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Effects of Marriages on Status and Property 1. Introduction.

Marital status is relevant to determine a persons legal rights and obligations, personal legal consequences of intimate relationships and for considering property rights. The law relating to the status, rights and obligations of married women is contained in the Married Women Act 1957 and the Law Reform (Marriage and Divorce) Act 1976. It has to be noted that the 1957 Act applies only to the states of peninsular Malaysia. English common law rule upon marriage the wife acquired the domicile of her husband applies in peninsular Malaysia. Both the husband and wife have a right of damages against a third person for enticement. Each spouse can maintain an action for damages under section 7 of civil law act 1956 against a wrongdoer whose negligence caused the death of the other spouse. The Married Women Act 1957 provides that a married woman is capable of rendering herself and being rendered liable in respect of any tort, contract, debt or obligation and of suing and being sued in her own name either in tort or in contract or otherwise and is entitled to all remedies and redress for all purposes in all respects as if she were a feme sole. A husband or a wife is entitled to sue each other in tort for damages in respect of injuries to his or her person in the like manner as any is not liable for any tort committed by her, whether before or after marriage; he is also not liable in respect of any contract entered into or debt or obligation incurred by her before the marriage, nor is he liable to be sued or made a party to any legal proceeding brought in respect of any such tort, contract, debt or obligation. However, at common law, the wife is deemed to be the agent of the husband and to have an implied authority to pledge his credit and to enter the contracts for necessities. This authority of a wife is assumed from cohabitation and extends generally to the purchase of things necessary and suitable to the life style of her husband. 2. The Doctrine of unity The view that marriages creates a legal unity of personalities seems to be merely biblilical as the courts do not take into consideration this argument Case : Midland Bank Trust Co Ltd v Green - Both husband and wife were sued for conspiracy. - The defence submitted that they could not be liable as they were one person in law and therefore could not conspire with each other. In the lower court, Oliver J concluded : I decline to apply, as a policy of law, a mediaeval axiom which was never wholly accurate and which appears to me now to be as ill-adapted to the society in which we live as it is repugnant to common sense.

The COA affirmed Olivers judgement. Lord Denning MR expressed it as follows : nowadays, both in law and in fact, husband and wife are two persons, not onethe severance in all respects is so complete that I would say that the doctrine of unity and its ramifications should be discarded altogether, except in so far as it is retained by judicial decisions or by Act of Parliament.

3. The Use of Surname Adults may use any surname they choose provided that there is no intention to perpetrate a fraud. Many married women take the surnames of their husbands on marriage, although they may continue to be known by their former names for professional or business purposes. Similarly, a woman may retain her former husbands surname after the marriage has been terminated either by death or by divorce and a man no such property in his name as to entitle him to sue for an injunction to prevent his divorced wife from using it unless at any rate, she is doing so for the purpose of defrauding him or some other right of his being invaded. Case : Cowley v Cowley ACTION - IN RESPECT OF WHAT ACTS AND OMISSIONS AN ACTION WILL LIE - DAMNUM ABSQUE INJURIA - MISCELLANEOUS ACTS - USE OF NAME DIVORCED HUSBAND PEER WIFE USING TITLE

Where the marriage of a commoner with a peer of the realm has been dissolved at the instance of the wife, and she afterwards, on marrying a commoner, continues to use the title acquired by her first marriage, she does not thereby, though having no legal right to the user, commit such a legal wrong against her husband, and so affect his enjoyment of the incorporeal hereditament which he possesses in his title, as to entitle him, in the absence of malice, to an injunction to restrain her use of the title. COURTS - INTRODUCTION - THE JURISDICTION OF COURTS - GENERAL HOW DERIVED - AT LAW - CANNOT BE CREATED BY COURT

The court cannot invent a new jurisdiction because it would be convenient that it should do so. HUSBAND AND WIFE, JOINT PROPERTY AND MATRIMONIAL CAUSES FINDING AND DECREE - EFFECT OF FINAL DECREE - DECREE OF NULLITY OR DIVORCE - WOMANS RIGHT TO CHOOSE NAME - WIFE OF PEER REMARRIAGE WITH COMMONER

An injunction will not be granted to restrain the former wife of a peer, whose marriage with him has been dissolved, and who has subsequently married a commoner, from using her former title. The peer by such user suffers no legal wrong or damage.

INJUNCTIONS - INJUNCTIONS IN PARTICULAR CIRCUMSTANCES RESTRAINT OF WRONGS - EXTENSION OF INJUNCTION REMEDY - USE OF NAMES AND QUALIFICATIONS - NAMES - IN GENERAL - WHETHER RESTRAINED USE OF HUSBANDS NAME BY DIVORCED WIFE MALICE

Where the marriage of a commoner with a peer of the realm has been dissolved by decree at the instance of the wife, and she after-wards, on marrying a commoner, continues to use the title she acquired by her first marriage, she does not thereby, though having no legal right to the user, commit such a legal wrong against her former husband or so affect his employment of the incorporeal hereditament he possesses in his title as to enable him in the absence of malice to an injunction to restrain her use of the title. PEERAGES AND DIGNITIES - DIGNITIES - THE PEERAGE - CLAIMS TO PEERAGE - JURISDICTION - HOUSE OF LORDS EXCLUSIVE JURISDICTION IN QUESTIONS OF PEERAGE AND DIGNITIES

Where the marriage of a commoner with a peer of the realm has been dissolved by decree at the instance of the wife, and she afterwards, on marrying a commoner, continues to use the title she acquired by her first marriage, she does not thereby, though having no legal right to the user, commit such a legal wrong against her former husband or so affect his employment of the incorporeal hereditaments he possesses in his title as to entitle him in the absence of malice to an injunction to restrain her use of the title. Only the House of Lords can try questions of right in matters of peerage or dignities connected therewith. REAL PROPERTY - LAND AND INTERESTS IN LAND - CORPOREAL AND INCORPOREAL RIGHTS - DEFINITIONS - HEREDITAMENTS - PARTICULAR INSTANCES - DESCENDIBLE TITLE OF DIGNITY

Where the marriage of a commoner with a peer of the realm has been dissolved by decree at the instance of the wife, and she afterwards, on marrying a commoner, continues to use the title she acquired by her first marriage, she does not thereby, though having no legal right to the user, commit such a legal wrong against her former husband, or so affect his enjoyment of the incorporeal hereditament he possesses in his title, as to entitle him, in the absence of malice, to an injunction to restrain her use of the title.

4. The Right to Consortium. Consortium means living together as husband and wife with all the incidents that flow from that relationship. 5. Contract The husband of a married woman is not liable in respect of any contract entered into or debt or obligation incurred by her before the marriage. Further, he is not liable to be sued or made a party to any legal proceeding brought in respect of any contract entered into or debt or obligation incurred by her before the marriage, nor is he liable to be sued or made a party to any legal proceeding brought in respect of any such tort, contract, debt or obligation. S.6 of WMA In Common Law, the wife can be deemed to be the agent of the husband and to have an implied authority to pledge his credit and to enter into contracts for necessities. The implied right to pledge her husbands credit can be withdrawn by the husband giving notice to his wife. 6. Torts Torts is an injury or wrong committed with or without force to the persons or property of another. S. 4A (new section) added in 1994: allows a husband or wife to sue each other in tort for damages in respect of injuries to his or her person, in the like manner as any other two separate individuals. S. 6 Abolishes a husbands liability for his wifes torts and antenuptial contracts, debts and obligations, before or after marriage. S. 4 A married woman is capable of rendering herself and being rendered liable in respect of any tort and of suing and being sued in her own name in tort and is entitled to all remedies and redress for all purposes in all respects as if she were a feme sole. S. 9 was repealed and replaced by S. 4A Case : Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib The wife had applied by way of an ex parte injunction to restrain the husband from assaulting, harassing and molesting her. The husband then appealed to set aside the interim injunction. The issue arose whether the plaintiff could institute the action against the defendant when section 9(2) of the Married Women Act 1957 prohibited a wife from suing her husband in tort.

The high court held that the provision did not apply and granted injunction. On appeal by the husband, the supreme court held that as the allegations of assault and battery constituting a tort were not related to the protection or security of property, the plaintiff was barred by section 9(2). The cause of action in the case was clearly a tort. If the allegations of assault and battery could be proved, it might be the subject of criminal proceedings against the defendant as this fact could stand independently from an action in tort. Section 9(2) therefore applied and the high court was said to have erred in deciding that the provision did not apply.

7. Criminal Law A wife can commence criminal proceedings against her husband for personal injuries inflicted on her and vice versa. S. 9(3) any criminal charge or in any proceeding relating to the property of a married woman, it is sufficient to allege that such property is hers. S. 9(4) Three situations in relation to criminal proceeding against a husband or a wife are : i. ii. iii. Where the husband and wife are living together means that no criminal proceedings may be taken by any of the spouses. Where the husband and wife are living apart but the Act complaint of concerning property occurred when they were living together. Where the husband or wife is living or about to live, the other spouse and the act complain of concerning property occurred when they were living together.

Re Ketuna Bibi Facts: the wife had committed criminal breach of trust in relation to her husbands property. The court accepted that under Islamic law, a husband or a wife may undertake an action against the other spouse for cheating, fraud or theft of his or her property committed while they are living together. Married Woman Act does not apply here as under the I s l a m i c l a w , criminal action can be taken against the other spouse.

8. Property Rights A married woman is capable of acquiring, holding and disposing of any property as if she were a feme sole. S. 11 in instances of doubt between husband and wife pertaining to the title or possession of property, either party may apply to any judge of the High court or

Session Court. Any dissatisfied party may appeal either to the COA or the High Court as the case may be. S. 12 She may sue or be sued if she is an executrix or a trustee either solely or jointly with any other person or persons. Case : Dickson v McWhinnie Case : Chin Shak Len v Lin Fah Case : Nagapushani v Nesaratnam - the plaintiff produced a thali (a golden chain) which she claimed that the first defendant had tied around her neck during the marriage ceremony as a symbol of marriage. - 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. - His Lordship observed that: Marriage by Hindu rites is common and binding on both parties. It will be startling to hold otherwise in view of the prevalent practice. Such a marriage was recognised in the case of Paramesuari v Ayadurai where the marriage of the parties was conducted according to Hindu Custom. Case : Teh Eng Kim v Yew Peng Siong it was stated that no parent has a prior right. Raja Azlan Shah F.J. (as he then was) said: On appeal the appellants attitude changed. He conceded, in my view very rightly, that he did not wish to interfere with the present arrangement that care and control be given to the respondent, but urged that custody be given to him as he feared that his wishes to have a supervisory role of deciding the childrens future and education would not be respected by the respondent.

9. Marital Confidences When a marriage breaks down, bitterness and vindictiveness may lead one spouse to break marital confidences and to broadcast information imparted and received on the shared understanding that it would go no further. Case : Argyll v Argyll - a case which concerned an action by the Duchess of Arygll to restrain her former husband, the Duke from publishing stories about her in The People Sunday Newspaper, Ungoed Thomas J stated : there could hardly be anything more intimate or confidential than is involved in that relationship or in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed.

The Law Reform (Marriage and Divorce) Act 1976 Under the LRA, the court has the power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any of such assets and the division between the parties of the proceeds of sale. Case : Ravandran v Maliga the court did not follow the views of the child as the court commented that in all probability he was influenced by material gains promised to be given or already given by the father.