FINAL REPORT

PRESENTATION
Presented By :D’ BETROTHAL

FAMILY LAW | DIL2232

 OVERVIEW

Introduction Marriage Legitamacy &

Legitimation
Betrothal Effects of
Ancillary Claims
Marriage
Domicile &
Nullity Conclusion
Residence

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 INTRODUCTION
This presentation objective is to provide an in-depth of our
understanding of Family Law through analysis of legal provisions
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and case studies.

The key topics are, Promise to Marry, Law Reform (Marriage and
Divorce) Act 1976: Domicile and Residence, Marriage in Family
Law, Effect of Marriage: Status and Property of Married Women,
Nullity, Legitimacy and Legitimation and Ancillary Claims

Our approach to enhance the understanding is via analyst

relevant legal provisions and review case studies 3
 TOPIC 1: BETROTHAL
DEFINITION

Betrothal is an agreement between two parties to marry in the future.

Unlike marriage, it does not establish mutual rights and duties but is
legally binding.

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 LEGAL ELEMENTS OF A
PROMISE TO MARRY
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OFFER CONSIDERATION
Both parties must be single, of legal age
Can be formal or informal (18+), and not within prohibited
relationships (Section 11, Law Reform
(Marriage and Divorce) Act 1976, LRA)

MUTUAL ACCEPTANCE CAPACITY

Must be present (e.g., sacrifices by Pregnancy by Another Person: If the
the plaintiff in R.S. Thanalachimi v. wife was pregnant by another
Sundararaju A/L Mattaya, 2010) person at the time of marriage.
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 BREACH OF BETROTHAL
The action for breach of betrothal will lie against the party in breach
whether it is a man or a woman. Where specific date of the marriage is not
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fixed or known, the marriage should take place within a reasonable time.
Otherwise the aggrieved party may file of breach of betrothal.

Defences
Plaintiff's Infirmities: Physical or mental conditions (Wharton v.
Lewis, 1824)
Misrepresentation: False statements made by the plaintiff
(Beachey v Brown (1860) E.B. & E 796)
Non-uberrimae fidei Contracts: Lack of utmost good faith
(Jefferson v. Paskell, 1916) 4
 CONSEQUENCES OF BREACHES
(DENNIS V. SENAYAH 1963)

General Damage Special Damages

For emotional distress and For specific financial losses

reputational damage like wedding expenses

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 ACTIVTY INSIGHT:
ROLEPLAY
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Engagement and significant wedding preparations

create a binding promise to marry (LRA).
Defenses Highlighted: Physical infirmity, such as
thalassemia, due to health risks for future children.
Practical application of learned concepts through
roleplay and observations.
TOPIC 2: DOMICILE AND RESIDENCE
Domicile: Permanent home and place to return to

Residence: Current living place, can be multiple, of

considerable permanence (Fox v. Stirk).

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 RELATED LAW
SECTION 3 OF THE LRA 1976
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Effective from 1st March 1982.

Regulates monogamous marriages and divorce in Malaysia.
Applies to all Malaysian residents and those domiciled in Malaysia but living abroad.
Excludes Muslims, native customary law marriages, and Islamic law marriages.

SECTION 26(1) OF THE LRA 1976

Overseas marriage valid if recognised in the domicile country of either party.

 RELATED LAW
SECTION 48(1)(c) OF THE LRA 1976
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Court mandates divorce decree if domicile of parties is in Malaysia (Long Yan Fei v. Pauls Baya)

SECTION 49 OF THE LRA 1976

Court can hear a wife's case if husband deserted her, was deported, was previously
domiciled, or if the wife lived in Malaysia for at least two years
 TYPES OF DOMICILE
ORIGIN DEPENDENCY
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Applies to children, follows father (Ang

Retained until a domicile of choice
Geck Choo v. Wong Tiew Yong)
is acquired (Udny v. Udny)

CHOICE MATRIMONIAL

Requires intention and residence Applies to married women, follows

husband (Radwan v. Radwan)

9
 ACTIVTY INSIGHT:
PRESENTATION
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Understanding domicile and residence is crucial for

legal matters in marriage and divorce.
Domicile impacts the validity of marriage and
divorce proceedings.
Practical application through detailed case studies
and legal provisions.
 TOPIC 3 : MARRIAGE
Marriage in Malaysia requires both parties to be at least 18 years old, with
1 exceptions for marriages of females aged 16 to 18 that must be authorised by a
Chief Minister's licence (refer to Section 10 LRA).

Consent from parents or guardians is necessary for those under 21 (refer to

2 Section 12 LRA).

Prohibited relationships by consanguinity or affinity (refer to Section 11 LRA) and

3 avoidance of marriage by prior subsisting marriage (refer to Section 6 LRA) are
also highlighted. Additionally, valid consent free from duress or mental incapacity
is crucial (refer to Section 70(c) LRA).
 Nancy Kual v. Ho Than On (1994)

The related case that we found interesting and broadened our

understanding of marriage in LRA is the case of Nancy Kual v. Ho
Than On (1994), where the court addressed a marriage's validity
under native customary law. The High Court ruled that marriages
must comply with LRA provisions even if they follow customary
rites, indicating that such marriages must be registered under Part
III of the LRA for legal recognition.

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 TOPIC 4 : EFFECT OF MARRIAGE
ON STATUS AND PROPERTY OF
MARRIED WOMEN'S
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Section 3 governs Muslim married women's rights, duties, and property in a

few states, such as, Johor, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak,
Perlis, Terengganu, Selangor and Kuala Lumpur based on Islamic law and
Malay customs.
Section 9(4) of the MWA excludes Muslim couples from filing a lawsuit against
each other for cheating, fraud, or property theft,

Section 4 and Section 9 are somewhat similar; to differentiate between those

two, Section 4 is for physical injuries, while Section 9 is for property.
Section 5 grants property to a married woman as if she were a feme sole and
removes her husband's liability for her torts, antenuptial contracts, debts, and
obligations before or after marriage.

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 TOPIC 5: NULLITY

Nullity in family law refers to the legal declaration that

a marriage is void or voidable. Understanding the
distinction between void and voidable marriages is
crucial as it affects the legal status of the marriage and
the rights of the parties involved.

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 VOID MARRIAGE
Section 67 of the LRA 1976 - listed 4 grounds for a void marriage.

Existing Lawful Marriage: If one party is already legally married to

1 someone else at the time of the subsequent marriage, the second
marriage is void, as demonstrated in the case of PP v. Rajappan (1985)

Underage Marriage: Marriages involving individuals under 16 years old

2 without a special license are void, according to Section 10 of the Law
Reform (Marriage and Divorce) Act (LRA).

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 VOID MARRIAGE
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Prohibited Degrees of Relationship: Marriages within

3 prohibited degrees of relationship without a special license are
void under Section 11(6) of the LRA.

Same-Sex Marriages: These are also considered void,

4 illustrated by the case Corbett v. Corbett (1970).
 VOIDALBLE MARRIAGE
Section 70 of the LRA 1976 provides few grounds on which a marriage may be
voidable.
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GROUND 1
Non-consummation: Due to
incapacity or willful refusal to
consummate the marriage, as seen in
L v. L (1956) and Rathee v.
Shanmugam (1981)
GROUND 3
Venereal Disease: If one party
had a communicable venereal
disease at the time of
marriage

GROUND 2
Lack of Consent: Due to duress or
mistake, as highlighted in Buckland
v. Buckland (1967) and Mehta v.
Mehta (1945).
GROUND 4
Pregnancy by Another Person:
If the wife was pregnant by
another person at the time of
marriage.
DIFFERENCES BETWEEN VOID AND VOIDABLE
MARRIAGES
Void Marriage
1. treated as never having existed, allowing parties to remarry without a decree.
2. even a third party to the marriage is entitled to the petition, and its validity
can be challenged at any time, whether the parties are dead or alive.

Voidable Marriage
1. require a court decree to annul and remain valid until such a decree is granted
2. only those involved in the marriage can file a petition to nullify the marriage,
and it must be filed ONLY during the parties' lifetimes

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LEGITIMACY & LEGITIMATION
Legitimacy and its importance
Legitimacy is the status of the child that is born
to a couple who are legally married to each
other. This also refers to a child conceived before
the parents legally divorced. Legitimacy is
important for inheritance

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 RELATED LAW
EVIDENCE ACT 1950
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Section 112
A person born during a valid marriage or within 280 days after its end, if the mother remains
unmarried, is conclusively presumed to be the legitimate child of the husband. This
presumption stands unless it is proven that the husband and wife had no opportunity to be
together when the child could have been conceived.

LEGITAMACY ACT 1961

Section 4
If the parents of an illegitimate child marry, whether before or after a specified date,
and the father was or is domiciled in Malaysia at the time of the marriage, the child
becomes legitimate from the specified date or the date of the marriage, whichever is
later, subject to Section 3.
 RELATED LAW
LEGITIMACY ACT 1961
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Section 5(1):)
A person who believes they or their parents or ancestors have become legitimate can
petition the High Court for a decree declaring their legitimacy. This applies
regardless of whether they are domiciled in Malaysia or elsewhere.

ADOPTION ACT 1952

Section9 (1)
When an adoption order is made, all parental rights, duties, and obligations of the
birth parents or guardians towards the child are terminated, and these responsibilities
transfer entirely to the adopter, as if the child were their biological child born within
wedlock.
 LAU ZHAN CHEN V. MAKOTO TOGASE & ORS. [1994] MLJU 344

Lau Zhan Chen was born in Johor Bahru, Malaysia, on August 9, 1991, to Lau
Fatt Wan, an unmarried Malaysian woman. The birth certificate did not list his
father’s name, as required by Malaysian law for illegitimate children, unless
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jointly requested by both parents. Lau's father, Makoto Togase, a Japanese

national working in Malaysia, could not marry Lau Fatt Wan initially due to his
parents' objections, leading them to live together unmarried since 1990.
Following the birth of their son and eventual parental consent, they married on
February 28, 1993. Seeking to legitimise their son, they underwent DNA testing
in Singapore, which confirmed Togase's paternity with a 99.7% probability. The
judge granted the prayer of registering the son as a legitimate child of the first
and second respondents and re-registering his name with his father’s name.
Additionally, the court required the first respondent to pay RM500 in costs to
the third respondent.
 ANCILLARY CLAIMS

DEFINITION
Ancillary claims are the process of seeking the Family Court’s
assistance in adjudicating all financial arrangements of a
marriage after its dissolution. Initially, the financial
arrangements can be done between the parties themselves after
the application of divorce. However, when they cannot decide
for themselves, they will apply this matter to the Family Court.

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 RELATED LAW
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Law Reform (Marriage & Divorce) Act 1976 The Guardianship of Infants Act 1961

Section 76 (1) Section 3

Section 76 (2)(a)

Married Woman and Children (Maintenance)

Act 1950
The Adoption Act 1952
Section 2
Section (3)(1)
Section (3)(3)
Section 4
 SHIRLEY KOO V. KENNETH MOK KONG CHUA [1989] 2 MLJ 264

On 14 June 1984, the petitioner left the matrimonial home with her three
children due to the respondent's unreasonable behaviour. She filed for divorce
on 7 January 1985, claiming the marriage had irretrievably broken down.
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Initially contested, the petition became uncontested on 8 August 1988. On 11

August 1988, the judge granted the petitioner a decree nisi, to be made absolute
after three months. Additionally, the petitioner paid for kitchen cabinets,
crockery, and cookware, while both spouses shared household expenses based
on their earnings: the respondent, earning $1,800 per month, covered utilities,
the car loan, and mortgage, and the petitioner, earning $500 per month, paid
for the servant, food, and groceries. This arrangement continued until April
1976. Both contributed to acquiring their property, contrary to the respondent's
claim that he did so alone. The judge decided to give the child custody to the
mother, divided the property according to their contribution and ordered the
respondent to pay the costs of the proceedings.
 CONCLUSION
In conclusion, this assessment has provided deep insights into key aspects such
as betrothal, domicile and residence, marriage requirements, and the rights of
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married women under the LRA and the Married Women and Children Act
(Maintenance) 1957 (MWA). We explored grounds for nullity, legitimacy,
legitimation, and ancillary claims involving maintenance, property division,
and custody. Through our analysis, case studies, role plays, and presentations,
we gained valuable knowledge of the legal principles governing family
relationships, preparing us for future legal practice.
 FAMILY LAW | DIL2232

THANK YOU
Presented By : D Betrothal