Part IX of the Matrimonial Causes Act (Chapter 282) modifies the ordinary rules of evidence in six sections.
Section 80 — reasonable satisfaction
(1) A matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court.
(2) Where a provision requires the Court to be satisfied of a ground, fact or other matter, it is sufficient if the Court is reasonably satisfied.
Matrimonial causes were historically treated as requiring something close to the criminal standard, because the grounds were “matrimonial offences” and the consequences serious.
Section 80 settles the question: reasonable satisfaction. That is the civil standard, though the seriousness of an allegation — adultery, cruelty, an attempt to kill — bears on the strength of evidence needed to reach it.
Subsection (2) applies the same standard wherever the Act uses the language of satisfaction — section 21, section 23, section 24, section 37, section 38, section 50, section 59.
Section 81 — husbands and wives as witnesses
(1) All parties, and the wives and husbands of all parties, are competent and compellable witnesses.
(2) Subject to subsection (3), either spouse is competent, but not compellable, to disclose communications made between them during the marriage.
(3) Where husband and wife are both parties, each is competent and compellable to disclose such communications.
(4) Subsections (2) and (3) apply to communications made before as well as after the commencement date.
| Situation | Competent? | Compellable? |
|---|---|---|
| Giving evidence generally | Yes | Yes |
| Disclosing marital communications, spouse not a party | Yes | No |
| Disclosing marital communications, both parties | Yes | Yes |
Where both spouses are before the court, the marital communications privilege gives way. The court is deciding the fate of their marriage, and the conversations between them are usually central.
Where a spouse is a witness but not a party — for instance the spouse of a person joined as an alleged adulterer under section 33 — the privilege survives.
Note that statements made in reconciliation are separately inadmissible under section 12, and marriage guidance counsellors are neither competent nor compellable under section 8(2).
Section 82 — evidence of non-access
Either party is competent to give evidence proving or tending to prove that the parties did not have sexual relations with each other at any particular time — but is not compellable to give such evidence if it would show or tend to show that a child born to the wife during the marriage was illegitimate.
Evidence of non-access is how adultery is often proved: if the husband can show the parties had no sexual relations during the period of conception, the child cannot be his.
Section 82 permits that evidence but will not compel it where the effect would be to bastardise a child born during the marriage. A spouse who does not wish to do that to a child cannot be forced to.
The protection is limited: the party remains competent, so may give the evidence voluntarily, and other evidence of non-access is unaffected.
See also section 54 of the Marriage Act and the legitimation provisions, and affiliation proceedings under the Lukautim Pikinini Act 2015.
Section 83 — questions tending to show adultery
(1) A witness who (a) being a party, voluntarily gives evidence on his own behalf; or (b) whether a party or not, is called by a party — may be asked, and is bound to answer, a question the answer to which may show or tend to show adultery by or with the witness, where proof of the adultery would be material to the decision of the case.
(2) Except as provided by subsection (1), a witness is not liable to be asked, or bound to answer, such a question.
A person who puts themselves forward as a witness — voluntarily, or by being called — must answer questions about adultery where it is material. A person who does not is protected.
This matters for a party named as an adulterer, who is made a party under section 33(1) and may face a damages claim under section 32. It also matters for a petitioner whose own adultery is a discretionary bar under section 29(a).
Sections 84 and 85
The Court may receive as evidence of the facts stated in it a document purporting to be the original or a certified copy of the certificate, entry or record of a birth, death or marriage alleged to have taken place in Papua New Guinea or elsewhere.
(1)(a) Evidence that a party was, after the marriage, convicted (in PNG or elsewhere) of rape, or of any other offence of which sexual intercourse with a person of the opposite sex is an element, is evidence that he committed adultery with the person on whom the offence was committed.
(1)(b) Evidence of a conviction for sodomy or bestiality is evidence that he committed the act — the ground in section 17(e).
(2) A certificate of conviction by a court of a State or Territory of Australia or any part of the Queen’s dominions, purporting to be signed by the registrar or other appropriate officer, is evidence of the fact and date of the conviction and, if it shows a sentence of imprisonment, of the fact that the sentence was imposed.
Section 85(2) matters for section 17(g), (h) and (i), each of which turns on convictions and sentences. Section 84 is the ordinary route to proving the marriage — though for a customary marriage no certificate exists, and section 4 excludes those from this Act in any event.
On what may be published about the evidence, see section 95.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 4, 8, 12, 17, 21–24, 29, 32, 33, 37, 38, 50, 59, 80–85, 92, 95
- Marriage Act (Chapter 280) — ss 52–54
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.