A void marriage never existed in law. Section 54 of the Marriage Act (Chapter 280) prevents that from falling on the children.
Section 54(1)
Subject to this section, a child of a marriage that is void shall be deemed for all purposes to be the legitimate child of his parents as from his birth or as from the commencement date, whichever was the later, if —
(a) at the time of the intercourse that resulted in the birth of the child; or
(b) at the time when the ceremony of marriage took place,
whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid.
“Either party”. Only one of them need have believed the marriage valid. Where a man knowingly commits bigamy and the woman is deceived, her belief is enough to legitimate the children.
“On reasonable grounds”. An honest but baseless belief is not enough — there must be an objective foundation for it.
The later of the two times. Where the child was conceived before the ceremony, the belief is tested at the ceremony; where conceived after, at the time of the intercourse. So a party who learns of the invalidity and continues the relationship cannot rely on the section for children conceived afterwards.
“For all purposes”. The deeming is complete — for succession, for consent to marriage, and for every other purpose.
Sections 54(2) and (3)
Subsection (1) does not apply unless one of the parents was domiciled in, or was a bona fide resident of, Papua New Guinea at the time of the birth — or, having died before that time, was so domiciled or resident immediately before his death.
Subsection (1) applies to a child whenever born, whether the ceremony took place before or after the commencement date, and whether it took place within or outside Papua New Guinea.
Subsection (3) is generous: the only temporal limit is in subsection (1) itself, which dates the legitimacy from birth or from 21 January 1965, whichever was the later. Note also that only one parent needs the Papua New Guinea connection, and residence is an alternative to domicile.
Section 54(4) — the property saving
This section does not apply so as to affect any estate, right or interest in any property to which a person has become, or may become, entitled — whether mediately or immediately, in possession or in expectancy — by virtue of a disposition that took effect, or by devolution by law on the death of a person who died, before the birth of the child or the commencement date, whichever was the later.
So the deemed legitimacy does not reopen an estate already distributed, or a trust that has already vested. Retrospective legitimacy operates going forward, not to unwind settled titles.
The same saving appears in section 52(5) for legitimation by subsequent marriage.
Legitimacy is not the whole picture
The Lukautim Pikinini Act 2015. Parental responsibility, the duty to maintain a child, parenting orders and maintenance orders operate regardless of the parents’ marital status. Section 103 makes the best interests of the child paramount.
The Matrimonial Causes Act (Chapter 282). Section 2 deals with the application of that Act in relation to certain children, and Part VII gives the National Court power over custody and maintenance in proceedings for a decree of nullity.
Affiliation proceedings under Division 6 of Part XII of the Lukautim Pikinini Act, which establish paternity and support a maintenance order without reference to marriage at all.
Section 55 — a declaration of legitimacy
A person may apply to the National Court for an order declaring that (a) he is the legitimate child of his parents; or (b) he or his parents or child, or a remoter ancestor or descendant, is or was a legitimate person — and the Court may, in its discretion, make the order.
Section 55(2) allows the Court to direct notice to such persons as it thinks proper (who may include the Minister), to direct that a person be made a party, or to permit an interested person to intervene.
Section 55(3) allows the order to include particulars of the legitimation the Court finds established.
Section 55(4) provides that the order binds the State whether or not notice was given to the Minister, but does not affect the rights of another person unless that person was a party or was given notice (or claims through such a person), and does not affect any earlier judgment, order or decree.
A declaration is worth obtaining where an estate, a land interest or a benefit turns on the point — it converts an evidentiary question into a court order.
Sources
- Marriage Act (Chapter 280) — ss 17, 51–55
- Matrimonial Causes Act (Chapter 282) — ss 2, 35, 72–79; Lukautim Pikinini Act 2015 — ss 8, 9, 101–108
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.