Section 57 of the Marriage Act (Chapter 280) creates two offences, each carrying five years.
Sections 57(1) and (4)
A person who is married and goes through a form or ceremony of marriage with another person is guilty of an offence.
Penalty: imprisonment for a term not exceeding five years.
A person who goes through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married, is guilty of an offence.
Penalty: imprisonment for a term not exceeding five years.
Section 57(1) is an absolute offence subject to the section 57(2) defence: the married person commits it by going through the ceremony.
Section 57(4) requires knowledge or reasonable grounds to believe. A person genuinely deceived about their partner’s marital status commits no offence.
Section 57(5) excludes the obvious case: it is not an offence to go through a form or ceremony of marriage with one’s own spouse — which is what section 71 regulates.
Sections 57(2) and (3) — the presumption of death defence
It is a defence if the defendant proves that —
(a) at the time of the alleged offence, he believed that his spouse was dead; and
(b) his spouse had been absent from him for such time and in such circumstances as to provide reasonable grounds for presuming that the spouse was dead.
Proof that — (a) the spouse had been continually absent for the period of seven years immediately preceding the date of the alleged offence; and (b) at that time the defendant had no reason to believe that the spouse had been alive at any time within that period — is sufficient proof of the matters in subsection (2)(b).
The burden is on the defendant. The word is “proves” — a legal burden, on the balance of probabilities.
Both limbs of subsection (2) are needed. An actual belief that the spouse is dead, and reasonable grounds for presuming it.
Seven years is sufficient, not necessary. Subsection (3) gives a safe harbour, but a shorter absence in stronger circumstances — a vessel lost at sea, a person last seen in a disaster — may satisfy subsection (2)(b) directly.
Note the parallel with section 26 of the Matrimonial Causes Act (Chapter 282), which allows a decree on the presumption of death — a course that removes the risk entirely.
Section 57(8) — the customary marriage exemption
This section does not apply to a customary marriage entered into by a person who is a party to a subsisting customary marriage, where the custom applying to each of those marriages recognizes the other marriage as being, or continuing to be, valid.
This is how the Act reconciles customary polygamy with the offence of bigamy. Both conditions must be met:
- Both marriages must be customary marriages; and
- The custom applying to each must recognise the other as valid.
So the exemption does not apply where:
- The first marriage was a Part V marriage — and section 3(1) denies capacity to enter a customary marriage in that case anyway;
- The second marriage is a Part V marriage — which would be void under section 17(1)(a);
- The applicable custom does not recognise polygamy.
The requirement that each custom recognise the other marriage matters where the parties come from different groups with different customs.
Sections 57(6) and (7) — two evidentiary rules
In a prosecution under this section, the spouse of the accused person is a competent and compellable witness for either the prosecution or the defence.
The fact that a person was married at the time shall not be taken to have been proved if the only evidence of the fact is the evidence of the other party to the alleged marriage.
Bigamy prosecutions turn on proving an earlier marriage. Where that marriage was customary, there is no certificate — and the person most motivated to assert it is the abandoned first spouse.
Section 57(7) requires more than that person’s word alone. Supporting evidence is needed: bride price, the ceremony, the two families, cohabitation and repute. See proving a marriage.
Section 56 — where Part VII applies
This Part applies to marriages solemnized, or intended or purporting to be solemnized, in the country and, in relation to such marriages, applies both within the country and elsewhere.
So the offences reach conduct outside Papua New Guinea in relation to a marriage here — a person who obtains a forged consent abroad for a marriage to be solemnized here is within Part VII.
A bigamous Part V marriage is also void under section 17(1)(a), and section 54 protects the legitimacy of the children where a party believed on reasonable grounds that the marriage was valid.
Sources
- Marriage Act (Chapter 280) — ss 3, 17, 54, 56, 57, 71
- Matrimonial Causes Act (Chapter 282) — s 26
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.