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I, Mek H. During the time immemorial the conduct and formation of customary marriage were guided by a system of unwritten rules referred to as custom developed and passed on from generation to generation. Similarly the dissolution of marriage and consequent financial claims and rights to children of marriage were undertaken according to custom. This practice is still active at present across the nation with the full legal backing of the country. Due to the differences in custom and other barriers such geography, tradition, language, etc.
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Bride price is the fundamental pillar of a customary marriage. Formerly, bride price comprised of shells i.
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This arrangement operated on mutual understanding and acceptance. This trend, however, has changed in the recent years due to the introduction of the cash economy coupled with modernization. In the present times, bride price takes the form of money, automobiles, pigs, goods and other material things that are considered relevant and acceptable.
The formalities to some extent involve religious rites s. The marriage with persons from other customs including foreign that are not closely related to the custom of Ialibu is an issue that is not easily resolved.
That is, when an Ialibuan intends to marry to someone from a different customary background or someone from another custom decides to marry into Ialibu the question that usually emanates is whether the custom of Ialibu prevails or not.
In the past such a situation attracted much discussions and negotiations between the parties concerned. Generally, having been driven by the motives of wealth accumulation and prestige competition a man who intends to marry a woman from Ialibu is required in one way or another to pay bride price. According to law, these differences are addressed by s.
In addition the Underlying Law Act s.
Section 17 2 of the Act particularly provides for the courts to have regard to the place and nature of transaction, act or event and nature of residence of the parties. In this case a man from Bougainville claimed a woman from the Western Highlands Province as his wife, because they met and lived in Mendi for over two years, and taken out a complaint at the District Court and detained her for deserting him.
The custom of Ialibu recognizes and accepts two types of marriages, namely monogamy one wife and polygamy more than one wife. The status of a leader in custom is determined, amongst other things, by the number of wives he has. Any woman found to be engaged in such activity automatically loses her dignity and status in the community and society.
In addition, she loses her respect and value in terms of bride price when she gets married or sometimes she has limited chances of stable marriage.
Woods J in Era v Paru  when dismissing the appeal precisely stated that the defendant, relied on the promise by the appellant for marrying her, lost her virginity due to her sexual intercourse with the appellant and suffered damages to her status in society and would have trouble getting married.
The custom is silent over whether a party to an existing statutory marriage under the Marriage Act Part V is capable of entering into a customary marriage. Generally the custom recognizes men as dominion over women and thereby any marriage taken out by the males seem to be justified still as polygamy over their female counterparts. Though this is illegal, women are disadvantaged in taking out complaints in courts as most of them lack the knowledge of their basic rights.
In some instances, their actions are suppressed by community leaders in terms of advocating out of court settlements, which still require customary rules. The customary marriage age in the past was not distinct and determinable due to the absence of a well defined arithmetic system and a precise chorological calendar has attributed to the estimation of the marriageable age on physical developments. When the boys grew beard, public hair, armpit hair, developed deep voice, etc.
In this respect, as Luluaki asserts, though marriage of infants and children were forbidden, there were possibilities of under age marriage. Presently, the legislative consideration of marriageable age plays a significant role in the society but also physical development consideration has some degree of dominance in the society. The marriage or sexual relationship between persons related by blood consanguinity is forbidden by the custom. This also applies to those persons who are related by marriage affinity.
There is no provision under the Marriage Act or elsewhere to specifically deal with prohibited degrees of relationship within the customary marriage. Section 5 the Marriage Act specifically protects woman from forced customary marriage, whereas the Schedule 2 and s 17 void marriage of the Marriage Act tend to set rules on the prohibited degrees of relationship pertaining to statutory marriage.
The dissolution of customary marriage is not a norm in this society but on numerous instances it does occur. The main causes of divorce are adultery and domestic violence. Sexual intercourse outside of marriage is forbidden by custom and if either party happens to involve such activities, that would amount to a ground for divorce. On the same token, the cruelty, drunkenness and unruly behavior that result in domestic violence give rise to dissolution of a marriage.
The death of a spouse and desertion of either of the party for long periods without any means of support also leaves room for divorce. In addition, if either of the parties are incapable of looking after the children and relatives or cannot support each other in domestic affairs and, further unable to contribute in cash or in kind at the community level may amount to divorce out of shame.
The present legal system is silent on the part of customary marriage dissolution in terms legal requirements as opposed to recognition of customary marriage. Section 5 f of the Customs Recognition Act Ch. Upon her non payment, she was imprisoned which Kidu CJ objected and ordered her released on the basis that her right to divorce was denied. The District Courts under s 22A of the District Courts Act are only empowered to provide dissolution certificate upon satisfaction that a customary marriage was dissolved according to custom.
A cohabitation does not automatically give rise to customary marriage and its dissolution may not be recognized as customary divorce.
The customary marriage breakdown in the recent times has drawn considerable debate amongst the courts as to the manner and eligibility of financial claims as in Agua Bepi v Aiya Simon .
In that case the appellant from the Western Highlands Province deserted her husband from Ialibu and remarried after being married customarily for about 12 years. Since the wife and her relatives were unable to repay the brideprice and provide maintenance for the deserted children and the husband she was imprisoned by the Ialibu District. This case on the face of it demonstrates how the Ialibu custom applies in relation financial claims when a marriage dissolves.
The financial claims in the form of compensation or repayment of brideprice are determined with the parties concerned at the community level.
If, for example, a husband was reasonably found to be at fault then the reclaim for brideprice ceases and also, on some occasions, order for compensation in favor of the wife. This principle was applied in Kere v Timon  that if the husband doing that precipitates the divorce would render less or no repayment of the brideprice.
On the other hand if a wife deserted a husband without any reasonable ground then she is required to repay all or part of the bride price. The issue of distribution of matrimonial possessions including the house, gardens, livestock, etc. Normally, given the patrilineal society, whatever on the land is obviously retained by the husband while other possessions are shared between the couple.
The word papua is derived from an old local term of uncertain origin.
Inhe noted the resemblance of the people to those he had earlier seen along the Guinea coast of Africa. The name is one of several toponyms sharing similar etymologiesultimately meaning "land of the blacks" or similar meanings, in reference to the dark skin of the inhabitants. Archaeological evidence indicates that humans first arrived in Papua New Guinea around 42, to 45, years ago. They were descendants of migrants out of Africa, in one of the early waves of human migration.
Agriculture was independently developed in the New Guinea highlands around BC, making it one of the few areas in the world where people independently domesticated plants. This has been correlated with the introduction of pottery, pigs, and certain fishing techniques. In the 18th century, traders brought the sweet potato to New Guinea, where it was adopted and became part of the staples. Portuguese traders had obtained it from South America and introduced it to the Moluccas.
Customary Marriage Is One Type of Marriage, Apart From Statute Marriage
Sweet potato largely supplanted the previous staple, taroand resulted in a significant increase in population in the highlands. Although by the late 20th century headhunting and cannibalism had been practically eradicated, in the past they were practised in many parts of the country as part of rituals related to warfare and taking in enemy spirits or powers.
Traders from Southeast Asia had visited New Guinea beginning 5, years ago to collect bird-of-paradise plumes. The country's dual name results from its complex administrative history before independence. In the nineteenth century, Germany ruled the northern half of the country for some decades, beginning inas a colony named German New Guinea.
In after the outbreak of World War IAustralian forces landed and captured German New Guinea in a small military campaign and occupied it throughout the war. After the war, in which Germany and the Central Powers were defeated, the League of Nations authorised Australia to administer this area as a League of Nations mandate territory. The southern half of the country had been colonised in by the United Kingdom as British New Guinea.
With the Papua Actthe UK transferred this territory to the newly formed Commonwealth of Australiawhich took on its administration. In contrast to establishing an Australian mandate in former German New Guinea, the League of Nations determined that Papua was an External Territory of the Australian Commonwealth; as a matter of law it remained a British possession. The difference in legal status meant that untilPapua and New Guinea had entirely separate administrations, both controlled by Australia.
These conditions contributed to the complexity of organising the country's post-independence legal system. ApproximatelyJapanese, Australian, and US servicemen died. This was later referred to as "Papua New Guinea". The natives of Papua appealed to the United Nations for oversight and independence. The nation established independence from Australia on 16 Septemberbecoming a Commonwealth realmcontinuing to share Queen Elizabeth II as its head of state.
It maintains close ties with Australia, which continues to be its largest aid donor. A renewed uprising on Bougainville started in and claimed 20, lives until it was resolved in The native peoples felt they were bearing the adverse environmental effects of the mining, which poisoned the land, water and air, without gaining a fair share of the profits. The government and rebels negotiated a peace agreement that established the Bougainville Autonomous District and Province.
The autonomous Bougainville elected Joseph Kabui as president inwho served until his death in He was succeeded by his deputy John Tabinaman as acting president while an election to fill the unexpired term was organised. James Tanis won that election in December and served until the inauguration of John Momis, the winner of the elections.
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As part of the current peace settlement, a non-binding independence referendum was held, between 23 November and 7 December The referendum question was a choice between greater autonomy within Papua New Guinea and full independence for Bougainville, and voters voted overwhelmingly Numerous Chinese have worked and lived in Papua New Guinea, establishing Chinese-majority communities.
Chinese merchants became established in the islands before European exploration.
Anti-Chinese rioting involving tens of thousands of people broke out in May The initial spark was a fight between ethnic Chinese and indigenous workers at a nickel factory under construction by a Chinese company.
Native resentment against Chinese ownership of numerous small businesses and their commercial monopoly in the islands led to the rioting. The Chinese have long been merchants in Papua New Guinea. Various nations from Oceania, Australiathe Philippines and Timor-Leste immediately sent aid to the country. The constitutional convention, which prepared the draft constitution, and Australia, the outgoing metropolitan power, had thought that Papua New Guinea would not remain a monarchy.
The founders, however, considered that imperial honours had a cachet. Papua New Guinea and the Solomon Islands are unusual among Commonwealth realms in that governors-general are elected by the legislature, rather than chosen by the executive branch. The Prime Minister heads the cabinetwhich consists of 31 MPs from the ruling coalition, which make up the government. The current prime minister is James Marape. Candidates for members of parliament are voted upon when the prime minister asks the governor-general to call a national election, a maximum of five years after the previous national election.
In the early years of independence, the instability of the party system led to frequent votes of no confidence in parliament, with resulting changes of the government, but with referral to the electorate, through national elections only occurring every five years. In recent years, successive governments have passed legislation preventing such votes sooner than 18 months after a national election and within 12 months of the next election.
In Decemberthe first two of three readings were passed to prevent votes of no confidence occurring within the first 30 months. This restriction on votes of no confidence has arguably resulted in greater stability, although perhaps at a cost of reducing the accountability of the executive branch of government.
Elections in PNG attract numerous candidates. The general election was the first to be conducted using LPV. In there was a constitutional crisis between the parliament-elect Prime Minister, Peter O'Neill voted into office by a large majority of MPsand Sir Michael Somarewho was deemed by the supreme court in a December Opinion, to retain office.
The stand-off between parliament and the supreme court continued until the July national elections, with legislation passed effectively removing the chief justice and subjecting the supreme court members to greater control by the legislature, as well as a series of other laws passed, for example limiting the age for a prime minister. The confrontation reached a peak, with the Deputy Prime Minister entering the supreme court during a hearing, escorted by some police, ostensibly to arrest the Chief Justice.
There was strong pressure among some MPs to defer the national elections for a further six months to one year, although their powers to do that were highly questionable. The parliament-elect prime minister and other cooler-headed MPs carried the votes for the writs for the new election to be issued, slightly late, but for the election itself to occur on time, thereby avoiding a continuation of the constitutional crisis.
The crisis was tense at times, but largely restricted to the political and legal fraternity, plus some police factions. The public and public service including most police and military stood back. It was a period when, with increased telecommunication access and use of social media notably Facebook and mobile phonesthe public and students played some part in helping maintain restraint and demanding the leadership to adhere to constitutional processes.
They insisted on having the elections so that the people could say who should be their legitimate representatives for the next five years. Under a amendment, the leader of the party winning the largest number of seats in the election is invited by the governor-general to form the government, if he can muster the necessary majority in parliament.
The process of forming such a coalition in PNG, where parties do not have much ideology, involves considerable horsetrading right up until the last moment. The unicameral Parliament enacts legislation in the same manner as in other Commonwealth realms that use the Westminster system of government.
The cabinet collectively agree government policy, then the relevant minister introduces bills to Parliament, depending on which government department is responsible for implementation of a particular law. Back bench members of parliament can also introduce bills. Parliament debates bills, and if approved the bill is forwarded to the Governor-General for Royal assent, following which it becomes law.
All ordinary statutes enacted by Parliament must be consistent with the Constitution. The courts have jurisdiction to rule on the constitutionality of statutes, both in disputes before them and on a reference where there is no dispute but only an abstract question of law. Unusually among developing countries, the judicial branch of government in Papua New Guinea has remained remarkably independent, and successive executive governments have continued to respect its authority.
The "underlying law" Papua New Guinea's common law consists of principles and rules of common law and equity in English  common law as it stood on 16 September the date of independenceand thereafter the decisions of PNG's own courts. The courts are directed by the Constitution and, latterly, the Underlying Law Actto take note of the "custom" of traditional communities. They are to determine which customs are common to the whole country and may be declared also to be part of the underlying law.
In practice, this has proved extremely difficult and has been largely neglected. Statutes are largely adapted from overseas jurisdictions, primarily Australia and England. Advocacy in the courts follows the adversarial pattern of other common-law countries. This national court system, used in towns and cities, is supported by a village court system in the more remote areas.
The law underpinning the village courts is 'customary law'. Papua New Guinea supported Indonesia 's control of Western New Guinea :  the focus of the Papua conflict where numerous human rights violations have reportedly been committed by the Indonesian security forces. It consists of three wings. The Land Element, a land force consisting of the Royal Pacific Islands Regimenta small special forces unit, a battalion of engineers, and three other small units primarily dealing with signals and health, as well as a military academy, is concerned with defence of the nation on land.
The Air Element is a small, underfunded aircraft squadron consisting of two utility aircraft, with another three on order, two leased helicopters, and two trainers once they are delivered.
Its present purpose is transportation for the other military wings. The Maritime Element is a small navy consisting of four Pacific-class patrol boats, three ex-Australian Balikpapan-class landing craftand one Guardian-class patrol boat. One of the landing craft is used as a training ship. Three more Guardian-class patrol boats are under construction in Australia, to replace the old Pacific-class vessels. The main tasks of the Maritime Element are patrol of inshore waters and transport of the Land Element.
Papua New Guinea has such a large Exclusive Economic Zone that patrols by the small Pacific-class patrol boats, which are often unserviceable due to underfunding, are ineffective, so the Maritime Element is heavily reliant on satellite imagery for surveillance of its waters. This problem will be partially corrected when all of the larger Guardian-class patrol boats enter service.
Papua New Guinea is often ranked as likely the worst place in the world for violence against women.
The Sorcery Act imposed a penalty of up to 2 years in prison for the practice of "black" magicuntil the Act was repealed in Homosexual acts are prohibited by law in Papua New Guinea.
Papua New Guinea is divided into four regionswhich are not the primary administrative divisions but are quite significant in many cts of government, commercial, sporting and other activities. The nation has 22 province -level divisions: twenty provinces, the Autonomous Region of Bougainville and the National Capital District. Each province is divided into one or more districtswhich in turn are divided into one or more Local-Level Government areas.
Provinces  are the primary administrative divisions of the country. Provincial governments are branches of the national government as Papua New Guinea is not a federation of provinces. The province-level divisions are as follows:.
InParliament approved the creation of two additional provinces: Hela Provinceconsisting of part of the existing Southern Highlands Provinceand Jiwaka Provinceformed by dividing Western Highlands Province. The government set 23 November  as the voting date for a non-binding  independence referendum in the Bougainville autonomous region.
Located north of the Australian mainland, the country's geography is diverse and, in places, extremely rugged. A spine of mountains, the New Guinea Highlandsruns the length of the island of New Guineaforming a populous highlands region mostly covered with tropical rainforestand the long Papuan Peninsulaknown as the 'Bird's Tail'. Dense rainforests can be found in the lowland and coastal areas as well as very large wetland areas surrounding the Sepik and Fly rivers.
This terrain has made it difficult for the country to develop transportation infrastructure. Some areas are accessible only on foot or by aeroplane. Papua New Guinea is surrounded by coral reefs which are under close watch, in the interests of preservation. The country is situated on the Pacific Ring of Fireat the point of collision of several tectonic plates.
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There are a number of active volcanoesand eruptions are frequent. Earthquakes are relatively common, sometimes accompanied by tsunamis. The mainland of the country is the eastern half of New Guinea island, where the largest towns are also located, including Port Moresby capital and Lae ; other major islands within Papua New Guinea include New Irelan New BritainManus and Bougainville.
Papua New Guinea is one of the few regions close to the equator that experience snowfallwhich occurs in the most elevated parts of the mainland. The border between Papua New Guinea and Indonesia was confirmed by treaty with Australia before independence in The maritime boundary with Australia was confirmed by a treaty in Maritime boundaries with the Solomon Islands were confirmed by a treaty.
Geologically, the island of New Guinea is a northern extension of the Indo-Australian tectonic plateforming part of a single land mass which is Australia-New Guinea also called Sahul or Meganesia.
It is connected to the Australian segment by a shallow continental shelf across the Torres Straitwhich in former ages lay exposed as a land bridgeparticularly during ice ages when sea levels were lower than at present. Consequently, many species of birds and mammals found on New Guinea have close genetic links with corresponding species found in Australia. One notable feature in common for the two landmasses is the existence of several species of marsupial mammalsincluding some kangaroos and possumswhich are not found elsewhere.
Papua New Guinea is a megadiverse country. As a consequence, they have their own flora and fauna; in particular, they lack many of the land mammals and flightless birds that are common to New Guinea and Australia. Australia and New Guinea are portions of the ancient supercontinent of Gondwanawhich started to break into smaller continents in the Cretaceous period, million years ago. Australia finally broke free from Antarctica about 45 million years ago.
All the Australasian lands are home to the Antarctic floradescended from the flora of southern Gondwana, including the coniferous podocarps and Araucaria pines, and the broad-leafed southern beech Nothofagus. These plant families are still present in Papua New Guinea.
The Central Range is much younger and higher than the mountains of Australia, so high that it is home to rare equatorial glaciers. New Guinea is part of the humid tropics, and many Indomalayan rainforest plants spread across the narrow straits from Asia, mixing together with the old Australian and Antarctic floras.
Three new species of mammals were discovered in the forests of Papua New Guinea by an Australian-led expedition. A small wallaby, a large-eared mouse and shrew-like marsupial were discovered.
The expedition was also successful in capturing photographs and video footage of some other rare animals such as the Tenkile tree kangaroo and the Weimang tree kangaroo. At current rates of deforestationmore than half of Papua New Guinea's forests could be lost or seriously degraded byaccording to a new satellite study of the region. On 25 Februaryan earthquake of magnitude 7.
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As of 1 March there were 31 reported deaths, and that number was expected to rise. Papua New Guinea is richly endowed with natural resources, including mineral and renewable resources, such as forests, marine including a large portion of the world's major tuna stocksand in some parts agriculture.
The rugged terrain-including high mountain ranges and valleys, swamps and islands-and high cost of developing infrastructure, combined with other factors including serious law and order problems in some centres and the system of customary land title makes it difficult for outside developers.
Local developers are handicapped by years of deficient investment in education, health, ICT and access to finance. Oil palm production has grown steadily over recent years largely from estates and with extensive outgrower outputwith palm oil now the main agricultural export.
Former Prime Minister Sir Mekere Morauta tried to restore integrity to state institutions, stabilise the kinarestore stability to the national budget, privatise public enterprises where appropriate, and ensure ongoing peace on Bougainville following the agreement which ended Bougainville 's secessionist unrest.
The Morauta government had considerable success in attracting international support, specifically gaining the backing of the International Monetary Fund IMF and the World Bank in securing development assistance loans. Significant challenges face Prime Minister Sir Michael Somareincluding gaining further investor confidence, continuing efforts to privatise government assets, and maintaining the support of members of Parliament.
In Marchthe United Nations Development Programme Policy called for Papua New Guinea's designation of developing country to be downgraded to least-developed country because of protracted economic and social stagnation. This economic growth has been primarily attributed to strong commodity prices, particularly mineral but also agricultural, with the high demand for mineral products largely sustained even during the crisis by the buoyant Asian markets, a booming mining sectorand particularly since [ citation needed ] by a buoyant outlook and the construction phase for natural gas exploration, production, and exportation in liquefied form liquefied natural gas or "LNG" by LNG tankers LNG carrierall of which will require multibillion-dollar investments exploration, production wells, pipelines, storage, liquefaction plants, port terminals, LNG tanker ships.
A second major project is based on initial rights held by the French oil and gas major Total S. IOCwhich have partly combined their assets after Total agreed in December to purchase Total S. Further gas and mineral projects are proposed including the large Wafi-Golpu copper-gold minewith extensive exploration ongoing across the country. Economic 'development' based on the extractive industries carries difficult consequences for local communities.
Customary Marriage in Papua New Guinea
There has been much contention [ clarification needed ] around river tailings in the vast Fly River, [ citation needed ] submarine tailings from the new Ramu-Nickel-cobalt mine, commencing exports in late after a delay from landowner-led court challenges[ citation needed ] and from proposed submarine mining in the Bismarck Sea by Nautilus Minerals.
The PNG government's long-term Vision and shorter-term policy documents, including the Budget and the Responsible Sustainable Development Strategy, emphasise the need for a more diverse economy, based upon sustainable industries and avoiding the effects of Dutch disease from major resource extraction projects undermining other industries, as has occurred in many countries experiencing oil or other mineral booms, notably in Western Africa, undermining much of their agriculture sector, manufacturing and tourism, and with them broad-based employment prospects.
Measures have been taken to mitigate these effects, including through the establishment of a sovereign wealth fun partly to stabilise revenue and expenditure flows, but much will depend upon the readiness to make real reforms to effective use of revenue, tackling rampant corruption and empowering households and businesses to access markets, services and develop a more buoyant economy, with lower costs, especially for small to medium-size enterprises.
The Institute of National Affairs, a PNG independent policy think tank, provides a report on the business and investment environment of Papua New Guinea every five years, based upon a survey of large and small, local and overseas companies, highlighting law and order problems and corruption, as the worst impediments, followed by the poor state of transport, power and communications infrastructure.
The PNG legislature has enacted laws in which a type of tenure called " customary land title " is recognised, meaning that the traditional lands of the indigenous peoples have some legal basis to inalienable tenure. Freehold title also known as fee simple can only be held by Papua New Guinean citizens.
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