Part VI of the Marriage Act (Chapter 280) deals with legitimation.
Section 52(1) — legitimation by subsequent marriage
A child (whenever born) whose parents were not married to each other at the time of his birth but have subsequently married each other is, by virtue of the marriage, for all purposes the legitimate child of his parents as from his birth or as from the commencement date, whichever was the later.
Subsection (1) applies whether or not there was a legal impediment to the marriage of his parents at the time of his birth, and whether or not he was living at the time of the marriage.
Legal impediment at birth. At common law, legitimation by subsequent marriage was often unavailable where the parents could not lawfully have married when the child was conceived — for example where one was married to someone else. Section 52(2) removes that restriction.
Child not living. A deceased child is legitimated too. That matters where the child left issue, or where a claim descends through the child’s line.
The words “for all purposes” and “as from his birth” make the legitimation complete and retrospective — subject to the commencement date of 21 January 1965 and to the property saving in subsection (5).
Section 52(3) — the connecting factors
(a) at the time of the marriage of his parents, his father was domiciled in, or was a bona fide resident of, Papua New Guinea; or
(b) the marriage of his parents took place —
(i) in Papua New Guinea or in Australia; or
(ii) outside both, under the Marriage (Overseas) Act 1955 of Australia, or under Part V of the Marriage Act 1961 of Australia.
Either paragraph suffices. So the section reaches a marriage anywhere in the world if the father was domiciled or bona fide resident here, and a marriage here or in Australia whatever the father’s domicile.
Section 53 — foreign legitimations
Where (a) the parents of a child born illegitimate (whenever born) have married each other; and (b) the marriage took place outside Papua New Guinea and outside Australia; and (c) the father was not domiciled in Papua New Guinea or Australia at the time; and (d) by the law of the place where the father was then domiciled the child became legitimated by virtue of the marriage —
the child is for all purposes the legitimate child of his parents as from the time of the marriage or as from the commencement date, whichever was the later.
The date. Section 52 legitimates from birth; section 53 from the time of the marriage. That reflects the deference to foreign law: Papua New Guinea recognises the legitimation that occurred there, rather than creating its own retrospective one.
The trigger. Section 53 depends on the child having actually become legitimated under the law of the father’s domicile. Section 52 operates by force of the Act.
Section 53(2) adds that subsection (1) applies whether or not the law of the place in which the father was domiciled at the time of the birth permitted or recognized legitimation by subsequent marriage, and whether or not the child was living at the time of the marriage. So the relevant domicile is that at the marriage, not at the birth.
Sections 51 and 52(4) and (5) — the limits
| Provision | Limit |
|---|---|
| s 51(1) | This Part does not affect the validity or effect of an adoption of the child, before or after the commencement date |
| s 51(2) | This Part does not exclude any law requiring information for register entries — but a legitimation is not affected by failure to comply with such a law |
| s 52(4) | This section does not make ineffective a legitimation that took place before the commencement date |
| s 52(5) | Does not affect estates, rights or interests in property already vested by a disposition that took effect, or devolution on a death, before the parents’ marriage or the commencement date, whichever was later |
Legitimation happens by virtue of the marriage. It does not depend on any register being amended.
So a failure to update a birth record does not undo the legitimation — useful where parents married long ago and no administrative step was ever taken.
Where proof is needed, section 55 allows an application to the National Court for a declaration that a person is the legitimate child of his parents, or that he, his parents, his child, or a remoter ancestor or descendant is or was a legitimate person.
Where legitimation matters
- Consent to marriage. Section 9(2)(b) provides that a minor born illegitimate whose parents subsequently married is the legitimate child of his parents — so Part I of Schedule 1 applies rather than Part II, and the father’s consent is required.
- Succession — subject to the section 52(5) property saving.
- Prohibited degrees. Schedule 2.3 provides that it is immaterial whether a relationship is traced through, or to, a person of illegitimate birth — so the prohibited degrees apply irrespective of legitimacy.
- Children of a void marriage — dealt with separately by section 54.
Note that under the Lukautim Pikinini Act 2015, parental responsibility, the duty to maintain and the best interests principle apply regardless of legitimacy, and affiliation proceedings establish paternity independently of any marriage.
Sources
- Marriage Act (Chapter 280) — ss 1, 9, 51–55, Schedules 1 and 2
- Lukautim Pikinini Act 2015; Adoption of Children Act (Chapter 275)
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.