Part VIII of the Matrimonial Causes Act (Chapter 282) consists of a single section, but it governs whether a person divorced abroad is free to remarry in Papua New Guinea.
A country, or part of a country, other than Papua New Guinea and Australia and the Territories of Australia.
Australia is excluded from section 79 because, at the time this Act took its present form, Australian decrees were treated as domestic rather than foreign — a legacy of the pre-Independence relationship.
Recognition of an Australian decree therefore rests on section 79(5), which preserves the common law rules of private international law, rather than on subsections (2) to (4). See also section 85(2), which makes an Australian certificate of conviction evidence in proceedings here.
Section 79(2) — the primary rule
A dissolution or annulment effected in accordance with the law of a foreign country shall be recognised as valid where, at the date of the institution of the proceedings, the party at whose instance it was effected (or, if effected at the instance of both, either of them) was —
(a) for a dissolution, or an annulment of a voidable marriage — domiciled in the foreign country;
(b) for an annulment of a void marriage — domiciled or resident in the foreign country.
A void marriage was never a marriage at all. A decree simply declares what was always the case, so a lesser connection with the foreign country suffices — residence as well as domicile.
A voidable marriage is valid until annulled, so annulling it changes status, and the stricter domicile test applies — the same test as for dissolution. On the distinction, see void and voidable marriages.
Section 79(3) — two deeming rules for wives
Where a dissolution was effected at the instance of a deserted wife who was domiciled in the foreign country immediately before her marriage or immediately before the desertion, she is deemed to have been domiciled there at the date the proceedings were instituted.
A wife who, at the date proceedings were instituted, was resident in the foreign country and had been so resident for three years immediately preceding that date, is deemed to have been domiciled there.
At common law a wife took her husband’s domicile. A wife deserted and left in another country could therefore find that her domicile followed a husband she had not seen for years — and that no court she could reach had jurisdiction to divorce her.
Subsection (3) breaks that trap for the purposes of recognition. The same problem is addressed for proceedings brought here by section 15, which deems a deserted wife, and a wife resident here for three years, to be domiciled in Papua New Guinea.
Note that the deeming operates only in the wife’s favour. It does not deprive her of any domicile she would otherwise have.
Sections 79(4) and (5)
A dissolution or annulment not within subsection (2) is recognised if its validity would have been recognised under the law of the foreign country in which — for a dissolution, the parties were domiciled at the date of the dissolution; for an annulment, either party was domiciled at the date of the annulment.
A dissolution or annulment that would be recognised as valid under the common law rules of private international law, but to which the preceding provisions do not apply, shall be recognised as valid — and the operation of this subsection shall not be limited by any implication from those provisions.
| Route | Basis |
|---|---|
| s 79(2) | Domicile (or residence, for a void marriage) of the party who sought the decree |
| s 79(3) | Deemed domicile — deserted wife, or three years’ residence |
| s 79(4) | The decree is recognised by the law of the parties’ domicile |
| s 79(5) | The common law rules of private international law |
The closing words of subsection (5) are emphatic: the statutory rules are added to the common law, not substituted for it. A decree that fails every statutory test may still be recognised at common law.
Sections 79(6) to (8)
A court here may treat as proved any facts found by a court of the foreign country or otherwise established for the purpose of the law of the foreign country.
A dissolution or annulment shall not be recognised as valid by virtue of subsection (2) or (4) where, under the common law rules of private international law, recognition would be refused on the ground that a party had been denied natural justice.
Natural justice here means notice of the proceedings and an opportunity to be heard. A decree obtained without telling the other spouse, or where the spouse was given no real chance to answer, will not be recognised under subsections (2) or (4).
This matters practically. A spouse who leaves Papua New Guinea and divorces abroad without notifying the spouse left behind cannot rely on that decree here — and, if they remarry, may commit bigamy under section 55 of the Marriage Act (Chapter 280).
Section 79(8) applies the section to dissolutions and annulments made whether by decree, legislation or otherwise, before or after the commencement date — so a legislative or administrative divorce, and a decree predating the Act, are both within it. On the recognition of foreign marriages, as distinct from divorces, see section 3 of the Marriage Act; and on foreign adoptions, Part V of the Adoption of Children Act.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 15, 16, 79, 85
- Marriage Act (Chapter 280) — ss 3, 55
- Adoption of Children Act (Chapter 275) — Part V
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.