Section 7 of the Marriage Act (Chapter 280) sets the ages, and section 6 says where Part III applies.
Section 7(1) — the ordinary rule
(a) a male person is of marriageable age if he has attained the age of 18 years; and
(b) a female person is of marriageable age if she has attained the age of 16 years.
Eighteen for a man, sixteen for a woman. The provision is inherited from the pre-Independence Marriage Act 1963 and has not been amended.
Section 55 of the Constitution guarantees equality of citizens, subject to laws imposing restrictions on office-holders and to laws made for the special benefit of certain groups. Whether section 7(1) is consistent with section 55 has not been determined by the courts.
The difference also sits uneasily with the Lukautim Pikinini Act 2015, which treats a person under 18 as a child and creates an offence of child marriage in section 86.
Section 6 — where Part III applies
(1) This Part applies, notwithstanding any common law rule of private international law, in relation to marriages under Division V.2 — marriages by authorised celebrants.
(2) Section 7, and sections 13 and 14 so far as they relate to it, apply to (a) marriages under Division V.3 — consular marriages; and (b) the marriage of a person domiciled in the country, wherever it takes place.
(3) This Part does not apply to customary marriages.
| Marriage | Does Part III apply? |
|---|---|
| Division V.2 — by an authorised celebrant in PNG | Yes, in full |
| Division V.3 — consular marriages | Section 7 only, with ss 13 and 14 as they relate to it |
| Marriage of a person domiciled in PNG, wherever solemnised | Section 7 only, with ss 13 and 14 as they relate to it |
| Customary marriage | No — s 6(3) |
Section 6(2)(b) has extraterritorial effect. A person domiciled in Papua New Guinea who marries overseas must satisfy section 7 — whatever the local law of the place of celebration permits. The opening words of section 6(1) displace the ordinary private international law rule.
Section 6(3) excludes customary marriage. The age rules in section 7 do not apply to a customary marriage at all. That does not leave the position unregulated: section 86 of the Lukautim Pikinini Act 2015 and section 5 of the Marriage Act both operate.
Section 7(2) and (3) — an order authorising an under-age marriage
A male who has attained 16 but not 18, or a female who has attained 14 but not 16, may apply to a Judge or Magistrate for an order authorising him or her to marry a particular person of marriageable age.
The Judge or Magistrate shall hold an inquiry into the relevant facts and circumstances and, if satisfied that —
(a) the applicant has attained 16 (male) or 14 (female); and
(b) the circumstances of the case are so exceptional and unusual as to justify the making of the order,
he may, in his discretion, make the order sought, but otherwise he shall refuse the application.
“So exceptional and unusual” is emphatic language, and the closing words are mandatory: if the test is not met, the Judge or Magistrate shall refuse.
Even where it is met, the order remains discretionary — the section says “may, in his discretion”.
The court must hold an inquiry, not simply read an application. Section 13 governs the procedure at inquiries, and section 76(b) allows regulations about summoning witnesses, producing documents and taking evidence on oath.
Sections 7(4) to (7) — the effect and limits
- Section 7(4). The applicant is of marriageable age in relation to his or her marriage to the other person specified in the order, but not otherwise. The order is person-specific: it does not make the applicant generally of marriageable age.
- Section 7(7). If the marriage does not take place within three months after the date of the order, the order ceases to have effect.
- Section 7(5). Where the Judge or Magistrate is satisfied the matter could more properly be dealt with nearer where the applicant ordinarily resides, he may refuse to proceed with the hearing.
- Section 7(6). Such a refusal is not a refusal of the application for the purposes of section 14 — so it does not bar a fresh application elsewhere.
Marriageable age is not the same as majority
Marriageable age — 18 (male) or 16 (female) under section 7.
“Minor” — defined in section 1(1) as a person who has not attained the age of 21 years. A party who is of marriageable age but under 21 is still a minor and needs consent under section 8, unless previously married.
“Child” — under the Lukautim Pikinini Act 2015, a person under 18.
So a 17-year-old female may be of marriageable age, is a minor requiring consent, and is a child for child protection purposes — all at once. See marriages of minors.
Marrying a person not of marriageable age is an offence under section 58, and such a marriage is void under section 17.
Sources
- Marriage Act (Chapter 280) — ss 1, 5, 6, 7, 8, 13, 14, 17, 58, 76
- Lukautim Pikinini Act 2015 — ss 2, 86; 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.