Section 14 of the Matrimonial Causes Act (Chapter 282) confers jurisdiction and then restricts who may invoke it.
Sections 14(1) and (2)
(1) Subject to this Act, a person may institute a matrimonial cause under this Act in the Court.
(2) The Court has jurisdiction to hear and determine matrimonial causes instituted under this Act.
Section 1(1) defines “the Court” as the National Court. There is no District Court jurisdiction in a matrimonial cause — though section 3(2) preserves the summary jurisdiction over maintenance, custody, access and separation orders.
Sections 14(3) and (4) — two different tests
| Proceedings | Requirement | Provision |
|---|---|---|
| Dissolution | Domiciled in Papua New Guinea | s 14(3) |
| Nullity of a voidable marriage | Domiciled in Papua New Guinea | |
| Nullity of a void marriage | Domiciled or resident in Papua New Guinea | s 14(4) |
| Judicial separation | ||
| Restitution of conjugal rights | ||
| Jactitation of marriage |
Domicile is a stronger connection than residence. It is a person’s permanent home — the place they intend to remain indefinitely — and it changes only on acquiring a new one.
The stricter test in section 14(3) applies to proceedings that change status: dissolution ends a valid marriage, and nullity of a voidable marriage sets aside a valid one. A change of status should be made by the courts of the country to which a person truly belongs, so that the decree will be recognised elsewhere.
The looser test in section 14(4) applies where the proceedings do not change a subsisting valid marriage — a void marriage was never one, and judicial separation, restitution and jactitation leave the marriage intact.
Where, in proceedings for dissolution or nullity, the Court finds that the parties or one of them were, at the time the proceedings were instituted, domiciled according to the principles of the common law in Papua New Guinea, it shall include in the decree a statement to that effect.
That statement matters for recognition abroad. A foreign court asked to recognise the decree will look for the jurisdictional basis, and section 14(5) puts it on the face of the document.
Section 14(6) — the six-month rule for Australian domiciliaries
A person domiciled in Australia who is resident in Papua New Guinea at the date of instituting proceedings, and has been so resident for the period of six months immediately preceding that date, shall be deemed to be domiciled in the country at that date.
The provision reflects the pre-Independence relationship, and it appears elsewhere in the Act — in section 17(j) (maintenance orders of Australian courts), in section 17(2) of the Marriage Act, and in the legitimation provisions.
Section 15 — special provisions as to a wife’s domicile
(1) A deserted wife who was domiciled in Papua New Guinea immediately before her marriage or immediately before the desertion shall be deemed to be domiciled here.
(2) A wife who is resident in Papua New Guinea at the date of instituting proceedings and has been so resident for three years immediately preceding shall be deemed to be domiciled here.
(3) These provisions are in addition to, and not in substitution for or derogation of, any other provision conferring jurisdiction.
At common law a wife took her husband’s domicile. A husband who deserted his wife and moved abroad would therefore take her domicile with him — leaving her unable to satisfy section 14(3) in the country where she actually lived.
Section 15 fixes that in two ways: a deserted wife retains her pre-marriage or pre-desertion domicile, and three years’ residence deems domicile regardless.
Section 15(3) makes clear these are additional routes. A wife who is domiciled here on ordinary principles does not need them.
Section 16 — the law to be applied
(1) The jurisdiction shall be exercised in accordance with this Act.
(2) In proceedings for nullity, judicial separation, restitution or jactitation, 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 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 another country or place (including a State or Territory of Australia), the Court shall apply those laws.
Section 16(2) is the historical source of the principles governing the four non-dissolution decrees — which is why concepts such as jactitation and the sincerity requirement in section 50 take the form they do. See what law the court applies.
Note that section 4 excludes customary marriages from the Act entirely, so none of this applies to them.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 1, 3, 4, 14–17, 35, 40, 48, 50, 53, 79
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.