Historical Outline of

Family Law
Pre- Law reform (Marriage and Divorce)
1976 (LRA)
 The marriages and divorces in Malaysia were governed by religion
and customs.
 (i) Peninsular Malaysia
 Religion and customary law governed the marriages in the
Peninsular.
 No uniformity as to the marriage.
 Civil Marriage Ordinance 1952

1. It is a monogamous marriage between a male who was 16 years and above and
a female who was 14 years and above.
2. 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.
3. 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.
Cont…

4. The parties to the marriage must consented to it.

5. the marriage will be solemnized before the Registrar.
Christian Marriage Ordinance 1956

1. For Christian marriages, monogamous;

2. 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.
3. Consent of the parties;
4. Consent of the parents, and in the event that was not possible, the consent
could be granted by the High Court.
Cont…

5. The parties to the marriage must not come within the prohibited degrees
of kindred and affinity .
6. The marriage would be solemnized in accordance with the Civil
Marriage Ordinance 1952
7. The parties must attested to the marriage in the marriage Registrar.
Chinese Customary marriage

1. Long continued cohabitation with the intention to form a

permanent union and repute marriage
2. Consent of both parties
3. Polygamous
Re Lee Siew Kow, decd [1952] 1 MLJ 184

 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 [1966] 2 MLJ
220
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.

Read also: Lam Wai Hwa & Anor v Toh Yee Sum & Ors [1981] 2 MLJ 131
Read also

 Re Loh Toh Met, deceased [1961] MLJ 234

 Six Widows Case [1908] 12 SSLR 120
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. See the case of Woon Ngee Yew v Ng
Yoon Thai [1941] 1 MLJ 37
Hindu customary marriage
 The sacramental aspect of marriage under Hindu law has three
characteristics:
1. 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;
2. A sacramental union implies that a marriage once entered cannot be
dissolved on any ground whatsoever; and
3. 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[1959] 1 MLJ
195
 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
[1970] 2 MLJ 8
 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
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.
Divorce Ordinance 1952

 Dissolution of monogamous marriage was governed by Divorce

Ordinance 1952
1. Nullity of Marriage
2. Dissolution of Marriage
3. Judicial Separation
Nullity of marriage
 Grounds;
1. prohibited degrees of relationship;
2. the marriage was declared invalid by the law where it was solemnized;
3. absent of consent;
4. the parties were already married;
5. the parties were suffering from venereal disease;
6. pregnancy by another person;
7. willful refusal to consummate the marriage
Dissolution of marriage
 Grounds for dissolution of marriage:
1. adultery;
2. desertion for a period of 3 years;
3. cruelty;
4. unsoundness of mind.
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
Cont…

 (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.
Cont…

 (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.
Cont…

 (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 [1953] MLJ 73

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 [1976] 1 MLJ 270

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 provides that if these marriages were valid under the law,
religion, custom or usage under which it was contracted or soleminised , these
marriages and the marriage will be deemed to be registered under LRA 1976.
 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
 5. (1) Every person who on the appointed date is lawfully married under any law, religion,
custom or usage to one or more spouses shall be incapable, during the continuance of
such marriage or marriages, of contracting a valid marriage under any law, religion,
custom or usage with any other person, whether the first mentioned marriage or the
purported second mentioned marriage is contracted within Malaysia or outside Malaysia.
 5. (2) Every person who on the appointed date is lawfully married under any law, religion,
custom or usage to one or more spouses and who subsequently ceases to be married to
such spouse or all such spouses, shall, if he thereafter marries again, be incapable during
the continuance of that marriage of contracting a valid marriage with any other person
under any law, religion, custom or usage, whether the second mentioned marriage or
purported third mentioned marriage is contracted within Malaysia or outside Malaysia.
Section 6 LRA
 (1) Every marriage contracted in contravention of section 5 shall be
void.

 (2) If any male person lawfully married under any law, religion,
custom or usage shall during the continuance of such marriage
contract another union with any woman, such woman shall have no
right of succession or inheritance on the death intestate of such male
person.
Effects of LRA 1976

 Polygamous marriage abolished.

 Registration of marriage
 Uniformity of law
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