GROUP 1: CHRISTY, ISHINI & SEE PEI PEI

“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 light of the above statement discuss the requirements of a valid marriage with
reference to decided cases.

Person 1:

The most often quoted definition of marriage at common law is that expressed by Lord
Penzance in Hyde v Hyde which is also 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”

According to Kamala Pillai, “Marriage is defined as a legal concept that 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”.

Before 1 March 1982, marriages carried out according to traditional or customary rites were
considered valid and deemed registered. However, after 1 March 1982, all marriages must
be registered in accordance to the Law Reform (Marriage and Divorce) Act 1976 (LRA),
otherwise they are not valid.

The two types of legally recognised marriages in Malaysia are: Civil marriage ( Civil Law);
and the law that govern non-Muslim marriage in the Law Reform (Marriage and Divorce) Act
1976 Islamic marriage (Sharia Law); ( applicable to all persons professing Islam)
The LRA became law on 1st March 1982 and provides for all marriages to be registered in
order for it to be regarded as a valid marriage. Therefore any marriage which is not
registered,shall be regarded as invalid, thus have no protection whatsoever afforded under
the family law context.

Part III of the LRA sets out the requirements for marriage.If a marriage does not satisfy one
of the requirements, then the marriage is null or void.

S.5 Monogamous Marriage

All marriages taking place after 1 March 1982 must be monogamous until one of the parties
dies or the marriage is otherwise dissolved. Both parties must be unmarried at the time of a
(new) marriage. Marrying another person during the lifetime of a husband or wife (commonly
known as bigamy) is an offence under Section 494 of the Penal Code and is punishable by
imprisonment for up to 7 years and liable to a fine. The subsequent marriage will also be
deemed void.

Case: PP v Ajappan [1986] 1 MLJ 152

- The respondent was married according to Hindu custom in India in 1947 to the
complainant. 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 Saraswathi in India and
brought her back to Malaysia.
- In determining whether the respondent had committed bigamy, the court referred to
S.3 of the 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
S.5 which prohibits the person to whom the LRA applies from taking a second wife or
husband if the existing marriage still subsists.
- It was emphasized that the respondent is not allowed under LRA to contract a
subsequent marriage inside or outside Malaysia where the existing marriage is
subsisting.

Person 2:
S.10 Minimum Age for Marriage

The man and woman must be at least 18 years old; Males and females who are above 18
but below 21 years of age must obtain consent from their parents; and females who are
above 16 years but below 18 years must get a special licence from the Chief Minister under
S.21(2). This is to protect the right, interest and welfare of the parties as marriage comes
with obligations and responsibilities.

S.11 Prohibited Relationship

Marriages between family members including grandparents, parents, children, grandchildren

and siblings, etc. are not allowed.

(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.

S.12 Consent

A person who has not completed his or her twenty-first year shall, notwithstanding that 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] 1 MLJ 264

Kanagalingam v Kanagarajah. The issue in this case was whether a child aged over 18
years but less than 21 years should still be considered a child. In view of these difficulties, it
is suggested that the definition of the word ‘child’ should be standardized in order to avoid
confusion in its application

- The girl was over 18 years. She had left her home to contract a marriage but there
was no consent of the father.
- The Federal Court held that since the girl was over the age of 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.

Person 3:

S.22 Solemnisation of Marriage

A marriage can be solemnised in 3 different ways:

1. at the Registrar’s Office Both the parties should fill in a form for a notice of marriage
to the Registrar of Marriages of the marriage district where they live.

2. under special licence from the Chief Minister under S.21(3),

For which the prospective wife is between the age of 16 and 18 years old and the
Chief Minister is satisfied that its is more convenient for a civil marriage to be
solemnised in some place other than the office of a Registrar.

3. or in a church or temple or at any place of marriage in accordance with S.24 which is

permitted through religious ceremony, custom or usage which the parties to the
marriage or either of them profess or practise.
Every marriage must be solemnised in the presence of at least 2 witnesses and only where
the Registrar is satisfied that both parties freely consent to the marriage.

Case: Yeoh v Chew [2001] 4 MLJ 373

- 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.
- The court held that adopting a Chinese customary rite per se was not adequate to
establish a valid marriage.

S.25 Entry into Marriage Register

(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

Case: Chai Siew Yin v Wee Shing (Federal Court Civil Appeal No.02-10-2003 (W)
- The need for registration of marriage was finalized by the Federal Court in this case.
- where the issue was whether the Plaintiff s marriage was void for non-registration at
the Registry of‟Marriages, it was held that section 34 of the Reform Act had been
satisfied. There was a proper tea ceremony, there was an act of marriage, it had
been properly solemnized and the non-registration did not by itself invalidate the
marriage.

S.26(1) Solemnization of Marriages in Malaysian Embassies Abroad

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.

Conclusion
The Contract Act 1950 sets out the requirements for a valid contract and it must satisfy all
requirements, like offer, acceptance, intention to create legal relationship and consideration.
If one element is not satisfied, the contract will be void or invalid. A contract is formed when
parties come to agreement. The same goes for marriage.

It is not wrong to say that marriage is a contract. Actually, marriage is more than a contract,
because it creates a more intimate relationship between parties. A married couple cannot
enter into marriage with other people unless they are divorced because only monogamous
marriage (S5) is allowed in Malaysia. For contracts, we can enter into many contracts with
different people. Marriage is not only a contract that imposes responsibility on parties to
each other but it also imposes responsibility on both parties and their child.