Most marriages in Papua New Guinea are customary, and the Matrimonial Causes Act does not apply to them. When such a marriage ends, the spouses need a document that proves it. Since 2000 the District Court has provided one.
The provision
(1) A District Court shall, on application by a person married by custom, and on being satisfied that the marriage has been dissolved in accordance with custom, grant to him a certificate that the marriage has been so dissolved.
(2) A certificate under Subsection (1) is conclusive evidence that the marriage has been dissolved.
The section was inserted by the District Courts (Amendment) Act 2000. The Magistrates’ Manual makes the essential point: the jurisdiction does not amount to the actual dissolution of a customary marriage. A court must hear evidence, which may include a Village Court order about the marriage, and if satisfied that the marriage has been dissolved according to custom, issues a certificate accordingly.
Two separate steps
| Dissolution | Certificate | |
|---|---|---|
| Done by | The parties, their families and the community, according to the custom that governed the marriage | The District Court under s 22A |
| Involves | Whatever the custom requires: agreement of the families, return or forfeiture of bride price, a Village Court mediation or order, separation for a period | An application, evidence that those things have happened, and a finding that the marriage is dissolved by custom |
| Effect | The marriage is ended as a matter of the underlying law | Conclusive proof that it is ended, for any purpose in any court or office |
The Court cannot grant the certificate merely because a spouse wants out. If the custom has not been followed, or the families dispute whether it has, the Court is not satisfied and the application fails. Equally, the Court cannot refuse a certificate because it disapproves of the custom’s result, subject to the constitutional limits discussed below.
What the Court will want to see
The Act does not prescribe a form or the evidence. In practice a magistrate will want the applicant’s own sworn evidence of the marriage and its ending; evidence from a family or clan leader of the custom and of the steps taken, such as the return of bride price; any Village Court record, since Village Courts deal with many marital disputes and their records are prima facie evidence under section 84 of the Village Courts Act; and, where possible, evidence from or notice to the other spouse. Section 16 of the Customary Law Act, cited in the Manual, sets out the material a court may consider in determining the existence and content of a custom, and section 15 places a duty on counsel to assist.
Section 22A speaks of an application by “a person married by custom”, not of both spouses. But a certificate that is conclusive evidence against the world plainly affects the other spouse, and natural justice, which Constitution section 59 makes part of the underlying law, requires that he or she be given notice and a chance to be heard. A certificate granted without notice to a spouse who disputes the dissolution is vulnerable on appeal.
Custom and the Constitution
The Court is asked whether the marriage was dissolved in accordance with custom. But a custom that is inconsistent with the Constitution is not part of the underlying law. In Re Raramu [1994] PNGLR 486 Doherty J held that a custom which is discriminatory and contravenes the Constitution is not enforceable, and in Re Wagi Non [1991] PNGLR 84 Woods J held that customs which denigrate women should be denied a place in the underlying law. A magistrate who is told that by custom a wife is “dissolved” from the marriage by her husband’s unilateral act, with no say and no return of what she brought, is entitled to ask whether that custom meets section 55 of the Constitution before certifying it. See what is a customary marriage.
Why the certificate matters
| Purpose | How the certificate helps |
|---|---|
| Remarriage under the Marriage Act | Proves the earlier marriage is dissolved; see customary and statutory marriage |
| Maintenance and custody in the Family Court | Establishes the parties’ status; the Lukautim Pikinini Act jurisdiction over children continues regardless |
| Adultery and enticement claims | A person is no longer a “spouse” for the Adultery and Enticement Act once the marriage is dissolved |
| Superannuation, employment and housing records | Conclusive proof of marital status for employers and statutory bodies |
| Property | Fixes the date from which the parties’ property is separate; the District Court can decide small property claims within its money limit |
Procedure and fee
The application is a “complaint” in the Act’s sense, since section 1 includes an application, and follows the ordinary civil procedure: complaint, summons if the other spouse is to be notified, hearing, order and certificate. The Regulation prescribes no specific form, so regulation 2(2) allows a similar form and regulation 46 allows the Court to supply the deficiency. The Schedule 3 fees apply. An appeal against a grant or refusal lies to the National Court under section 219 within one month.
The District Courts Act is not on PacLII; it is available on vLex. The Customary Law Act and Village Courts Act provisions are cited from the Magistrates’ Manual.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.