I, Mek H. Kamongmenan, Senior Tutor of Law at the School of Law, University of Papua New Guinea and a Lawyer- Parkil Lawyers.
Customary Marriage Is One Type of Marriage, Apart From Statute Marriage
During the time immemorial the conduct and formation of customary marriage were guided by a system of unwritten rules referred to as custom developed and passed on from generation to generation. Similarly the dissolution of marriage and consequent financial claims and rights to children of marriage were undertaken according to custom. This practice is still active at present across the nation with the full legal backing of the country. Due to the differences in custom and other barriers such geography, tradition, language, etc. the actual effectual, control and regulation of marriage and associated activities differ from society to society. Since the coverage of all the societies and their marriage related activities need extensive and adequate resources and research, I intend to cover the custom of my society, that is, Ialibu. In so doing, I make contrasts to the PNG legal system and present how that affects the formation and dissolution of customary marriage and consequent financial claims and rights to children of marriage.
2. LEGAL RECOGNITION OF CUSTOMARY MARRIAGE
On Independence Day (16 September 1975) the custom founded its roots in the Constitution (Sch. 2.1) as the Underlying Law and is enforced by the Underlying Law Act 2000 (ss.4 & 6) with various stringent conditions; “that it must not be inconsistent with the Constitution, or a Statue, or repugnant to the general principles of humanity”. With regard to the repugnancy test, Kidu CJ in State v Nerius was determined to outlaw the ‘payback’ rape custom of the Baining (East New Britain) people. In addition, the Customs Recognition Act (Ch.19), however, with additional conditions recognizes, amongst other things, marriage under the auspicious of custom (s.5). The conditions setout by virtue of s 3 of the Act are that any custom that may pose injustice or the public interest to be infringed or, affect the welfare of a child under 16 years, or if recognition would be contrary to the best interest of the child, is invalid. Conversely, s 5 of the Act states that:
“5. Subject to this Act and to any other law, custom may be taken into account in a case other than a criminal case only in relation to - …
(f) marriage, divorce or the right to the custody or guardianship of infants, in a case arising out of or in connection with a marriage entered into in accordance with custom; or
(g) a transaction that –
(i) the parties intended should be; or
(ii) justice requires should be, regulated wholly or partly by custom and not by law; or
(h) the reasonableness or otherwise of an act, default or omission by a person; or
(i) the existence of a state of mind of a person, or where the court thinks that by not taking the custom into account injustice will or may be done to a person.
Historically, customary marriage was not officially recognized in the Territory of Papua, as all persons were required to enter into statutory marriages. On the other hand, in New Guinea, though marriages entered into in accordance with custom were enforceable by the New Guinea Native Administration Regulations (Reg. 65), the indigenous people were restricted only to customary marriages. However, these significant discrepancies were merged by the Marriage Act 1963 (now Ch.280). Under this new Marriage Law (that is still valid today), both the statutory and customary marriages were valid. Apart from the statutory marriage that requires documentary proof, s 3 of the Act recognizes customary marriage without any statutory requirements. It specifically states that:
“3. (1) Notwithstanding the provisions of this Act or of any other law, a native, other than a native who is a party to a subsisting marriage under Part V may enter, and shall be deemed always to have been capable of entering, into a customary marriage in accordance with the custom prevailing in the tribe or group to which the parties to the marriage or either of them belong or belongs.
(2) Subject to this Act, a customary marriage is valid and effectual for all purposes.”
These laws are primarily applied by the courts with respect to customary marriage across the country. Ialibu society is one of such societies that is no exception to the formation and recognition of customary marriages.
3. FORMATION AND RECOGNITION
3.1 Marriage Procedures & Requirements
As marriage is one of the important decision in one’s life and the community, the community or the relatives of the bride and groom makes prior arrangements. Sometimes it takes considerable amount of time to prepare and negotiate before a man and woman are declared married. In this situation the parents and immediate relatives made most, if not all, of the decisions without the consent of the would-be husband and wife. The decisions are not based on mutual love but purely on the marrying couple’s potential welfare and other associated interests (e.g. prestige, wealth, character, status, etc.) of the community. Such an arrangement used to be strict during the Stone Age period and the Colonial era but was made redundant by the introduction of Christianity Faith and its beliefs and the modern legal system. Section 5 of the Marriage Act compels forced customary marriage, especially if the woman objects to the marriage. In Re Miriam Willingal a young woman was forced to marry a man from another village as part of compensation payment in relation to her father’s death. Injia J (then) held that that custom was inconsistent with the Constitution (Sch 2.1) and other statutes such as Marriage Act (Ch 280) (s.5) and Customary Recognition Act (Ch 19) and accordingly declared invalid. Currently, arranged marriage is no longer active as more young people tend to find their own partners due to the modernization and the advocacy of individual rights in the recent years.
Regardless of that change, brideprice, as in most parts of the Highlands Provinces, is still a significant element in the determination and recognition of customary marriage in the society. Injia J (then) stated in Korua v Korua that:
“[T]he payment of customary bride price is an essential pre-requisite to the existence and recognition of a customary marriage in the Highlands societies ...Such factors as love between the parties, period of cohabitation, and all the other relevant factors …take a secondary stage. Bride price is the fundamental pillar of a customary marriage.”
Formerly, bride price comprised of shells (i.e. kina & toea shells), pigs and food (though not considered as valuable as the other two) were exchanged between the parties. Obviously, the groom’s relatives would pay items in excess for the exchange of few items and the bride from the bride’s family and relatives. This arrangement operated on mutual understanding and acceptance. This trend, however, has changed in the recent years due to the introduction of the cash economy coupled with modernization. In the present times, bride price takes the form of money, automobiles, pigs, goods and other material things that are considered relevant and acceptable. The formalities to some extent involve religious rites (s.4) and have incorporated various statutory requirements of the Marriage Act such as seeking consent (ss.9, 10 & 11), entering marriages into civil registries (s. 28).
3.3 Conflict of Customs
The marriage with persons from other customs (including foreign) that are not closely related to the custom of Ialibu is an issue that is not easily resolved. That is, when an Ialibuan intends to marry to someone from a different customary background or someone from another custom decides to marry into Ialibu the question that usually emanates is whether the custom of Ialibu prevails or not. In the past such a situation attracted much discussions and negotiations between the parties concerned. Generally, having been driven by the motives of wealth accumulation and prestige competition a man who intends to marry a woman from Ialibu is required in one way or another to pay bride price. On the other hand when women from other customs marry into Ialibu the brides’ parents and relatives primarily determine on how marriage arrangements could be made to effect the marriage. According to law, these differences are addressed by s. 3 of the Marriage Act (Ch.280) which requires any custom of one of the spouses to recognize a marriage. In addition the Underlying Law Act 2000 (s.17) setout rules that must be taken into account when dealing with conflicting customs. Section 17(2) of the Act particularly provides for the courts to have regard to the place and nature of transaction, act or event and nature of residence of the parties. This situation was clarified by Woods J in Re Thesia Maip. In this case a man from Bougainville claimed a woman from the Western Highlands Province as his wife, because they met and lived in Mendi for over two years, and taken out a complaint at the District Court and detained her for deserting him. However, the learned judge found that there was no bride price being paid in accordance with the Western Highlands custom and also the couple never visited the woman’s village during the time when they were together and further no customary arrangements were undertaken with regard to Bougainville custom to effect the marriage. Given these reasons Woods J considered that there was no customary marriage existed and ordered for the woman’s release.
3.4 Polygamy and Prior Existing Marriage
The custom of Ialibu recognizes and accepts two types of marriages, namely monogamy (one wife) and polygamy (more than one wife). Having one wife is a common practice in this society which in the recent times is strongly supported by the religious beliefs, particularly Christianity, as opposed to polygamy. Polygamy has attracted wide criticisms over the years which resulted in various proposals being advanced to ban the practice but none of them got the government’s approval. One may argue that polygamy has status and prestige connotation rather than livelihood and welfare. It is a commonly held view in Ialibu that having multiple wives demonstrates one’s prestige (and wealth) and more importantly increases respect and status as stressed by Kapi DCJ (then) in Kombea v Peke.
“It is the custom of people of Ialibu District that a leader may have more than one wife. The status of a leader in custom is determined, amongst other things, by the number of wives he has.”
Conversely as Jessep & Luluaki pointed out, polyandry, whereby a woman is permitted to marry more than one husband, is unacceptable in the society. Any woman found to be engaged in such activity automatically loses her dignity and status in the community and society. In addition, she loses her respect and value in terms of bride price when she gets married or sometimes she has limited chances of stable marriage. Woods J in Era v Paru when dismissing the appeal precisely stated that the defendant, relied on the promise by the appellant for marrying her, lost her virginity due to her sexual intercourse with the appellant and suffered damages to her status in society and would have trouble getting married.
The custom is silent over whether a party to an existing statutory marriage under the Marriage Act (Part V) is capable of entering into a customary marriage. Generally the custom recognizes men as dominion over women and thereby any marriage taken out by the males seem to be justified (still as polygamy) over their female counterparts. Though this is illegal, women are disadvantaged in taking out complaints in courts as most of them lack the knowledge of their basic rights. In some instances, their actions are suppressed by community leaders in terms of advocating out of court settlements, which still require customary rules.
3.5 Marriage Age and Prohibited degrees of Relationship
The customary marriage age in the past was not distinct and determinable due to the absence of a well defined arithmetic system and a precise chorological calendar has attributed to the estimation of the marriageable age on physical developments. When the boys grew beard, public hair, armpit hair, developed deep voice, etc. and the girls developed breasts, menstruation periods, grew public hair, etc. they were considered eligible to form relationships and/or marriage. In this respect, as Luluaki asserts, though marriage of infants and children were forbidden, there were possibilities of under age marriage. Section 7 of the Marriage Act, however, aides in resolving this issue by imposing the minimum age for the formation of marriage: “18 years for males and 16 years for females (s 7(1))”. Presently, the legislative consideration of marriageable age plays a significant role in the society but also physical development consideration has some degree of dominance in the society.
The marriage or sexual relationship between persons related by blood (consanguinity) is forbidden by the custom. This also applies to those persons who are related by marriage (affinity). In remote cases, when such incidences do occur the parties to the relationship are brought to the public for the purposes of interrogation and if established as existing, then that would render nullity under the custom. There is no provision under the Marriage Act or elsewhere to specifically deal with prohibited degrees of relationship within the customary marriage. Section 5 the Marriage Act specifically protects woman from forced customary marriage, whereas the Schedule 2 and s 17 (void marriage) of the Marriage Act tend to set rules on the prohibited degrees of relationship pertaining to statutory marriage. Customarily there are no penalties or remedies as such for marriage within restricted degrees of relationship and the aggrieved parties resort to custom, which is based on moral principles and formalities, to seek relief, sometimes this lead to separation and/or dissolution of marriage.
4. DISSOLUTION AND FINANCIAL CLAIMS
4.1 Dissolution of Customary Marriage
The dissolution of customary marriage is not a norm in this society but on numerous instances it does occur. The main causes of divorce are adultery and domestic violence. Sexual intercourse outside of marriage is forbidden by custom and if either party happens to involve such activities, that would amount to a ground for divorce. On the same token, the cruelty, drunkenness and unruly behavior that result in domestic violence give rise to dissolution of a marriage. The death of a spouse and desertion of either of the party for long periods without any means of support also leaves room for divorce. In addition, if either of the parties are incapable of looking after the children and relatives or cannot support each other in domestic affairs and, further unable to contribute in cash or in kind at the community level may amount to divorce out of shame.
The present legal system is silent on the part of customary marriage dissolution in terms legal requirements as opposed to recognition of customary marriage. Section 5(f) of the Customs Recognition Act (Ch. 19) only recognizes divorce in relation to custom, subject to exceptions set out under s 3 of the Act, but does not in any way state the process and requirements of customary divorce. The Village Court Act 1989 does not impose any powers on the Village Courts to grant a divorce but instead the court may assist in a divorce by dealing with various matters in dispute between an estranged couple. In Re Raima and the Constitution section 42(5) a wife who sought divorce from her husband was ordered to pay the K300 compensation in favour of the husband by a Village Court. Upon her non payment, she was imprisoned which Kidu CJ objected and ordered her released on the basis that her right to divorce was denied. The District Courts under s 22A of the District Courts Act are only empowered to provide dissolution certificate upon satisfaction that a customary marriage was dissolved according to custom. A cohabitation does not automatically give rise to customary marriage and its dissolution may not be recognized as customary divorce.
4.2 Financial Claims
The customary marriage breakdown in the recent times has drawn considerable debate amongst the courts as to the manner and eligibility of financial claims as in Agua Bepi v Aiya Simon. In that case the appellant from the Western Highlands Province deserted her husband from Ialibu and remarried after being married customarily for about 12 years. Since the wife and her relatives were unable to repay the brideprice and provide maintenance for the deserted children and the husband she was imprisoned by the Ialibu District. Cory J after considering the circumstances of the case held that the wife’s detention and other orders, including repayment of brideprice and claim for maintenance were unlawful (Constitution, s 42 and Deserted Wives and Children Act, s 2) on the basis that the brideprice repayment claim was excessive and the husband was not entitled to seek maintenance under the Deserted Wives and Children Act.
This case on the face of it demonstrates how the Ialibu custom applies in relation financial claims when a marriage dissolves. The financial claims in the form of compensation or repayment of brideprice are determined with the parties concerned at the community level. If, for example, a husband was reasonably found to be at fault then the reclaim for brideprice ceases and also, on some occasions, order for compensation in favor of the wife. This principle was applied in Kere v Timon that if the husband doing that precipitates the divorce would render less or no repayment of the brideprice. On the other hand if a wife deserted a husband without any reasonable ground then she is required to repay all or part of the bride price.
The issue of distribution of matrimonial possessions including the house, gardens, livestock, etc. is subject to discussion and intervention by the community leaders. Normally, given the patrilineal society, whatever on the land is obviously retained by the husband while other possessions are shared between the couple. However, if there are children during the marriage the distribution encompasses the children’s welfare. Though, there are no written rules pertaining to this practice, it is well established in custom and the inferior courts such as the District Courts (District Court Act, s.22A) uphold this principle in deciding the dissolution of marriages. The Village Courts under the Village Court Act 1989 (s 57) apply custom to resolve these customary disputes. They further have additional jurisdictions under the Act pertaining to mediation (ss 52-53) and in dealing with matters relating to brideprice and custody of children (s 46) to award “such amount in compensation or damages as to the Village Court seems just”. Jessep & Luluaki  summarize this in the following terms:
“Although the Village Court has no specific power to grant customary divorce, it can mediate a settlement between estranged spouses and their respective kin, and its unlimited powers of adjudication in the matters of brideprice and custody of children, will in many cases enable the court to produce a situation in which a divorce can occur according to custom.”
5. RIGHTS TO CHILDREN OF MARRIAGE
The rights to children of marriage in this society are not distinctly defined. Upon the dissolution of marriage the custody of children depends wholly on the spouse. However, in most instances the father has ultimate authority to decide who and how the children may be adopted when the mother leaves the matrimonial home. That means, if the mother takes any of the children with her then that amounts to the intervention of the husband’s community in calling for the return of the children. In the first instance, the husband is the one that must show some interest in the children’s return. On some occasions, the children are raised by both spouse or by their parents. When a divorce results due to the death of either of the spouse, the right to custody of the children primarily rests on the husband and his people. The rational is that the children have no right over land and other properties from their mother’s parents as the inheritance of such properties only passed on between the male flock. In addition, since the brideprice symbolizes end of the wife’s care and protection by her parents and the beginning of her new life with the husband, the child born out of that marriage automatically form part of the husbands’ community. Sometimes parties on both sides also involve in the raising of the child. Often, when the wife’s parents or relatives raise a child, and if that child so wish to return or the husband wants the child back, they claim compensation upon the return of the child.
The customary adoption of children is recognized by Part VI of the Adoption of Children Act (Ch. 275). Section 53 (1) of the Act gives the adopting parents the right to adopt a child under custom if that child was accorded with necessary care and protection as if the child was their own. Subsection 2 sets out conditions and limitations “as to the period of the adoption, rights of access and return and property rights or obligations” prescribe by custom. After a District Court (formerly Local Court) is satisfied, a certificate of adoption is issued under s 54 of the Act. Nothing in this Act spells out the welfare of the child as paramount but since this Act is (by s 52) subject to the Custom Recognition Act (Ch. 19) (s 3), the courts may refuse recognition of those customs that infringe child welfare. The custody of children under Deserted Wives and Children Act maybe enforced only when the father deserted the child without any means of support or about to leave the country as in Raymond Mura v Dan Gimai. The customary adoption or right to children of marriage, as applied by the custom of Ialibu, that the husbands’ unlimited rights to children over wife appear to be unconstitutional. On the other hand, the welfare of the child is protected by the custom. And also the claim for compensation for guardianship of children is legal can be enforced by the courts.
6. LAW REFORM
While most of the areas in family law has been developed, either by way of legislation or court judgments, some aspects of the area need adequate attention and action. One of these areas is the formation of customary marriage. The legal requirements of the customary marriage are not explicitly set out under the Marriage Act and this is confusing, as to how and when a customary marriage has formally formed. Given this, the Marriage Act should be amended to set out some kind of guidelines to demonstrate the conclusion of customary marriage.
The second important area that needs attention is the practice of polygamy. As discussed earlier polygamy is recognized only if two or more wives are married according to custom other than statutory. However, on the basis of gender equality and children welfare and other associated issues as provided for by the Constitution and the other relevant Acts pointed out above, the practice of polygamy should be outlawed.
Finally, the custom is well enshrined in the legal system of PNG in which the customary marriage is founded upon. The Constitution (s.9(f)) as the supreme law recognizes custom as part of the underlying law with its manner of development sets out in sch.2.1. The other Acts, particularly the Marriage Act, Customs Recognition Act, Underlying Law Act 2000 ensure the sound implementation of customary marriage without any statutory interference. In this regard the custom of Ialibu is legally protected (s 3(1) of Marriage Act) in terms of the formation and dissolution of marriages, financial claims and rights to children of marriage. In any case, customarily men has unlimited powers overriding the rights of women which is unlawful. The welfare of the children is protected by custom and that is support by the other legislation. It is encouraging to note that the custody of children, distribution of matrimonial possessions and the status of brideprice repayment, when a marriage dissolves, attract intervention from all parties concerned to discuss and resolve these issues amicably. It is on this note that statutory intervention is appropriate to guide the customary marriages and also outlaw the practice of polygamy which imposes welfare issues and conflicts within family units.
By: Mek Hepela Kamongmenan LLB
 As defined under Sch. 1.2 of the Constitution: “custom” means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial.
  (unreported) N397.
 In Re Kaka Ruk  PNGLR 105, Woods J declared, inter alia, a custom that made men in a dominating position over women repugnant to the general principles of humanity and refused a place for that custom in the Constitution (Sch. 2).
 In accordance with s 18 of the Marriage Ordinance 1912.
 In accordance with s5A of the Marriage Ordinance 1935-36 statutory marriage between two natives was not allowed, though statutory marriage was possible between a non native and a native with a written consent from the District Officer. For detailed discussions see Jessep O & Luluaki J., Principles of Family Law in Papua New Guinea 2nd Edition (Waigani: UPNG Press, 1985 ), p.6
 Part V of the Marriage Act sets out the formalities of a statutory marriage.
 The District Court (formerly Local Court) has the jurisdiction to deal with such matters.
(1996) unreported N1506 This act contravened the Constitution, Sch. 2.2, S. (32), (Rights to Freedom), S. 36 (Freedom from Inhuman treatment), S. 42 (Liberty of the person), S. 49 (Rights to privacy), S. 52 (Right to freedom of movement), S. 55 (Equality of citizen), Marriage Act (Ch. No. 280), S. 5, and Customs Recognition Act (Ch. No. 19), S. 3 (1).
  (unreported) N1871.
  PNGLR 80
 That is still enforceable under the current marriage legal framework. See s. 3 of the Marriage Act (Ch. 280), s 5 of the Customs Recognition Act (Ch. 19), Sch 2.1 of the Constitution,
 Section 3 of the Marriage Act (Ch 280) also makes a qualification that a customary marriage is not valid if one of the parties is already married by statute to somebody else. That is, before that marriage can be recognized, the statutory marriage must be ended. For further details see Jessep & Luluaki op cit n 2, p. 22
 Aleck, J & Rannells, J (ed.), Custom at the Crossroads (Waigani: University of PNG Press, 1995), pp. 28-29
 PNGLR 572
 Jessep & Luluaki, op cit n 6, p.12
  PNGLR 593. In this case, both the appellant and defendant were from Ialibu where the defendant relying on the appellant’s promise to make her his wife had sexual intercourse with him. After the appellant deserted her she successfully instituted the matter and claimed for damages at the Ialibu District Court which was subsequently upheld by the National Court.
 s 3(1), Marriage Act.
 Luluaki, J,. “Customary Marriage Law in the Commonwealth: A Comparison Between Papua New Guinea and Anglophonic Africa” (1997) 11 International Journal of Law, Policy and the Family 1-35 at 12
 Jessep O & Luluaki J op cit n 6, p.26
 Woods J in Re Wagi Non PNGLR 84, declared that a custom that permits a husband to desert the matrimonial home without any means of support for a long while is unconstitutional.
 Jessep O & Luluaki J op cit n 6, p.56.
 In addition, as discussed earlier, the Constitution (Sch. 2.1), Underlying Law Act 2000 (ss.4 & 6) and Marriage Act (Ch.280) (s. 3) set out legal requirements for the formation of customary marriage.
 Jessep O & Luluaki J ibid.
 (1991) unreported N
 In Re Maip ibid. See also Hill, E .R and Powles, G,. Magistrates Manual of Papua New Guinea (Sydney: Lawbook Co., 2001), p. 301
  PNGLR 233
  PNGLR 103.
 Jessep O & Luluaki J op cit n 6, p.81.
 The non compliance of the conditions or requirements of adoption may render certification invalid as in R v Hamboken and Asini  PNGLR 289.
 (1997) unreported N1573.
 See Constitution, National Goals and Directive Principles, Goal 2(12) and s. 55.
Sam on August 27, 2020:
Jill on October 22, 2019:
very helpful. thank you.
Addo on August 02, 2018:
Significance of customary marriage