WEEK 1

REQUIREMENTS OF MARRIAGE

1) Offer
2) Acceptance
3) Consideration
4) Capacity
- The parties must be single at the time of the promise was made
- Age
- The parties are not under prohibited relationships under section 11 of t
he LRA.
- Consent

5) Exception under capacity - the parties must be single at the time the promise was ma
de.

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What is betrothal?
- A contract to marry or an agreement to marry refers to the contract or agreement wh
ere parties agree that they will marry some time in the future.

Four pertinent questions to be asked:

1) Is there a valid contract or agreement?
2) If yes, has there been a breach of that contract?
3) If yes, does the defendant have any defence?
4) If none, what are the remedies?

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Requirements of a valid contract of promise to marry
1) Offer
2) Acceptance
3) Consideration

Case : Harvey v Johnstion (1848) 6 CB 195

- In this case, the defendant had promised to marry the plaintiff within a reasonable tim
e after her arrival at Lisahoppin for the purpose of marrying the defendant. She went t
o Lisahoppin as requested but the defendant had failed to carry out his promise. She
then sued him for breach of promised to marry. The defendant objected on the groun
d that there was no sufficient consideration. However, the court held that there was p
erfectly good consideration.

4) Capacity
a) The parties must be single at the time the promise was made
- If contrary, the contract will be held illegal as being a contract will be h
eld illegal as being a contract contrary to public and unenforceable.
Case : Spiers v Hunt [1908] 1 KB. 720
- The defendant, aged 70, had promised the plaintiff, aged 31, to marry her upon the d
eath of his wife (heart ailment). The plaintiff knew that the defendant was a married m
an. The defendant then refused to marry the plaintiff after years later. She sued for br
each of promise.
- Held: promise was illegal due to the incapacity of the defendant. The contract was ag
ainst public policy and morals. Followed by Wilson v Carnley [1908] 1 KB 729
—--------------------------------------------------

EXCEPTION TO THE CAPACITY

1) When the plaintiff proves that she does not know that the defendant is still mar
ried when the promise is made.

Case : Shaw v Shaw & Anot [1954] 2 QB 429 (CA)

- In this case, Mr Shaw represented himself to be a widower and went through a marri
age ceremony with the plaintiff, a widow in 1937. They lived together as man and wif
e. The real Mrs Shaw was alive all the whole until she died in 1950, in 1952, the plain
tiff subsequently discovered that she was all along not legally married to Mr Shaw. S
he sued the administrators of Mr. Shaw’s estate for damages for breach of contract t
o marry by the deceased. The court held that she was entitled to damages as the dec
eased breached the contract to marry.

2) On a promise to marry during the period of decree nisi, as in this case, in major
ity of cases, no reconciliation was proven to have taken place.

Case : Fender v St John-Mildway [1938] AC 1

- The defendant’s wife had already obtained a decree nisi of divorce on the ground of t
he defendant’s adultery with the plaintiff at the time when the defendant had promise
d to marry the plaintiff upon the date after the decree had become absolute. The defe
ndant broke off the engagement. Subsequently, he married another woman and the p
laintiff sued him for breach of promise. The court held that although such promise to
marry may prevent reconciliation, in large number of cases, when a petitioner had ad
vanced so far as a decree nisi, no reconciliation could take place. The house of lords
by a majority decision awarded the plaintiff damages for breach of promise to marry.

3) When a man is permitted to have a plurality of wives of his personal law.

Case : Nafsiah v Abdul Majid (No 2) [1969] 2 MLJ 175

- Both plaintiff and defendant are Muslims. Plaintiff brought and action for damages for
breach of promise to marry, contending that damages should be aggravated for the f
act that she had been seduced by the defendant. Counsel for the defendant argued t
hat since the plaintiff knew that the defendant was a married man, such promise was
invalid.
- The court held that the plaintiff knowledge that the defendant was already married did
not invalidate the promise as the defendant was under his own personal law. Entitled
 to have more than one wife and there was sufficient evidence that the defendant had
promised to marry the plaintiff. Damage was assessed at $1,200.
- Note : Article 121(1A) Federal Constitution

4) When the religion of one or both parties to the contract to marry prevent them f
rom marrying

Case : Mary Joseph Arokiasamy v Sundram [1938] MLJ 4

- Hindu man promise to marry a Christian girl. Court held no religious impediment for a
Hindu to marry a Christian. Promise was valid.

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CAPACITY - B) AGE

- Section 10 of the LRA, the minimum age of marriage for girls are 16 years (after the s
olemnisation of marriage was authorised by the Chief Minister) and 18 years for boys.

Case : Fernandez v Gonzalves AIR 1925 Born 97

- The court in this case acknowledge that in India, a contract to marry was normally ent
ered upon between minor parties, or by minor and an adult. Therefore, the court held
that it could not be said that the Indian Parliament had not intended to provide remedi
es for minors in the event of a breach and awarded damages for breach of contract t
o marry between the parties.

Case: KimjiKuverji v Lalji Karamsi AIR 1941 Bom 129

- The indian High Court held that a minor may enter into a valid contract to marry

- Malaysia before LRA

- Case : Rajeswary & Anor v Balakrisnan & Ors [1958] MC 178
- Held : promise to marry was valid.

CAPACITY - C) The parties are not under prohibited relationship under Section 11 of the LR
A

D) Consent in writing is given by the appropriate persons under Section 12 of the LRA, if the
parties have not completed his or her twenty-first year.

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BREACH OF BETROTHAL

- Breach can happen by either party, man or woman.

- Example : if a specific date of marriage is not fixed, the marriage must take place wit
hin a reasonable time. If a party delays a wedding, he or she must give a reasonable
excuse.

Case : Frost v Knight (1872)

- Defendant (man) promised the plaintiff (woman) to marry her on the death of the defe
ndant’s father. Whilst the father was still alive, the defendant told her that he is not go
ing to marry the plaintiff and he broke off the engagement. The plaintiff without waitin
g for the death of the defendant’s father took an action for breach of promise to marry.

- Held : plaintiff can bring the action immediately and don't have to wait for the death of
the defendant's father. This is likely an anticipatory breach.

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WEEK 2

Breach of Betrothal
- Harrison v Cage

Defences in action of breach of betrothal

1. The defendant proved that he or she entered into the contract as a result of a materia
l misrepresentation of fact by the plaintiff.

Case : Wharton v Lewis (1824) 1 C & P 529

- Defendant broke a promise. Before the engagement, the plaintiff’s brother had inform
ed the defendant that her father would leave property to her upon his death. As it turn
ed out, the father had a short time before, paid off his creditors. The other point was i
n relation to the plaintiff’s past when she was at Oxford. The defendant had broken of
f the courtship when he received information concerning the questionable life the plai
ntiff had been leading in Oxford. Indeed she was leading a questionable life.
- Held : misrepresentation did not occur as he was not induced by the promise. Defenc
e failed.

2. The contract to marry is not a contract uberrimae fidei.

Case : Beachey v Brown (1860) EB & E 796 [1843] ER Rep 506

- The defendant in this case had raised the defence that the plaintiff had agreed to mar
ry another when she entered into an engagement with the defendant. The defendant
contended that had he known this, he would not have agreed to marry the plaintiff. T
he court however rejected his defence and gave judgement to the plaintiff.
- If a woman is of unchaste conduct, which goes to the very root of the contract of marr
iage, there, from the excess and necessity of the case, the man is released from his
contract.
 3. The plaintiff’s own moral, physical or mental infirmity which renders the plaintiff unfit f
or their marriage. The infirmity was discovered either after the engagement contract h
ad been made or that the infirmity had only begun to develop after the making of the
contract.

- Defendant will have to prove that the plaintiff suffers this infirmity that renders the plai
ntiff unfit for the marriage.

Case : Jefferson v Paskell [1916] 1 KB 57 (CA)

- In this case, the plaintiff contracted a disease of chest soon after her engagement. S
he thought it was a mere chill, but the doctor diagnosed tuberculosis. In any case, sh
e was not ready and was unfit for marriage on the day fixed for the wedding. She und
erwent treatment but the defendant refused to marry her though she was given a clea
n bill of health less than six months thereafter. However, it turned out that the plaintiff’
s illness was not tuberculosis. In this case, the court granted damages to the plaintiff
as the defendant failed to prove that he honestly and reasonably believed the plaintiff
to be unfit for marriage.

4. The defendant’s own mental and physical infirmity.

- Note : The defendant own mental or physical infirmity is not a defence.

- Sometimes the defendant may use his/her own mental and physical infirmity to break
the engagement. The defendant's own mental and physical infirmity will not be used
as a defence.

Case : Hall v Wright (1859) EB & E 765 [1843-60] All ER Rep 734
- Plaintiff and defendant agreed to marry one another. However, the defendant neglect
ed and refused to marry the plaintiff. Defendant defence was that he was afflicted wit
h dangerous bodily disease and severe bleeding from the lungs. He claimed that the
excitement of marriage would endanger his life.
- Held: defendant own mental and physical infirmity is not a defence in an action for br
each of promise to marry.
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REMEDIES

- If there are no defences available for the defendant, the next issue will be remedies f
or the plaintiff
- If the defendant succeeds in putting up any of the defences, then the plaintiff is not e
ntitled to remedies.

Consequences of a breach of betrothal (Remedies)

a) Damages
 - There are two kinds of damages
1) General Damages
- Damage for the abstract i.e. breach of promise to marry
- In assessing the proper amount of damages, the judges are not limited to the mere p
ecuniary loss which the plaintiff sustained, but may take into consideration the injured
feelings and wounded pride of the plaintiff.

Case: Dennis v Senayah [1963] MLJ 95

- This case illustrated the two categories of damages in the 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 to endure humiliations and mental anguish. She had incurred expen
ses to the amount of RM870.10 and wished to claim both general and special damag
es.
- There was naturally mental anguish and humiliation. On the plaintiff's future prospect
s for marriage, he found her to be young and her prospects not married as such.
- General damages amounting to RM1500 were awarded.

2) Special Damages
a) Damages for specific items and which may be quantified in monetary terms, such as
damages for medical expenses and wedding preparations.

Case : Dennies v Senayah [1963] MLJ 95

- In this case, the action for breach of promise to marry was successful and the court a
warded special damages for food items, saris and costs of wedding preparations, whi
ch totaled RM620.10.

b) The return of gives and rings in the absence of agreement to the contrary.
- Only the wrongful party (defendant) must return the gifts and ring to the plaintiff. If the
contract to marry is dissolved by mutual consent, both parties must return the engage
ment ring and gifts. If he marriage does not take place either through the death of, th
e person giving the ring or other conditional gift, it should be implied that the gift shall
be returned : Cohen v Sellar [1926[ KB 536

CONCLUSION
- Law Reform (Miscellaneous Provisions) Act 1970 has abolished breach of promise to
marry as a cause of action in court

- However, in Malaysia, breach of promise to marry is still a cause of action in court by

virtue of section 3(1) of the Civil Law Act 1956 which provides that in Peninsular Mala
ysia, the courts shall apply the common law of England and the rules of equity as ad
ministered in England and the rules of equity as administered in England on the 7th A
pril 1956

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APPLICATION OF THE LRA

- The LRA was enforced on the 1st March 1982

- General application of the LRA : Section 3(1) (2) (3).
- Section 3(1) of the LRA : The LRA shall apply to all persons in Malaysia and to all per
sons domiciled in Malaysia but are residence outside Malaysia, except as it otherwis
e expressly provided
- Section 3(2) of the LRA : A person who is a citizen of Malaysia, shall be deemed, unti
l contrary is proved, to be domiciled in Malaysia.
- Section 3(3) of the LRA : The LRA does not apply to a Muslim or any other person w
ho is married under Muslim law, except a decree of divorce under Section 51 of the L
RA.

- Section 3(4) of the LRA : (on exceptional cases): application to the native of Sabah a
nd Sarawak, and aborigine of Peninsular Malaysia, if :
(a) He elects to marry under the LRA, or
(b) He contracted his marriage under the Church and Civil Marriage Ordinance.

- NOTE: The native of Sabah and Sarawak and aborigines of Peninsular have the choi
ce whether to be subjected to the LRA.

● Native of Sabah and Sarawak : Article 161(6A) of the Federal Constitution, i.e. as foll
ows:
(a) In relation to Sarawak, a person who is the citizen and belongs to one of the r
aces specified in clause (7) as indigenous to the State or is of mixed blood de
riving exclusively from those races, and
(b) In relation to Sabah, a person who is a citizen, is the child or grandchild of a p
erson of a race indigenous to Sabah, and was born (whether on or after Mala
ysia Day or not) either in Sabah or to a father domiciled in Sabah at the time o
f the birth.

- Indigenous to Sarawak : clause (7) of Article 161A are Bukitans, Bisayaks, Dusuns, S
ea Dayak, Land Dayaks etc

● Hence, native and aborigines are not governed by LRA, but governed by their custo
mary law. (unless they choose to marry under LRA)
● Native and non-native can marry and choose to be governed by the customary law

Case: Nancy Kuai v Ho Than On (1994) 1 MLJ 545

- Plaintiff (wife a native from Sabah) and defendant (chinese). Got married according t
o Chinese customary law (had a tea ceremony). Then got married according to nativ
e customary law (serve rice wine to the native chief of Kuala Penyu). Marriage not re
gistered under LRA. Later marriage got problem. Defendant said marriage is not valid
Plaintiff argued that she is the legal wife and the native customary marriage is valid.
- Held : valid marriage, can marry using customary law of native. LRA will not apply he
re.
—------------
● Section 4(1) LRA : LRA shall not effect the validity of marriage under custom and reli
gion or usage prior to the appointed date.
● Section 4(2) LRA : marriages that a
● re valid under the custom/religion shall be deemed to be registered under LRA
● Section 4(3) LRA : such marriages shall continue until dissolved by death of one of th
e parties, by order of the court and by decree of nullity made before court of compete
nt jurisdiction.
● Section 5 (1)(2)(3)(4)

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WEEK 3
WEEK 4 - CUTI
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WEEK 5
● Section 5(4) LRA - after the appointed date, no marriage under any law..

Case : Yeoh v Chew (2001) 4 MLJ 373

- Married under Chinese customary marriage on 22 February 1998. No registration. Pa
rties only had a dinner function. They had co-habited as husband and wife and had a
child. Parties later seeks for a divorce.
- Held: this is only a customary marriage and had not fulfil Part 111 of the LRA require
ment. Therefore the marriage was void ab initio. The court has no power to make a d
egree for divorce. To safeguard the child. The LRA has section 75(2) which shall trea
t the child legitimate.
- This case of Yeoh Chew was followed incase of Chai Kok Siong v Chong Chee Chai
& Anor (2003) 3 CLJ 415
- Finally the landmark decision by the FC in the appeal case of Chai Siew YIn v Leong
Wee Shing (2004) ruled that marriage solemnized under any law, custom or religion
not registered subsequent to 1 March 1982 are invalid. The three member panel com
prising the Federal Court judges. Datuk Pajan Sigh Gill and Datin Paduka Rahmah H
ussain and Court of Appeal judge Datuk Richard Malanjun was unanimous in allowin
g the appeal and ruled the marriage was void. According to Datuk Pajan section 34 s
hould not be read in isolation but in harmony with the other provisions of the LRA whi
ch encapsulated the overall intention of the legislature in menacing the said Act. It is
clear that all marriages after the appointed date must be registered.

● Section 6(1) LRA

● Section 7(1),(2) LRA : marriages that are valid under the custom/ religion shall be de
emed to be registered under LRA.
● Section 48 LRA : the originate jurisdiction of the court when a monogamous marriage
is registered /deemed to be registered under LRA and where the parties to be marria
ge is domiciled in Malaysia
● Section 49 LRA : additional jurisdiction in proceedings by a wife
SIGNIFICANCE OF DOMICILE AND RESIDENCE

● Section 3(1) of the LRA : the LRA shall apply to all persons in Malaysia and to all per
sons domiciled in Malaysia but are residence outside Malaysia, except as it otherwis
e expressly provided.
● Section 3(2) of the LRA : a person who is a citizen of Malaysia, shall be deemed, unti
l contrary is proved, to be domiciled in Malaysia.
● Section 26(1) of the LRA : where either party is not domiciled in Malaysia, the propos
ed marriage, if solemnised, must be regarded valid in the country where such party is
domiciled, before the marriage could be solemnised
● Section 26(1) LRA : The issue of domicile is important for marriages solemnized over
seas but in accordance with the LRA
● Section 104 LRA : The issue of domicile is important for marriages solemnised overs
eas according to the law of the foreign country
● Section 105 LRA : The issue of domicile is important for the recognition of foreign ma
rriages contracted in any foreign embassy, high commission or consulate in malaysia
● Section 48(1) (C) LRA 1976 : the court will make decree of divorce if at the time whe
n the petition was presented the domicile of the parties are in Malaysia

TYPES OF DOMICILE

1. DOMICILE OF ORIGIN
● Everyone has a domicile of origin. He obtains this domicile at birth and in gen
eral situation, carries it through his lifetime. When he acquires a domicile of c
hoice, his domicile of origin becomes suspended and will be revived upon reli
nquishment of the domicile of choice. A person’s domicile of origin follows tha
t of his father, if the person is legitimate, or his mother, if the person is illegitim
ate.

2. DOMICILE OF CHOICE
● Any person may acquire a domicile of choice provided he is an adult, namely,
18 years according to section 2 of the age of majority act. For a female, the a
cquisition of a domicile of choice is possible if she is an adult and unmarried.
When a domicile of choice is obtained, the domicile of origin would be held in
abeyance temporarily until abandonment of the domicile of choice
● The change of abode or residence must be voluntary, and not due to some co
mpulsion, for example, because of duties, responsibilities, absconding from cr
editors respite from poor weather or for health purposes.

Case : Udny v Udny (1869) LR 1 Sc & Div 441

- The court held that selling off the house and its furniture indicates Udny’s intention to
terminate the domicile of choice. As a result, the law applicable to him is his domicile
of origin.
Case : Shaik Abdul Latiff v Shaik Elias Bus [1915] 1 FMSLR 204
- The deceased had a domicile of origin in Hong Kong. he moved from Hong Kong to
Singapore and subsequently to Kuala Lumpur, where he lived for 19 years until his d
eath. While in Selangor, he amassed wealth, built a home for his family and regarded
Selangor as his place of residence. Since he has no other house either in Hong Kong
or any where else and he never returned Hong Kong and his two chinese wives, had
embraced islam and never visited China, the court held that he had acquire the domi
cile of choice in Selangor.

Case : Kanmani v Sundarampillai [1957] MLJ 172

- The respondent husband had nominated Kuala Lumpur as the place of payment und
er his insurance policies and intended his children to be educated in Malaya and had
no intention of taking them with him to Ceylon, his domicile of origin.
- He was closely associated with a temple in Sentul and had expressed an intention to
devote his life to it.
- However, he had not attempted to secure a permanent dwelling in Malaya and had m
ade no attempt to take out Federal citizenship and as a result , his domicile is still Ce
ylon and the respondent’s domicile is that of her husband, i.e Ceylon.

Case : Joseph Wong Phui Lun v Yeoh Loon GOlt [1978] 1 MLJ 236
- Although the petitioner was still a Malaysian citizen, he had declared upon oath that h
e contemplated applying for Singapore citizenship as soon as he qualified for the min
imum qualification of ten years.
- He returned to Kuala Lumpur once or twice a week but subsequently took a mistress
and lived with her in Singapore until he ceased to return to Kuala Lumpur when his wi
fe knew of their relationships
- The petitioner became a permanent resident of Singapore and was issued a blue ide
ntity card. He resigned from the Royal Selangor Golf Club and from the Selangor Clu
b at Kuala Lumpur and became a member of the Singapore Island Country Club and
the American Club in Singapore. The court held that the petitioner has acquired the d
omicile of choice in Singapore

Case : Melvin Lee Campbell v Amy Anak Edward Sumek [1988] 2 MLJ 338
- Although the petitioner expressed the feeling that Malaysia would be a place he woul
d make his home, the court considered other relevant factors in deciding his domicile
i.e the fact that the petitioner has not brought for himself any property or made any ac
tual investment in Malaysia and was employed in Indonesia after being a managing p
ilot in Kuching
- The court held that he had not been successful in proving that he acquired the domici
le of choice, though he has taken steps to explore the possibility of investing in Malay
sia and married a native of Sarawak and arranged for the child of the marriage to resi
de and be educated in Sarawak.
TYPES
1. That of a child, and that of a wife, each child attains the domicile of origin upon birth,
and this is normally that of his father, if the child is legitimate
- If the child is illegitimate, he followed the domicile of his mother. An adopted c
hild takes the domicile of his adoptive father or mother and if the adopters are
spouses, the child’s domicile takes that of his adoptive father.
 2. For a woman, she takes the domicile of her husband, upon marriage
- Only a decree of divorce will release her from this dependence
- In England, the Domicile and Matrimonial Proceedings Act 1973 enables a wif
e to hold on to her own domicile without taking on the domicile of her husband
upon marriage
- In Malaysia, the position is still the same as in the common law.

Case : Ang Geck Choo v Wong Tiew Yong [1997] 3 MLJ 467
- The petitioner was originally domiciled in Singapore, but according to the law of domi
cile applicable in Malaysia, her domicile changed to that of Malaysia upon her marria
ge to her Malaysian husband.

● Matrimonial domicile
- This concept is applied in England, where the essential validity of a marriage
was to be determined by the law of the country in which the parties intended t
o make their matrimonial home.

Case : Radwan v Radwan [1972] 3 All ER 1026

- Although the wife’s domicile of origin was English, the marriage was valid since her c
apacity to enter into a polygamous union was governed by the law of Egypt where, b
efore their marriage, the parties had decided to set up their matrimonial residence an
d where polygamy was practiced.

RESIDENCE
● Definition of residence : The Shorter Oxfo1rd English Dictionary : to have one’s usual
dwelling-place or abode : to reside.

Case : Foc v Strik & Anor [1970] 3 ALL ER 7

- Residence has been defined by the court as physical presence and an intention to re
main in the same place for a sufficiently long period to make that presence more than
fleeting or transistor. There is no need to own property in a place to be capable of res
iding there.

Case : Levene v Commissioners of Inland Revenue [1928] AC 217

- The judge applied the definition from the Shorter Oxford English Dictionary : to have
one’s usual dwelling place or abode; to reside

Case : Mahon v Mahon [1971] 2 MLJ 266

- The parties to the marriage since their marriage in 1955 has for the past 15 years ha
d their matrimonial home in the Federation
- The petitioner had been ordinarily resident in the Federation since 1955 though the p
etitioner has been away in Ireland during the 15 months of the three years immediate
ly preceding the filling of the petition
Case : TPC v ABU & Anor [1983] 2 MLJ 79
- The court held that the word residence has no technical meaning. Therefore, it shoul
d be construed in accordance with the object and intent of the statute in which is occ
urs.

Case : Inland Revenue Commissioners v Lysagth [1928] AC 234

- The court held that the issue of ordinary resident is a question of fact.

*LOOK AT SECTION 49 (1)(b) LRA*

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WEEK 5 - KELAS GANTI

CIVIL FAMILY LAW

(1) MARRIAGE REQUIREMENTS
(2) PROCEDURE OF REGISTRATION AND SOLEMNISATION OF MARRIAGE

*madam start with slide 9*

● Section 22(6) : marriage to be entered with free consent

● Section 37 : it is an offence for a person to use any force or threat to compel a perso
n to marry against his/her will or to prevent a person who has attained the age of 21 y
ears from contracting a valid marriage
● Section 70(c) LRA (M&D)A : Lack of consent - under duress, mistake or unsoundnes
s of mined would cause a marriage voidable under section 70(c)LRA

PROHIBITED RELATIONSHIP
● Section 11 LRA : Parties are prohibited to marry if they are within prohibited relations
hip.
● Special extension for the Hindus : uncle (from the mother’s side) and niece can marry
● Non-compliance : the marriage will be void (Section 69 (c)of LRA)

MONOGOMOUS MARRIAGE
● Section 5,6 and 7 LRA and Section 494 of Penal Code
● Avoidance of marriage by prior subsisting marriage
● Marriage in contravention of the above is void and an offence under Section 494 of th
e Penal Code.
● Case : Pong Teck Yin [1990] 3 CLJ 876
● Case : PP v Rajappan [1986] 1 MLJ 152
- Fact : Husband married wife in India. They migrated to Malaysia and their mar
riage was registered in the Registry of Malaysia. Later, the husband returned t
o India and married another woman and brought her to Malaysia. He was cha
rged under Section 494 of Penal Code.
- Held : the High Court has no jurisdiction to hear the case as bigamy was com
mitted outside Malaysia
BIOLOGICALLY MALE AND FEMALE
● Case : Hyde v Hyde : voluntary union of one man and one woman
- Must be from a different sex
- Non compliance : marriage will be void (Section 69(d))

● Case : Lim Ying v Hiok Kian Ming [1992] 1 SLR 184

- Facts : Parties married in 1990. After marriage, the wife discovered that her h
usband was actually born female and has undergone sex operation in 1987.
Repeated attempts to consummate the marriage failed. So she filed for a divo
rce and asked for a declaration that the marriage wa void ab inition and altern
atively non-consummation of marriage.
- Held : Marriage was void as both of them from the same sex

—------------------------

(ii) PROCEDURE OF REGISTRATION AND SOLEMNISATION OF MARRIAGE UNDER T

HE LR (M&D) ACT 1976

PROCEDURES & FORMALITIES

● There are four ways marriage are solemnised :-

1. After the issuance of certificate of marriage by the Registrar
2. After the issuance of license granted by the chief Minister
3. In a church, temple or at any place in accordance with the religion, custom an
d usage of the parties
4. Solemnisation of marriage in Malaysian Embassies/abroad.

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(1) MARRIAGE AT THE REGISTRAR’S OFFICE AFTER THE ISSUANCE OF CERTIFI
CATE OF MARRIAGE BY THE REGISTRAR (SECTION 14 TO 23 OF LRA)

1- After the issuance of certificate of marriage by the registrar (SECTION 14 TO 23 LR

A)

● Section 14 of LRA
● Give a notice to marry (notice of marriage) in the prescribed form to the Registrar of t
he marriage district in which they reside, for at least 7 days.

● Section 16
● This notice of marriage must be accompanied by a written declaration in a prescribed
form.
● The contents of this declaration relates to the requirements of marriage

● Section 15 of LRA : Publication of Notice

- The Registrar will publish the notice at his office, until he grants a certificate of
marriage which is at least after 21 days of its publication. Or until 3 months ha
ve elapsed/
 - If there is a caveat, then refer to Section 19 and 20

● Section 17 of LRA : CERTIFICATE FOR MARRIAGE

● Registrar shall issue of certificate for marriage (FORM C) if :
(i) He satisfied the declaration requirement has been complied
(ii) after expiration of 21 days from the publication of the notice
(iii) upon payment if the prescribed fees

● Section 18 of LRA
● Certificate is only valid for 6 months from the date the publication of notice marriage
● If the marriage does not take place within 6 months after the date of publication, then
fresh application must be made

● Section 22 (4) of LRA

● Deliver the certificate of marriage to the Registra to be solemnised :
● either
- (i) at the office of Registrar [Sec22(1) (a)]
- (ii) elsewhere, with a license granted by the Chief Minister (Section 22(1)(b)

● Section 23 of LRA
● Must be witnessed by 2 credible witnesses besides the Registrar [Section 22(5)]

● Consented by both parties [Section 22(6)]

—--------------------
PROCEDURES & FORMALITIES

● There are four ways marriage are solemnised :-

5. After the issuance of certificate of marriage by the Registrar
6. After the issuance of license granted by the chief Minister
7. In a church, temple or at any place in accordance with the religion, custom an
d usage of the parties
8. Solemnisation of marriage in Malaysian Embassies/abroad.

—------------------------------

EFFECTS OF MARRIAGE ON

● It took effect on 15th August 1957, significantly amended in 1994

● The MWA applies to the states of West Malaysia only.
 ● Section 3 of the MWA provides that the Act applies to all married women, but shall ha
ve effect in the Malay States and the Federal Territory of Kuala Lumpur in relation to
Muslim married women and their property, rights and obligations subject to the Islami
c law and the customs of the Malays, subject to the Islamic law of the states in all cas
es to which such Islamic law extends.

THE RIGHTS AND LIABILITIES OF MARRIED WOMEN UNDER THE MWA

● Section 4A (new section) :

- added in 1994 : allowing a husband or wife to sue each other in tort for dama
ges in respect of injuries to his or her person, in the like manner as any other t
wo separate individuals

● Section 5 : married woman’s property:

- If the property was that of married woman or property held for her separate us
e in equity, that property belongs to her in all respects as if she were a feme s
ole or an unmarried woman and may be disposed of accordingly

● Section 6 :
- Abolishes a husband’s liability for his wife’s torts and antenuptial contracts, de
bts and obligations, before or after marriage.

● Section 9 :
- Right of the married women for the protection of their property

● Section 9(2) was repealed, replaced by section 4A.

● Case : Section 9(2) : Faridah btw Dato Talib v Mohamed Habibullah bin Mahmood [1
990] 1 MLJ 174
- Held : since the allegations of assault and battery constituting the tort are not
related to the protection or security of property, the plaintiff is barred by sectio
n 9(2) from suing the defendant.

● This case prompted the parliament to replace section 9(2) with section 4A.
● Section 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.

● Section 9(4) :
- Three situations in relation to criminal proceedings against a husband or a wif
e
1) Where the husband and wife are living together (no criminal proceedings may taken
by any of the spouse)
2) Where the husband and wife are living apart, but the act complained or concerning pr
operty occurred when they are living together together. (no criminal proceedings may
be taken by any of the spouse)
3) Where the husband or wife is leaving or deserting or about to leave or desert the oth
er spouse. (criminal proceedings may be taken against the offending spouse)
 4) Where the couple are living apart and the act done by either the husband or the wife
occurred while they were living separately or apart (criminal proceedings may be take
n against the offending spouse)

● Case : Re Ketuna Bibi [1955] MLJ 166

- Held : Married Women Act does not apply here as under the Islamic law, crimi
nal action can be taken against the other spouse)

● Section 10 :
- A woman after her marriage will continue to be liable for all debts contracted a
nd all contracts entered into or wrong committed by her before the marriage

● Section 11 :
- Instances of doubt between husband or wife pertaining to the title or possessi
on of property, either party mayy apply to any judge of the High Court or Sess
ions Court. Any dissatisfied party may appeal either to the Court of Appeal or
the High Court as the case may be.

● Section 12 :
- She may sue or be sued if she is an executrix or a trustee alone or jointly with
any other person/persons.

—-------------------------------------------------------------

WEEK 6 - KELAS GANTI DAY 1

1) Void marriage
2) Voidable marriage

JURISDICTION OF COURT

● The court has jurisdiction to issue the annulment of marriage under the following circ
umstances (Section 67 LRA) :
- Marriage registered under LRA; or
- Marriage contracted under law provides monogamous marriage; and
- Both parties to the marriage reside in Malaysia at the time of the commencem
ent of the proceedings.

Case : Ng Wee Wai v Ng Sook Heng [1978] 1 MLJ

- The petitioner (husband), a Singaporean was married to a Malaysian domiciled in Sin
gapore. The couple were married under the Woman Charter of Singapore. After the
marriage, the wife lived with the husband’s family in Singapore for a few weeks. Later,
she left the husband to return to live in Penang, with her family. The husband petitio
n to annul the marriage on the ground that the wife refuse to consummate the marria
ge.
 - The High Court dismissed the husband’s petition. The husband could not petition for
nullity of marriage as both parties do not reside in Singapor, as the wife was not resid
ing in Singapore at that time. The court referred to Section 80(2) of the Women’s Cha
rter which is pari materia with Section 67 LRA

Case : Yong Fui Chin v Lim Tow Siew [1996] 3 MLJ 479
- Held : Court has no jurisdiction since there is nothing to show that both parties were r
esident in Malaysia at the time of the commencement of the proceeding.
—----------------------------------

VOID MARRIAGE

GROUNDS - VOID MARRIAGE

● Section 69 LRA
● Provides 4 grounds and are as follows :-
1. Either party is already married at the time of marriage and former husband or
wife was still living at the marriage;
2. A male person marries under 18 years of age or a female who is above 16 bu
t under 18 years without licence granted by CM under Section 10 LRA
3. Parties are within prohibited degree of relationship unless CM grants special li
cence ; or
4. Parties are not respectively male and female

Section 75 (7) adds another grounds i.e :

(1) Section 22(4) : solemnisation of marriage and licence will render the marriage void
(2) Sec 72

It shows that Section 69 is not exhaustive

—-------------------------------------

1) Section 69 (a)
● Either party is already married at the time of marriage and former husband or wife wa
s still living at the time of the marriage
● Case : PP v Rajappan [1985] 2 MLJ 231
- Principle the court has no jurisdiction to entertain the petition as the act of big
amy was not committed in Malaysia
- Facts : the Respondent (R) married the petitioner in India in 1947 according t
o Hindu custom. In 1954, R and children migrated to Malaysia. Their marriage
wa subsequently registered with the Registrar of marriage in Malaysia. 1984,
R went to India again and contracted a 2nd marriage with Sarawathi in which
time , the 1st marriage was still subsisting R brought Sarawathi to reside in M
alaysia. R was charged under section 494 of the Penal Code for committing bi
gamy.
- Held : that the court had no jurisdiction to decide on the validity of the 2nd ma
rriage as the act of bigamy was not committed in Malaysia.
 —------------------------------------

2) Section 69 (b)
● A male person marries under 18 year of the female above above 16 but under
18 years without license granted by Chief Minister under Section 10 LRA

3) Section 69(c)
● Parties are within prohibited degree of relationship unless chief minister grant
s special license under Section 11 of the LRA

4) Section 69 (d)
● Parties are not respectively male and female
● Case : Corbett v Corbett
- Principle : a persons sex is determined according to his birth.
- Facts : At the time of the marriage, the petitioner knew that R had bee
n registered at birth as a male and had 3 years earlier undergone a se
x-change operation consisting in the removal of the testicles and most
of the scrotum and the formation of anartificial vagina and had since li
ved as a woman. They lived together in matrimony for only 14 days. T
he petitioner filed a petition for a declaration that the marriage was null
and void.
- Held : the marriage was void as R was not a woman for the purpose of
the marriage but was a biological male and had been so since birth

● Case : Lim Ying v Hiok Kian Ming Eric [1992] 1 SLR 184
- Facts : the petitioner’s wife discovered after the marriage that R was born a fe
male and had undergone sex-change operation in 1987. Repeated attempts t
o consummate the marriage had failed. She filed for divorce and asked for a d
eclaration that there had never been a marriage between her and R. Alternati
vely, annulment of marriage because of non-consummation due to R’s incapa
city.
- Held : the decree of nullity was ordered. The fact that the identity card and th
e birth certificate have R’s sec as male and female did not require the court to
hold that a valid marriage had been solemnised between a man and a woman.
Because the petitioner would not have consented to the marriage had she k
nown of the sex- change operation, her free consent to the marriage was abs
ent and therefore void.
- “... a person biologically a female with an artificial penis, after surgery and psy
chologically a male, must for purposes of contracting a monogamous marriag
e of one man and one woman, under the Charter be regarded as a “woman”

—------------------------------------------------

VOIDABLE MARRIAGE

Section 70 LRA
● Provides 6 grounds and are as follows:
 1. Marriage has not been consummated owing to incapacity of either party;
2. Marriage has not been consummated owing to the willful refusal of the Respo
ndent.
3. Either party to the marriage did not consent to it.
4. At the time of marriage, though capable of giving consent was a mentally diso
rdered person within the meaning of Mental Disorder Ordinance 1953
5. At the time of marriage, respondent was suffering from venereal disease in co
mmunicable forms; or
6. At the time of marriage, the respondent was pregnant by some person other t
han the petitioner.

—-----------------------------------

Section 70(a)
- Women cannot impotent
● Marriage has not been consummated owing to incapacity of either party
- Either the petitioner or the R may be the one who is incapacited to consumma
te the marriage
- The incapacity to consummate must be in relation to the other spouse
- If a party to a marriage is unable to consummate the marriage because of his
or her incapacity but is well capable of having sexual relations with another pe
rson, then he or she will be taken to be incapacitated- sufficient to prove grou
nd (a)

● Issue : standard of sexual intercourse which is legally recognised by law.

● Case : D.E v A.G
- Lushington : “ In order to amount to consummation, the intercourse must be o
rdinary, complete and not partial.”

● Case : Baxter v Baxter [1947] 2 ALL ER 886

- Principle : although the husband used contraceptive sheath, the marriage was
considered to have been consummated.
- Facts : the wife did not allow the husband to have sexual intercourse with her
unless he uses contraceptive sheath. The husband applied for nullity of marri
age.
- Court held : the marriage has been consummate irrespective of the husband’s
use of a sheath.

● Case : L v L [1956] MLJ 145

- Principle : inability to consummate, may be due to physiological or psychologi
cal causes and may be either general or only with the particular spouse.
- Facts : after 3 years of marriage, the evidence showed that the wife was still a
virgin. The husband could consummate the marriage with another woman, bu
t was incapable to consummate the marriage with her.
- Court granted a decree of nullity of the marriage to the wife.
—------------------------------

Section 70 (b)
● Marriage has not been consummated owing to the willful refusal of the Respondent
- Wilful refusal means without just cause. It is for R to show a just excuse for hi
s/ her refusal to consummate the marriage.
- The refusal has to relate to the post-marriage stage.
- If both parties to a marriage agree to undergo a religious or customary cerem
ony prior to the consummation of their marriage and if one of them refuses to
go through with the ceremony, the other may petition for a decree of nullity.

● Case : Rathee v Shanmugam [1981] 1 MLJ 263

- Principle : where the parties have agreed that a civil marriage will be followed
by a religion ceremony, it is a just cause for refusing to consummate the marri
age if one party refuses to undergo a religious ceremony
- Facts : parties are Hindus and they registered their marriage at the Registry o
f Marriage at Ipoh. They agreed not to consummate the marriage until a forma
l ceremony and told her that he does not wish to proceed with the marriage.
- Court granted a decree of nullity of the marriage to the wife.

● Case : Kwong Sin Hwa v Lau Lee Yen [1993] 2 SCR 259
- Facts: the parties had agreed that after marriage they would continue to live a
part and there would be no cohabitant until after the parties had performed an
d undergone the traditional Chinese rites and set up a matrimonial home. Afte
r marriage both parties lived separately and never lived together as husband
and wife.
- The appellant husband had asked the R to consummate the marriage but the
R refused on the ground that she wishes to have the customary rites perform
ed before consummating the marriage. Subsequently, the R herself refused to
go through the Chinese customary rites, giving financial reasons and later say
ing that she wanted to be a nun.
- Appellant husband petition for a decree of nullity.
- High Court dismissed the petition on the ground that there was no credible evi
dence on which the court could find wilful refusal to consummate the marriage

COA allowed the appeal

- “... a pre-nuptial agreement of the type and character as in this case does not seek to
make the occurrence as in… this case does not seek to make the occurrence or non-
occurrence of a religious or customary ceremony as having effect in law on the marri
age of the parties. That, as we see it, was not the intention of the parties to the agree
ment. The intention was to enable the parties to comply both with the law and custom
or religion.

● Other cases
- Jodla v Jodla [1960] 1 WLR 236
- Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9
- Kaur v Singh [1972] 1 ALL ER 292
—------------------------------------------------------------------------------------------------------------------------

WEEK 6 - KELAS GANTI DAY 2

● Section 70(c)
● DURESS
- Either party to the marriage did not validly consent to it (in consequences of d
uress, mistake, unsoundness of mind or otherwise)
- The words “or otherwise” include fraud and misrepresentation
- If one of the parties to the marriage is induced to enter into the marriage whic
h is the absence of compulsion, he would never have contracted, the marriag
e is voidable.
- If the party choose to stay, the marriage kekal

Case : Buckland v Buckland [1967] 2 ALL ER 300

- Principle : marriage out of fear (duress) is a voidable marriage
- Facts : Petitioner was a policeman, employed in Malta. While working there, he went
around with a Maltese girl. The girl’s parents forced him to marry her. She was only 1
5 years old. He married her out of fear. When he returned to England, he applied for
nullity of marriage.
- Court granted the application.

Case : Hirani v Hirani (1982) 4 FLR 232

- Held : decree of nullity granted
- The interpretation of duress was that it will be found where pressure, of whatever kin
d, had been as to destroy the reality of the consent given to the marriage-this is dure
ss in a more common sense way.
- Facts : both couples are from different religions. The guy is Indian Muslim. The girl m
arried out of fear with another guy. The marriage never consummated. Then she left
her husband. Nullity on the ground of duress. First instance, no threat to her life.
- Form of Duress also mean ugutan tak dpt harta, or halau rumah or kena buang

● Mistake : two kind

● 1. IDENTITY
● Case : C v D (1979)
- The petitioner thought she was marrying a man but she actually married a her
maphrodite. The marriage was annulled on the ground that she has made a
mistake as to the identity of the respondent.

● Case : Puttick v AG (1979)

- The woman did not tell her name, but the man intended to marry her. But it w
as the same person he wanted to get married to. It was valid. Because there
was only a mistake on the name but it was the same person you want to get
married to. Not a mistake on identity.
 ● Case : C v C (1942) NZLR 356
- The petitioner mistakenly thought she married an Australian … champion. Thi
s is a mistake to attribute not identity. He is not a champion, only a normal gu
y. But it was the same person she wanted to get married to.

2) MISTAKE AS TO CEREMONY

● Case : Mehta v Mehta

- Here, the petitioner (org putih) thought she was attending a conversion cerem
ony. Ingat tgh convert, rupanya dia terkahwin. Bila tau terkahwin, she was ma
d. Do not know if she will get married.
- She doesn't know the adat of the ceremony.
- Principle : Mistake as to the nature of the ceremony amounts to voidable marr
iage.
- Facts : the petitioner went through a marriage ceremony with the respondent

2. UNSOUNDNESS OF MARRIAGE

● Unsoundness of mind - incapable of understanding the nature, duties and responsibil

ity of marriage.
● Case : in the Estate of Park [1954] 2 ALL ER 1411
- Principle of the case : the correct test to determine unsoundness of mind is w
hether he or she was capable of understanding the nature of the contract of m
arriage that he or she had entered.
- The deceased contracted a second marriage and made a new will which revo
ked his earlier will. The beneficiaries of the first wife claimed that he had an u
nsound of mind when he entered into the second marriage. However, the cou
rt held that the marriage was valid as the deceased was able to appreciate th
e responsibilities normally attaching to the marriage.

● In the Marriage of N Osman and Mourali (1990) 13 FAM LR 444

● FRAUD
- Facts : the wife applied for a decree of nullity of marriage based on the groun
d that her consent given to the marriage was not a real consent as it was obta
ined by way of fraud. This was due to the fact that, after the marriage, the hus
band who was a foreigner refused to cohabit with the wife. The only reason h
e married her was to enable him to be permitted to reside in Australia where t
he marriage took place as the wife had a permanent resident status.
- “... the marriage is void because the purported consent was given to somethin
g other than marriage, or to a marriage with someone other than the person p
hysically standing at the altar. But if a person wishes to go through a ceremon
y of marriage with a person whose identity he or she is aware of then it matter
ed not that the consent is induced by promises of eternal happiness, luxurious
living or even the promise to live together ever after.

—----------------------------
 ● SECTION 70(D) - memang gila
● At the time of marriage, though capable of giving consent, was a mentally disordered
person within the meaning of Mental Disorder Ordinance 1952
● Case : In the Estate of Park, decd
- The D sought to establish that the deceased was at the time of the marriage t
o P incapable of appreciating the nature of the marriage contract, and the duti
es and responsibilities which it created and that accordingly there was no con
sent to the marriage ceremony. He asked the court to declare the marriage nu
ll and void.
- Court held that the marriage was valid.
- Wujud masa kawin, kalau dia gila after marrige apply divorce

—---------------------------
● SECTION 70(E)
● At the time of marriage, respondent was suffering from a venereal disease in a comm
unicable forms
● Venereal disease - disease only spread by sexual intercourse
- Syphilis
- NOT HIV because boleh dijangkit pelbagai cara
-
—-------------------------------------------------
● SECTION 70(F)
● At the time of marriage, the respondent was pregnant by some person other than the
petitioner
- The respondent must always be the wife and the petitioner the husband
- Case : Stocker v Stocker (1981) 3 FLR 58
- Husband, at the time of marriage knew of the respondent’s pregnancy but did
not know that she was pregnant by another man. Hsi petition was allowed
-
One situation - she did not she was pregnant someone else baby
Sec situation - married a woman, he knew but he thought it was his baby but it was not

—--------------------------

BARS TO RELIEF
- we stop you from petition

● Section 71 LRA :
- Refers to something which might prevent the court to grant the petition to nulli
fy the marriage
- The onus of proof is on the Respondent, but if he choose not to raise any of t
hese bars, the court will grant the decrees if the ground has been made out.

● Applicable for voidable marriage.

 ● LRA is silent as to any bars to relief where marriage is a void marriage by one or both
parties to the marriage is not a bar to the petition of a void marriage. (Corbett v Corbe
tt)

Case: W v W [1952] 1 ALL ER 858

- Issue : whether the conduct of the husband had approbated the marriage and affirme
d the validity of marriage.
- Facts : the parties were married in 1942 and attempts by the husband to consummat
e the marriage were unsuccessful. On the suggestion of the husband, the parties ado
pted a child. Subsequently, the husband left the wife, and later presented a petition fo
r the nullity of the marriage on the ground that the wife was unable to consummate th
e marriage or alternatively that she wilfully refused to do so.
- The husband's petition was dismissed by the court. There was evidence that he had i
nitiated the adoption in the hope that the wife would overcome her repugnance to inte
rcourse. The joint adoption of the child has the effect of approbating the marriage on t
he part of the husband.

Case : Slater v Slater (1953) 1 ALL ER 235

- Parties married in 1945, never consummated marriage due to husband incapacity. In
1949, the wife went for artificial insemination from a donor other than her husband. Al
so adopted a boy aged 2 years old. Later only, the wife discovered that she can use
her husband's impotence and get an annulment of her marriage. She petitioned for n
ullity. Husband said that the facts his wife went for artificial insemination and adoption
of boy shows approbation of marriage
- Held : tha the artificial insemination and adoption was done when the wife did not kno
w that she can annul her marriage. That is not an approbation of marriage.

Case : Pettit v Pettit [1963] P 177

- Facts : the parties were married in 1939. The marriage was never consummated owi
ng to the husband’s incapacity. The husband then found another woman and left the
wife. The husband petitioned for a decree of nullity on the ground of his own impoten
ce.
- The court refused to grant the petition as after long time of marriage the wife had rem
ained faithful even though she was deprived of sexual intercourse. It would therefore
be unfair and inequitable to grant the decree.
-

—---------------------------------------------------

DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGE

● Status of marriage
- Void marriage the marriage has never palace (Q of law)
- Voidable marriage : valid subsisting marriage until the court pronounces a dec
ree annuling it (Q of facts)

● Party entitled to petition

 - Void marriage the parties to marriage and any 3rd parties it can be challenge
d at any time whether during or after the lifetime of the parties to the marriage
- Voidable marriage : only the party to the marriage can petition and it can be c
hallenged only during the lifetime of the parties to the marriage.

● Consequences to the marriage

- Void marriage : retrospective effect. The marriage will be regarded as never h
aving taken place at all.
- Voidable marriage : no retrospective effect. The marriage will be regarded as
having been annulled effectively on the date of the grant of the petition.

● Status of parties
- Void marriage : the parties of the defective marriage shall gain the status of a
feme sole (single woman), once the marriage is declared as a nullity
- Voidable marriage : -same as above-

—----------

EFFECT OF AN ANNULLED MARRIAGE

● Section73 LRA - shall annul a voidable marriage anytime after the coming in operatio
n of the decree
● Section 75 LRA - relate to the legitimacy of the children
- Voidable marriage : child considered as legitimate child
- Void marriage : legitimate if at the time of solemnisation, parties believed that
the marriage was valid.
- Applies only if the father of the child domicile in Malaysia at the time of marria
ge and affects the devolution of any party only to children born after the appoi
nted date.

—------------------------------------------------------------------------------------------------------------------

WEEK 7
DIVORCE DECREE

JURISDICTION OF THE COURT

 ● Section 48(1)
● Nothing in this Act shall authorize the court to make any decree of divorce except -
a) The marriage has been registered or deemed to be registered under this Act
or
b) Where the marriage is monogamous; and
c) Where the parties are domicile in Malaysia

SPECIFIED PERIOD

● Section 50(1) of the LRA states that no petition for divorce shall be presented to the c
ourt before the expiration of the period of two years from the date of the marriage
● The specified period refers to the period of two years from the date of the marriage
● Nevertheless, a judge may allow the presentation of a petition for divorce within the s
pecified period on the ground that the case is one of exceptional circumstances or ha
rdship suffered by the petitioner.

CASES

● V v V - english common law case

● The court granted her the leave to petition for divorce within the three yaer period on
the gorunds that the chargaes against the husband for cruelty anfd of adultery were o
f an exceptionally grave nature and there was also no possibility of reconciliation bet
ween both parties.
● - adultery alone cannot be the reason,
● Kalau dia mabuk, commit adultery and pukul.. can

● Kiranjit Kaur Kalwant Singh v Chandok Narinderpal - malaysian case

● The court explained that the interpretation of “exceptional circumstances” should not
be restricted or limited to just physical or mental abuse or cruelty, but must also inclu
de any circumstances or hardship caused by any slanderous statements made on th
e internet.
● Jgn limit physically pukul, mentally abuse also can.
● Isteri dia officer di maybank, husband dia ckp dia prostitute kat internet.

● Bowman v Bowman [1949] 2 ALL ER 127

- Facts : the wife alleged, adultery, cruelty………………
- Court granted leave to the wife
- “... if however, the adultery is coupled with other matrimonial offences, eg, if a
husband not only commits adultery, but also deserts his wife in favour of anot
her woman, or if he is cruel to her, thus causing her not only distress by his a
dultery but also injury bu his violnece, then even if his offence cannot stigmati
zed as exceptional depravity on his part, nevertheless, it does involdeve..

● C v C [2980] Fam 23
- Facts: Few weeks after marriage, the husband is impotent
—--------------------------

GROUNDS OF DIVORCE
1) Conversion to Islam
2) Mutual consent
3) Breakdown of marriage

1) Conversion of Islam

● Section 51 of the LRA

● The old version : only the non- convert may go to the High Court and petition for divor
ce. The converted spouse will go to the Syariah Court. (there was a conflict of jurisdic
tion)
● Amended in August 2017 :
a) Either party may petition for a divorce under this section or section 53; or
b) Both parties may petition for a divorce under Section 52 -mutual consent

HISTORICAL BACKGROUND

● Pedley v Majlis Agama Islam Pulau Pinang and Anor [1990] 2 MLJ 307
- Principle of the case : under the LRA, non-muslim marriage is not dissolved u
pon one of the parties converting to Islam. It only provides a ground for the ot
her party who has not converted to petition for divorce
- Since the non-convert spouse in this case does not petition for divorce, the co
urt held that the marriage is not being dissolved.
- The approach of the court prior to 1994 : if the non-convert spouse did not pet
ition for divorce, the marriage will remain as the covert spouse could not petiti
on under any other ground of divorce by virture odf section 3(3) of th LRA///

● Letchumy v Ramadason [1984] 1 MLJ 143

- In this case, the petitioner for divorce on the ground of desertion as the conve
rsion to Islam fo the petitioner’s husband has not yet taken place. The court h
eld that ancillary claim could not be granted to the petitioner as furing the appl
ication for ancillary claim, the husband has converted to islam
- The court held that the LRA could not be applied on the /////////

● Koh Yian Geok v Zulkifli Tan bin Abdullah [1995] 2 AMR 1525
- The petitioner (wife) sought dissolution of a 1980 marriage on the ground that
the respondent (husband) has converted to Islam in 1993.
- The judge///////////////
 ● The new approach of the courts due to the case of Tan Sung Mooi v Too Miew Kim
[1994] 2 MLJ 117
● Interpretation of section 3(3) of the LRA: the LRA applies to non-muslims and non-m
uslims marriages
● Therefore, the converted spouse should be governed by the LRA since the marriage
was solemnized under the LRA

● Nur Aishah Tey binti Abdullah v Teon Eng Hua [1999] 3 AMR 2779
- Principle of the case : Interpretation of section 3(3) of LRA : the LRA applies t
o non-muslims and non-muslims marriages. The judge construed the word “M
uslim” as Muslim at the time of the marriage and not at the time of the contrac
t of marriage. Therefore, the convert spouse should be governed by LRA
- The petitioner who converts to the Islamic faith petitioner for a divorce under t
he ground of irretrievable breakdown of marriage under Section 54(1) of the L
RA
●

● In the case of Tan Sung Mooi, the petitioner for divorce on the ground of desertion/////
/
● When answering the question, explain the old law

—------------------------------------

2) DISSOLUTION BY MUTUAL CONSENT

SECTION 53 OF THE LRA

● The issue or the question of law arise here is whether a joint petition for dissolution of
marriage is presented under Section 53 of the LRA (mutual consent) of the petitioner
to the dissolution is the sole criterion for the grant of the decree nisi
 ● Shanker J in Re Divorce Petition No. 18, 20 and 24 of [1984] 2 MLJ 158
- Principle of the case : mutual consent by the spouses to a decree of dissoluti
on does not entitle them to a divorce. The parties who petition for a divorce on
the ground of mutual consent must prove the breakdown of marriage.
- Look at Section 54
- Section 52 alone cannot be the reason alone. Must look together with Section
54

● Sivanesan v Shymala [1986] 1 MLJ 400 -corrected the case of re divorce

- Principle of the case : the chief justice had made some comments and correct
ions on the decision of Shanker J in Re Divorce Petition No.18,20 and 24 of 1
983
- Judge disagreed that the LRA only provides for one ground for divorce and th
at is /////

● So is mutual consent too easy to be obtained?

● No Section 53 requires that proper provision be made for the wife and the support, ca
re and custody of the children of the marriage.
● This ‘proper provision’ must be freely agreed upon by the court as fair and reasonabl
e before the decree of divorce can be granted.

● Sivanesan v Shymala [1986] 1 MLJ 400

- The settlement of the matrimonial property and a waiver by the wife of all futur
e claims for maintenance ; agreed upon
- Decree nisi obtained and then adjourned the matter to deal with the property
settlement.
- Before the decree became absolute, ///////

● Re Goh Hoe Ling & Anor [1996] 1 MLJ 137

- It is pointed out in this case where in a joint petition for divorce, both the petiti
oner…

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3) BREAKDOWN OF MARRIAGE ; SECTION 54 OF THE LRA

● Either party may petition for divorce on the ground that marriage has irretrievably (tid
ak dpt diselamatkan lagi) broken down
● Section 53(2) of the LRA :
- Duty of the court to inquire into the facts alleged
- The circumstances must be just and reasonable in order for the marriage to b
e dissolved.
- Section 54 of the LRA : proof of breakdown must be show
—-------------------
FIRST GROUND

● Section 54(1)(a) of the LRA : that the respondent has committed adultery and the peti
tioner finds it intolerable to live with the respondent. There are 2 views in this aspect.
● 1st view : Case : Goodrick v Goodrich [1971] 2 ALL ER 1340, Carr v Carr [1974] 1 W
LR 1534
- Principle of the case : the petitioner must satisfy that the respondent has com
mited adultery and that the petitioner finds it intolerable to live with the respon
dent. It is not necessary to show that he finds it intolerable to live with the res
pondent in consequences of the adultery; it is sufficient if the petitioner genuin
ely finds it intolerable to do so for whatever reason
- They interpreted “and in section 54” as “or”

● 2nd view : case : Roper v Roper [1972] 1 WLR 73

- Principle of the case : the meaning of the section was that////

● Section 58 of the LRA allows a claim of damages for adultery against the co-presiden
t
● Section 58(1) : on a petition for divorce in which adultery is alleged, or in the answer
of party ///

● Section 58(3)
- Where damages have been claimed against a co -respondent

● Se///
● Section 59 (1)
- Provides power
- //////////

● Leow Kooi Wah v Ng Seng Philip & Anor [1995] 1 MLJ 852
- The petitioner (wife) claimed damages from the co-respondent on account of
adultery. It was held that since the co-respondent admitted the adultery, the p
etitioner was eligible to damages against the co-respondent.
- The quantum of such damages will depend on all the circumstances of the ca
se and though compensatory, are not restricted to pecuniary loss.
- Since the co-respondent knew//////

● Kang Ka Heng v Ng Mooi Tee & Anor [2001] 3 MLJ 331

- The petitioner (husband) filed a petition for a divorce against the respondent
(wife) on the ground that the marriage
- ////////////////////////

● Karen Cheong Yuen Yee v Phua Cheng Chuen [2004] 291 MLJU 1
- In this case, the court decided that for allegation of adultery, the standard of p
roof should be beyond reasonable doubt
- Based on the facts of the case, the court held that the petitioner had failed to
prove that the husband has committed the act of adultery