Section 16 of the Matrimonial Causes Act (Chapter 282) identifies three sources.
Section 16
(1) The jurisdiction of the Court under this Act shall be exercised in accordance with this Act.
(2) Subject to this Act, in proceedings for a decree of nullity of marriage, judicial separation, restitution of conjugal rights or jactitation of marriage, the Court shall proceed and act and give relief as nearly as possible in conformity with the principles and rules applied in the ecclesiastical courts in England immediately before the commencement of the Imperial Act known as The Matrimonial Causes Act 1857.
(3) Where it would be in accordance with the common law rules of private international law to apply the laws of a country or place (including a State or Territory of Australia), the Court shall apply the laws of that country or place.
The three sources, in order
| Source | Applies to | Rank |
|---|---|---|
| This Act | All matrimonial causes | First — s 16(1) |
| Pre-1857 ecclesiastical principles | Nullity, judicial separation, restitution, jactitation — not dissolution | Subject to this Act — s 16(2) |
| Foreign law | Where the conflict rules so require | s 16(3) |
The ecclesiastical courts could not dissolve a valid marriage. Divorce in the modern sense was created by the English Matrimonial Causes Act 1857, which transferred matrimonial jurisdiction from the church courts to the civil courts and introduced judicial divorce.
So there are no pre-1857 ecclesiastical principles on dissolution to apply. Section 17 and the sections that follow are the whole of the law.
Why the ecclesiastical rule still matters
The four decrees in subsection (2) are inherited from the ecclesiastical courts, and the Act states their grounds briefly without defining the underlying concepts.
Section 16(2) fills the gap. It explains why:
- Jactitation takes the form it does — “falsely boasted and persistently asserted” — language drawn directly from the old suit;
- Restitution requires the petitioner to sincerely desire conjugal rights and to have made a written request in conciliatory language — conditions developed by the church courts;
- Incapacity to consummate is understood as it was in those courts, including psychological as well as physical incapacity;
- Condonation, connivance and collusion carry their established meanings.
Note the two qualifications. The obligation is to act “as nearly as possible” in conformity — not identically. And it is “subject to this Act”, so any express provision prevails. Where section 52 says a restitution decree is not enforceable by attachment, that governs, whatever the ecclesiastical courts did.
Section 16(3) — foreign law
Where the common law rules of private international law point to the law of another country or place, the Court shall apply that law. The reference to a State or Territory of Australia reflects the pre-Independence relationship.
The rule matters most on the validity of the marriage itself, which is often the first question in a matrimonial cause:
- Formal validity — governed by the law of the place of celebration;
- Essential validity and capacity — governed by the law of each party’s domicile at the time.
The Marriage Act (Chapter 280) takes the same approach in section 23(2) and section 24(2). See recognition of foreign marriages.
Several provisions apply notwithstanding private international law:
- Section 6(1) of the Marriage Act — Part III applies notwithstanding any common law rule of private international law;
- Section 6(2)(b) — the marriageable age rules apply to a person domiciled here, wherever the marriage takes place;
- Section 24(1) — the prohibited degrees apply to marriages here wherever the parties are domiciled.
Section 55 of this Act separately provides for facts occurring outside the country: a decree may be made or refused by reason of facts and circumstances occurring elsewhere.
The underlying law and custom
Schedule 2 of the Constitution adopts the common law and custom as the underlying law of Papua New Guinea, and the Underlying Law Act 2000 governs their application.
Custom has little role in a matrimonial cause, because section 4 excludes customary marriages from this Act altogether. Where a customary marriage is in question, custom governs — and the relevant provisions are section 5 of the Marriage Act and the general law.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 4, 14–17, 35–39, 48–54, 55, 79
- Marriage Act (Chapter 280) — ss 5, 6, 23, 24; Constitution — Schedule 2
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.