Section 15 of the Matrimonial Causes Act (Chapter 282) exists because of a rule of the general law that would otherwise deny a wife access to the court.
The problem section 15 solves
At common law a married woman took her husband’s domicile, and it changed whenever his did — without regard to where she actually lived.
Section 14(3) requires a petitioner for dissolution or for nullity of a voidable marriage to be domiciled in Papua New Guinea.
The consequence, without section 15, would be stark: a husband who deserted his wife and settled abroad would take her domicile with him. She would be living in Papua New Guinea, perhaps for years, yet unable to petition here — and probably unable to petition where he had gone either.
Section 15
A deserted wife who was domiciled in Papua New Guinea immediately before her marriage or immediately before the desertion shall be deemed to be domiciled in Papua New Guinea.
A wife who is resident in Papua New Guinea at the date of instituting proceedings and has been so resident for the period of three years immediately preceding that date shall be deemed to be domiciled in Papua New Guinea at that date.
Subsections (1) and (2) are in addition to, and not in substitution for or derogation of, any other provision of this Act under which jurisdiction is conferred.
The routes to jurisdiction for a wife
| Route | Requirement | Provision |
|---|---|---|
| Ordinary domicile | Domiciled here on general principles | s 14(3) |
| Deserted wife | Domiciled here immediately before the marriage or immediately before the desertion | s 15(1) |
| Three years’ residence | Resident here at the date of instituting, and for 3 years before | s 15(2) |
| Australian domiciliary | Domiciled in Australia, resident here for 6 months before instituting | s 14(6) |
| Domicile or residence | For nullity of a void marriage, judicial separation, restitution or jactitation | s 14(4) |
Because the subsections are additional, a wife may rely on whichever route fits. She need not establish desertion if she has three years’ residence, and she need not rely on section 15 at all if she is domiciled here on ordinary principles.
Note also that section 14(4) requires only domicile or residence for four of the five decrees. A wife who cannot establish domicile may still petition for judicial separation on the basis of residence alone — which gives her the section 43 protections and access to the Part VII powers.
“Deserted wife” in section 15(1)
Desertion for the purposes of section 15(1) carries the same meaning as elsewhere in the Act — see desertion as a ground. So the extensions apply:
- Section 18 — a husband whose conduct gave the wife just cause to leave, and did cause her to leave, is deemed to have deserted her. A wife in that position is a deserted wife for section 15(1);
- Section 19 — refusal of a bona fide request to resume cohabitation, against the background of a separation agreement, is desertion from the date of refusal;
- Section 20 — desertion is not terminated merely because the deserting party has become incapable of continuing the intention.
Note that section 15(1) does not require the desertion to have lasted two years. The two-year period in section 17(b) goes to the ground; section 15(1) goes to jurisdiction.
Where it is the husband who is abroad
Establishing that the National Court has jurisdiction does not solve the practical problem of a respondent overseas.
- Section 94 deals with service of process, and the Matrimonial Causes Rules with the manner of it — including substituted service where the respondent cannot be found;
- Enforcement of any maintenance order against a person abroad engages the Maintenance Orders Enforcement Act (Chapter 279);
- Where the husband obtains a divorce abroad, section 79 governs whether it is recognised here.
The common law rule that a wife takes her husband’s domicile has been abandoned in many jurisdictions as inconsistent with the equality of spouses. Section 55 of the Constitution guarantees equality of citizens.
Section 15 was drafted on the assumption that the old rule applied. Whether that rule survives in Papua New Guinea is a question on which advice should be taken — but section 15 operates in any event, and section 15(3) makes clear it takes nothing away from other bases of jurisdiction.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 14–20, 40, 43, 72–79, 94
- Maintenance Orders Enforcement Act (Chapter 279); Constitution — s 55
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.