Section 58 of the Matrimonial Causes Act (Chapter 282) builds a waiting period into every divorce.
Section 58
A decree of dissolution of marriage or of nullity of a voidable marriage under this Act shall, in the first instance, be a decree nisi.
| Decree | Nisi first? |
|---|---|
| Dissolution | Yes |
| Nullity of a voidable marriage | Yes |
| Nullity of a void marriage | No — not mentioned in s 58 |
| Judicial separation | No |
| Restitution of conjugal rights | No |
| Jactitation of marriage | No |
The two decrees requiring a nisi stage are the same two for which section 14(3) requires the petitioner to be domiciled in Papua New Guinea.
Both are decrees that end a valid marriage. The others do not: a void marriage never existed, and judicial separation, restitution and jactitation leave the marriage intact.
Where a marriage is being brought to an end, the Act requires a pause.
What the waiting period is for
1. Reconciliation. Section 62 allows the Court, at any time before the decree becomes absolute, to rescind it on the application of either party on the ground that the parties have become reconciled.
2. Discovery of a miscarriage of justice. Section 63 allows rescission where there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance — and the Court may order a rehearing.
3. Intervention. Part VI allows the Principal Legal Adviser and other persons to intervene, and section 69 provides for rescission of a decree nisi on intervention. That is how collusion or a concealed bar is dealt with after the event.
4. Arrangements for the children. Section 59 prevents the decree becoming absolute until the Court is satisfied about arrangements for children under 16.
Once the decree is absolute, section 64 provides that no appeal lies from a decree of dissolution or nullity of a voidable marriage. So the nisi period is the window in which the decision can still be revisited.
The parties are still married
Section 34 provides that a party may marry again where a decree of dissolution has become absolute. Until then the marriage continues.
Remarriage is not possible. A purported marriage after decree nisi but before absolute would be void under section 17(1)(a) of the Marriage Act, and would be bigamy under section 57. A celebrant must not proceed without evidence of the divorce — section 37(10) of that Act.
Adultery is still adultery. Sexual relations with a third party between nisi and absolute remain adultery, and could found an intervention or an action under the Adultery and Enticement Act 1988.
Succession rights continue. Section 60(6) provides that a decree nisi does not become absolute where either party has died — so if a party dies during the period, the marriage ended by death, not by divorce, with all that follows for the estate.
Orders may still be made
Nothing in section 58 prevents the Court making orders for maintenance under section 73, custody under section 74, or settlement of property under section 75.
Indeed section 25(5) makes provision for the respondent a precondition of a decree on the separation ground: the Court shall not make a decree until the petitioner has made arrangements, to the Court’s satisfaction, to provide the maintenance or other benefits on the decree becoming absolute.
Section 96 allows the Court to grant injunctions, and section 93 to set aside transactions intended to defeat claims — both of which may be needed during the nisi period.
For when and how the decree becomes absolute, see section 60, and for the certificate that proves it, section 61.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 25, 34, 58–64, 69, 73–76, 93, 96
- Marriage Act (Chapter 280) — ss 17, 37, 57
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.