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Family Law - Part 1
Family Law - Part 1
General rule- if the marriage is solemnized under LRA then the marriage must be registered-mandatory
Exception for
• marriage solemnized before LRA, save by S.4 +nothing in LRA affect the validity of marriage prior
to LRA
• marriage solemnized abroad – s.104+ s. 31- marriage solemnize outside Malaysia embassy need to
register at the nearest or most conveniently available Registrar abroad within 6 months or can
come back to Malaysia.
• It means that even though they didn’t register under the lra/here, the marriage is not void as long
the marriage is valid according the law where they solemnized the marriage
Marriages solemnised prior to LRA 1976 – see section 4(2)
- if valid under custom/ religion shall deemed valid
-but may opt for voluntary registration under section 33
Marriage solemnised abroad and outside Malaysian Embassies – s.104, s. 31 + s.34
-if fail to register, would be recognized as valid according to the lex loci celebrationis/ law of the place of
celebration
S.104(a) it was contracted in a form required or permitted by the law of the country where it was
contracted;(If they contracted the marriage abroad, not in the Malaysian embassy, it must be in
accordance with the law govern of the place where it contracted),it is considered valid according to the lex
loci celebrationis)
If they want to register under the LRA in Malaysia - the court will look at the other requirement under
s.104
- (c) where either of the parties is a citizen of or is domiciled in Malaysia, both parties had capacity
to marry according to this Act.
- If not fit the requirement- in malaysia shall be void-they have to solemnize again under the LRA
First view –The marriage is still valid even though it was not registered.
Second view – Marriage which was not registered under LRA 1976 is void
Both view for marriages solemnized under the LRA in Malaysia. if the marriage was solemnsed in malaysia
it must be according to LRA
First view – Chinese customary marriage, it was not registered.
The marriage Tan Sai Hong v. Joremi Kimin [1997] 5 CLJ 614 –
is still valid Chong Sin Sen v . Janaki a/p Chellamuthu [1997] 5 MLJ 411 – Held : The Chinese customary marriage was
even though valid and cannot be declared invalid by reason of non-registration.
it was not Leong Wee Shing v Chai Siew Yin [2000] 1 CLJ 439 – the parties solemised Chinese customary marriage
registered. according to the LRA- But they did not register-have all the evidences- when the husband died- the wife
claim for the inheritance- mother in law argued that the marriage was not registered therefore she was
not entitled for the inheritance
Whether the Chinese customary marriage is void for nonregistration. – High Court held: The marriage is
valid on the ground that a Chinese customary marriage had taken place between the parties & although it
was not registered, s.34 of LRA 1976 had ‘validated it’. (apply the general meaning of s.34)
CHAI SIEW YIN V LEONG WEE SHING [2004] 1 CLJ 752 ( Appeal ) – COA : Affirmed the High Court’s
judgement and dismissed the appeal – Gopal Sri Ram JCA: – “…there is no provision in the Act that
declares / renders void any marriage contracted between non-Muslims in accordance with the customary
ceremonial rites of the community to which they belong. On the contrary, s. 34 declares that a marriage is
otherwise valid is not invalidated merely because it has not been registered under the Act. That is the
intention of Parliament becomes clear when regard is had to the marginal notes to s. 34 of the Act.”
- Agree that s.34 does not validate or invalidate marriage merely because of non-registration
Second view Cases: T V. O [1994] 4 CLJ 593 The court referred to s. 22(4) of the LRA and decided that since the parties
– fail to comply with the provision, the so called marriage in 1998 was a non event / void anitio.
Marriage - S22(4) Every marriage purported to be solemnized in Malaysia shall be void unless a certificate for
which was marriage or a licence has been issued by the Registrar or Chief Minister or a statutory declaration
not under subsection
registered Submit to the registra the certificate for the marriage to be solemnized/license/ a statutory
under LRA declaration regarding the capacity to marriage( when the parties want to marriage under custom)
1976 is void Yeoh v Chew [2001] 4 CLJ 631 Abdul Hamid Embong J: “…..for the purpose of this Act, this customary rite
alone, however recognisable & acceptable is insufficient to clothe it with legal validity for no matrimonial
court will recognise a tea ceremony per se performed after 1 March 1982, as marriage…. …..in my view, an
invalid marriage by reason of non-solemnization such as in this case cannot be rendered valid merely
because it was not registered. The very solemnization of this marriage itself was in question as it had not
complied with s. 5(4) of the Act. It was a non marriage from the start, for which this court could not exert
its jurisdiction”
- The marriage is void if there is no registration- must fulfil part iii- procedure-mandatory to
register
- Main section that give rights to the parties to marry according to their custom-s.5(4) but must
complied with part III
Leong Wee Shing case – Fed Ct judgement- marriage was void since it was not registered. – Status of the
children – illegitimate – Not entitled for maintenance under s. 3(2 ) of the Married Women and Children
(Maintenance ) Act 1950.
Nonregistration will render the marriage void because of s.5(4) and s.22(4)→s.34-applies only to
marriages solemnized under the LRA
NULLITY OF MARRIAGE
Defective marriage Void- from the begining
No marriage from the Voidable- at that time of solemnization until parties realized that they not fulfilled cretain
beginning condition- render the marriage will be voidable
- Until Order of the court- valid period of marriage
Differences:- “A void marriage is one that will be regarded by every court in any case in which the
Explained by Lord Greene existence of the marriage is in issue as never having taken place and can be so treated by
MR in the case of De both parties to it without the necessity of any decree of annulling it;
Reneville v De Reneville:
a voidable marriage is one that has been treated by every court as a valid subsisting
marriage until a decree annulling it has been pronounced by a court of competent
jurisdiction”.
Void marriage 1)Valid marriage does not exist at the time of the solemnization of the marriage
2) decision as to whether the mar is valid/ void can be made at the time of solemnization
3)the validity may be challenged at anytime during/after the lifetime of the parties
4) may be challeged by either Parties/third parties
No defence
Voidable marriage Valid marriage exist until annulled by a court
2) decision as to whether the mar is valid/ void- only after an event has taken place
subsequent to the solemnization
3) validity may be challeged only during the lifetime of the parties
4) may be challenged only by the
Parties to the marriage
Defence available
Jurisdiction of the court Section 4 (3)
- All previous marriage will be dissolve by 3 ways-
- To hear nullity - Court nay declare the marriage to be void/ nullify the marriage
cases Section 8
- Whether the - Present marriages solemnize by LRA- dissolve by 3 ways
court has - Declared the marriage nullity
jurisdiction or not
- Must be in Section 67 LRA (a)+(c) OR (b)+(c)
Malaysia a- register under LRA
b- monogamous
c- compulsory- must reside/physically in Malaysia at the commencement of proceeding
Held: Void. Incapacity not merely based on physical inability but also psychological inability
- NOW- voidable- psychological inability
Psychological inability Psychological inability must amount to invincible repugnance not by merely unwillingness /
reluctance.- must beyond that
invincible repugnance- very serious
SINGH V SINGH Wife petitioned on the ground of inability to consummate (psychologically
impotent). Held: Dismissed the petition as nothing of a psychiatric / sexual aversion on her
part.( normal willingness/reluctant cannot)
b) Incapacity must be 1) Cannot be cured at all
incurable 2) Can be cured only through an operation but attended with danger which affect his /her
life.
3) Refused to submit to an operation.
Refer to Rule 26 of the Divorce and Matrimonial Proceedings Rules 1980 – medical inspector
will be appointed.
S. v S. – Where the court adjourned the case for further evidence from the result of the
operation.
Wife incapacity – the only way- operation
Burden of proof Who can petition?
Either party.
On the petitioner.
HARTEN V HARTEN“ You can also petition for nullity due to your own incapacity”.
To be a ground for nullity, the incapacity must have existed at the date of the marriage
and not resulted from injury or accident which occurred subsequent to the marriage ( ie.
before the consummation of the marriage)
- Already consummated the marriage- accident – cannot use as a ground- must look
at the first consummation
70(b) that the marriage Willful refusal is not simply because a spouse refused to allow sexual intercourse to take
has not be consummated place but refused to do so without just excuse.
owing to the willful
refusal of the respondent BAXTER V BAXTER
to consummate it. L. Greene MR ; “A wife may refuse to allow intercourse for a considerable period of time
because of nervous / coyness. Husband would then be expected to act as a reasonable man
- Willful refusal of and take reasonable steps to help his wife to overcome her reluctance before he
the respondent successfully petition for willful refusal by her”.
- Normal if refuse to consummate at first
DREDGE V DREDGE
The husband made an every effort to consummate the marriage but was refused by the
wife. Then he sought a decree of nullity on the ground of willful refusal of his wife .
Held : The wife had willfully refusal to consummate the marriage and that the petition was
granted.
- No valid reason for the wife not to consume the marriage
HORTON V HORTON
“ Willful refusal connotes a settled and definite decision come to without just excuse and
the whole story of the marriage must be looked at.”
The whole history of the marriage may relates with any condition precedent to sexual
intercourse. Thus, failure to bring about such condition may amount to willful refusal
without just excuse.
- Any agreement about the sexual intercourse
Eg: condition to undergo a religious/customary ceremony prior to the consummation of the
marriage.
Agreed not consummated the marriage until the husband arrange for customary marriage
- Will be valid agreement – condition precedent to sexual intercourse
JODLA V JODLA- civil marriage – church ceremony - sexual intercourse after that– never
consummated – husband refused to arrange- without lawful excused
RATHER V SHANMUGAM
KAUR V SINGH- singh ceremony – husband not make any arrangement – he had no
intention at all – never persuade to have sexual intercourse with him
TAN SIEW CHOON V TAN KAI HOI
KWONG SIN HWA V LAU LEE YEN
From the above cases, one of the ground that the court has considered as ‘just excuse’ is in
the case the parties have agreed that the civil marriage will be followed by religious
ceremony.
Thus, in such a situation it is ‘just excuse’ for not to consummate the marriage. However, if
one of the parties reluctant or refuse to go through / arrange for the religious ceremony, as
agreed, then it will amount to willful refusal ‘without just excuse’.
MOSS V MOSS
There must be a voluntary consent of both parties…..It has been repeatedly stated that the
marriage may be declared null on the ground of duress.
H v H/ SZECHTER V SZECHTER
BUCKLAND V BUCKLAND
The cases illustrate an indirect duress caused by some external circumstances for which the
petitioner is not himself responsible for it.
- man was forced to marry the girl – charge for criminal charge -rape a minor – no charge if
marry her – applied for nullity because no consent
SCOTT V SEBRIGHT The case illustrates a direct duress / duress by the other party to a
marriage.
Differentiate between:- i) Disagreeable situation – a person enter into a marriage as a result of social obligation –
marriage will not void as in the case of SINGH V SINGH
- not duress- not amount to non- consent – there must be real threat
ii) Real threat – marriage void.
2) Mistake i) As to identity of the other contracting party.
RE C AND D
1. identity Bell J : “Marriage void as there was a mistake as to the identity of the respondent. She
thought she was marrying a male whereas in fact she was marrying a combination of both
male and female”.
The judgment of the case was followed in LIM YING V HIOK KIAN MING ERIC
2. nature of the ii) As to the nature of the ceremony and party did not appreciate that he was contracting a
ceremony marriage.
MEHTA V MEHTA [1954] All ER 60
The petitioner had mistakenly married the respondent in a ceremony which was thought to
be a conversion ceremony
- she doesn’t know that the ceremony of marriage together
VALIER V VALIER
3) Unsoundness of mind If a person did not know that he was entering into a marriage / unable to understand the
nature of the contracts into which he was entering.- the solemnization of the marriage
In the beginning- during the solemnization already confirm unsound of mind
Section 70 (d)
The decree shall not be pronounced solely because the party is mentally disordered person.
It must be shown that the party is suffering from mental disorder to such a degree as to be
unfit for marriage.
RE ESTATE OF PARK Singleton J; “The correct test is whether he/she is capable of
understanding the nature of the contract into which she /he was entering i.e. capable of
appreciating that it involved the duties and responsibilities attached to the marriage”.
BENNET V BENNET
The onus of proof is on the Respondent, but if he choose not to raise any of these bars, the
court will grant the decrees if the ground has been made out.
Section 71(1) – must satisfy both (a) and (b).-having the knowledge AND whether would be
unjust to be grant nullity
- Knew respondent incapacity before the marriage
Case : W v W
• Married in 1941. Attempts by the husband to consummate the marriage were
unsuccessful. On the suggestion of the husband the parties adopted a child. Then
husband left the wife and later presented a petition on the ground of wife was
unable to consummate the marriage.
• COA: Evershed MR:- “ Has there been conduct here on the part of the husband of
such character that the court must say that he has approbated the marriage and has
affirmed its existence and validity so that it is inequitable and …also contrary to
public policy, that his petition should be granted?”.
• Unfair to the wife – adopt child- the wife believe that the husband wouldn’t nullity
the marriage because he agreed
PETTIT V PETTIT
• The marriage was never been consummated owing to the husband’s incapacity.
The husband then found another woman and applied for nullity of the ground of his
impotency.
• The court refused to grant the petition as after such a long time of marriage, the
wife had remained faithful even though she was deprived of sexual intercourse. It
would therefore unfair and inequitable to grant the decree.
-he himself applied for nullity- the husband is impotent- faithful wife-unfair to her
Consequences:- 1) Marriage - retrospective effect
Void/voidable Void- no marriage at all
Voidable- was valid at the time of the solemnization but considered as nullity the day the
court granted nullity
Period – period of valid marriage
2) Status – woman as a feme sole - no right – considered as single woman
The husband converted to IslamFederal Ct: “A non Muslim marriage does not automatically
dissolve upon one of the parties converting to Islam” Therefore, by contracting the civil
marriage, the H & W were bound by the 1976 Act in respect of divorce & custody of the
children of the marriage and thus the civil court continued to have jurisdiction over him…”
Principle cases Confirmed by both Federal Courts in Indira Ghandi’s case
decided by FC
Viran A/L Nagapan V Deepa A/P Subramaniam- Federal Court: upheld the COA decision
1) The Civil Courts have the exclusive jurisdiction to grant decrees of divorce of a civil marriage
under the [Law Reform (Marriage and Divorce) Act 1976] and to make all other ancillary orders
including custody case and access of the children born out of that marriage and all other
matters ancillary thereto.
EFFECT OF STATUS OF MARRIAGE-
CONVERSION TO The conversion does not determine or automatically dissolve the marriage
ISLAM It will not automatically dissolve the marriage- no petition shall remain intact/still valid- s51
- The wives converted to islam- husband not apply for divorve- not contested by the
husband- decision- the husband just accepted-
- Under Islamic law- s46(2)- marriage must be dissolved
EFFECT OF 1)MATRIMONIAL PROPERTY
CONVERSION ON -property acquired during marriage
ANCILLARY ORDERS KOH YIAN GEOK V. ZULKIFLI TAN ABDULLAH
- Section 51(2) Held:
The marriage was dissolved upon the conversion of the respondent to Islam. As for the claim of
ancillary reliefs, the court after deliberating the laws of division of matrimonial property under
section 76 of the LRA, and the evidence adduced decided that the petitioner was entitled to the
beneficial owner of the matrimonial property and the respondent was to deliver vacant
possession of the same and the respondent was to return the set of jewellery to the petitioner
and its equivalent value of the time of purchase.
- She is rightful owner
Non- muslim Vohrah J. “Section 3(3) precludes the operation of the provision of section 77 to the Muslim
During marriage- and as the respondent is now a Muslim, I do not think that they can be made apply to him. It
when husband would have been different if the divorce had in fact been granted under section 51 where in
neglect that case, the court would have been enabled by the specific provision of section 51(2) to make
provision to the petitioner’s maintenance”.
After divorce- can - The application s53- before amendment to s.51- no conversion – after the wife applied
claim for for divorce – husband converts to islam- purpose- to get away from his duty to
maintenance – maintain the wife- the judge interpret s3(3) literally – the act is not applicable for
Not remarry muslim( not obliged )- amended
Adultery -s78/79
Letchumy’s case has been commented and criticized in the case of(but not overruled)
TAN SUNG MOOI V. TOO MIEW KIM
Held: By looking to the intention of the Parliament while enacting section 51(2) i.e. to give
protection to the non-Muslim spouse and children against the Muslim convert, the court
therefore has a jurisdiction to hear and determine the ancillary status despite the fact that
the divorce was not granted under section 51.
- Husband converted later – to avoid his duty to maintain – interpret s3(3) – purposive
approach
- Married under LRA- injust for non-muslim if not awarded the maintenance
- S3(3) – jurisdiction
In the case of JOHAN FAIRBAIN, the decision in Tan Sung Mooi case was followed.
3) CUSTODY OF Principles applied by court
CHILDREN ( Including Welfare of the child is the paramount consideration
right of the YIP FOOK TAI V. MANJIT SINGH S/O MOHAR SINGH @ MOHAMMAD ISKANDAR MANJIT BIN
converted party to ABDULLAH
exercise his/her
rights to decide on Held: Order of custody can be made by the court. However, in deciding the custody of the
the religion of the children, whether it should be given to the converted or non converted parties, the paramount
child) consideration is still on the welfare of the child. Thus, the elder daughter remained with the
converted husband while the younger was with the mother
- Best interest principle -
NUR AISHAH SUK BTE. ABDULLAH @SUKWINDER KAUR a/p SAJHAN SINGH V. HARJEET SINGH
Held: After taking into account the report of the welfare officer concerning the background of
both parties and the child welfare, the court decided that the custody of the child should be
given to the applicant i.e. the converted mother.
Right to convert the GENGA DEVI CHELLIAH V SANTANAM DAMODARAMThe father who is a Muslim has a full right
children to decide the religion of the child and the custody was given to him.
Right of the CHANG AH MEE V JABATAN AGAMA ISLAM & ORS [2003] 1 CLJ 458
converted parent Issues:
without consent 1) Legality of the child conversion by the converted father
2) Jurisdiction to declare conversion as being against the law
Held:
The conversion of the child is null & void as it is against s.68 of Sabah Administration of Islamic
Law Enactment 1992 which requires consent of both parents if the child is below 18 years