Section 3(1) of the Marriage Act (Chapter 280) begins: “a native, other than a native who is a party to a subsisting marriage under Part V …”. The word is not defined.
The Act does not define it
Section 1(1) defines Ambassador, authorized celebrant, the commencement date, consul, consular office, consular officer, diplomatic office, diplomatic officer, guardian, Magistrate, minister of religion, minor, overseas country, prescribed authority, the Queen’s dominions, recognized denomination, the Registrar-General and the regulations.
“Native” is not among them, and it appears nowhere else in the Act.
Where the word comes from
Section 1(1) defines “the commencement date” as 21 January 1965, being the date of commencement of the pre-Independence Marriage Act 1963.
The 1963 Act was made for the Territory of Papua and New Guinea, and used the terminology of that period. “Native” was a term of art in colonial legislation, distinguishing the indigenous population from others.
On Independence in 1975 that body of legislation was continued in force by the Constitution as part of the law of the new State, and the word carried over unamended into the consolidated Chapter 280.
The same happened elsewhere. Section 22 of the Adultery and Enticement Act 1988, for instance, repeals certain provisions of the Native Regulations (Chapter 22).
How the word falls to be read today
1. The Constitution governs. Section 11 makes the Constitution the supreme law, and section 55 guarantees equality of citizens. Section 10 provides for the construction of written laws. A pre-Independence expression must be read consistently with those provisions.
2. The purpose of section 3 is to recognise custom. The section speaks of “the custom prevailing in the tribe or group to which the parties to the marriage or either of them belong or belongs”. That points to a person who belongs to a Papua New Guinean tribe or group with a marriage custom — which is the substance of what the word is doing.
3. Schedule 1.2 of the Constitution and the Interpretation Act govern the construction of terms in a written law, and Schedule 2 makes custom part of the underlying law.
On that approach, section 3 operates for a person who is a member of a tribe or group in Papua New Guinea whose custom provides for marriage — in practice, a citizen or indigenous inhabitant. The Act has not been amended to say so, and no reported decision settles the precise boundary.
When the question actually arises
| Situation | Position |
|---|---|
| Two Papua New Guineans of the same group | No difficulty — squarely within section 3 |
| Two Papua New Guineans of different groups | No difficulty — section 3(1) accepts the custom of either party’s group |
| A Papua New Guinean and a foreign national | Section 3(1) requires a native; the words “or either of them” in relation to custom suggest one party’s membership may suffice. The point is not settled |
| Two foreign nationals | Section 3 does not assist. A Part V marriage is the route, or the marriage may be one contracted abroad — see foreign marriages |
Where there is any doubt whether section 3 applies, the parties can remove it by going through a Part V ceremony. Where a customary marriage has already taken place, section 71(8) expressly allows the parties to do so with each other, provided neither has another subsisting customary marriage.
That produces a marriage certificate and puts the question beyond argument — which matters most for proof, for immigration and citizenship purposes, and for the recognition of the marriage outside Papua New Guinea.
Two other definitions worth noting
“Guardian” includes a guardian by custom, and where under relevant custom there is more than one guardian, means the principal guardian. That matters for consent to a minor’s marriage.
“Minor” means a person who has not attained the age of 21 years — not 18. See marriages of minors.
Section 1(2) also contains a deeming rule: where a marriage is solemnised in the presence of a person in whose presence a marriage may lawfully be solemnised, and he consents to it being solemnised in his presence, he is deemed to solemnize the marriage. See who may solemnise a marriage.
Sources
- Marriage Act (Chapter 280) — ss 1, 3, 71
- Constitution — ss 10, 11, 55, Schedules 1 and 2; Adultery and Enticement Act 1988 — s 22
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.