Papua New Guinea recognises two forms of marriage, and the Marriage Act (Chapter 280) provides for both.
Part II — customary marriage
(1) Notwithstanding the provisions of this Act or of any other law, a native, other than a native who is a party to a subsisting marriage under Part V, may enter, and shall be deemed always to have been capable of entering, into a customary marriage in accordance with the custom prevailing in the tribe or group to which the parties or either of them belong.
(2) Subject to this Act, a customary marriage is valid and effectual for all purposes.
It gives custom priority. The opening words — “notwithstanding the provisions of this Act or of any other law” — mean the requirements in the rest of the Act about notices, celebrants, witnesses and certificates simply do not apply to a customary marriage.
It validates retrospectively. The words “shall be deemed always to have been capable” confirm the capacity as having always existed.
It makes the marriage fully effective. Section 3(2) is not a limited recognition. A customary marriage is valid and effectual for all purposes — for inheritance, for maintenance, for the Matrimonial Causes Act, and for every other law.
What custom requires is a question of fact in each case, determined under the Customs (Recognition) Act (Chapter 19) and Schedule 2 of the Constitution, which make custom part of the underlying law. There is no single national rule.
Notwithstanding the provisions of this Act or of any other law, religious rites or ceremonies may be performed in connexion with a customary marriage.
A church blessing does not convert a customary marriage into a statutory one, and does not invalidate it. The two can coexist.
Part V — statutory marriage
A statutory marriage is one solemnised under Part V by an authorised celebrant — a registered minister of religion of a recognised denomination, or a person authorised under section 34.
It carries a set of formal requirements that a customary marriage does not:
- Notice and declarations under section 37;
- Two witnesses over 16 under section 39;
- A prescribed form of ceremony under section 40;
- An explanation of the marriage relationship under section 41;
- Marriage certificates under section 45.
How the two systems interact
| Customary — Part II | Statutory — Part V | |
|---|---|---|
| Formalities | Whatever the applicable custom requires | Notice, celebrant, witnesses, prescribed ceremony, certificate |
| Who may marry | A native, not already party to a subsisting Part V marriage | Any person of marriageable age not within the prohibited degrees |
| Polygamy | Permitted where custom permits it | Not permitted — a second marriage is bigamy under s 57 and void under s 17 |
| Record | No register required by the Act | Certificates and registration — s 45 |
| Dissolution | According to custom, or under the Matrimonial Causes Act | Under the Matrimonial Causes Act |
A person who is party to a subsisting marriage under Part V cannot enter a customary marriage. That is express.
The converse is not stated in section 3. But section 17 makes a Part V marriage void where either party is lawfully married to some other person at the time — and a customary marriage is a lawful marriage. So a person in a subsisting customary marriage cannot validly contract a statutory marriage with someone else either.
Where both parties to a subsisting customary marriage go through a Part V ceremony with each other, that is a second ceremony, which section 71 addresses specifically.
Section 5 — the protection of women
A Magistrate of a Local Court may, by order, forbid the marriage of a woman in accordance with custom, or purportedly in accordance with custom, where the woman objects and —
(a) excessive pressure has been brought to bear to persuade her to enter into the marriage; or
(b) in the circumstances it would be a hardship to compel her to conform to custom.
Marrying in contravention of such an order is an offence carrying a fine up to K400 or six months’ imprisonment, or both. And under section 5(3) a Local Court may annul the marriage on application made at the first reasonably practicable opportunity, adjusting property rights as though the marriage were dissolved in accordance with custom. See the article on section 5.
Section 2 provides that the Act does not affect the validity or invalidity of a marriage that took place before the commencement date.
Sources
- Marriage Act (Chapter 280) — ss 2–5, 17, 34–45, 57, 71
- Matrimonial Causes Act (Chapter 282); Constitution — Schedule 2
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.