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Statutory Marriage in Papua New Guinea

Mek H. Kamongmenan is a senior tutor of law at the School of Law, University of Papua New Guinea, and a lawyer.

Let's explore the laws of marriage in Papua New Guinea.

Let's explore the laws of marriage in Papua New Guinea.

The Two Processes of Marriage: Customary and Statutory

In the societies of Papua New Guinea, age is not relevant in many customary marriages. In customary marriages, the requirement of age is not really taken into consideration by 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 see that their child reaches a certain stage where they think they are capable of marriage, they are of 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.

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, it is void 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, 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, consent is not exercised by parents because the children themselves make their own choices.

What happens if there is no consent?

In such a case, the marriage between the parties becomes 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 or ways that are not legal, 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.

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

A customary marriage is a marriage that is entered by two parties according to social customs and traditions. 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 society and the family sometimes.

Whereas a statutory marriage 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 of giving marriage certificates. In statutory marriages, maintenance is allowed to be claimed by the parties if there is any divorce or separation.

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

Marriage Contract differs from any normal Contracts

Marriage is a contract that 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 18 years of age can be involved in commercial contracts.

In marriage contracts, certain special procedures can be met before a marriage contract can come into being. In marriage contracts, 'I do' is used In a 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 is a breach, and they simply walk away. In commercial contracts, parties mutually agree to bring to an end, whereas in a marriage contract, parties cannot bring 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

Questions & Answers

Question: How do we register our marriage in Papua new guinea?

Answer: In customary marriage, it is registered and recognized when the formalities of consented customary laws are satisfied and approved by respective elders of the married couples. On the other side, if it is statutory marriage all the requirements in the Marriage Act of Papua New Guinea shall be fulfilled and also can be registered under Civil registration with the Department of Community and Youth, of PNG.

© 2018 Mek Hepela Kamongmenan


Mek Hepela Kamongmenan (author) from Port Moresby, Papua New Guinea on December 18, 2019:

Millie, it is a good question.

The first marriage is de facto relation which is not recognized both the customary and Statute laws. However, if the first marriage is done under statute law then the second marriage is illegal in Papua New Guinea. Since the statutory marriage does not allow polygamous marriage. If the husband want to divorce the first wife then he must have grounds to divorce or otherwise. As for the children from this marriage, the custody of the kinds must go to partner (either male or female who has the capacity to provide for the children.

In this situation where the first marriage was de facto and they have children from that marriage. However, the husband went a head and got second marriage through statute then the first wife should sue the husband for maintenance from husband if he has the capacity. If the first wife has the capacity to provide for all the children then the first wife should sue the husband for custody of the children rather than maintenance.

After all these issues are resolved the first wife and children can live their lives and the husband could live with the legally marriage second wife.

In contrast, if the first wife still have some unresolved issues against the husband, then she could sue her husband via Village court for damages, where custom shall provide remedies for such situation since the young females are very important in Melanesian society like PNG. The husband should at least pay some kind of damages to the de facto wife.

Millie on December 18, 2019:

Thanks for the infor. If a man marries a lady not agreed by family members and have kids. They did not have customay marriage and/or statutory marriage. It was out of selfishness and lust. Since continuous problem and the man decided to marry another lady and they register their marriage at the Civil Registry of Marriage. What will you say about that?Which marriage is legal and right?

Mek Hepela Kamongmenan (author) from Port Moresby, Papua New Guinea on May 15, 2018:

There is no such maintenance claim by the husband from the wife in PNG customary law. In statute law of PNG, the maintenance claim is for the children in that marriage. Either party who has the capacity to pay maintenance to the party who is the custodian of their children.

Elmah Brands on May 15, 2018:

Nice article by the way..

In customary dissolution in marriage,is it right for the husband to claim maintenance to the wife???...

Mek Hepela Kamongmenan on May 08, 2018:

Jennifer Baing Waiko, thank you for your comment.

Jennifer Baing Waiko on March 08, 2018:

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?