Papua New Guinea: State and Customary Laws and the Underlying Law of Papua New Guinea: A Family Law Conundrum

Abstract

Family law in Papua New Guinea (PNG) is governed by two legal regimes, state and customary. These regimes sometimes operate independently, but increasingly overlap and, on occasion, collide. The position is complicated by a unique ‘bridge’ between the two systems provided by the Constitution and the Underlying Law Act, whereby, in the absence of written law, the courts must develop the underlying law, drawing first on customary laws, and only then on common law and equity. International law provides another layer of complexity to the family law landscape in PNG. This chapter commences with some background information on PNG and its legal system, including an outline of the arrangements made by the Underlying Law Act for incorporating customary law in the state system. It then sets out the principal sources of family law, giving an overview of the customary system and its impact on family relations and an explanation of how this fits with the state regime. The chapter also sets out the avenues provided by the state for resolution of family law disputes, including a recently established Family Court It then delves into the case law to illustrate the tensions between customary and state laws regulating family affairs in PNG. It also discusses some of the rare instances where the courts have expressly considered the underlying law in the context of family disputes. The chapter concludes that the constitutional pledge, ‘to guard and pass on to those who come after [them the] noble traditions’, when taken with the right of ‘ all persons in [the] country … to the fundamental rights and freedoms of the individual’, faces courts determining family law cases involving customary laws with a ‘constitutional conundrum’. PAPUA NEW GUINEA AND ITS LEGAL SYSTEM PNG is a country of over 8 million people, situated on the eastern half of the island of New Guinea, to the north of Australia and east of Indonesia. It is the largest South Pacific country, with a land area of about 453,000 sq kms. During the colonial era the country was divided into South-eastern New Guinea (Papua) (a protectorate and then colony of Britain) and North-eastern New Guinea (governed by the New Guinea Company and then the German Government). Both eventually came to be placed under the administration of Australia. 9 In 1975, PNG gained its independence.