsisting customary marriage makes a later statutory marriage void under s 17 and may found a charge of bigamy |
| Adultery and enticement | The Adultery and Enticement Act 1988 applies to spouses of a customary marriage — see who may sue |
| Children | Children of a customary marriage are the legitimate children of both parents; parental responsibility and the duty to maintain under the Lukautim Pikinini Act 2015 apply |
| Inheritance | A customary spouse is a spouse for succession purposes, whether the estate devolves by custom or under the Wills, Probate and Administration Act |
| Property between spouses | The Married Women’s Property Act applies — see that Act |
| Employment and benefits | Where a law confers an entitlement on a “spouse” or “dependant”, a customary spouse qualifies |
| Adoption | Section 7 of the Adoption of Children Act refers to a husband and wife jointly — a customary marriage satisfies it |
The practical issue is proof, not status
The Act requires no registration of customary marriages, and issues no certificate. So while the status is complete, proving it can be difficult — particularly after a long time, after the death of one spouse, or where a family disputes it.
What is typically relied on:
- Evidence of the bride price transaction — who paid, who received, when, before whom;
- Evidence of the ceremony or feast and who attended;
- Evidence from both families and from community or church leaders;
- Evidence of cohabitation and repute — living together as husband and wife and being treated as married;
- Documents in which the parties described themselves as married — employment records, hospital records, school forms.
A second ceremony under section 71(8). Parties to a customary marriage may go through a Part V ceremony with each other, provided neither is party to any other subsisting customary marriage. That produces a marriage certificate.
A declaration. A court may be asked to declare the existence and validity of a customary marriage, which is useful where an estate or a benefit turns on it.
Two qualifications on “all purposes”
- Section 5. The words “subject to this Act” preserve the Local Court’s power to forbid and annul under section 5.
- The Matrimonial Causes Act excludes customary marriage entirely. Section 4 of that Act provides that it does not apply to or in relation to a customary marriage. So dissolution is by custom, not by decree.
- Other statutes may exclude custom expressly. Where Parliament legislates specifically against a customary practice, the specific provision prevails. The clearest examples are section 86 of the Lukautim Pikinini Act 2015 on child marriage and section 80 on harmful customary practices.
Section 2 of the Marriage Act separately provides that the Act does not affect the validity or invalidity of a marriage that took place before the commencement date — see marriages before the Act.
Sources
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.