Historical Outline

Marriages
1. Pre- Law reform (Marriage and Divorce) 1976 (LRA)
 The marriages and divorces in Malaysia were governed by religion and customs.
 Religion and customary law governed the marriages in the Peninsular.
 No uniformity as to the marriage.

2. Civil Marriage Ordinance 1952

(a) It is a monogamous marriage between a male who was 16 years and above and a
female who was 14 years and above.
(b) The parents must consented to the marriage if the parties were minors.
Nevertheless, the parents consent could be substituted with the consent of the
State Authority if it was proven that the consent could not be reasonably obtained.
(c) The parties to the marriage must not come within the prohibited degrees of
kindred and affinity including the person’s direct descendants, similar relatives of
the spouse, brothers, sisters and their respective children, aunts, uncles.
(d) The parties to the marriage must consented to it.
(e) the marriage will be solemnized before the Registrar.

3. Christian Marriage Ordinance 1956

(a) For Christian marriages, monogamous;
(b) The male party must be 16 years and above and the female must be 14 years and
above. Nevertheless if the parties were below the required age, marriage was still
possible with the licence granted by Christian Church or other Christian bodies.
(c) Consent of the parties;
(d) Consent of the parents, and in the event that was not possible, the consent could
be granted by the High Court.
(e) The parties to the marriage must not come within the prohibited degrees of
kindred and affinity .
(f) The marriage would be solemnized in accordance with the Civil Marriage
Ordinance 1952
(g) The parties must attested to the marriage in the marriage Registrar.

Chinese Custom
1. Chinese Customary marriage
 Long continued cohabitation with the intention to form a permanent union and
repute marriage
 Consent of both parties
 Polygamous

Re Lee Siew Kow, decd

 The court held that for the legal requirement of a Chinese customary marriage, the
law only required a consensual marriage.
 The requirements of a ceremony, of a formal contract, or of repute of marriage
were evidentiary only and not essential.
 To prove such a marriage, must established that there was mutual consent to
marry and an agreement to keep a woman was not equivalent to an agreement to
marry.
 Re Ding Do Ca, deceased
 Federal Court held that with regards to persons of the Chinese race, the courts
have given judicial recognition to certain customs which recognize polygamous
marriages. As such the deceased could contract a valid marriage under the
Chinese custom despite of his earlier marriage with another woman under the
Christian Marriage Enactment.
Six Widows Case
 In the case, a rich Chinese man died leaving a vast heritage. Other than his
primary wife, six other women claimed to be his widows, some having children
with him. The main issueis whether all women have equal status and entitled
equal shares from the husband’s property. The court held that Chinese customary
marriages were polygamous. The validity is based on two grounds that is the
interpretation of the terms of COJ that allows native law and the public policy that
secures the welfare of women and children.

2. Divorce in Chinese Customary Marriage

 If one party refused to return home and informed his friends and family about his
refusal, then it was considered as a divorce.
Woon Ngee Yew v Ng Yoon Thai

 where Ng claimed to be the

widow of the deceased. The court
held that the deceased
 never did in fact divorce the
plaintiff. But in the appeal, the court
held that there is evidence on the
 divorce, according to the Chinese
customs when Ng refused to return
home and when the deceased
 inform various friends and
relations that he had divorce Ng.
  In this case, where Ng claimed to be the widow of the deceased. The court held
that the deceased never did in fact divorce the plaintiff. But in the appeal, the
court held that there is evidence on the divorce, according to the Chinese customs
when Ng refused to return home and when the deceased inform various friends
and relations that he had divorce Ng.
Hindu Custom
1. Hindu customary marriage
 The sacramental aspect of marriage under Hindu law has three characteristics:
(a) That it is a sacrament union, which means that marriage is not to gratify one's
physical needs; but is primarily meant for the performance of religious and
spiritual duties;
(b) A sacramental union implies that a marriage once entered cannot be dissolved
on any ground whatsoever; and
(c) A sacramental union also means that it is a union of soul, body and mind. It is
a union not only for this life, but for all lives to come. The union is not only for
this world, but also for other worlds.

Parameswari v Ayadurai
 The court recognized the evidence of the priest who solemnized the marriage
ceremony between the petitioner and the respondent with regards to the
traditional features of a marriage between Ceylon Tamil Hindus. The marriage was
monogamous and binding.
Nagapushani v Nesaratnam & Anor
 It was concluded by Raja Azlan Shah J, that the plaintiff and the first defendant
had gone through a ceremony of marriage in 1942 according to Hindu rites; they
had cohabited for a number of years as well as enjoyed the reputation of husband
and wife

2. Divorce in Hindu custom

 Divorce was unknown to the Hindus.
 Marriage was for good until death. Nevertheless this later evolved to allowing
divorce but was not socially accepted.

Divorces & Nullity

1. Divorce Ordinance 1952
 Dissolution of monogamous marriage was governed by Divorce Ordinance 1952
(a) Nullity of Marriage
(b) Dissolution of Marriage
(c) Judicial Separation

(A) Nullity of marriage

 Grounds;
i. prohibited degrees of relationship;
ii. the marriage was declared invalid by the law where it was solemnized;
iii. absent of consent;
iv. the parties were already married;
v. the parties were suffering from venereal disease;
vi. pregnancy by another person;
vii. willful refusal to consummate the marriage
 (B) Dissolution of marriage
 Grounds for dissolution of marriage:
i. adultery;
ii. desertion for a period of 3 years;
iii. cruelty;
iv. unsoundness of mind.

(C) Judicial separation

 Judicial separation was to legally allow the parties to live apart from each other. It
is not considered as a divorce, the parties could not enter into another marriage
during this time

Sarawak
 3 types of marriages:
(i) Church and Civil marriages
 Church and Civil Marriages Ordinance 1958.
 It was not applicable to Muslim, Dayak Hindus or other person governed by their
personal law or custom.
 It established certain requirements for a valid marriage, ie age (14 years or more);
consent of the parents; prohibited relationship; consent of the parties and must be
of sound mind.
 The marriage was dissolved according to the Matrimonial Causes Ordinance 1958

(ii) Chinese Marriages

 Chinese Marriages Ordinance 1933 recognized marriages solemnized according to
the Chinese customs or law.
 The female must be at least 15 years of age to contract a valid marriage
 It required registration of the marriage
 Divorce under Chinese customary law could be done by mutual consent; desertion
or failure of the husband to provide adequate maintenance.

(iii) Native marriages

 The marriage and divorce will be governed by their customary law, depending on
the tribe which they belonged too
 For under Dayak custom, a marriage could be established by the ceremony of
belah pinang or for a man to live with a woman for 7 days and nights.
 Dayak recognised divorce by mutual consent of the parties; payment done by
either party; desertion; infidelity.

Sabah
(i) Christian marriages
 Christian Marriage Ordinance and Marriage Ordinance 1959
 Focus on solemnization and registration of the marriage.
 Include the requirements for age (16 for male and 14 for female); consent of
parents; consent of parties; prohibited relationship; monogamous
  Dissolution was under the Divorce Ordinance 1963 with similar grounds for
divorce.

(ii) Customary marriages

 Marriage Ordinance 1959
 Included the requirements for age (16 for male and 14 for female); witnesses;
consent of the parties
 The divorce was in accordance with the requirement of the customs

Mixed marriage valid?

Issac Penhas v Tan Swee Eng
 Marriage between a Jew & a non-Christian woman is valid even although there
was no form of ceremony of marriage by both parties.
 Chua Mui Nee v Palaniappan
 Federal Court: The marriage was valid as the law which governed the marriage
was the law of Malacca 1943, which was the English common law.

Post LRA 1976

 Section 4 of the LRA
 As such it is important that the marriage contracted prior to LRA 1976 fulfilled the
requirements mention in the law, religion, custom or usage for it to be deemed to
be registered.
 Nevertheless the said section clearly stated that LRA will not affect the validity of
the said marriage.
 The said section further spelt out under which the marriage is dissolved ie by the
death of the parties; by order of the court or by decree of nullity.
 Section 5 of LRA
- S.5(1): if married ady, in the continuous of marriage, which
- (2): After the marriage before LRA, and if one party had passed away, then the
other party shall remarry but only once.
 Section 6 LRA
 Effects of LRA 1976
i. Polygamous marriage abolished.
ii. Registration of marriage
iii. Uniformity of law