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Adultery, Report 5 [1977] PGLawRComm 3 (1 February 1977)


(REPORT No. 5)


The Law Reform Commission of Papua New Guinea was established by the Law Reform Commission Act 1975 and began functioning in May 1975. The Commissioners are-

Bernard Narokobi, Chairman
Iramu, Deputy Chairman
Meg Taylor
Nahau Rooney
John Nilkare
Riley Samson

Abdul Paliwala is Secretary to the Commission.

The Commission's Office is on the ground floor of the Development Bank Building in Waigani. The Postal address of the Commission Law Reform Commission is:

Law Reform Commission
P.O Wards Strip,
Papua New Guinea.

28th February, 1977

The Honourable N. Ebia Olewale, M.P.,
Minister for Justice.

In your reference to us dated the 10th June 1975, you asked us to enquire into and report to you as soon as possible on how to effect the repeal of the Native Regulations of Papua and the Native Administration Regulations of New Guinea.

In this report we recommend the repeal of the Regulations dealing with adultery, but we also recommend new legislation to deal with the problem of in our country.

If our recommendations in this report are adopted and enacted, only the Regulations dealing with will-making and succession to property will remain. We will make recommendations as to these Regulations at a later date.

Yours faithfully,

Bernard Narokobi, Chairman
Francis Iramu, Deputy Chairman
Meg Taylor
Nahau Rooney
John Nilkare
Riley Samson.


Table of Contents


This is our fifth report since the establishment of the Commission in 19751. In a sense, it is a continuation of our Report No 2 which recommended the repeal of the Native Regulations. The national Executive Council, acting upon our recommendation repealed all the Native Regulations, except those dealing with adultery, will-making and succession to property. If a new law on adultery is enacted, the Native regulations dealing with it should be repealed.

It may come as a surprise to many modern persons that the Commission should spend much time on a subject which in most countries is no longer a matter for formal legal process2. However, law is shaped by, ‘the felt necessities of the time the prevalent moral and political theories, institutions of public policy . . . and a nation's development through many centuries....’3. For this reason, this report demonstrates a significant policy determination by the Commission; to reflect our people's prevailing moral values in our proposals. We believe, the law should spring from the common will of the people. This report and the draft bill attached to it reflect this belief4.

The report also represents a significant policy decision of the Commission to use customary law 'dynamically and creatively' as the foundation for developing our new legal system5. We look forward to the day when all our worthy customs will be used as the foundation of all our developments, including legal developments This is clearly required under our Constitution. The Commission has recently issued a working paper on the customary law as a source of the underlying law6.

The basic question discussed in this report can be stated in this way: how, if at all, should law treat adultery? In a plural such as ours where apparently diverse ethnic communities have to co-exist along with a new socio-political order called the state, it is not difficult to see that part of our role is to harmonise the differing views of our people. If the law is to be believed, it has to be relevant in its application to a village person whose area of movement is traditionally limited, as well as to the modern international traveller.

The purpose of our report is to encourage peace and the restoration of human relations that are often broken by acts of adultery. Needless to say, legislation alone cannot do this. An active educational policy to explain new laws, encourage magistrates, the police, community leaders and the people at large, will go a long way to ensure that lasting solutions to wounded human relations are arrived at. While adultery itself may be harmless, it often leads to serious social, family and personal upheavals. We were told in a number of public meetings we held throughout the country to inquire into the peoples attitudes to adultery, that in customary law, death was not an unusual consequence of adultery7.

We believe informal means of resolving personal conflicts that arise from adultery should be encouraged. Our emphasis on the informal approach is based on our deep conviction that unless the needs of the offended parties are met, their damaged human relationships restored, and hurt feelings healed, no amount of imprisonment will undo the harm done.


The present law on adultery is to be found in the separate Native Regulations for Papua, the Native Administration Regulations for New Guinea, and, in Section 37 of the Matrimonial Causes Act’1

Under both sets of Native Regulations, it is a criminal offence for two natives, now defined as automatic citizens, to have sexual intercourse if one or either of them is married. The police may not lay a complaint for an offence of adultery. The innocent spouse, or in his absence his nearest available relative, may lay the complaint against the person who had intercourse with his spouse2. The innocent spouse may not lay a complaint against the adulterous spouse3.

The maximum punishment for the offence is K6 fine or imprisonment for 6 months or both4. In the former Territory of New Guinea, the court may order the offender to pay K2 compensation to the innocent spouse5.

In both former Territories, it is an offence to induce or compel any female automatic citizen to have sexual intercourse with any male automatic citizen not her husband6.

Under Section 37 of the Matrimonial Causes Act a person who has entered into a registered marriage and who asks the National Court for a divorce because of his spouse's adultery, may at the same time ask the Court for damages for adultery from the person with whom his spouse has committed adultery. Such awards are unusual.

In this report, we set out proposals for a new law dealing with the problems of adultery in our society. These proposals would make Section 37 of the Matrimonial Causes Act unnecessary and so we recommend its repeal.

Our proposals would also replace the Native Regulations dealing with adultery. These Regulations are discriminatory. They make it an offence for two natives to commit adultery with one another. It is not an offence for either, if one of the adulterous couple is either a naturalized citizen or a foreigner. It is not an offence if both of them are either naturalized citizens or foreigners. On adultery, we believe there should be one law for all the people in Papua New Guinea.

The Native Regulations are part of the colonial era. Their continued existence is contrary to our country's independence and to the spirit of its Constitution.

For these reasons, we recommend that the Native Regulations relating to adultery be repealed.


Our recommendations are based on our consultations with the people of Papua New Guinea and on the Preamble and National Goals and Directive Principles of our Constitution.

During our consultations with the people in different parts of Papua New Guinea, we were told that adultery was viewed as a very serious offence against both the individual and his or her clan. In terms of its seriousness, it is ranked third after wilful killing and land stealing, by many of those who made representations to us. We do not necessarily agree with these priorities, for indeed permanent maiming, child beating and other offences could be regarded as more serious than adultery. We were told that many apparently happy homes, happy families and happy villages were disrupted by adultery or similar misconduct. The wisdom of most of our people generally includes the pillar: keep away from another person's husband or wife, do not commit adultery. Many of our oral traditions tell of how brothers have fought each other because of adultery and how villages have been split for the same reason. The ethical values of our village communities have had an important influence on our recommendations. In many communities death was not an unexpected consequence of adultery1. We have tried to build into our legal system a process whereby mediation and compensation would prevent the need for such a cruel and inhuman punishment as killing.

We firmly believe that magistrates should play the crucial role of mediators. Only if this mechanism fails, should they sit and adjudicate on adultery disputes. All too often, mediation is an expression of legislative intent that parties by-pass on their way to a legal battle in the adversary court process. Parties should be encouraged to mediate before they have their claims sorted out in a formal court system.

Our recommendations seek to harmonise the rigours of some of our traditional cultural values and the changing moral attitudes at least among some people, regarding adultery. Our proposals may not go far enough to satisfy the more "liberal" and "permissive" sections of our society. To these we say that we can only reflect the present needs of the communities. Let the future generations reform or repeal our generations' laws, when they find that to be necessary. Equally, we may not satisfy those who wish to see adulterers go to gaol for a long time, in the first instance. To them, we say that while adultery can be socially disruptive, it is not as serious an offence as killing or armed robbery and does not warrant severe punishment.

God has commanded – ‘Thou shalt not commit adultery’. However, the question we have to ask is, what if it is committed? Our answer is that, adultery should not be a crime punishable by imprisonment2. No fines should be paid to the state over it, either. It is for the offended person to take proceedings for compensation if he or she so wishes. Relatives should not take the initiative in adultery disputes. They should be able to claim compensation only with the express authority of the offended party. It was argued that paying compensation would be wrong because it would be using the courts to collect prostitution money. We disagree with this argument and set out our reasons in the recommendations.

The Preamble to our Constitution says –

WE, THE PEOPLE OF PAPUA NEW GUINEA . . . Pledge ourselves . . . to pass on to those who come after us our noble traditions and the Christian principles that are ours now.

And the first National Goal and Directive Principle calls for –

. . . the family unit to be recognized as the fundamental basis of our society, and for every step to be taken to promote the moral, cultural, economic and social standing of the Melanesian family; . . .

The fifth National Goal and Directive Principle seeks to promote total development –

. . . primarily through the use of Papua New Guinean forms of social, political and economic organization.

And it continues by calling for –

. . . the recognition of the cultural, commercial and ethnic diversity of our people as a positive strength, and for the fostering of a respect for and appreciation of traditional ways of life and culture . . . as well as the willingness to apply these ways dynamically and creatively to the task of development; . . .

We have taken these aspects of the Constitution into account when framing our recommendations. We have made positive, dynamic and creative use of the Christian principles that are now ours as well as of our customary laws to develop a uniform national law of adultery and enticement. We believe that for our society, at the present time, such a law is also a positive step to strengthen the moral and ethical quality of the family. Unless we have good and stable families, we cannot hope to have a good, strong and stable country.

Although we have no statistical data on this, we also believe that many marriages break up after acts of adultery. We are not saying that adultery is the sole cause of marriage break down; but it is often a significant factor.

Marriage in Papua New Guinea is not only a matter of two willing parties entering into an exclusive life long partnership, but also a coming together of, or a cementing of the woman's group with the man's group3. For this reason, adultery can and does cause social discord and sometimes violence in our societies. It would be irresponsible of us to ignore this fact. Because of this we have developed new laws on adultery. These are discussed in the next chapter.


1. Our major recommendation

Our major recommendation is that the present law relating to adultery be repealed and replaced by the Adultery and Enticement Bill attached to this report.

2. Purpose of the Bill

The first section states the purpose of the Bill, which is to avoid or lessen the impact of disputes arising from adultery and enticement. These often lead to broken marriages, and social disorder among the people both in towns and in the villages. The bill also sets out mediation and compensation procedures to be used by the magistrates. We consider it helpful to set out the purpose of the bill at its beginning. This should make the bill easier to understand for lawyers and non-lawyers alike.

3. Meaning of Adultery

We recommend that adultery be defined to include:

(a) Completed acts of sexual intercourse between a married person and another person not his spouse.

(b) Attempted sexual intercourse between a married person and another person not his spouse. In many traditional societies an attempted act of intercourse is as serious as the completed act.

(c) Any act of a sexual nature between a married person and another person not his or her spouse, if by custom such an act is unlawful. This alternative also provides for variations in customary practices about adultery.

Essentially, a magistrate has to be satisfied of the following elements before he or she can be satisfied adultery has been committed. First, that penetration, attempted penetration or an act which by custom is regarded as an unlawful sexual act has occurred. Secondly, that at least one party is a married person. Thirdly, that the other party to it is not his or her spouse. The magistrate should be satisfied on available information that adultery had occurred-as discussed below, the magistrate is not bound by the strict rules of evidence. Finally, the magistrate has to be satisfied none of the defences are available to the accused person before he orders compensation. The defences are discussed below.

Under our recommendations, if an adulterous couple have sexual intercourse on a number of occasions, they would be liable to pay compensation only once. But if an offended spouse started an action for compensation and the adulterous couple had intercourse afterwards, that would amount to another act of intercourse giving rise to cause for compensation, unless the court decides that no good purpose would be served by so regarding it.

4. Who may be taken to Court

Under our proposals the innocent spouse would be able to take either the adulterous spouse or the person with whom the adulterous spouse has committed adultery or both of them to court1.

It was put to us by one man in that the innocent spouses should not take their adulterous spouses to court. He argued that this would disrupt family harmony, and that it should be up to the police to take adulterers to court.

We consider that this is not a matter for the police: if the innocent spouse wants to take the adulterous court, then he or she should do so. But if the innocent spouse does not wish to take the adulterous spouse to court, that should be the end of the matter. This view was held by the majority of those who made submission to us in Madang, Wewak, Mendi, Popondetta, Port Moresby, Daru and other places.

We hope that on the whole, disputes would be settled peacefully, outside the courts. The courts should be used only when parties cannot settle their own problems satisfactorily.

5. Enticement

There used to be a common law action, for enticement. It was abolished in England in 1970, and was probably not part of the English common law that Papua New Guinea adopted under the Constitution at Independence2. Under the Native Regulations we recommend for repeal, it is an offence for a native to induce a female native to have sexual intercourse with a man not her husband3.

We recommend that a new action for enticement be created to deal with the situation where a married person is persuaded to live apart from his spouse so that the enticed spouse can have sexual intercourse with the enticer or some other person. The intention to have sexual intercourse is crucial because, we think, that not all forms of enticement should lead to compensation. Take the example of a husband who continually hits his wife and she is persuaded by her mother or father to leave her husband, but without any intention to have her have sexual intercourse with another person. In that case we think the husband would not have any action for enticement against his wife’s parents.

The English common law action for enticement was based on the idea that wives and children were chattels or goods. If someone should deprive the husband of their chattels, they should be compensated. Our Constitution has rejected the inferior role of women. Our proposed law on enticement would apply equally to men and women. Thus, if a husband is enticed away his wife may bring an action for enticement. Our proposals are not based on the outmoded idea that wives and children are chattels. They are based on the ethical values and the social realities of Papua New Guinea regarding sexual morality.

It is regarded as a serious affront if a man was to 'grease' or entice away, another man's wife, with a view to having sexual intercourse. It is equally serious if a woman was to entice away a married man for sexual ends. If there was not to be a cause of action for enticement, a spouse would have to wait until adultery is actually committed before an action is brought. This we believe would be a defect in adultery law which could lead to much social discord. Accordingly, we have created a new action for enticement by drawing from the now abolished common law action for enticement and our own customary law. We realise that in so doing the arm of the law is being extended to the private lives of husband and wife. However, as mentioned above, our social reality demands this at this time.

6. Time Limitation for Court Action

We recommend that a total of eighteen months be given to the complainants to go to the court. In the first instance, the complainant has six months from the day he has knowledge of the adultery or the enticement to make his complaint. If for some good reason, he or she has not been able to make a complaint, then the court should allow the complaint up to another 12 months to go to court.

We believe it is important to have a definite time limitation on bringing actions for adultery or enticement. If an act of adultery has not caused conflict and has apparently been forgotten or forgiven, we believe it is best not to raise the matter again. That is of course a matter for the individuals to determine. However, if a complainant knew of the adultery and did not complain for six months, he should not complain after that period unless a court considers that he has a reasonable excuse for doing so.

We have not set out the grounds for extending the initial six months. This should be left to the magistrate's good sense, judgement and discretion. However, the sort of reasons we have in mind include sickness, physical or mental inability to bring the matter to the court, persuasion by the spouse, the adulterer or some other person against court action, unavailability of magistrates or witnesses, or fear of the courts or for the imagined consequences as opposed to actual consequences. After a total of eighteen months from the first day of knowledge, we believe the matter should be closed to courts. This does not mean that the parties could not resolve it themselves. However, we would positively discourage bringing back to life matters that should have been resolved.

7. Joining Proceedings

Adultery and enticement actions always involve at least three people: the complainant and the parties involved in adultery or enticement. Sometimes a complainant may bring separate court actions against the parties to the adultery. A person might start an action for enticement as well as the magistrate to hear the two actions together, unless this would lead to injustice.

In some situations we believe justice would be best achieved if all parties could give evidence or information to the magistrate at the one hearing so that he can make his decision on all the issues. In the important mediatory role we propose for the magistrates, it would be even more essential that, wherever possible, the magistrates should deal with all the actions together4.

For these reasons we recommend that magistrates join proceedings unless there is good reason for dealing with them separately. Although we have not provided the grounds for joining proceedings, we consider that the magistrate should be guided by the overall peace, welfare and the paramount desire to resolve all disputes fairly among the parties involved.

8. Defences

We recommend a number of defences to actions for adultery and enticement. First, where the complainant has consented to or connived at or assisted in the act of adultery or enticement, he should have no cause of action. Secondly we believe that a child below the age of puberty should not be a defendant in any proceedings for adultery. Thirdly, where the complainant actually had knowledge of adultery or enticement but had forgiven one or both parties before the complaint. Charges of adultery and enticement may be easy to lay but difficult to disprove. When these charges are laid, in our Melanesian context, as indeed, in any society it becomes a seedbed for much contempt, shame and annoyance5. The accused person's good name and the sense of integrity is at stake and is often lost. We believe there should be defences to these actions, to ensure first that actions are not brought lightly and that compensation is not ordered where the facts do not substantiate the action.

The first defence of consent or connivance by the spouse of the guilty party is necessary to counter the argument put to us by some people that if the remedy for adultery is compensation, then a husband or a wife could encourage her spouse to commit adultery with a view to collecting compensation in courts. It was argued that courts would be turned into fee collecting houses for prostitutes. This defence will ensure that spouses who agreed to acts of adultery or enticement cannot expect sympathy from the courts.

The second defence is necessary to protect children. We have chosen the age of puberty because it seems to us that customarily it was an important age of determining adulthood. Besides a child who is below the age of puberty, is unlikely to cause harm by committing adultery. His acts should be treated as childhood aberration rather than as a matter to give rise to a court action.

The third defence is forgiveness. This is based on the customary practice of forgiving wrongs in most parts of Papua New Guinea. We believe that where a spouse discovers adultery or enticement and forgives an adulterous spouse or the enticer, then that stops future proceedings. We believe this is consistent with our traditions. Where the innocent party does not wish to embarrass his spouse he may forgive the spouse. Forgiveness of one party should be treated as forgiveness to both parties to adultery. This would stop the possibility of old acts of adultery being used as blackmail in disputes between spouses. Forgiveness would relate only to the past acts. It would not relate to any future acts of adultery or enticement. If a spouse forgives a future act, that would amount to consent or connivance. We believe this defence would also enable both parties to get together and settle their problems, without the need to go to courts if they consider that action to be in their best interests. It should be remembered that court actions often create even greater social disorder.

The fourth defence is one analogous to the defence in Section 19 of the Sorcery Act 1971. If a person consents to an act of adultery only because he or she has been subjected to an act of sorcery which is accepted under the custom of the person's social group as requiring the person to have sexual intercourse in circumstance amounting to adultery, then if that person is made a defendant to an action for adultery, he or she could prove the act of sorcery and the custom and, as a result, have the action for adultery against him or her dismissed. The action would not, however, be dismissed against the other party to the act of adultery.

9. Magistrates as mediators

We strongly believe that in relation to adultery disputes and other disputes, magistrates’ primary role should be to mediate. We have given mediation prominence in a number of our reports and shall continue to do so. We have not given any draft guidelines on what the mediation process should involve, nor have we given mediation any definition. We hope to make a special study of mediation in the future.

In a reply to a question from Mr Turi Wari (lalibu-Pangia) about tribal fighting in the Highlands, the Honourable, the Minister for Justice, Mr Olewale said that the Government believed the proper way to deal with the problem which led to fighting was to mediate6. Mediation is clearly envisaged in the Preamble to the Constitution when it rejects violence and seeks consensus as a means to solving our common problems7.

When adultery has been committed, there can be many consequences. A child might be born to an adulterous relationship. A fight might have occurred. The question of divorce, of the return or recovery of bride or groom gifts might be in question. A person's career might be at stake, his or her reputation and so on might be up for questioning. An adulterous relationship might have developed at a time of prolonged and unavoidable separation, strained relationship or deep stress.

In an adversary proceeding, the only issue before the court would be - has adultery or enticement been committed? In the mediation process many more of the associated issues can be considered. In handling mediations magistrates should be flexible and prepared to move with the wishes of the parties, playing the role of an intermediary, disinterested in the outcome of the proceedings, but very much concerned about the life, health, harmony and the welfare of both parties and their clan groups. They should be able to assess and evaluate the extent of the claim and the extent to which concessions can be made, by the other party.

Mediation should be a gradual, persuasive, non-coercive process aimed at restoring peace not only between the people directly affected, but also their clans.

We consider that mediation settlements should be recorded. They should be enforceable as if they were court orders for compensation of up to K200.Marriage is based among other qualities on love and affection. Adultery and enticement disrupt these. Thus, through mediation, forgiveness, softening of feelings and reconciliation may result. It is only after mediation has failed that the court should order compensation.

10. Compensation

Mediation may fail if, for example, one party refuses to participate. If this happens, the magistrate should have power to hear and determine the case and award compensation where appropriate. Compensation for adultery or enticement should not exceed K200. Compensation should not place undue hardship on the guilty person. For this reason, we have set out guidelines for the magistrates to take into account in making orders for compensation. The court should consider the earnings of the wrong-doer, the hardship to his family, the wishes of the complainant, the proportionate fault of each adulterer, and the amount generally accepted in the community as appropriate and other matters the court regards as relevant.

We believe it is important to direct the court's attention to these issues. In places where the people have high income, K200 is not too high a sum. In those areas, an order for compensation for K10 would be far too little. On the other hand, in places where the people's income is very low, a compensation order for K10 would cause hardship. Accordingly, we believe that, although the maximum is K200, the actual award could be as low as K5 or K2 or as high as K200. Compensation, we believe, should be in cash or in goods or a combination of both, but it should not include liquor.

It was put to us that tobacco and betelnuts not be used as items for compensation. We reject this proposal because these are essential items in many traditional transactions. It should not be necessary to pay all the compensation at once. The court should have the power to order that the compensation be paid over a period of time.

11. Enforcement of Court Orders

We recommend that if compensation is not paid, the court should have the power to order the adulterers to do community work for the maximum of eight hours a day for six days for up to four weeks. A magistrate may specify particular work to be done, for example cutting grass around a school area, or he may state generally in his order that the adulterer should do community work, leaving it to the peace officer to organise the nature of work to be done6. If the court considers that community work would not be appropriate, either because it would not be practicable or that it would not be effective because it could not be well supervised, then imprisonment for up to 6 months may be ordered.

The imprisonment order would have to be endorsed by a Local or District Court Magistrate, as provided in Section 37 of the Village Courts Act. In our view, jail sentences should not be used readily. A person in jail is a loss to his family, to the community, and often becomes embittered towards the society. We would encourage magistrates to make greater use of community work in preference to court fines and jail sentences.

12. Evidence

We consider that the strict rules of evidence should not be applied in Court hearings over adultery or enticement. Accordingly, we recommend that courts should receive and consider any available relevant information.

It was argued before us at Madang, that admission of hearsay or other evidence which, by application of the technical English rules of evidence, would be excluded, would lead to unjustified compensation payments.
We do not doubt that there are dangers involved in not applying strict rules of evidence. We believe, however, that on the whole allegations of adultery do not normally go before the courts without some strong suspicion. Our provisions on evidence are the same as those contained in the Village Courts Act. We believe the truth can be ascertained by the application of those provisions. When all the information becomes available, it is still open to the court to believe all of it, some of it, or none of it at all before giving its decision.

13. Persons who may go to court on of the innocent spouse

A 'relative' may go to the court on behalf of the complainant provided the complainant gives express consent, and the court gives the relative permission to deal with the matter. This recommendation is a compromise approach between allowing any relative to be able to make complaint without the consent of the innocent spouse, and excluding the relatives completely.

We have included relatives because in Papua New Guinea, many marriages are still marriages of two persons into two different communities, each with extended family ties. Relatives usually contribute in cash, in kind or in moral support towards any marriage ceremonies, and they usually accept responsibility for the maintenance of the children of the marriage should anything go wrong. It would be wrong in our social context to leave out relatives completely. However, to give the relatives a free hand would be equally risky. The interests of the innocent spouse may not always coincide with the interests of a relative. An innocent spouse might choose to forget the whole affair, but a relative might feel offended because the adulterous spouse has offended the family name through the adultery or enticement. If the innocent spouse was not required to give consent this could lead to more trouble.

In the Bill attached to this report, we have defined 'relative' to include parents, grandparents, brothers, sisters, children, uncles, aunts and cousins who in custom are regarded as near relatives. In the Native Regulations, only the nearest relative could lay a complaint about adultery. We think this is too narrow an approach and does not coincide with the wide view of relatives taken by custom9.

14. Courts which may hear complaints

Submissions made to us about which courts should hear adultery and enticement cases varied greatly. Some people said that all courts have the power to hear adultery and enticement cases. Some argued that only the Supreme and the National Courts should hear such cases. Others submitted that only the District and the Local Courts should hear these cases. But the overwhelming majority believe that only the Village Courts should hear adultery and enticement cases.

We consider that Village Courts afford the best forum for determining arguments that arise over adultery and enticement. On September 30th 1976, some 535,302 people out of a population of 2,375,000 were under Village Courts jurisdiction: there were 1,101 magistrates, 375 peace officers and 255 clerks. More Village Courts have been established since then. In places where there are no Village Courts, we recommend that Local Courts should have the power to hear adultery and enticement cases. But when they do so, they follow the same practices, procedures and rules of evidence.

A single Village Court magistrate will have the power to mediate in adultery and enticement cases. We believe this exercise of mediatory jurisdiction should be given special emphasis. Only when mediation fails should the matter be heard by the full Village Court of not less than three magistrates.


As a consequence of our major recommendations in Chapter 4, a number of other changes to the law would be required.

1. Repeal of Native Regulations
The Native regulations of the former Territories of Papua and New Guinea dealing with adultery would have to be repealed if our major recommendations are adopted.

As emerges from the earlier chapters of this report, we consider it inappropriate that adultery be treated as a criminal offence in Papua New Guinea. The fact that the Native Regulations apply only to automatic citizens is discriminatory and unacceptable.

Drafts of the repealing Regulations are attached to the report.

2. Enactment of Matrimonial Causes (Damages for Adultery) Bill

We consider the Matrimonial Causes (Damages for Adultery) Bill is necessary to put it beyond doubt that the only action for adultery in Papua New Guinea is that contained Adultery and Enticement Bill. For this reason the Matrimonial Causes (Damages for Adultery) Bill repeals our English common law actions for adultery which may be considered to apply. The Bill also repeals the little used section 37 of the Matrimonial Causes Act 1963 which allows a petitioner for a divorce to seek damages from the person who committed adultery with his or her spouse.

A draft of the Bill is attached to this report.

3. Enactment of Village Courts (Engagement Gifts, etc) Bill

If this Bill was enacted, it would give the Village Courts jurisdiction to deal with customary engagement gifts of whatever value. It would also make it clear that Village Courts have the power to award compensation of up to K200 in adultery cases.

A draft of the Bill is attached to this report.

4. Enactment of Sorcery (Amendment) Bill

We recommended that the defence in section 19 of the Sorcery Act, 1971 be translated, in an appropriately changed form to the Adultery and Enticement Bill. As a result section 19 of the Sorcery Act 1971 would have to be repealed.

A draft of the repealing bill is attached to this report.

5. Enactment of Law Reform (Enticement) Bill
In order to make clear that the only action for enticement is that provided in the Adultery and Enticement Bill, this bill would specifically repeal the common law action of enticement and the similar action of harbouring. It is unlikely that either of these English common law actions apply in Papua New Guinea, but we consider that the Law Reform (Enticement) Bill is necessary to put it beyond doubt that they do not apply.

A draft of the repealing bill is attached this report.


Chapter 1

1. Our published reports to date are as follows:
Report No. 1 Summary Offences (September, 1975).
Report No. 2 Abolition of Native (October, 1975).
Report No. 3 Punishment for Wilful Murder, (October, 1975)
Report No. 4 Arrest, Search and Bail (March, 1976).

2. In Australia, adultery is not a criminal offence It is not even a ground for divorce under the Family Law Act 1975.

3. O.W. Holmes Jr, The Common Law (1881 )

4. In our consultations with the people throughout the country, we found that an overwhelming majority of the people considered that adultery should be subject to the law in one way or another.

5. The fifth National Goal and Directive Principle in the Constitution.

6. Working Paper No. 4 'Declaration and Development of the Underlying Law' (September, 1976).

7. For example, among the Rohuim people, also described as the Arapesh by Dr M. Mead, every male child grows up with the lesson that he should not steal another person's land, pigs, property or another man's wife. Girls, of course, receive similar advice.

Dr Marilyn Strathern reports that ‘the only offence of note - ie. the only act which commonly led to disputes and/or court action (official or unofficial)’ was adultery. Report on Questionnaire on Sexual Offences as defined in the Criminal Code, February, 1975, 49.

"Adultery is viewed seriously" in Goodenough Islands, see Michael, M. Young - Fighting with Food 53-54. It is also a serious matter among the Tolai people –s ee A.L Epstein (ed), Contention and Dispute (1974). 84-90. See also M. Strathern - Women in Between, (1972) 341-342. It is often redressed with death in many communities of East Sepik Province.

Chapter 2

1. Native Regulations (Papua) 84(1),(2) and (3) and Native Administration Regulations (New Guinea) 84(1),(2),(3),(4) and (5), made pursuant to Native Regulation Act 1908-1960 (Papua) and Native Administration Act 1921 -1963, respectively. Sorcery Act 1971 19 also provides defences to a charge of adultery based on magic charm, a form of sorcery.

2. Native Regulations (Papua) 84(1),(2) abd (3) and Native Administration Regulation (New Guinea) 84(3)

3. Maumau v Maragili (1963) P&NGLR 108; Gaudaida v Damanapu (1964) P & NGLR 253.

4. Native Regulations (Papua) 84(1), Native Administration Regulations (New Guinea) 84(2)

5. Native Administration Regulation (New Guinea) 84(5)

6. Native Regulations (Papua) 84(5), Native Administration Regulations (New Guinea) 85.

Chapter 3

1. See footnote 7, Chapter 1.

2. When the scribes and pharisees tried to invoke the law of Moses to stone an adulterer, Jesus answered ‘Let him who is without sin among you be the first to cast a stone at her'. The woman was left unharmed by those learned in the law. John 8:1-11

3. See for example, M. Strathern, (1972:72)

Chapter 4

1. This is not possible under the present regulations which provide that a spouse is not competent to lay a complaint against his or her guilty spouse. See Maumau v Maragili (1963) P&NGLR 108.

2. The common law action of enticement was abolished in England in 1970 by Section 5(a) of the Law Reform (Miscellaneous Provisions) Act 1970.

Under S. Sch. 2.2(3) of the Constitution, the English common law and equity adopted "not withstanding any revision by any statute". If “revision” only includes amendment of a common law rule, then the enticement rule is not part of Papua New Guinea law in so far as it is "applicable and appropriate" to the circumstances of the country.

3. Native Regulations (Papua) 84(5); Native Administration Regulations (New Guinea) 85. These regulations were interpreted Mas Nyangri v Omatau (1965-66) P.&N.G.L.R. 8.

4. The truth often does not emerge until the whole story is heard. Where isolated issues are tried separately. eg. adultery first and then enticement or vice versa, often the whole truth cannot be known with the result that true justice cannot be done.

5. Shame plays a very important role as a form of punishment.

6. Post Courier, Tuesday 10th August, 1976, 3.

7. The Preamble to the Constitution states – ‘And We Assert, by virtue of that authority that we reject and seek consensus as a means of solving our common problems.

8. In our consultations with the people, we found that most Papua New Guineans support the idea of community of work orders as an alternative to short term imprisonment. Regrettably, the Village Courts make little use of community work orders, preferring to fine or imprison wrongdoers.

9. The meaning of the term 'nearest relative has given trouble and the interpretation of the term Given by Frost J (as he then was) in Labian-Saiuen v Yerei-Yautan (1965-66) P&NGLR 152 at 158-59 is much narrower than the customary view of near relatives.



Submissions were made by the following people in public meetings held at:

John Kasua
Local Government Councillors
Village Court Officials
Spokeswoman for Women organizations
Sgt. Maj. Warimis
Peter Wahauri
Hausavi Waraming
Tom Marap
Cr. Donigi Samia
Peter Ulankien
Joseph Korouven
Cr. Yakaraut
A. Paul from Soure Village
Henry (a teacher from Kreer Community School)
Cr. Sakar
Nicholas Yamag
George Panau
John from Sepik River
Cr. Kumasi Siaue

The Provincial Commissioner
Golak Lahu
Spokeswoman for a Madang Womens Group
Vice President, Madang Area Authority
Ahilo Grek
Lukas Simai
Insp. Lawrence
Insp. Sumai
Mr Ephraim Jubilee, Magistrate
Mr S. B. Saga, Magistrate
Mr S. Guosa, Magistrate



Public meetings were also held by Commissioners in Lae, Rabaul, Arawa, Popondetta, Mendi, Daru, Goroka, Mt Hagen, Manus, Enga and Port Moresby. These meetings were well attended. Views of contributers were taken but the commissioners were unable to record their names.

B. M. Narokobi Madang, Wewak

F. lramu Lae, Mt Hagen, Mendi, Enga, Rabaul, and Popondetta
Meg Taylor Arawa, Port Moresby
Nahau Rooney Manus
R. Samson Daru
J. Nilkare Kundiawa, Goroka and Rabaul


Fr. Liebert Wewak
M. J. Tasmania, Australia
Towaai Rabaul
A. d. Wewak
V. H. Gamu Bereina
C. Kowor (Miss) Waigani
Sir John Minogue Q.C. Melbourne, Australia
M. Strathern Essex, England
B. Brunton Waigani
P. Kale Port Moresby
C. K. Wemen Port Moresby
A. Jerewai Waigani (UPNG)
G. Guaron Madang
P.H. Kipo Daru
F. Magistrate Vanimo
L. Sa Saidor, Madang
P. Akuram Waigani
S. Na'aru Magistrate Alotau
P. R. Dande Magistrate Kandrian, West New Britain
M. Magistrate Koroba, Southern Highlands
A. Joseph Magistrate Mt Hagen
E. Jubilee Rabaul
S. B. Saga Port Moresby
S. Guosa Kimbe
A. Badei Manam Is. Madang

H. R. Dickinson Magistrate on behalf of 60 Village Court officials Mendi


Bundi Local Government Council, Madang Province
Goroka Local Government Council, Eastern Highlands Province
Department of Labour and Industries National Office, Port Moresby
Village Court Officials and Magistrates, Mendi

Henganofi Local Government Council, Eastern Highlands Province
Bieng Parish, Catholic Church, Is. Madang
District & Local Courts, Kerema, Gulf Province

Law Reform Commission Draft


Adultery and Enticement Bill 1977.


1. Purpose of this Act.
2. Interpretation –

"act of adultery".







"proceedings under this Act"

3. "Act of adultery"


4. Proceedings for adultery.
5. Proceedings for enticing.
6. Time for taking proceedings.
7. Joinder of proceedings.
8. Defences.
9. Mediation.
10. Orders for compensation.
11. Duplication of compensation.
12. Assessment of compensation.
13. Enforcement of orders for compensation
14. Evidence.


15. Proceedings on behalf of other persons.
16. Jurisdiction, etc.
17. Effect of and on other laws.
18. Survival of causes of action.

Law Reform Commission Draft


Adultery and Enticement Act 1977

Being an Act relating to compensation for adultery and the enticement of a married person away from his spouse with intent to sexual intercourse, and for related purposes.

MADE by the National Parliament, to come into operation on a date to be fixed by the Head of State, acting with, and in accordance with, the advice of the Minister, by notice in the National Gazette.



The purpose of this Act is to settle disputes concerning adultery and that enticement that disrupt the peace and harmony of families and villages, and to that end the Act requires magistrates to mediate and, if necessary, to arbitrate disputes and assess compensation so that disputes concerning adultery and enticement will be settled peacefully and in fairness to all.


In this Act, unless the contrary intention appears-

"act of adultery" has the meaning given to it by Section 3,

"adultery" means-

(a) voluntary sexual intercourse or attempted sexual intercourse between a married person and a person other than his spouse; or
(b) any act of a sexual nature between a married person and a person other than his spouse that, between such persons, is, by custom, unlawful;

"anticipatory order" means an order that provides for what is to happen if another order (including another anticipatory order) with which, or in respect of which, it is made is not obeyed);

"court" means a village court or, in accordance with Section 16, a Local Court;

"complainant" means a person who, or on whose behalf in accordance Section 15, proceedings under this Act are brought;

"enticement" means the persuading of a person to live apart from his spouse, with the intent that the person so persuaded have sexual intercourse with the enticer or some other person;

"enticer" includes a person on whose behalf and with whose consent a person enticed away from his spouse;

"marriage" includes-

(a) a void marriage, if the complainant believed, on reasonable grounds, that the marriage was valid; and

(b) a relationship that is not a valid marriage but that the complainant believes, on reasonable grounds, to be a relationship of husband and wife;

"proceedings under this Act" includes any proceedings that are joined under Section 7.


(1) For the purposes of this Act, where two persons commit adultery with each other more than once, the separate acts shall be regarded as being a single act of adultery.

(2) Notwithstanding Subsection (I),adultery that occurs after making of a complaint under this Act shall be regarded as a separate act of adultery from the act of adultery that occurred between the same persons before the making of the complaint, unless in the circumstances the court is of the that no good purpose would be served by so regarding it.



(1) Subject to this Act, a person whose spouse has committed an act of adultery may take proceedings under this Act against-

(a) the spouse; or
(b) the person with whom the spouse committed adultery,

or both, for compensation for the adultery.

(2) Proceedings for adultery may not be brought if-

(a) the adulterous spouse has married the other adulterer; and

(b) the complainant has continued to live as husband or wife, as the case may be, with the adulterous spouse.


Subject to this Act, where the spouse of a person has been enticed away from him, he may take proceedings under this Act against the enticer for compensation for the enticement.


(1) Subject to Subsections (2) and (3) proceedings under this Act must be taken within 12 months after the complainant came to know of the act of adultery, or the enticement, as the case may be, complained of.

(2) In the case of proceedings for adultery where, under Section 3, adultery on more occasions than one is to be regarded as a single act of adultery, the period of six months referred to in Sub-section (1) commences when the last of those occasions before the commencement of the proceedings came to the knowledge of the complainant.

(3) Where in the opinion of the court a complainant had a reasonable excuse for not taking the proceedings within the period referred to Sub-section (1), the court may permit proceedings to be taken after the end of that period, but any event no more than six months after the end of that period.


(1) Where a person takes separate proceedings under this Act against-

(a) in the case of proceedings for adultery-both to the act of adultery in question; or

(b) in the case of proceedings for enticement-both the person who did the actual enticement and against the person on whose behalf the enticement was made,

the proceedings shall, if practicable be dealt with together, unless the court is of the opinion that there is a good reason for dealing with them separately.

(2) Subject to Section 11, with the consent of the court for adultery and proceedings for enticement brought by the one complainant may be dealt with together.

(3) Where-

(a) proceedings for adultery are taken against only one of the adulterers; and

(b) the person whom the proceedings are taken wishes the other adulterer to be dealt with in the proceedings, and

(c) the court thinks that it would be in the interests of justice and of the peace and harmony of the area for both of the adulterers to be dealt with in the one proceedings,

it may so order, and may adjourn the proceedings in order to allow this to be done and the proceedings to be joined under Sub-section (1).


(1) If in any proceedings under this Act it is found that-

(a) the complainant consented to or connived at the adultery or enticement; or
(b) the complainant has forgiven the adulterer or enticer; or
(c) in the case of proceedings for adultery, the adulterer was below the age of puberty;

the action for adultery shall be dismissed.

(2) If, in any proceedings under this Act it is found that-

(a) an act of sorcery has been performed on one of the defendants without his consent express or implied; and

(b) the act of sorcery is of a type that is generally believed, in the social group to which the defendant upon whom the act of sorcery has been performed belongs, to have the effect of inducing the person upon whom it is performed to have sexual intercourse in circumstances amounting to an act of adultery; and

(c) the custom of the social group to which the defendant upon whom the act of sorcery has been performed belong, should excuse him from any act of adultery he committed in these circumstances,

the action for adultery against the defendant upon whom the act of adultery has been performed shall be dismissed.


(1) In all proceedings under this Act, the court shall attempt to arrive at a settlement by mediation, and shall make an order under Section 10 for the making of compensation only if it is satisfied that there is no reasonable prospect that mediation will achieve a settlement that is satisfactory to the parties.

(2) The jurisdiction of a court under Subsection (1) may be exercised by a single magistrate of the court.

(3) If a settlement is arrived at in accordance with Subsection (1), then the terms of the settlement shall, subject to Section 11, be recorded in the form prescribed for the purposes of Section 21 of the Village Courts Act 1973.

(4) A settlement that is recorded in accordance with Subsection (3) shall be treated, and may be enforced, as if it were an order of a Village Court, but only in accordance with, and within the limits imposed by, Section 10.


If the court before which any proceedings under this Act are taken is satisfied that-

(a) the adultery or enticement alleged occurred; and

(b) Section 8 does not apply; and
(c) mediation in accordance with Section 9 has failed,

the court may, subject to Section 11, order compensation to be made by all or any of the offending persons.


A complainant is not entitled to compensation against the one person both as adulterer and as enticer in respect of the same act of adultery.


(1) The total amount of compensation that may be awarded against all or any persons in respect of a single act of adultery or an enticement is K200.00.

(2) In determining the amount of compensation that any person must make, the court shall take into account-

(a) his earning capacity; and
(b) any hardship likely to be suffered by his family; and
(c) the wishes of the complainant; and

(d) general practice in relation to compensation for adultery or enticement in the area (other than compensation ordered by courts); and

(e) in the case of compensation awarded against more persons than one, the proportion of fault of the person; and

(f) any other matters that the court thinks relevant.

(3) Compensation may be ordered to be made-

(a) in cash; or

(b) in goods (other than alcoholic liquor); or
(c) partly in cash and partly in goods (other than alcoholic liquor),

as the court thinks fit.

(4) Compensation may be ordered to be made-

(a) at one time or by instalments, as determined by the court; and

(b) subject to such conditions (if any) as the court thinks proper.

(5) In Subsection (3), "alcoholic liquor" means any liquid containing alcohol and ordinarily used as a beverage.


(1) For the purposes of this section, an order shall be deemed not to be completely enforced until-

(a) in the case of an order for the performance of community work the work has been completed in accordance with the order; or

(b) in the case of an order for imprisonment the term of imprisonment has been completed in accordance with law.

(2) Where a person fails to comply with an order for the making of compensation under this Act, the court that made the order may order the offender to perform specified work, or work of a kind, for community purposes, not exceeding-

(a) eight hours in any one day; and
(b) six days in any one week,

over a period not exceeding four weeks.

(3) Where-

(a) a person fails to comply with an order under Subsection (2) for the performance of work for community purposes; or

(b) in the opinion of the court such an order is impracticable or is not likely to be effective for lack of adequate supervision,

the court may order the offender to be imprisoned for a term not exceeding six months.

(4) Where the court that makes an order under Subsection (3) for imprisonment is a village court, Section 37 of the Village Courts Act 1973 must be complied with before the order can be enforced.

(5) An order for the making of compensation may include-

(a) an anticipatory order under Subsection (2) for the performance of work for community purposes; or an anticipatory order under Subsection (3)

(b) for imprisonment; or anticipatory orders under both Subsection (2) for the performance of community work and under Subsection (3) (a) for imprisonment in default,

and an order under Subsection (2) for the performance of community work may include an anticipatory order for imprisonment under Subsection (4).

(6) Before an order under Subsection (3) (b) for imprisonment is made, or where such an order is included, in accordance with Subsection (1), in another order, the court may, on application by the offender, reduce the term of imprisonment under the order because of changed circumstances.

(7) The complete enforcement of an order for the performance of community work or for imprisonment releases the offender from any liability to make the compensation in question, or that part of it that remained when the order was put into effect.


In any proceedings under this Act, including proceedings in relation to the enforcement of an order, the court shall not apply technical rules of evidence, but shall receive and consider such information as is available.



(1) In this section, "relative" means a person who is regarded by custom as a relative, such (for example) as-

(a) a father or mother; or
(b) a grandfather or grandmother; or
(c) a brother or sister, or
(d) a child, or
(e) an uncle or aunt, or
(f) a cousin.

(2) Where a person is entitled to take proceedings under this Act, a relative may take and prosecute the proceedings in his name and on his behalf-

(a) with his express consent, and
(b) with the permission of the court


(1) Subject to Sub-section (2), proceedings under this Act may be taken before any village court that would have jurisdiction if the proceedings were proceedings under the Village Courts Act 1973 respect of a dispute.

(2) Where a magistrate of a Local Court is satisfied that it would be more convenient for the parties and for the possible witnesses if the proceedings were taken before that court, the proceedings may be taken before that court, which shall be constituted for the purpose by one or more magistrates of that court.

(3) Except to the extent that it is inconsistent with this Act, the Village Courts Act 1973 applies to proceedings (whether in a village court or in a Local Court) under this Act, and such proceedings shall be deemed to be proceedings under the Village Courts Act 1973.

(4) For the purpose of any proceedings under this Act that are taken before a Local Court-

(a) any reference in the Village Courts Act 1973, as applying by virtue of Subsection (3), to a village court shall be read as a reference to the Local Court, and

(b) any such reference to a Magistrate shall be read as a reference to Magistrate of the Local Court, and

(c) an appeal under Section 49 of that Act from the Local Court lies only to a District Court or to a Local Court constituted by a Magistrate or Magistrates of a higher grade than the Magistrate or Magistrates who constituted the original court, and
(d) Section 50 and 51 (1), (2)and (3) of that Act do not apply.


(1) Subject to Subsections (2) and (3), and the Matrimonial Causes (Damages for Adultery) Act 1977, nothing in this Act prevents proceedings being taken under any other law by, or relief being granted under any other law to, a complainant or person entitled to be a complainant.

(2) Proceedings may not be taken under the Village Courts Act 1973 for compensation for adultery or enticement, but nevertheless proceedings in which adultery or enticement forms part only of the subject matter of a dispute may be taken under that Act.

(3) Where in accordance with Sub-section (2) proceedings involving adultery or enticement may be taken under the Village Courts Act 1973-

(a) Sections 12 and 13 of this Act apply in respect of compensation for adultery or enticement; and

(b) the court dealing the proceedings shall state in its order, or in the record of a settlement under Division 111.3 of that Act, as the case requires, the amount or value of the compensation that relates to the adultery or enticement.


The right to take proceedings under this Act or to have such proceedings taken on one's behalf is a personal right and on the death of the person entitled to take the proceedings or to have them taken does not survive for the benefit of his estate.

Law Reform Commission Draft

No of 1977

Native Administration (Amendment) Regulation 1977 (NG)


A Regulation to amend the Native Administration Regulations 1924 (NG), as amended to date, by repealing certain sections,

MADE by the Head of State, acting with, and in accordance with, the advice of the National executive Council, under the Native Administration Act 1908 (NG) as amended to date.


The Sections of the Principal Regulation specified in the Schedule are repealed.

Section 84
Section 85

Law Reform Commission Draft

No. of 1977.

Native (Amendment) Regulation 1977 (P),


A Regulation to amend the Native Regulations 1939 (P), as amended to date, by repealing certain sections,

MADE by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, under the Native Regulation Act 1908 (P) as amended to date.

Section 84 of the Principal is repealed.

Law Reform Commission Draft


Matrimonial Causes (Damages for Adultery) Act 1977,

Being an Act to abolish actions for damages for adultery except in accordance with the Adultery and Enticement Act 1977, and for the purpose to amend the Matrimonial Causes Act 1963,
MADE by the National Parliament, to come into operation on the date of commencement of the Adultery and Enticement Act 1977.


Subject to Section 3, after the commencement of this Act no action or claim for damages or compensation on the ground only of adultery lies against any person except in accordance with the Adultery and Enticement Act 1977.


(1) Section 37 of the Matrimonial Causes Act 1963 is repealed.
(2). The Matrimonial Causes Act 1963 is further amended in accordance with the Schedule.


This Act does not affect any action or claim for damages or compensation for adultery that has been commenced, before the commencement of this Act, under the Matrimonial Causes Act 1963 or otherwise.

Sec. 2(2) SCHEDULE.

Minor and Consequential Amendments to the Matrimonial Causes Act.

Provision- Amendment.

Section 5(1) Omit from paragraph the definition "matrimonial cause" the words "damages in respect of adultery,".

Law Reform Commission Draft


Village Courts (Engagement Gifts, etc.) Act 1977,

Being an Act to amend the Village Courts Act 1973 as amended to date in relation to judgements in respect of adultery, enticement and engagement gifts,

MADE by the National Parliament, to come into operation on the date of commencement of the Adultery and Enticement Act 1977.


Section 24 of the Principal Act is amended-

(a) by inserting in Subsection (3)after the words "custody of children", the words "engagement gifts given in accordance with custom"; and

(b) by adding the following Subsection:-

"(4) In matters relating to adultery and enticement within the meaning of the Adultery and Enticement Act 1977 Sections 12 and 13 of that Act applies in respect of the awarding of compensation or damages."

Law Reform Commission Draft


Sorcery (Amendment) Act, 1977,

Being an act to amend the Sorcery Act 1971, by repealing section 19 of that Act.

MADE by the National Parliament, to come into operation on the date of commencement of the Adultery and Enticement Act, 1977.


Section 19 of the Sorcery Act, 1971 is repealed.

Law Reform Commission


Law Reform (Enticement) Act 1976,

Being an Act to abolish actions in the English Common Law for enticement and the harbouring of spouses except in accordance with the Adultery and Enticement Act 1976,

MADE by the National Parliament, to come into operation on the date of commencement of the Adultery and Enticement Act 1976.


Subject to Section 2, after the commencement of this act no action or claim for damages or compensation on the ground only-

(a) the inducement of the spouse of a person to leave or remain apart from him; or
(b) for harbouring the spouse of a person,

lies against a person under the underlying law except in accordance with the Adultery and Enticement Act 1976.


This Act does not affect-

(a) any action or claim referred to in Section 1 that has been commenced, before the commencement of this Act; or
(b) any proceedings under the Village Courts Act 1973 that is permitted under Section 18 of the Adultery and Enticement Act 1976.


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