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What Common Law Rights Did the Adultery Act Abolish?

All of them. Section 21 provides that actions or claims for compensation on the ground of adultery or enticement shall not be brought except in accordance with the Act — and section 22 repealed the old provisions of the Native Regulation and the Native Administration Regulation.

The family law series, no. 200 · Adultery and enticement · 5 min read

The final Part of the Adultery and Enticement Act 1988 makes the Act the exclusive route.

Section 21

(1) Subject to subsection (2), actions or claims for compensation, or orders for compensation, on the ground of

(a) adultery; or (b) enticement,

shall not be brought or made, as the case may be, except in accordance with this Act.

(2) Subsection (1) does not affect any action or claim for compensation that has commenced, or the enforcement of an order for compensation that has been made, before the commencement of this Act.

Why exclusivity matters

Without section 21 the caps would be worthless

The Act limits compensation to K1,000 for adultery and K500 for enticement. If a complainant could ignore the Act and claim at large under some other head, the limits would achieve nothing.

Section 21(1) closes that door. No action or claim for compensation on the ground of adultery or enticement may be brought except in accordance with this Act — which means: in the District Court, within six months, after mediation, subject to the section 9 defences, and capped.

Note how wide the language is: it covers actions, claims and orders for compensation. A claim advanced outside any court — a demand backed by the threat of enforcement — is equally outside the Act.

The common law actions displaced

At common law an aggrieved husband could sue for criminal conversation (damages against a wife’s lover) and for enticement or harbouring of a spouse — actions resting on the idea that a husband had a proprietary interest in his wife’s consortium.

Section 21 replaces them with a single statutory action available to either spouse. Sections 4 and 5 speak of a person whose spouse committed the act or was enticed — husband or wife alike — consistent with Constitution section 55 on the equality of citizens.

Section 21(2) — what survives

The transitional saving
MatterPosition
An action or claim commenced before the ActUnaffected — continues under the old law
An order for compensation made before the ActEnforceable as before
Anything begun after commencementMust be in accordance with this Act

Section 21(2) is an ordinary transitional saving: rights already being pursued, and orders already made, are not swept away. It has little practical significance now, decades after commencement.

Section 22 — the regulations repealed

Section 22

Section 2 of the Native Regulation (Chapter 316) and Section 2 of the Native Administration Regulation (Chapter 315) are repealed.

Replacing colonial-era provisions

Those two provisions had governed adultery disputes under the pre-Independence administration, applying only to some of the population — a distinction inconsistent with Constitution section 55, which confers a right to equality of citizens.

The 1988 Act replaces them with a scheme that applies to everyone, and that defines “spouse” in section 1 to include a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of a marriage — so it reaches statutory marriages, customary marriages, and relationships with the status of a marriage alike.

What section 21 does not touch

Three things remain available

Divorce. Adultery remains a ground for dissolution under section 17(a) of the Matrimonial Causes Act (Chapter 282). Section 21 bars claims for compensation, not petitions for a decree.

Damages in a matrimonial cause. Section 32 of that Act allows the National Court to award damages against a co-respondent, who under section 33(1) must be made a party. Those are damages in a matrimonial cause, in a different court and under a different Act.

Customary compensation freely agreed. Section 21 prohibits actions, claims and orders. A settlement reached voluntarily — including through the section 10 mediation the Court must attempt — is what the Act encourages, and section 16(c) requires a court to take into account whether payment of compensation according to custom has been made.

The Act in one sentence

It takes a dispute that was previously handled by whatever route the parties could find, and channels it into a single, cheap, local, capped and mediation-first procedure in the District Court — which is what Parliament meant by regulating these disputes as a matter of national interest.

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.