Section 10 of the Adultery and Enticement Act 1988 puts settlement before adjudication.
Before hearing an action under this Act, a Court shall endeavour to have the action settled by mediation.
Section 10(2) has been impliedly repealed.
“Shall endeavour”
Section 10(1) does not require the parties to attempt mediation before filing. It requires the Court, once an action is on foot, to endeavour to have it settled by mediation before hearing it.
The obligation is mandatory (“shall”), though what it requires is an endeavour — a genuine attempt, not a guaranteed settlement.
That fits the District Court’s position under section 1, which defines “Court” as a District Court: close to the parties, close to the community, and well placed to attempt a settlement.
Section 11 — failed mediation is a condition of any order
Where in an action under this Act —
(a) mediation in accordance with section 10 has failed; and
(b) the Court is satisfied, on the hearing, that the act of adultery or enticement complained of was committed; and
(c) a defence under section 9 has not been established,
the Court may make an order for compensation to the complainant against all or any of the defendants.
| Condition | Provision |
|---|---|
| Mediation has failed | s 11(a), engaging s 10(1) |
| The act was committed, proved on the balance of probabilities | s 11(b); s 19 |
| No defence established | s 11(c), engaging s 9 |
The Court may make an order for compensation only where mediation has failed. Mediation is therefore not a procedural preliminary that can be waived — it is one of three conditions on the power to award.
An order made without any attempt at mediation would be made without the condition in section 11(a) being satisfied.
The policy behind section 10
The Act is stated to regulate these disputes as a matter of national interest. The interest is in resolution — stopping a dispute over adultery from escalating between families and clans.
An adjudicated result rarely does that. One party is found against, feels aggrieved, and the underlying quarrel continues. A mediated settlement, in which both sides agree, is far more likely to end it.
Mediation also fits customary practice. Disputes of this kind have long been resolved by discussion and agreed compensation between families, and section 10 works with that rather than against it.
The Act recognises the customary process elsewhere too: section 16(c) requires the Court, in assessing compensation, to take into account whether payment of compensation according to custom has been made in respect of the act.
Mediation and reconciliation in PNG family law
Section 10 of the Matrimonial Causes Act (Chapter 282) — the National Court shall consider, from time to time, the possibility of a reconciliation, and may adjourn and nominate a marriage guidance organisation. Section 12 makes anything said in the attempt inadmissible.
Section 49(5)(b) of the Lukautim Pikinini Act 2015 — where a child refuses to return to a parent, the Office shall arrange for a mediation process between the child and the parent, and may institute proceedings only if it fails.
Section 10 of this Act — mediation before hearing, and a precondition to compensation.
The Matrimonial Causes Act protects the reconciliation attempt with an express rule of inadmissibility — section 12 of that Act — and with section 8(2), which makes a marriage guidance counsellor neither competent nor compellable to disclose what was said.
This Act contains no equivalent. Parties to a section 10 mediation should be aware that the Act itself does not make what is said in it inadmissible, and should raise the point with the Court where it matters.
If mediation succeeds, the action ends there. If it fails, the case proceeds to hearing on the section 9 defences and the balance of probabilities, and any order is subject to the caps in sections 12 to 15 and the assessment factors in section 16.
Sources
- Adultery and Enticement Act 1988 — ss 1, 9–16, 19
- Matrimonial Causes Act (Chapter 282) — ss 8, 10–12
- Lukautim Pikinini Act 2015 — s 49
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.