Section 9 of the Marriage Act (Chapter 280) routes the question to Schedule 1.
Section 9 — the referring provision
(1) The person or persons whose consent is required shall be ascertained by reference to Schedule 1 according to the facts and circumstances existing in relation to the minor.
(2) For the purposes of Schedule 1 —
(a) a minor is an adopted child if he was adopted under the law of Papua New Guinea or the law of any other place;
(b) a minor born illegitimate whose parents subsequently married each other is the legitimate child of his parents.
Paragraph (b) connects to Part VI of the Act on legitimation. Paragraph (a) picks up adoptions made anywhere — see the adoption series.
Schedule 1, Part I — a legitimate child
| Circumstances | Whose consent |
|---|---|
| Both parents alive — ordinary case | Both parents |
| Parents divorced or separated by court order or agreement, and the minor lives permanently with one parent | The parent with whom the minor lives |
| Parents divorced or separated, and the minor lives with each parent for part of the year | Both parents |
| One parent has been deserted by the other | The parent who has been deserted |
| Both parents deprived of custody by court order | The person or persons who have custody under the order |
| One parent alive, no other guardian | The surviving parent |
| One parent alive, with guardian(s) acting jointly with the surviving parent | The surviving parent and the guardian(s) |
| One parent alive, with guardian(s) not acting jointly with the surviving parent | The guardian(s) |
| Both parents dead, with guardian(s) | The guardian(s) |
| Both parents dead, no guardian | A prescribed authority |
Schedule 1 follows where the child actually lives and who actually cares for the child, rather than parental status in the abstract. That is why a deserting parent loses the right to consent, and why the parent with whom the child permanently lives consents alone.
Where nobody qualifies, a prescribed authority — a person appointed by the Head of State acting on advice, under section 1(1) — steps in.
Schedule 1, Part II — an illegitimate child who is not adopted
| Circumstances | Whose consent |
|---|---|
| Mother alive, not deprived of custody by court order | The mother |
| Mother alive but deprived of custody by court order | The person who has custody under the order |
| Mother dead, with guardian(s) | The guardian(s) |
| Mother dead, no guardian | A prescribed authority |
The father does not appear in Part II. Where the parents subsequently marry each other, section 9(2)(b) makes the minor legitimate and Part I applies instead.
Schedule 1, Part III — an adopted child
The person or persons who would be the prescribed person or persons under Part I if the minor had been born in lawful wedlock to his adoptive parents.
Where the adoptive parent is alive and has not been deprived of custody by court order — the adoptive parent.
Part III does not restate Part I. It directs that the adoptive parents be treated as the natural parents, and Part I then applied — so the divorce, separation, desertion, custody, death and guardianship rules all operate in the same way.
That is consistent with section 28 of the Adoption of Children Act (Chapter 275), under which an adopted child is treated as the child of the adopters.
The natural parents do not consent to the marriage of an adopted minor. Their consent was given, or dispensed with, at the time of the adoption.
Guardians, including customary guardians
“Guardian” includes a guardian by custom, and where under relevant custom there is more than one guardian, means the principal guardian.
Section 9(3). Where an Act provides that a specified person is, or is deemed to be, the guardian of a minor to the exclusion of a parent or other guardian, that person is the person whose consent is required.
Section 9(4). Where a law makes a person a guardian in addition to the parents or other guardian, that person’s consent is required in addition to the consent of the persons ascertained under Schedule 1.
These matter where a court has appointed a guardian under section 104 of the Lukautim Pikinini Act 2015, or where the Director has guardianship of a child awaiting adoption under section 23 of the Adoption of Children Act.
Where a required person refuses, a Judge or Magistrate may consent in their place under section 11. Where their views cannot be ascertained, a prescribed authority may dispense with the consent under section 10.
Sources
- Marriage Act (Chapter 280) — ss 1, 8–11, 51–55, Schedule 1
- Adoption of Children Act (Chapter 275) — ss 23, 28; Lukautim Pikinini Act 2015 — s 104
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.