Most marriages in Papua New Guinea are customary marriages. The Marriage Act (Chapter 280) deals with them in two sections of Part II.
Section 3 — the whole of the law
(1) Notwithstanding the provisions of this Act or of any other law, a native, other than a native who is a party to a subsisting marriage under Part V, may enter, and shall be deemed always to have been capable of entering, into a customary marriage in accordance with the custom prevailing in the tribe or group to which the parties to the marriage or either of them belong or belongs.
(2) Subject to this Act, a customary marriage is valid and effectual for all purposes.
That is deliberate. Section 3 identifies the source of the rules — the custom prevailing in the tribe or group — and leaves the content to that custom.
So there is no national list of requirements. What is needed to create a valid customary marriage in one province may differ from what is needed in the next, and the question in any given case is one of fact: what does the applicable custom require, and was it done?
Which custom applies
The custom prevailing in the tribe or group to which the parties to the marriage or either of them belong or belongs.
Where the parties come from different groups with different customs — increasingly common — section 3(1) does not require both customs to be satisfied. Compliance with the custom of either party’s group is enough on the words of the section.
In practice families often observe both, and that is prudent. But a marriage is not invalid under section 3 merely because only one side’s custom was followed.
How custom is proved
Schedule 2.1 of the Constitution adopts custom as part of the underlying law, and the Underlying Law Act 2000 and the Customs (Recognition) Act (Chapter 19) govern how it is ascertained and applied.
Two consequences follow for proof:
- Custom is a question of law, not of fact, for the purposes of the Customs (Recognition) Act — so it is not proved by expert evidence in the ordinary way, though a court may inform itself from any source it considers appropriate;
- A court may receive evidence from persons knowledgeable in the custom, from village or community leaders, and from the families concerned.
In practice the matters usually relied on are the exchange of bride price, the involvement and agreement of both families, a public ceremony or feast, and the parties living together as husband and wife and being recognised by the community as married. See bride price and proving a marriage.
The Customs (Recognition) Act (Chapter 19) is not currently available on PacLII, so no link is given here.
Section 4 — religious rites
Notwithstanding the provisions of this Act or of any other law, religious rites or ceremonies may be performed in connexion with a customary marriage.
A church service held in connection with a customary marriage does not convert it into a statutory marriage, and does not invalidate the customary marriage.
The distinction is between a religious rite in connection with a customary marriage — section 4 — and a marriage solemnised by a registered minister of religion under Part V, which requires notice, witnesses, the prescribed words and a certificate.
Couples who want both should be clear with the celebrant which is intended, and whether a second ceremony under section 71 is being performed.
The two limits on section 3
Section 3(1) excludes “a native who is a party to a subsisting marriage under Part V”. A person already in a statutory marriage cannot enter a customary marriage — with anyone, including their existing spouse in a different form.
Section 3(2) makes the validity of a customary marriage subject to this Act. The principal qualification is section 5, under which a Local Court Magistrate may forbid a customary marriage where the woman objects and excessive pressure has been brought to bear, or it would be a hardship to compel her to conform to custom — and may annul a marriage entered into in contravention of such an order.
Note also the Lukautim Pikinini Act 2015: section 86 creates an offence of child marriage, and section 80 addresses harmful customary practices. Custom does not override those provisions.
On the effects of a customary marriage in other areas of law — inheritance, maintenance, divorce — see recognition for all purposes.
Sources
- Marriage Act (Chapter 280) — ss 3, 4, 5, 71
- Lukautim Pikinini Act 2015 — ss 80, 86; Constitution — Schedule 2
- Customs (Recognition) Act (Chapter 19); Underlying Law Act 2000
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.