TUTORIAL QUESTION

TOPIC: MARRIAGE REQUIREMENTS

In 2005, at the age of 17, Elizabeth Ong entered into a marriage with Richard Wong who wa 40 years old
then. Elizabeth’s parents had opposed her plan to marry Richard and thus she and Richard has their
marriage solemnized in China.

A few weeks later after the solemnization of marriage, Richard confessed to Elizabeth that in 1980, he
had entered into a marriage under the Christian Marriage Ordinance 1956 with another man named
David.

Elizabeth is seeking your advice as to the validity of her marriage with Richard. Advise her.

The issue is whether the marriage of Elizabeth Ong and Richard Ong is valid.

In order to apply the rule of marriage, the laws to be used must be in accordance with Law Reform
(Marriage & Divorce) Act 1956, which provides inter alia monogamous marriages along with
solemnization and registration of such marriages. This codified laws stipulates the requirements of
marriage that must be obeyed by the non Muslims for a valid marriage such as the requirement of a
certain age to get into the marriage, the consent of guardian to marry, the relationship of both parties
which must not be a prohibited relationship or consanguinity, state of individuals which must be single
at the material time of marriage, and the marriage must be held in consent of both parties.

The first requirement of marriage is the age of the parties. Both parties must be 18 years old, but a
female who has completed her 16th year, may marry if the solemnization of the marriage is authorized
by the Menteri Besar or Chief Minister or, in the case of Federal Territory by the Minister charged with
responsibility for the registration of marriages under section 10 of Law Reform Act.

The issue is whether the marriage of Elizabeth Ong and Richard Ong is valid under the requirement of
age during solemnization as stipulated by the Act. According to the precedent law case, Khimji Kuverji v
Lalji Karamsi where The Indian High Court held that a minor may enter into a valid contract to marry.

Applying to the first issue, the marriage of Elizabeth and Richard is valid as a minor is able to enter into a
contract of marriage provided that, even if they did not obtain the permission of the parents or
guardian, they will obtain the permission from the higher authority of the Chief Minister for the
marriage to be valid.

The second requirement is the consent of parent or guardian in pursuant to Section 12 (1) – (6) of the
Law Reform Act whereby a person who has not attained her or his 21 st year shall be required, before
marrying, to obtain the consent in writing of her or his parent or guardian as provided by for in Section
12. The person who marries or purports to marry or goes through a form of marriage with any person
contrary to the to the provisions of Section 12 would be guilty of an offence under Section 41(3) of the
Law Reform Act and shall be liable on conviction to imprisonment for a term not exceeding three years
and to a fine not exceeding five thousand ringgit.

The second issue is whether the marriage of Elizabeth Ong and Richard Ong is valid under the
requirement of consent from parent or guardian as stipulated by the Act. According to the precedent
law case, Turner v. Turner where it was determined that a parent could withdraw the consent he had
given to the marriage of his minor son on the ground that such consent had been obtained by fraud. The
fraudulent representations which the plaintiff parent pleaded were that the defendants had been
married in Mexico and that his son's putative wife was pregnant. On the strength of this, the plaintiff
had consented in writing to the marriage but, upon learning of the true state of affairs, he then brought
an action to have his consent rescinded and the marriage annulled. 2 The defendants defaulted,8 but
the trial court refused to rescind the plaintiff's consent and denied him any relief. On appeal to the
Appellate Court for the Second District of California, that decision was reversed and a decree was
entered in favor of the plaintiff. The court decided that, on the petition of the parent, any consent given
by a parent to the marriage of his minor child may be rescinded where induced by fraud and, upon
rescission, the resulting marriage may be annulled.

Appying to the second issue, even though the consent of guardian is absent in the marriage of Elizabeth
and Richard which might render the contract of marriage to be void, it is valid even if they did not obtain
the permission of the parents or guardian, presuming that they will obtain the permission from the
higher authority of the Chief Minister.

The third requirement is state of individuals which must be single at the material time of marriage. Both
of the parties must not be in a state of still having prior subsisting marriage. This is in pursuant to
Section 6 of Law Reform Act which provides that every marriage in contravention of Section 6 shall be
void and Section 7 of the Law Reform Act provides that every such marriage shall be an offence under
Section 494 of the Penal Code.

The third issue is whether the marriage of Elizabeth Ong and Richard Ong is valid by the existence of
prior subsisting marriage with Richard and David. According to the precedent law case, Harvey v
Johnston, D had promised to marry P within a reasonable time after her arrival at Lisahoppin, Ireland if
she would go to Lisahoppin for the purpose of marrying D. she was single and resided at Toronto,
Canada. She went to Lisahoppin as requested but D failed to carry out his promise. She sued him for
breach of promise to marry. D alleged that there was no sufficient consideration for his promise. Held:
there was perfectly good consideration. But, even though the parties are not single, there are
exceptions where the marriage is still valid such as the personel law of the D which might allow the D to
have monogamy. This is illustrated in the case of Nafsiah v Abdul Majid where the P sued for damages
for breach of contract to marry. The parties were Muslims. D's Counsel attempted to rely on the general
rule of law which invalidates a promise to marry if the woman knew that the man was already married
at the time of the promise. It was held that when D's personal law allowed him to marry more than one
wife, the promise was valid. Damages was granted to P.
Applying to the third issue, the marriage between Elizabeth and Richard is valid on the ground that even
though Richard is not a single man at the material time of the marriage with Elizabeth which is
solemnized under Law Reform Act, but his marriage with David is valid under Christian Marriage
Ordinance 1956 too which is in accordance with Richard`s personal law.

The last issue is whether the marriage of Elizabeth and Richard is valid on the ground of domicile.
According to the precedent law case, Ang Geck Choo v Wong Tiew Yong, the petitioner was legally
married to the respondent on 4 th June 1987 at the National Registration Department in Melaka until July
1996. The petitioner, a Singapore citizen, resided in Singapore which us her original place of domicile.
The petitioner and the respondent went through chaotic times and had attempted to settle their
differences three times before a marriage tribunal. In relation to the place of domicile of the
respondent, no problem was posed for the court, as not only was he presumed in Malaysia, but to be
domiciled in Malaysia by virtue of his Malaysian citizenship, but also to the fact that he was at present
living in Malaysia. As regards the domicile of the petitioner, originally she was domiciled in Singapore
but according to the law of domicile applicable in Malaysia, her domicile changed to that of Malaysia
upon her marriage to her Malaysian husband, the respondent. In this case, since the petitioner was
upon her marriage domiciled in Malaysia, the High Court has the jurisdiction to hear the case although
the petitioner was in Singapore when the petition was presented.

Applying to the last issue, the marriage solemnized between Elizabeth and Richard is valid due to
domicile of dependency where for a woman, Elizabeth will take the domicile of her husband, upon
marriage. This is because under common law, husband and wife is viewed as one entity. So the marriage
in China was valid due to domicile of dependency from Richard.

In conclusion, the marriage between Elizabeth and Richard is valid due the ability of a minor to enter
into a contract of marriage, due to the consent obtained from the Chief Minister, the state of personal
law applied by Richard which enable his monogamous marriage and the validity of solemnization based
on the domicile of dependency of her husband.
TOPIC: NULLITY OF MARRIAGE

In July 2005, Kajol entered into a marriage ceremony with Maniam after she was threatened by her
parents that they would disown her if she did not do so. At the time of the marriage, Kajol was pregnant
from her sexual relation with her boyfriend named Veloo and was suffering from syphilis. Maniam and
Kajol have not had sexual intercourse since the solemnization of the marriage because Kajol refuses all
Maniam’s advances.

Maniam is the son of a rich bussinessman, for whom Kajol’s father works. Unfortunately, Maniam is
physically and mentally handicapped since birth.

After she has given birth to a child, Kajol is very determined to legitimize her child by marrying Veloo.
Kajol and Maniam seek your advice whether they can nullify the marriage.

The issue is whether Kajol and Maniam can nullify their marriage.

Generally, there are two types of defective marriages under Law Reform Act which is the void marriage
and the voidable marriage. Void marriage is when the marriage never existed at all. Voidable marriage
in contrast are originally valid unless the court pronounced decree of absolute nullity. A decree of nullity
is a statement to the effect that the marriage in question never existed, i.e. the marriage is and has always been
null and void. There are six grounds which has been laid down by Section 70 of Law Reform Act for a
marriage to be voidable. However, Section 71(2) of the Act provides that a petitioner can only bring the
case if the court is satisfied that at the time of the marriage, the petitioner was ignorant of the fact. The
six grounds are either of the party did not validly consent to the marriage, the pregnancy of respondent
by other person other than the petitioner at the time of marriage, the venereal disease which is suffered
by the respondent in a communicable form at the time of marriage, the refusal of respondent to
consummate the marriage, the incapacity of the other party to consummate the marriage, the mentally
disordered person which is unfit for marriage.

The first ground which is either the party did not validly consent to the marriage is whether in consent
to mistake, duress, unsoundness of mind or otherwise. Marriage is a contract, and therefore, the
absence of consent will invalidate the marriage. This is in accordance to Section 70(c) of the Law Reform
Act. According to Prof Mimi Kamariah Majid in her book of Family Law in Malaysia, the phrase “or
otherwise” in the Section 70(c) also extends to fraud and misrepresentation.

The issue is whether Kajol can nullify the marriage on the ground of absence of consent on behalf her
part a she was threatened by her parents to enter into a contract of marriage. In the precedent case of
N Osman v Mourali, the wife sought for a decree of nullity of marriage and it was granted by the court
based on the ground that her consent given to the marriage was not a real consent as it was obtained by
way of fraud. This was due to the fact that, after the marriage, the husband who was a foreigner,
refused to cohabit with the wife. The only reason he married her was for him to be permitted to reside
in Australia where the marriage takes place as the wife had a permanent resident status. The court held
that the marriage was void due to the purported consent was given other than marriage. In the case of
Buckland v Buckland, the petitioner was a policeman, employed in Malta. While working there, he went
around with a Maltese girl. The girl`s parents forced him to marry her. She was only 15 years old. He
married her out of fear of her parents. When he returned to England, he applied for nullity of marriage
and the court granted the application.

Applying to the first issue, Kajol may nullify the contract of marriage as the contract does not have the
element of consent and she was threatened by her parents to induce into the marriage. Meaning to say,
the contract induced by Kajol is not of her free will and not voluntary therefore, she has the right to
nullify it.

The second ground is the pregnancy of the respondent by other person other than the petitioner at the
time of the marriage which is in accordance to Section 70 (f) of the Law Reform Act. Pregnancy before
marriage will render the child not belong to the partner, or if belong to the partner, the status of the
child will be illegitimate.

The issue is whether the marriage between Kajol and Maniam can be nullified due to her pregnancy of
the baby which does not belong to Maniam at the time of the marriage. In the precedent case of

Applying to the second issue, Kajol can nullify her marriage with Maniam due to her pregnancy of the
baby which does not belong to Maniam.

The third ground is the venereal disease which is suffered by the respondent in a communicable form at
the time of marriage by virtue of Section 70 (e). Venereal disease is a disease typically contracted by
sexual intercourse with a person already infected or in another words, a sexually transmitted disease.

The issue is whether the marriage between Kajol and Maniam can be nullified as Kajol suffered from a
disease caused by sexual disease which is syphilis.

Applying the provisions to the situation, the marriage between them can be nullified as Kajol suffered
from venereal disease which might harm Maniam’s health when they have sexual intercourse as
husband and wife.

The fourth ground is the wilful refusal of respondent to consummate the marriage by virtue of Section
70 (b) of the said Act. This is based on the very basic idea of marriage ie; to have sexual intercourse.
Marriage is not regarded as consummated until the parties have become one flesh by sexual
intercourse. Willful refusal means without just cause. It is for the respondent to show his just cause for
the refusal of consummation. The refusal has to be at the time of post-marriage stage. If both parties to
a marriage agree to undergo a religious or customary ceremony prior to the consummation of their
marriage and if one of them refuses to go through with the ceremony, the other may petition for a
decree of nullity.

The issue is whether the marriage between Kajol and Maniam can be nullified as Kajol wilfully refused to
consummate with Maniam. Referring to the precedent case of Kwong Sin Hwa v Lau Lee Yen  whereby
the parties had agreed that after marriage they would continue to live apart and there would be no
cohabitation until after parties had performed and undergone the traditional Chinese rites and set up a
matrimonial home. After the marriage both parties lived separately and never lived together as husband
and wife.The appellant’s husband had asked the R to consummate the marriage but the R refused on
the ground that she wished to have the customary rites performed before consummating the marriage.
Subsequently the R herself refused to go through the Chinese customary rites, giving financial reasons
and later saying that she wanted to be a nun. Appellant husband petition for a decree of nullity.

Applying the principles to the case, Maniam can nullify the contract of marriage on the ground of wilful
refusal of consummation from Kajol by refusing all Maniam advances towards her without a just cause
and without legally sufficient reason given to Maniam, since the day they were married.

The last ground would be the incapacity of the other party to consummate the marriage which is
consistent to Section 70 (a) of the said Act. It is either the petitioner or the R may be the one who is
incapacitated to consummate the marriage. The incapacity to consummate must be in relation to the
other spouse. If a party to a marriage is unable to consummate the marriage because of his or her
incapacity but is well capable of having sexual relations with another person, then he
orshe will be taken to be incapacitated-sufficient to prove ground (a).

The last issue is whether Kajol can nullify the marriage due to incapacity of Maniam to consummate
during the time of their marriage. In reference to the case of Baxter v Baxter, whereby the wife did not
allow the husband to have sexual intercourse with her unless he uses contraceptive sheath.
The husband applied for nullity of marriage. Court held that the marriage has been consummated
irrespective of the husband`s use of a sheath. Although the husband used contraceptive sheath, the
marriage was considered to have been consummated.

Applying the law to this issue, Kajol can nullify the marriage as Maniam did not have the capacity to
consummate with her since the health state of Maniam itself, as he was handicapped since his birth,
physically and mentally.

In conclusion, both Kajol and Maniam can nullify the marriage on the grounds that Kajol did not give her
consent to the marriage, Kajol was pregnant before marriage and the child did not belong to Maniam,
Kajol suffered a venereal disease which is syphilis, wilful refusal of Kajol for consummation since after
they`re married and the incapacity of Maniam to consummate the marriage due to his state of being
handicapped. Kajol and Maniam can do petition in court and they will obtain absolute decree of annulity
after the ecceptance of caveat by the court by virtue of Section 73 of the said Act.