NON-MUSLIM

MARRIAGES
(FORMATION OF
MARRIAGES)

Marriage Requirements under Law

Reform (Marriage & Divorce) Act 1976
(‘LRA’)
Application of LRA-section 3
 S.3(1) applicable to all persons in Malaysia
and to all persons domiciled in Malaysia but
are resident outside Malaysia
 S.3(2) a Malaysian citizen shall be deemed to
be domiciled in Malaysia unless proven
otherwise.
 Muslim marriages
 S.3(3) it is not applicable to a Muslim or to any person
who is married under Islamic law an no marriage of
one parties which professes the religion of Islam shall
be solemnized or registered under this Act,
nevertheless the court has the jurisdiction over
dissolution of a marriage and all matters incidental
thereto including granting a decree of divorce or other
orders under Part VII and Part VIII on a petition for
divorce under s.53 where one parties converts to
Islam or a petition for divorce under s.52 or 53 by
either or both parties to a marriage one party has
converted to Islam.
 Customary Marriages by Native/Aborigines
of Sabah and Sarawak

Sec 3(4) : LRA shall not apply to any native/ aborigines whose
marriage and divorce is governed by native/ aborigines customary
law unless
1.He elects to marry under this Act
2.Marry under Christian Marriage Ordinance (Sabah)
3.Marry under Civil Marriage Ordinance (Sarawak)
However, if the Sabahan/ Sarawakian choose not to marry under
LRA or under those 2 ordinances, LRA is not applicable to them –
had a choice whether to subject to LRA or not
 Art. 161A(6) of FC defines ‘native’

 S3(1) of Aboriginal Peoples Act 1954 defined

‘aborigine’
Case
 Nancy Kual v Ho Than On [1994] 1 MLJ 545

 P sought a declaration that she was the legal wife of D and that the
native customary marriage entered into between them on 24/6/1990
was valid and subsisting in law.
 P was a Kadazan Tatana and a native of Sabah whilst D was born
of Chinese parents. On 5/5/1990. P and D underwent a tea
ceremony held to celebrate the marriage between them according
to Chinese custom. Relatives from both sides attended and
coloured photographs were taken of those who attended.
 P and D cohabited as wife and husband. On 24.6.1990, they
underwent another celebration of their marriage according to the
customs of the Kadazan Tatana at P’s father’s residence. During
this native marriage ceremony, P and D served rice wine to the
native chief of Kuala Penyu, and all the elders. P and D continued
to cohabit until they encountered problems in their marriage. The
marriage was not registered under LRA.
Cont..
 Held: section 5(3) and (4) of LRA must be read together.
Although section 5(3) allows marriages under any law,
customs or usage after the appointed date, that marriage must
be solemnised as provided for under Part III of LRA.
 The fact that the D was not a native was not material because
once he had married a native and observed the rites and
customs of P, he should not be allowed to retract.
 Besides, the native court has jurisdiction even if one party to a
marriage is a non-native (Native Courts Ordinance & Native
Courts Enactment 1992). Therefore the marriage between P
and D according to the Kadazan Tatana custom should be
recognised as valid.
 Since the native customary marriage was solemnised in
accordance with native customary law, it is valid according to
section 3(4) and therefore LRA does not apply to such a
marriage. The marriage is governed by native customary law.
Prior the coming into force of Law Reform (Marriages and
Divorce) Act 1976 (“LRA”)
There was a variety of family law in Malaysia which results in some
inter-personal conflicts

Post the coming into force of LRA

The enactment and enforcement of LRA has changed the family law
in Malaysia relating to non-Muslim marriages.
The marriage is monogamous
The marriage must be registered.
The religion or race of the parties are no longer relevant.
 STATUTORY MARRIAGE
S 109 LRA 1976 has repealed a number of Civil marriage laws which were previously
enforced in Malaysia. The previous laws repealed either entirely or in part include:

A. CIVIL MARRIAGE ORDINANCE 1952

B. REGISTRATION OF MARRIAGES ORDINANCE 1952
C. DIVORCE ORDINANCE 1952
D. CHRISTIAN MARRIAGE ORDINANCE 1956
E. SARAWAK CHINESE MARRIAGE ORDINANCE 1948 
F. SARAWAK CHURCH AND CIVIL MARRIAGESORDINANCES
G. SARAWAK MATRIMONIAL COUSES ORDINANCE 
H. SABAH DIVORCE ORDINANCE 1963
I. SABAH CHRISTIAN MARRIAGE ORDINANCE 1919
J. SABAH MARRIAGE ORDINANCE 
 II. Customary Marriages
Section 4. Subsisting valid marriages deemed to be registered under this Act and
dissoluble only under this Act.
(1) Nothing in this Act shall affect the validity of any marriage solemnized under
any law, religion, custom or usage prior to the appointed date.

(2) Such marriage, if valid under the law, religion, custom or usage under which
it was solemnized, shall be deemed to be registered under this Act.

(3) Every such marriage, unless void under the law, religion, custom or usage
under which it was solemnized, shall continue until dissolved-

(a) by the death of one of the parties; or

(b) by order of a court of competent jurisdiction; or

(c) by a decree of nullity made by a court of competent jurisdiction.

Question: what amounts to a valid marriage under the
law, religion, custom or usage when it was solemnized?

Yeap Leong Huat v Yeap Leong Soon

1/5 of estate income of deceased grandfather would go to the sons of Datuk Yeap with his
principal wife
Issue : Whether Hooi Sooi Wan, mother to the 2 plaintiffs is the principal wife of Datuk Yeap?
Sooi Wan was married to the family of Yeap when the initial principle wife of Datuk Yeap died
– Kim Lian was actually marry to Datuk before Sooi Wan but she was never invited to stay with
her husband in the family house
Held : Tea ceremony and burning of joss sticks are only ceremonies to evidence the intention of
the parties to marry – this intention can be implied or expressed in other forms such as contract
which is more conclusive – consensus 
According to Chinese rite, when a man marry another woman during the continuance of his
wedding with his principal wife, that woman can only be recognised as secondary wife. The
death of the principal wife does not automatically promote the secondary wife to the position of
principal wife
 Re Lee Siew Kow
The essential element for Chinese customary
marriage is mutual consent of the parties
 Marriages after 1 March 1982
 Hyde v Hyde – definition of marriage
… the voluntary union for life of one man and one woman to the
exclusion of all others.

 With effect from the 1.3.1982 as a general rule all marriages in

Malaysia will be governed by the LRA 1976. (S.3 (1))

 There are 2 exceptions to this general rule which have been

expressly identified by the LRA 1976 in:-

1. S.3 (3):
Substantive Requirements under LRA
1. Absolute restriction:-
a. Gender of parties: S69(d); it must be between male and female

Corbett v Corbett: marriages only between a biological man and

woman

b. Prohibited relationship: S11

c. May be solemnized only by Registrar (appointed under S28); S9
d. Monogamous marriage: s5, 6 and 7
e. Consent of parties: s70

II. Qualified restrictions:

a.Age: s10
b.Consent: S12
PROHIBITED RELATIONSHIP
 Section 11 LRA
 Consanguinity (relationship by being descended
from the same family) and affinity (relationship by
marriage);
 Relationship of the half blood is as much an
impediment as relationship of the full blood and it
is immaterial whether a person was born
legitimate or illegitimate.
MONOGOMOUS MARRIAGE
 Section 5, 6 and 7 LRA
 Avoidance of marriage by prior subsisting
marriage
 Marriage in contravention of the above is void and
an offence under section 494 of the Penal Code.
CONSENT OF PARTIES
 Section 70(c) LRA
 Lack of consent, under duress, mistake or
unsoundness of mind would cause a marriage
voidable under section 70(c) LRA.
 It is an offence for a person to use any force or threat
to compel a person to marry against his/her will or to
prevent a person who has attained the age of 21 years
from contracting a valid marriage (section 37 LRA)
 Age

 S10 of LRA
 Female & Male must be 18 years.
 Female who completed 16 years may marry with a
licence issued by the Menteri Besar or Chief
Minister or in the Federal Territory by the Minister
charged with responsibility for the registration of
marriage.
Consent
 Section 12(1)-(6) LRA
 Consent of parents or guardian in writing:-
 Father, mother (illegitimate/ if father dead),
adopter father @ mother or person standing in
loco parents
 Court can also give consent if person required refused to
do so.
 Application made in High Court in chambers
 If minor remarry, no consent required
 If x consent obtained, offence under section 41(3) LRA
Marriage Solemnization
5 ways:

1. S.22(1)(a) – In Registrar’s Office:

a) 7 days notice – s.14
b) Written decleration – s.16
c) Posted notice – s. 15
d) Marriage certificate – s. 17
e) Marriage in 6 months – s.18
f) Caveat that can be filed – s. 19 and 20
g) Marriage is void without certificate – s.22(4)
h) Every marriage under this Act shall be solemnized in the office of a Registrar with
open doors within the hours of six in the morning and seven in the evening – s22(1);
Witness – 2 credible witness.22(5).
i) Solemnization of a civil marriage performed in office of a Registrar or elsewhere–
s.23
j) Enter prescribed particulars in the marriage register–s.25(1)
2. S.22(1)(b) – In places other than Registrar’s
Office
a) Statutory declaration send to Chief Minister– s.21(1)
b) Chief Minister’s discretion to grant licence – s.21(2)
c) Licence granted by the Chief Minister stating the
solemnization place – s.21(3) & (4)
d) Lesen tidak sah jika pengupacaraan tidak diadakan
dalam 1 bulan dari tarikh lesen – s.21(5) & (6).
e) Solemnization – s.23
f) Registration – s.25.
 3. Solemnization of marriages in a church or temple or
at any place of marriage in accordance with section 24
at any such time as may be permitted by the religion,
custom or usage which the parties to the marriage or
either of them profess or practise– s.22(1)(c).
a) Statutory declaration under subsection s.23(3)
delivered to clergyman or minister or priest of any
church or temple appointed by the Minister– s.24(1).
b) Solemnization after receiving the statutory
declaration.
c) Monogamous elements is reminded –s.24(3).
d) Registration – s.25
4. Solemnization of marriages in Malaysian
Embassies –s.26.
(a) Appointment of diplomatic staffs as
Registrar – s.28(4).
(b) Registrar must be satisfied with matters (a)
– (d) – S.26(1).
(c) Solemnization procedure and registration
similar to the one applicable in Malaysia –
s.26(2) (except s.26(1)(a) & (c))
(d) Marriage Certificate issued by Registrar.
5. Recognition of marriage contracted
abroad other then in Embassies, High
Commission or Malaysian Consulate – s.
104.
- Marriage recognition in Malaysia in
accordance to the law of the country where
the marriage was contracted if it falls under
(a) – (c).
Registration of Marriage
1. Registration : s.27
2. Registration of foreign marriage contracted
under laws other than LRA: s.31, 31(1),
31(1A) & 31(1B). Penalty : s.35. See also
s.31(4).
3. Effect of registration : s.34
4. Voluntary registration for Customary
marriage before the enforcement of LRA :
s.33
5. Penalty: s.35-46.