Promise to marry(Betrothal)

- Promise to marry or also known as betrothal is an agreement made by two parties (a

man and a woman) to get married sometime in the future.
- In Malaysia, there are no specific provisions of law which relates to the issue of promise
to marry. Hence, the principles under the Law of Contract 1950 and the English common
law principles are applicable when a promise to marry is made by parties.
Note: The promise need not be a written contract under the law of Contract, some
evidence of consideration to create the promise to marry will suffice.
- In the context of a promise to marry, issues arise when there is a breach of the promise
to marry. Can a party take legal action against the defaulting party?

There are four pertinent questions to be asked. They are:

- Is there is a valid contract or agreement?
•if the answer is 'no', there is no need to proceed any further as void contract or a non-contract
is not a contract.
- If yes, has there been a breach of that agreement or contract?
•If there is no breach, there is no need to proceed any further.
- If yes, does the defaulting party have any defence?
•If,the defendant does not have a valid defence or cannot offer any valid defence.
- If none, what are the remedies available ?

Promise to marry?
1. Is there a valid contract?
Just like principles of contract law, a valid contract of promise to marry must have
- Offer
- Acceptance
- Consideration
- Age
- Capacity to marry
Offer
- When a promise to marry is made, a person signifies his willingness to marry the other
party.
- An example: The ‘promisor’ ( the person making the proposal) says, ‘Will you marry me,
my love?’
- The person accepting the proposal is known as the ‘promisee’
- The most essential requirement is that both parties comprehend that there was a clear
promise of marriage.

Acceptance
The proposal when accepted becomes a promise.
Example: ‘Yes, I will marry you’

Consideration
 - Generally, an individual’s promise made is considered as adequate consideration for the
promise of the other person.
- Consideration takes the form of an overt action on the part of the promise.
- Overt action can be proved by the party doing some act requested by the other party
Case: Harvey v Johnston(1848)
The plaintiff resided alone in Toronto, in America. The defendant made a promise to marry the
plaintiff, within a reasonable time of her arrival in Lisahoppin. At the defendant’s requests, the
plaintiff arrived at Lisahoppinbut the defendant failed to carry out his promise to marry her.
Plaintiff sued the Defendant for breach of promise to marry. Defendant objected on the ground
that there was no sufficient consideration for his promise.
Held: there was perfectly good consideration as the plaintiff went to Lisahoppinas requested by
the defendant

Case: R.S Thanalachimi v Sundararaju A/L Mattaya (2010)

In 1992, the Plaintiff, a Singaporean, was residing and working in London while the defendant a
Malaysian, was residing and working in California. The parties became acquainted following
introduction by their respective parents. After initial contact through the phone, the defendant
had visited the plaintiff on several occasions in London. They had also gone on vacation to
Scotland. In 1992, the defendant whilst in London proposed marriage to the Plaintiff, in which
the plaintiff accepted. In reliance of the defendant’s proposal, the plaintiff gave up her job and
voluntarily surrendered her home in London to the mortgage and left for Singapore. The
defendant breached his promise to marry the plaintiff.
Held: The fact that the plaintiff gave up her job and voluntarily surrendered her home in London
to the mortgage and left for Singapore can be said to be consideration for the promise made.

Age
Under the Contract Act 1950, a person is competent to enter into a contract at the age of
majority, which is 18 years of age.
Pursuant to Section 10 of the Law Reform ( Marriage and Divorce) Act 1976, the minimum age
of marriage for a girl is 16 ( after the solemnization of the marriage is authorized by the Chief
Minister) and 18 years old for boys.
- Note: The Chief Minister may in his discretion grant a license authorizing the
solemnization of a marriage although the female party to the marriage is under the age
of 18 years, but not in any case before here completion of sixteen years 21(2) LRA
1976.
Even if a person has attained his or her age of majority, but has not completed his or her 21
year, must still be required to obtain consent in writing of his or her fathers 12(1)(a) LRA 1976.
- See:The old case of Rajeswaryv Balakrishnan[1958] 3 MC 178 is relevant.The plaintiff in
this case was a girl who had entered into a contract to marry when she was still a minor.
The defendant had breached the contract and she sued him for damages. The High
Court held that a minor could not enter into a valid contract.
- In the case of Fernandesv GonsalvesAIR 1925 Bom97,the court acknowledged that in
India, a contract to marry was normally entered upon between minor parties, or by a
 minor and an adult. It therefore could not be said that the Indian Parliament had not
intended to provide remedies for minors in the event of a breach. This case also
distinguished MohoriBibee.
The case of Khimji Kuverjiv Lalji Karamsiwas also referred to and applied in the case of
Rajeswary.The High Court held that a minor may enter into a valid contract to marry.

Capacity to Marry
- Both parties to the marriage must have the capacity to marry at the time of the marriage,
meaning both must be single at the time of the promise to marry.
- Technically, therefore if one or both of the parties to a contract to marry is or already
married, the contract will be held to be illegal as being a contract contrary to public policy
and therefore, unenforceable.

Case: Spiers v Hunt (1908)

The defendant aged 70 years, had promised the plaintiff, aged 31 years, to marry her upon the
death of his wife. The plaintiff knew that the defendant was a married man. The defendant’s wife
was older than him and suffered a heart ailment from which she was expected to die suddenly
and early. She did not die until eight and a half years later. The defendant then refused to marry
the plaintiff. She sued for breach of promise.
The court decided in favourof the defendant because the promise was illegal due to the
incapacity of the defendant.
- See also Lau Pin Sienv Kong Chung Sng

Exception to the general rule

There are number of exceptions to the general rule that a promise to marry is illegal and
therefore unenforceable where one party is already married to another.
a. The plaintiff proves that she does not know that the defendant man is still married when
the promise is made.
Case: Shaw v Shaw and Another [1954] 2 ALL ER 638
- Mr. Shaw represented himself to be a widower and went through a marriage ceremony
with the plaintiff, a widow in 1937. They lived together as man and wife. The real
MrsShaw was alive all the while until she died in 1950. In 1952, the plaintiff subsequently
discovered that she was all along not legally married to MrShaw. She sued the
administrators of MrShaw’s estate for breach of contract to marry by the deceased.
- Held: Percy Shaw gave a warranty to the plaintiff and broke the warranty at every point.
The biggest was when he died she was not his widow as she thought but rather a
stranger. Therefore there was a breach from which damages can be recovered.

b. Promise made during the period of a decree nisi

- When a decree nisi is pronounced dissolving or annulling a marriage and one of the
parties enters into a contract to marry a third party after the decree becomes absolute.
- In such a situation the contract will not be invalid.

Case of Fender v St John-Mildmay[1938] AC 1,

The plaintiff, a young woman met the defendant, who was, to her knowledge, a married
man. The plaintiff and defendant had a sexual relationship. The defendant’s wife filed for
divorce on the grounds of defendant’s adultery. The defendant promised to marry the
plaintiff, once the decree absolute of the divorce is obtained. However, upon the decree
absolute of the divorce, the defendant refused to marry the plaintiff and instead married
another woman. The plaintiff brought an action against the defendant claiming damages
for breach of promise to marry.
HOL: by a majority decision awarded the plaintiff £2000 in damages.

c. When a man is permitted to have a plurality of wives by his personal law.

- The contract to marry a third party in such a situation would be valid even though he is
married at the time of the promise.

Case: Nafsiahv Abdul Majid (No 2),

The plaintiff sued for damages for breach of contract to marry. The parties were
Muslims. Counsel for the defendant attempted to rely on the general rule of law which
invalidates a promise to marry if the woman knew that the man was already married at
the time of the promise.
TheHigh Court, however, declined to accept this and instead relied on the exception that
when the defendant’s personal law allowed him to marry more than one wife, the
promise was valid. Damage of $1,200 was granted to the plaintiff.

See also: Dato’ Abdullah Abdullah Hishanbin Hj Mohd Hashimv Sharma Kumari Shukla

d. When the religion of one or both parties to the contract to marry prevent them from
marrying.
- In such a situation the contract is not valid. However, if the religion does not prevent a
marriage between them, the contract will be valid.

Case of Mary Joseph Arokiasamyv Sundram[1938] MLJ 4 a Hindu man had promised to
marry a Christian girl. The girl was informed that the man’s wife had died. The man,
however, breached his promise.
The High Court found that there was no religious impediment against a Hindu man
marrying a Christian girl. The promise to marry was therefore valid and enforceable

2. What happens when there is a breach to promise to marry?

Breach of promise to marry
 - Once the elements of a valid contract have been proven, the next issue that needs to be
determined is whether there has been any breach of any of the elements in the contract
of a promise to marry.
- An action for breach of promise to marry will lie against the party who is in breach.
- A breach occurs when one party demands for the marriage and the other party without
reasonable excuse does not intend to pursue with the marriage.

Case: Harrison v Cage(1698)

- The plaintiff had promised to marry the defendant’s wife, when she was still single and
she had made a similar promise to him. When the plaintiff requested that the marriage
be solemnized, the defendant’s wife refused and subsequently married the defendant.
The court held that there was a breach of promise to marry.
Case: Frost v Knight (1872)LR 7 EX111
- the defendant had promised the plaintiff to marry her on the death of the defendant’s
father. Whilst the father was still alive, the defendant had announced his intention of not
fulfilling his promise on his father’s death, and broke off the engagement. The plaintiff,
without waiting for the father’s death commenced an action for breach of promise to
marry.
Held that it was possible for the plaintiff to bring the action immediately and not wait for
the event, in this case, the death of the defendant’s father, to take place.
A contract to marry may therefore be the subject of an action for its anticipatory breach just as in
the case of a commercial contract.

Defences
a. Misrepresentation of fact by the Plaintiff
- In order to succeed, the defendant has to prove that he or she had entered into the
contract to marry as a result of a material misrepresentation of fact by the plaintiff.The
defendant must show that there was total reliance by him and he was convinced with the
information that was misrepresented to him.
- If he or she succeeds in raising this defense, the court will accordingly dismiss the claim
for damages.
Case of Wharton v Lewis (1824)
In this case there were allegations of two misrepresentation. Before the engagement, the
plaintiff’s brother had informed the defendant that her father would leave property to her upon
his death. As it turned out, the father had a short time before paid off his creditors. The other
point was in relation to the plaintiff’s past when she was at Oxford ( ie she was a bar maid
etc)The defendant had broken off the courtship when he received information concerning the
questionable life of the plaintiff in Oxford
The plaintiff’s father and brother, however, represented the information as false, whereupon the
courtship was resumed. It was subsequently discovered that the plaintiff had in fact been
leading a questionable life.
The court left it to the jury to decide whether or not the defendant was induced to make the
promise, or to continue the relationship, by representations or willful suppression of the truth.
The jury decided for the plaintiff and awarded her £150 in damages.

b. A contract to marry is not a contract uberrimae fidei

- A contract uberrimae fidei ( Latin word for utmost good faith) is one where a party has to
disclose to the other all relevant facts and information.
- An insurance contract is one good example of such a contract.
- n the case of a contract to marry, the contract is not a contract uberrimae fidei and the
defendant may forward this as a defence.
Case: In Beacheyv Brown (1860)
the defendant had raised the defence that the plaintiff had agreed to marry another when
she entered into an engagement with the defendant. Had he known this, he would not
have agreed to marry the plaintiff.
The court rejected his defence and gave judgment to the plaintiff.
- CockburnCJ whilst agreeing that there are many things that a man may want to
know about the woman he is to marry, such as her temper, her disposition, or her
financial situation, felt that the discovery of such attribute should not entitle the
defendant too refuse to fulfill his engagement.

c. Moral, Physical or Mental Infirmity

- The defendant has to prove that the other party has some actual moral, physical or
mental infirmity that renders him or her unfit for marriage if he or she wishes to rely on
this defence. Further, it must be proved that the infirmity was discovered either after the
engagement contract had been made or that the infirmity had only began to develop
after the making of the contract.
Case: Jeferson v Paskell[1916]
The plaintiff contracted a disease of the chest soon after her engagement. She thought it
was a mere chill, but the doctor diagnosed tuberculosis. In any case, she was not ready
and was unfit for marriage on the day fixed for the wedding. She underwent treatment
but the defendant refuses to marry her even though she was given a clean bill of health
less than six months thereafter. As it turned out, the plaintiff’s illness was not
tuberculosis. The defendant was sued for breach, and contended that he had honestly
and reasonably believed the plaintiff to be unfit for marriage. Damages of £500 was
awarded to the plaintiff.

d. Own Mental or Physical Infirmity

- The question here is whether a defendant can raise his or her own mental or physical
infirmity as a defence to claim for breach of promise to marry.
Case : Hall v Wright[1843-60] All ER Rep 734 at pg736,
Here, the defendant had pleaded his own supervening ill-health, that is a serious
disease occasioning bleeding from the lungs, from which he was still suffering and
alleged that he had been warned that the excitement of marriage would endanger his
life.
 the Exchequer Chamber by a majority held that the plea of own physical infirmity was no
answer to the action.

Remedies of a breach of promise

- In the event the defendant does not succeed in raising any plausible defences, the
remedies available are:
i. General Damages
- non-monetary compensation which includes physical or emotional pain and suffering,
loss of companionship, loss of reputation, loss or impairment of mental or physical
capacity.
- This form of losses is not easily quantifiable. In assessing the proper amount of
damages, the judges are not limited to the mere pecuniary loss which the plaintiff has
sustained, but may take into consideration the injured feelings and wounded pride of the
Plaintiff.
ii. Special Damages.
- This is quantifiable. Examples are damages for wedding preparation, catering, house
renovation cost, repair or replacement of damaged property.
Case: Berry v Da Costa the plaintiff had left her mother’s house alter the defendant had
promised to marry her, and resided at several lodging with the defendant. She eventually
accompanied the defendant to Paris on the supposition that the marriage would take place
there. The defendant, however, married another woman. The plaintiff claimed damages for
breach of promise. It is pertinent to state that at the trial, the defendant attempted to discredit
the plaintiff. The jury had awarded £2,500 damages which included compensation for the
degradation and misery caused to the plaintiff. When the case went for a new trial, the court
held that there was no misdirection by the trial court. The trial court’s decision was confirmed.

The local case of Dennis v Senayah[1963] 1 MLJ 95 illustrates that two categories of damages
in the context of a breach of promise to marry. In this case, the plaintiff alleged that as the result
of the breach, she had had to endure humiliation and mental anguish. She had incurred
expenses to the amount of $870.10 and wished to claim both general and special damages.
The learned judge found no aggravating circumstances such as an allegation of seduction.
There was naturally mental anguish and humiliation. On the plaintiff’s future prospects for
marriage, he found her to be young and her prospects not marred as such. He also considered
her father’s standing in the community. General damages amounting to $1,500 was awarded.
Special damages for food items, saris and costs of wedding preparations which totaled $620.10
was also approved.
Case: Rajeswary& Anor v Balakkrishnan & Orsthe court considered in aggravation of general
damages the fact that the defendant’s behavior had been “unfeeling and contemptible’ and that
he had written a letter to his prospective father-in-law. Be that as it may, the court also took into
considerable the defendant’s financial position, damages of $1,500 was ordered.
Case: Doris Rodrigues v BalaKhrishnan,the High Court felt that a large amount of damages
should not be imposed, it therefore ordered damages of $5,000.
Case: Cohen v Sellar[1926] All ER Rep 312,a man who had been awarded damages for breach
of promise claimed the return of the ring.
•If a woman who has received a ring refuses to fulfill the conditions of the gift, she must return it.
So, on the other hand ….if the man has, without a recognized legal justification, refused to carry
out this promise of marriage, he cannot demand the return of the engagement ring…. the
engagement to marry be dissolved by mutual consent, then in the absence of agreement to the
contrary, the engagement ring and like gifts must,…, be returned by each party to the other….

Marriage
Definition of marriage
The classic definition of marriage in English law is in the case: Hyde v Hyde (1866)
“Marriage is the voluntary union for life one man and one woman to the exclusion of all others”

Definition connotes:
- Marriage for life
- Marriage reflects real consent
- Marriage is intended to the monogamous and
- Marriage is heterosexual in nature

Bellingerv Bellinger, (2001) 2 FLR 1048, per Lord Nicholls:

“ Marriage is an institution, or a relationship, deeply embedded in the religious and social culture
of this country. It is deeply embedded as a relationship between two persons of the opposite
sex”.

Re P, [2008] UKHL 38, per Baroness Hale:

“ In family law, marriage is not just a contract; it is also a status, bringing with it rights and
responsibilities, not only as between the parties but against third parties and the state”.

What is marriage?
The term “marriage” signifies 3 perspectives
- An institution with society
- A ceremony resulting in change in the legal status of the parties and
- The joint status of husband and wife

In malaysian perspective
The most often quoted of marriage at common law is that expressed in Hyde v Hyde is well
accepted in malaysia,“ I conceive that marriage, as understood in Christendom, may for this
purpose be defined as the voluntary union for life of one man and on woman to the exclusion of
all others”
Also marriage is defined as •a legal concept that it is the fulfillment of a contract satisfied by the
solemnisation of the marriage, but marriage directly creates by law a relation between the
parties and what is called the status of each of the parties”.
Kamala M.G. Pillai, Family Law in Malaysia.

In Arpinya Rongchotiawattana v Wee Oh Keng

“ a marriage can take place only when neither the man nor woman is already the spouse of
another person”

The two types of legally recognized marriages in malaysia are:

1. Civil marriage(civil law) and
- The law that govern non muslim marriage in the Law Reform (Marriage and
Divorce) Act 1976
2. Islamic marriage (Sharia law)
- Applicable to all professing islam

Malaysia laws on requirements of marriage

- Part iii of the LRA sets out the requirements for marriage

Marriage under LRA 1976: requirements of marriage

- Monogamous: S5
- Age: S10
- Consent: S12(1)
- Not in Prohibited Relationship: S11

Marriages under the civil law: monogamous marriage

Monogamy simply means marriage with one spouse at a time.
S5. (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.
- NOTE: Bigamy is a crime in Malaysia. If you are lawfully married under any law,
religion or custom to one or more spouses, you are not allowed to contract a valid
marriage with another person, whether your marriage is contracted within
Malaysia or outside Malaysia.
- If you have contravened the above provision, you are deemed to have committed
the offence of marrying again during the life-time of husband or wife, as the case
may be, within the meaning of Section 494 of the Penal Code.
Case: Public Prosecutor v Ajappan (1986)
- The respondent was married according to Hindu custom in India in 1947 to the
complainant, Pelaniyammal. In 1954 the respondent, complainant and their children
 migrated to Malaysia. Their marriage was subsequently registered with the Registrar of
Marriages, Malaysia. In 1984, the respondent married Saraswathiin India and brought
her back to Malaysia.
- In determining whether the respondent had committed bigamy, the court referred to
Section 3 of LRA which declares that the LRA applies to all persons in Malaysia and to
all persons with Malaysian domicile though resident abroad ( Muslims exempted) and
section 5 which prohibits the person to whom the LRA applies from taking a second wife
or husband if the existing marriage still subsists.
- Salleh Abbas at page 153, emphasized that the respondent is not allowed under LRA to
contract a subsequent marriage inside or outside Malaysia where the existing marriage
is subsisting.

Minimum age for marriage

Any marriage purported to be solemnized in Malaysia shall be void if at the date of the marriage
either party is under the age of eighteen years unless, for a female who has completed her
sixteenth year, the solemnization of such marriage was authorized by a licence granted by the
Chief Minister under subsection 21(2)
- Note: The minimum age requirement is to protect the right, interest and welfare of the
parties as marriage comes with obligations and responsibilities.

Prohibited relationship
S11.
(1) No person shall marry his or her grandparent, parent,child or grandchild, sister or
brother, great-aunt or great-uncle, aunt or uncle, niece or nephew, great-niece or
great-nephew, as the case may be:
Provided that nothing in this subsection shall prohibit any person who is a Hindu from
marrying under Hindu law or custom his sister’s daughter (niece) or her mother’s brother
(uncle).
(2) No person shall marry the grandparent or parent, child or grandchild of his or her
spouse or former spouse.
(3) No person shall marry the former spouse of his or her grandparent or parent, child or
grandchild.
(4) No person shall marry a person whom he or she has adopted or by whom he or she has
been adopted.

Consent
S12.
(1) A person who has not completed his or her twenty-first year shall, notwithstanding that
(2) he or she shall have attained the age of majority as prescribed by the Age of Majority Act
1971 [Act 21], nevertheless be required, before marrying, to obtain the consent in
writing—
(a) of his or her father;
(b) if the person is illegitimate or his or her father is dead, of his or her mother;
 (c) if the person is an adopted child, of his or her adopted father, or if the adopted father
is dead, of his or her adopted mother; or
(d) if both his or her parents (natural or adopted) are dead, of the person standing in loco
parentis to him or her before he or she attains that age, but in any other case no consent
shall be required.

Case: Kanagalingam v Kanagarajah (1982)

The girl was over 18 years. She had left her home to contract marriage but there was no
consent of the father.
Held: that since the girl was over 18, she was assumed to be intelligent and capable of making
her own mind as to what she felt best for her own benefit and interest.

Solemnisation of marriage
S22.
(1) Every marriage under this Act shall be solemnized—
(a) in the office of a Registrar with open doors within the hours of six in the morning and
seven in the evening;
(b) in such place other than in the office of a Registrar at such time as may be authorized
by a valid licence is sued under subsection 21(3); or
(c) 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.
See s 22 (2) onwards…
Note: Solemnisation of marriage should be then accompanied with registration of the marriage.
See s.27 LRA

Case: Yeoh v Chew (2001)

The parties organized a dinner function held in a temple in Perak in 1998 to celebrate their
so-called marriage union. The parties then cohabitated as husband and wife and had a child
born in 1998. However, their marriage was not registered. The wife petitioned for a divorce and
ancillary claims which were not opposed by the husband.
Held that adopting a Chinese customary rite per se was not adequate to establish a valid
marriage.

Case: Chai Siew Yin v Wee Shing

The need for registration of marriage was finalized by the FC in this case

Solemnization of marriages in malaysian embassies abroad

S26.
(1) A marriage may be solemnized by the Registrar appointed under subsection 28(4) at the
Malaysian Embassy, High Commission or Consulate in any country which has not notified the
Government of Malaysia of its objection to solemnization of marriages at such Malaysian
Embassy, High Commission or Consulate

Entry into marriage register

S25.
(1) Immediately after the solemnization under section 23 or 24 is performed the Registrar
shall enter the prescribed particulars in the marriage register.
(2) Such entry shall be attested by the parties to the marriage and by two witnesses other
than the Registrar present at the solemnization of the marriage.
(3) Such entry shall then be signed by the Registrar solemnizing the marriage

Law of nullity: void and voidable marriage

- The law of nullity has little current relevance
- The number of cases and orders is small and those who want to end the marriage can
do so by a divorce.
- A decree of nullity granted on the ground that the marriage is voidable shall operate to
annul the marriage(s73(2))
- Where a decree is granted on the grounds that the marriage is void it has the effect of
annulling the marriage from its inception(s 75(3)(a))

Voidable marriages
A voidable marriage is a marriage is a marriage which is binding and valid and continues to
subsist for all purposes until a decree is passed by the court annulling the same. So long as
such decree is not obtained, the parties enjoy all the rights and obligations in relation to the
marriage.

Grounds on which marriages will be voidable

- The LRA 1976 provides 6 grounds on which a marriage will be voidable. Any marriage
after 1 March 1982 is voidable if:
1. the marriage has not been consummated owing to the incapacity of either party
to consummate it: s.70 (a);
2. the marriage has not been consummated owing to the willful refusal of the
respondent to consummate it: s.70(b);
3. either party to the marriage did not validly consent to it, whether in consequence
of duress, mistake, unsoundness of mind or otherwise: s.70c;
4. at the time of the marriage either party, though capable of giving a valid consent,
was (whether continuously or intermittently) a mentally disordered person within
the meaning of the Mental Disorders Ordinance 1952od such a kind or to such an
extent as to be unfit for marriage:s.70(d)
5. at the time of marriage the respondent was suffering from venereal disease in a
communicable form: s.70 (e); and
6. at the time of the marriage the respondent was pregnant by some person other
than the petitioner: s. 70 (f).
Decided cases
Incapacity to consummate
- A party is incapable of consummating if his or her mental health or physical condition
makes consummation of the marriage a practical impossibility.
- The condition must be one that existed at the time of the marriage.
- A defect arising subsequently is not a ground for annulment.
- The incapacity to consummate must be in relation to the other spouse. If a party to a
marriage is well able and capable to having sexual relations with another person, then
he will be deemed to be incapacitated vis-à-vis his or her spouse
Case: L v L [1956] 1 MLJ 145, several attempts were made by the respondent H to
consummate the marriage but in each case he failed. The couple lived together for nearly 2 yrs
before the petitioner left her husband.
- Tan Ah TahJ in pronouncing a decree of nullity agreed with counsel for the petitioner
that a person might be generally capable of consummating a marriage and yet incapable
of consummating it with a particular individual owing to certain causes.
- He further stated that where a marriage remained unconsummated and both man and
woman appeared to be capable there was a presumption that the incapacity must be
imputed to the man.

Wilful refusal to consummate

- A marriage is voidable if it has not been consummated owing to the willful refusal of the
respondent to consummate it.
Case: Tan SiewChoon v Tan Kai Ho [1973] 2 MLJ 9
- The parties were married at the Marriage Registry. They had agreed that the registry
ceremony would be followed by another ceremony conducted according to Chinese
customary rites. It had been understood between the parties that they could not cohabit
or consummate the marriage pending the ceremony. H was supposed to make the
arrangements but he delayed in doing so. When W requested to do so, H did not
respond.
- Petitioner, W, stated that H had willfully refused to proceed with the Chinese ceremony,
he had thereby wilfully refuse to consummate the marriage.
- ChoorSingh J: referred and applied Jodla v Jodla[1960] and held that H’s refusal to
respond to the petitioner’s request to arrange for the Chinese marriage ceremony was
tantamount to a refusal without any just excuse and that he had willfully refuses to
consummate the marriage.
•See also: Ratheev Shanmugam [1981] 1 MLJ 263

Jurisdiction
- Section 67 LRA provides the requirements to be fulfilled before the court has jurisdiction
to make a decree of nullity of marriage.
 - Para ( c ) states that both parties to the marriage should reside in Malaysia at the time of
the commencement of the proceedings.
Note: No specific duration of residence is mentioned.

Void marriage
A void marriage is one which has no legal status. It is void ab initio, that is void from inception.

Grounds
The relevant Act is :Law Reform (Marriage and Divorce) Act 1976 (LRA)
Any marriage after 1​st​March 1982 can be held void if:
- At the time of marriage either party was already lawfully married and the former husband
or wife of such party was living at the time of the marriage and such former marriage was
then in force: s. 69(a)
- A male person marries under 18 years of age or a female person who is above 16 yrs
but under 18 yrs marries without a special licence granted by the Chief Minister; s.69(b)
LRA 1976;
- The parties are within the prohibited degrees of relationship unless the Chief Minister
grants a special licence;s.69(c);
- Parties are not respectively male or female. 69(d)

Decided cases
Case: Lim Ying v HiokKian Ming Eric [1992] 1 SLR 184
A marriage took place in 1990 under the Singapore Women’s Charter. Unlike Corbett v Corbett,
the petitioner wife here did not know at the time of marriage that the resphad been born a
woman and had undergone a sex change operation in 1987. Attempts to consummate the
marriage had naturally failed. The petitioner filed for divorce and asked for a declaration that
there has never been a marriage and alternatively an annulment.
Held: The marriage was declared void.
“…the fact that the identity card and the birth certificate stated that the respondent’s sex as male
and female respectively, did not require the court to hold that a valid marriage had been
solemnisedbetween a man and woman……..”
See also: R v Tan & Ors[1983]

Case: Ng Wee Whye v Wong Sook Heng (1978)

The H petitioner filed a petition to annul his marriage at the Singapore ct but at the relevant
point of time, the presentation of the petition, W was resident in Penang
Held that it did not have jurisdiction as both parties not resident in Singapore at the material
time.

Do a comparative analysis of marriage under civil law and syariah law