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Q2 Marriage (Tuto Quest)
Q2 Marriage (Tuto Quest)
QUESTION
Family Law - LAW 2222
prepared for: Dr. Noraini Hashim
TOPIC: Marriage
A. Historical Outline
Prepared by Group 1:
1) Nurul Afifah Aiman bt Marzuki (1918532)
2) Ainul Mardhiyyah binti Roslan (1912382)
3) Mohamad Izwan Bin Mohd Norhan (1912759)
4) Muhammad Amirul Asyraf bin Yusof (1910271)
Question 2
Timothy’s parents were married according to Chinese custom in
1984. His father Wow Kaw Kaw died intestate in 2015. He came
to know that his father had another two marriages; in 1971
under the Christian Marriage Ordinance 1956, and in 1975 under
the Chinese customary law while the first marriage was still
subsisting.
(15 marks)
1971 1975 1984
Christian Marriage Chinese Customary Law Reform Act
1976 (Came into
Chinese Customary
Law
Ordinance 1974 Law effect on 1st
March 1982)
Three issues:
1. Whether or not the marriages prior to the enactment of LRA 1976 are valid
2. Whether or not the marriage of Timothy's parents after the enactment of LRA was valid
3. Whether Timothy and his mother are entitled to his deceased father's estates.
1ST ISSUE
Whether the marriages prior to the enactment of LRA 1976 were valid
DOROTHY YEE YENG NAM V LEE FAH FOOI [1956] MLJ 257
RE LOH TOH MET, DECD KONG LAI FONG & ORS V LOH PENG HENG [1961] 1 MLJ 234
the deceased had contracted polygamous marriage in accordance with Chinese custom. He had 3
wives, 7 children born in wedlock and 4 adopted children. The trial judge held that the deceased was a
person professing the Christian and that as he had not married the women under the provision of the
Christian Marriage Ordinance of the Straits Settlements and of the Christian Marriage Enactment of
Johore, thus three purported marriages was void. The children and the 3 widows appealed. The issue
was whether Chinese Christian can enter into a polygamous union under his personal law. The court
of appeal held that
the marriages were lawful and valid. He can choose whether to contract a monogamous marriage
or a polygamous marriage.
the evidence does not show that the deceased was a person professing the Christian religion at
the time of any of his marriages and thus he permitted by his personal law a plurality of wives and
he validly entered into contracts of marriage to the 3 women
IN THE CASE OF RE DING DO CA, DECD [1966] 2 MLJ 220,
the deceased had married one Madam Wong under the Christian Marriage Enactment in
1923 and subsequently in 1937 he went through the form of marriage according to Chinese
custom with Madam Ngoi. After his death Madam Wong applied for and obtained letters of
administration to his estate, subsequently Madam Ngoi and her children commenced the
action against Madam Wong and sought declarations. The issue arose in this case was
whether Chinese who has married under Christian Marriage Enactment could contract a
polygamous marriage according to Chinese custom. The court held that
In regard of Chinese race, the court have given judicial recognition to certain customs
which have been imputed to such persons and under such customs Chinese can
contract a polygamous marriage.
There is nothing in the Christian Marriage Enactment which renders a party who has
married under it incapable during its continuance of contracting a polygamous marriage
and therefore in this case the deceased could contract a valid marriage with Madam
Ngoi, despite his earlier marriage with Madam Won under the Christian Marriage
Enactment.
CONCLUSION
Based on the case of Dorothy Yee Yeng Nam v Lee Fah Fooi [1956] MLJ 257, it provided that the husband
could only contract polygamous marriage after the present marriage. In the present case, the first
marriage of Timothy’s father was contracted under the Christian Marriage Ordinance 1956. As there was
definitely no subsisting marriage prior to the first marriage and assuming that his father had fulfilled the
requirements under the Christian Marriage Ordinance 1956, the first marriage of his father was valid.
Similarly, for the second marriage, according to the case of Re Loh Toh Met, Decd Kong Lai Fong & Ors v
Loh Peng Heng [1961] 1 MLJ 234 and Re Ding Do Ca, Decd [1966] 2 MLJ 220, there was no restriction or
prohibition that prevent him to contract under Chinese Customary Laws and exercise polygamous
marriage. the only restriction that prevents his father from exercising polygamy is Section 29 of the
Christian Marriage Ordinance 1956. If he chose to cotract polygamous marriage under this ordinance,
the second marriage would be invalid. For this reason, his father chose to contract polygamous
marriage under Chinese Customary Law as there was no restriction regarding the prior subsisting
marriage and thus the second marriage of his father was valid. In addition, although the Law Reform Act
(marriage and divorce) Act 1976 has been enacted, both marriages were valid due to the fact the Section
4(1) of this Act does not affect any marriage prior to the enactment of this statute. Therefore, both of the
marriages of his father prior to the enactment of Law Reform Act (marriage and divorce) Act 1976 were
valid.
2ND ISSUE
Whether the marriage of Timothy's parents after the
enactment of LRA was valid
based on the Section 5(1) and 6(1) of LRA 1976 as well as the case of Chong Sin Sen v Janaki a/p
Chellamuthu (SUING AS WIDOW OF MUNIAPPA PILLAI A/L MARITHA MUTHOO, DECEASED, ON
BEHALF OF HERSELF AND THE DEPENDENTS OF THE DECEASED)[1997] 5 MLJ 411, it is clear that in
the present case, after the enforcement of LRA 196, any marriage under custom law or personal
law would be invalid or void. in the present case, the marriage of Timothy's parents under
Chinese Customary Law is void as the marriage against the Section 5(1) of the LRA 1976.
furthermore, the marriage would be void by virtue of Section 6(1) of LRA 1976 as it has clearly
provided that any marriage contradict to the Section 5 would become void.
3RD ISSUE
Whether Timothy and his mother are entitled to his deceased father's estates.
The deceased left a will including his wife and child, but the will
was challenged by the administrator of the deceased's estate on
the ground that the marriage was void.
The court favored the plaintiff, and decided that the marriage was
void, and the defendant and her son are not entitled to the will.
CONCLUSION
based on the Section 6(2) of LRA 1976 as well as the case of Maxwell John
Gray (as administrator/trustee for the estate of Cory John Gray, deceased)
v Lim Siew Shun [2019] 8 MLJ 119.
any marriage which contradict to or not fulfill the requirements laid
down in the LRA 1976 would become void and the party of the void
marriage is not entitled for her/his spouse e's estates. in the present
case, as the marriage of Timothy's parents is void, therefore section 6(2)
of the LRA 1976 is applicable. Timothy's mother is not entitled to
hisfather's estates.