Marriage Under Written Laws of Papua New Guinea

Updated on February 16, 2018

The Two Processes of Marriage: Customary and Statutory

In the societies of Papua New Guinea, the age is not relevant in many customary marriages. In customary marriages, the requirement of age is not really taken into consideration by the both parties’ relatives. The people in the societies make judgements and allow marriages by looking at the physical maturity of the parties. When the parents in the societies see that their child reaches a certain stage where they think they are capable of marriage, they are under marriageable age. However, under statutory law, the marriageable age is one of the paramount elements that have to be considered before a marriage takes place.

Therefore, according to s7 of the Marriage Act, it sets out the requirement that, 1) Subject to this section—

(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.

In order for a male and a female to get married, there is a minimum age limit and above that requirement, they are allowed by the law to marry and make their own family as wives and husbands. The only exception where a under marriageable age person can enter into statutory marriage is by way of applying to the court where it is provided under s7 (2), a male person who has attained the age of 16 years but has not attained the age of 18 years, or a female person who has attained the age of 14 years but has not attained the age of 16 years, may apply to a Judge or Magistrate for an order authorizing him or her to marry a particular person of marriageable age. In this case, the magistrate grants permission to marry after considering the circumstances where it suits him or her to marry at an under marriageable age. The facts and circumstances satisfy the magistrate for his her honour to grant the permission for the person to enter into marriage. It is provided under s7 (3) of the Marriage Act that, the Judge or Magistrate shall hold an inquiry into the relevant facts and circumstances and, if he is satisfied that—

(a) the applicant has attained—

(i) in the case of a male person—the age of 16 years; or

(ii) in the case of a female person—the age of 14 years; 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. If the both parties are under marriageable age, the magistrate cannot grant permission unless one of them is at or above the marriageable age.

For the issue of consent, under customary law, consent is a very significant element that is considered. The parents must give their consents to their children before they go for marriage. It is also relevant in the aspect of introduced laws and it is provided under s17 (1) (d) of Marriage Act, the consent of either of the parties is not a real consent because—

(i) it was obtained by duress or fraud; or

(ii) the party is mistaken as to the identity of the other party, or as to the nature of the ceremony performed; or

(iii) the party is mentally incapable of understanding the nature of the marriage contract; or

(e) either of the parties is not of marriageable age.

The parental consent is very relevant before a marriage can be called a valid marriage under customary and introduced law. Therefore, if the parties fail to obtain the required consent , even though the marriage is right but it is void for the relevant is not present which is stipulated under s43(f) Marriage Act.

In accordance with s11 of the Marriage Act, the Magistrate can give consent to a party to enter into marriage in place of the parents in some circumstances that is usually in the case of minors. It provides that, Where, in relation to a proposed marriage of a minor—

(a) a person whose consent to the marriage is required by this Act refuses to consent to the marriage; or

(b) an application by the minor under Section 10 for dispensation with the consent of such a person is refused,

the minor may apply to a Magistrate for the consent of the Magistrate to the marriage in place of the consent of that person.

Therefore, since it’s a requirement under laws of this country, a person who do not get consent to get married is guilty of an offence under s58 (2) (b), which states that, the written consent of the person, or of each of the persons, whose consent to the marriage of the other party to the marriage is required by this Act has been given or dispensed with in accordance with this Act. Consent is very important when dealing with marriages between two parties whether its customary or statutory marriage.

However, nowadays, the consent is not exercised by parents because the children themselves make their own choices. For the girls to choose their marriage partners it is the parents and the boys who are older than them make their societies. For boys, its them in these days make the decision.

What happens if there is no consent?

In such case, the marriage between the parties become void for there is no real consent granted by the parents or other people who are required by law to give. The consent is not real because it must have been obtained by other means of ways which are not according to the law and it is provided under s17 (1) (d) of the Marriage Act. It provides that, Subject to Subsection (2) and to Sections 20 and 21, a marriage is void if—

(d) the consent of either of the parties is not a real consent because—

(i) it was obtained by duress or fraud; or

(ii) the party is mistaken as to the identity of the other party, or as to the nature of the ceremony performed; or

(iii) the party is mentally incapable of understanding the nature of the marriage contract.

With the above ways of obtaining consent will invalidate the marriage between the parties and it becomes void according to the laws of this country.

The Difference between Statutory Marriage and Customary Marriage

The customary marriage is a marriage that is entered by two parties according to the customs and traditions in the societies. Section 3 of the Marriage Act recognises customary marriages as vital to any other statutory marriage. It is not inferior. In customary marriages, only a native or automatic citizen can marry under custom and any person that is already married by statutory marriage cannot get married into a customary marriage again so to do this one would commit the offence of bigamy. There must be payment of bride price as it is the honourable custom in the societies and any one of the parties’ always accepts bride price. Polygamy can be practiced upon some reasonable grounds which can be accepted by the societies and the family sometimes.

Whereas, in statutory marriage, it is a marriage that must be in accordance with the law set in this country. It is also recognised by s3 of the Marriage Act and it follows the laws strictly. It requires formalities and officially recognised by the people in charge to give marriage certificates. In statutory marriages, maintenance is allowed to be claimed by the parties if there is any divorce or separations.

After two parties are entered into a statutory marriage, either party are not allowed to enter into second marriage where it will constitute the offence of bigamy s360 of the Criminal Code. The marriage can take place in a church or registered in the registry in order for it to be formally recognised and seen as formal marriage.

Marriage Contract differs from any normal Contracts

Marriage is a contract and it changes someone’s statutes and it is not a commercial contract but nonetheless a contract. It is a special contract and there are differences between it and other contracts. The dealing with the capacity of the parties is different from other contracts which means it differentiates in ages where males 18 years and females 16 years whereas in other contracts, it is above 18years of age can be involved in commercial contracts.

In marriage contracts certain special procedures can be met before a marriage contract can come into be. In marriage contracts, I do is used while other contracts and relating to grounds for voidability, in commercial contract , if there is a defect, one party can walk away without informing the other person. Legal process must take place before walking away from the contracts and other contracts when there a breach, they simply walk away. In commercial contracts, parties mutually agree to bring to an end whereas in marriage contract, parties cannot brought to an end, they cannot agree to put it to an end. They must go to legal proceedings to end. They must go to legal proceedings to end it. Even though there is a breach of terms, they cannot come to an end.

By: Mek Hepela Kamongmenan

© 2018 Mek Hepela Kamongmenan


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      Jennifer Baing Waiko 10 days ago

      Thank you Mek for your clarification on this matter. Many people have been sent to jail unfairly due to a lack of understanding of the a marriage Act and what actually constituents marriage and therefore what is adultry. If there is no statutory or customary marriage how can there be charges of adultry? What if the person has already been charged with a fee for adultery but was never married be law or under custom?