FAMILY LAW

LAW REFORM (MARROAGE AND DIVORCE) ACT 1976

Govern all marriage of non-Muslim and solemnized after 1 March 1982 in Malaysia

S8: every marriage solemnized in Malaysia after 1 march 1982 shall continue until it is dissolved by the death of one
of the parties or by order of a court of competent jurisdiction or by a decree made by a court of competent
jurisdiction that the marriage is null and void

-PART VI of LRA, Sect 47: Court that has jurisdiction: High Court

GROUNDS TO DIVORCE

1. CONVERSION TO ISLAM: When either spouse converted to Islam

2. BY MUTUAL AGREEMENT
3. S 54- marriage irretribably broken down due to one of following factor: (petitioner v respondent)

A. where 1 party committed adultery- petitioner find it intolerable to live with respondent

Adultery: voluntarily or consensual sexual intercourse between a married person and another unmarried person of
the opposite sex

LRA acquire petitioner to establish he had committed adultery and prove the act of adultery to feel so intolerable to
live with respondent

Dr Gurmail a/p Sadhu Singh v Dr Teh Siong Peng & anor: petition on ground of adultery also had abused her
physically, and husband counter claim that she is drug abused and she had moved out of house and say no adultery.
Wife give evidence that see husband and another woman in their matrimonial house where the woman just finished
taking bath, thus the reason for her to move out. H: can divorce

Adultery has to infer from the circumstances which exclude any presumption of innocence in favour of a person
against whom it is alleged.

The standard of proof: beyond reasonable doubt. Where that such character would lead a reasonable man to
conclude no other inference than the misconduct

S58 and 59 – the party petitioning for divorce shall make the adulterer/s as another respondent and can claim
damages from the other woman, court may award damages if adultery has been proven and can award damages
against co respondent if the persons in marriage don’t want to get divorce

Tan Wat Yan v Kong Chiew Meng & anor: both committed doing adultery and live together and have 3 children of
their own. H: admission is enough to proof act of adultery

B. Respondent has behave in such a way that the petitioner cannot reasonably be expected to live with the
respondent

Savindar Kaur: wife alleged husband often drunk and verbally abused her and husband counter claim that wife is
unsound

Jothan Nathan: Not talk to each other and noticed by children

C. Respondent had disserted petitioner for a continuous period of at least 2 years immediately before presentation
of petition

Resident in Malaysia of at least 2 years before commencement of proceedings – apply for decree of divorce

Must not know where about of respondent

D. Parties of marriage have live apart for a continuous period of 2 years immediately preceding the petition of
divorce

* all only can file after at least 2 years of date of marriage unless fall under exceptions
CHILDREN AFTER MARRIAGE:

LRA provide that parents responsible for children maintenance applicable for mother and father

The Married Women and Children (maintenance) Act 1950 & (enforcement of maintenance) Act 1968

Maintenance: monetary sum paid by one spouse for the benefit for other spouse and children upon dissolution of
marriage – ct will need to give order.

Recent amendment: A parent has duty for maintenance until children complete tertiary education

Siva Jothi: a settle law that the father has to provide the maintenance of same lifestyle before divorce. A norm that
duty imposed on father while mother will need to contribute for maintenance of child. Law S93(1) has placed the
father with primary responsibility to provide for the maintenance of the children

Ching Sing Woh v Lim Syuk Ling: Parental duties in this context are spelled out by sec 92 LRA to include
accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in
life or by paying the cause thereof

S93(2) impose duty upon mother to either pay or contribute towards the maintenance of her child

 Children must be recognised as children of marriage which also include legally adopted children and any
Illegitimate child recognised thus can claim maintenance from biological father

S95: an order of custody or maintenance of a child shall has effects until child turns 18, if has mental or physical
disability thus the maintenance order will only expire after disability has ceased even child attained age of 18

Indra Gandhi: Husband converted to Islam and subsequently converted 3 of his children from his civil marriage with
based Hindu mother Indira Gandhi without her consent and knowledge. Husband file for custody at Syariah ct while
wife at civil court. FC Held: Where children come from civil marriage thus matters will always be directed to Civil
courts and not to syariah even though one of the parent is now a muslim.

Parliament pulled it out and let court decide where start marriage in non Muslim then become muslim. Court: to
convert children which born in the marriage of non muslim must get BOTH parent consent

CONTRACT LAW

S4A Married Women Act – wife and husband are independent person

S6 MWA- husband not liable for tort or debt incurred by her before marriage (Pay debt- only when incurred during
marriage.)

S7 wife entitle for her own property and can sue for protection over the property

S8- Where a gift has been given to wife but remains in the possession of husband, the creditors still can take the gift
(ex: husband gone bankrupt and deceive that property given to wife. Thus creditor can take the property)

Balfour v Balfour: husband and wife stay in Sri Lanka bcs of husband’s job. Wife was sick so stayed in Sri Lanka while
husband go back to England. Before went back, Husband promise to $30 per month. They drifted apart and wife
sued bcs he did not went through his promise to pay. H: no enforceable agreement. No intention to enforce
promise.