TUTORIAL 4

1. Mei Lee became Datuk Ong’s third wife after a tea-serving ceremony at her parents’ home in
September 1981. There was no registration of the marriage but Datuk Ong’s first two wives
included Mei Lee in all the family gatherings. Mei Lee wishes to know:

(i) What is the present status of her marriage;

Before LRA
Firstly, we need to identify if the marriage is accepted under Chinese customs before the
introduction of the LRA . In the case of Dorothy Ye Yeng Nam and Ree Lee Siew Kow, it was
stated that intention to live together and mutual consent is most important for a marriage to be
valid. Customs of marriage and requirements of ceremony is only evidentiary and not essential for
the validity of the marriage.

According to section 4 ( 1 ) of the LRA, “ Nothing in this Act shall affect the validity of any
marriage solemnized under any law, religion, custom or usage prior to the appointed date. The date
meant under Section 4 is 1 st March 1982. Hence, we can see that the tea ceremony was something
that was done before the LRA since it was on September 1981.

Mention the date first, it was done before LRA. Mention about whether it is accepted under
Section 4 ( 1 ) . Evidence of acceptance under chinese customs

(ii) If she should register her marriage and if so, how should she do it.

According to Section 4 ( 1 ), the marriage is already valid but if she wants to register the marriage
voluntarily she can refer Section 33 which is Voluntary registration of marriages previously
solemnized under religion or customs.

To prove that the chinese customary marriage was accepted or valid enough, we can see the case of
Dorothy Ye Yeng Nam and Ree Lee Siew Kow, it was stated that intention to live together and
mutual consent is most important for a marriage to be valid. Customs of marriage and
requirements of ceremony is only evidentiary and not essential for the validity of the marriage.

In the case of Yeap Leong Huat v Yeap Leong Soon & Anor, the court after referring to the
case of Lam Wai Hwa, took into the requirement of long cohabitation into consideration to
determine whether the parties have the intention to live together as husband and wife. In
the instant case, both parties have been living together for 40 years since 1981 until 2021
which shows that they indeed have the intention to live together as husband and wife. Plus,
Datuk Ong’s first two wives have always included Mei Lee in all the family gatherings
which shows that they have been accepting Mei Lee as part of the family. In short, from all
the facts above, we can conclude that Mei Lee’s marriage is valid in accordance with
Chinese custom. Thus, Mei Lee doesn’t have to register her marriage as it is already
deemed as registered under the LRA.
 Subsection 4 ( 2 ). Then talk about section 33 and 33 (4 ).

2. Advise the following parties on the solemnisation and registration of their marriages in Malaysia:

(a) Jonathan, a Kadazan student from Sabah, aged 19 years, wishes to marry Elizabeth Khoo,
a Chinese from Sungai Siput, Perak, aged 17 years.

Section 3(4) of the LRA provides that “This Act shall not apply to any native of Sabah or Sarawak
or any aborigine of Peninsular Malaysia whose marriage and divorce is governed by native
customary law or aboriginal law…”. In other words, LRA shall not apply to Jonathan who is a
Sabah native, unless he elects to marry under LRA as provided in Section 3(4)(a) of the LRA.

In the case of Nancy Kual v Ho Than On, the judge stated that even though one
party to a marriage is a non-native, the marriage between the defendant and the plaintiff
according to the Kadazan custom should be recognized as valid. Besides, the judge also
suggested section 4 of the LRA to be amended to include “Nothing in this Act shall affect
the validity of any marriage solemnized according to native customary law prior to or after
the appointed date”. In other words, if Jonathan chooses to marry under the Kadazan
customary law, automatically Elizabeth Khoo will be subjected to Kadazan customary law
as well and LRA will no longer apply her. Such marriage in nonetheless valid as LRA
doesn’t affect its validity.

Capacity -Section 10 of the LRA provides that the minimum age for a male to
marry is 18 years, while the minimum age for a female to marry is when she has completed
her 16 years subject to a license granted by the Chief Minster under Section 21(2). Since
Elizabeth Khoo is only 17 years, she has to obtain a license from the Chief Minister in order
to validate her marriage with Jonathan.

Thirdly, we need to look at the requirement of consent. Section 12(1) provides that
any person who hasn’t attained 21 years require to obtain written consent from the
following person: (a) His/her father or mother; (b) If the person is illegitimate, of his or her
mother ; (c) If the person is adopted, his or her adopted father or adopted mother; or (d) If
both parents are dead, person standing in locus parentis to him/her . In the instant case,
since both parties haven’t attain the age of 21 years, they have to obtain a written consent
from the appropriate person
(b) Harry Toh, aged 18 years wishes to marry Mary, the daughter of his close friend,
Richard. Mary is not very keen on the marriage as she is “still too young” but her father
approves of the match.

Capacity -Section 10 of the LRA provides that the minimum age for a male to
marry is 18 years, while the minimum age for a female to marry is when she has completed
her 16 years subject to a license granted by the Chief Minster under Section 21(2). If Marry
is above the age of 16 then she needs a license granted by the Chief Minister. For Harry Toh
it is okay.

Thirdly, we need to look at the requirement of consent. Section 12(1) provides that
any person who hasn’t attained 21 years require to obtain written consent from the
following person: (a) His/her father or mother; (b) If the person is illegitimate, of his or her
mother ; (c) If the person is adopted, his or her adopted father or adopted mother; or (d) If
both parents are dead, person standing in locus parentis to him/her . In the instant case,
since Mary’s father already gave consent, it is fine for Mary if she wants it. For Harry Toh,
he needs consent from anyone under the section.

In short, the marriage in question can only be solemnized if free consent from Mary
can be obtained subject to the requirement that Mary has completed her 16 years and the
acquisition of the license granted by the Chief Minister, and the acquisition of necessary
consent by Harry.

(c ) Arumugam wishes to marry Lachmi at the same temple where their respective parents
had solemnised their marriage many years before.

Section 22(1)(c) of the LRA provides that every marriage under this act shall
be solemnized 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. In other
words, Arumugam is allowed to marry Lachmi at the desirable temple subject to
their marriage is in accordance with section 24.

Section 24(1) provides that Any clergyman, minister or priest of any church
or temple appointed by the Minister to act as Assistant Registrar of Marriages of
the relevant district may after delivery to him of a statutory declaration under
S.22(3)  solemnize any marriage, if the parties to the marriage or either of them
profess the religion to which the church or temple belong, in accordance with the
rites & ceremonies of that religion. In other words, Arumugam and Lachmi have to
first deliver a statutory declaration under section 22(3) to the appointed priest who
will be acting as Assistant Registrar, then only the priest can solemnize their
marriage if the statutory declaration satisfies him. According to section 21(4),
“priest of a temple” includes any member of a committee of management or
governing body of that temple and any committee member of any religious
association. In other words, the priest who is going to be appointed to solemnize
their marriage must be a member of a committee of their desirable temple.

In conclusion, Arumugam and Lachmi can marry at the desirable temple as

long as fulfill all the requirement above.

Always end with section 25 this kind of questions.

 3. Chua and May both Malaysian citizens were married at the Registry in England in March
2021. They have just returned to Malaysia and have been told that they must register
their marriage. They want to know if this correct. Advise them.

The facts of the case shows that the marriage is not done under S 26 solemnization of
marriages in Malaysian embassies as it was not done in a Malaysian Embassy. The facts
show that the marriage is done under Section 104 of the LRA which is the recognition of
marriage contracted abroad. In Section 104© , it is stated that where either parties is a
citizen of or is domiciled in Malaysia, both parties had capacity to marry according to this
act. Hence the marriage is solemnized under section 104 of the LRA.

Next we have to determine whether such marriage need to be registered under the
LRA. S. 27 provides that “The marriage of every person ordinarily resident in Malaysia or
of every person resident aboard who is a citizen of or domiciled in Malaysia after the
appointed date shall be registered pursuant to LRA” Since both Chua and May are
Malaysian citizens and their marriage was contracted after the appointed date, ie 1 March
1982, they will have to register their marriage under the LRA.

Next we have to determine how Chua and May can register their marriage under
the LRA. S. 31(1) provides that ”Where any person is a citizen of or is domiciled in
Malaysia has contracted a marriage aboard, not being a marriage registered under section
26, such person shall” (a) within 6 months after the date of such marriage, appear before
the nearest or most conveniently available Registrar abroad; and (b) register such
marriage. In other words, after Chua and May had married at the Registry in England in
March, they were supposed to appear before the nearest or most conveniently available
Registrar in England and register their marriage within six months, ie anytime between
March and September. However, since Chua and May have just returned to Malaysia in
April and have not registered their marriage yet, section 31(1) won’t apply to them.

In such situation, section 31(1A) will apply. S.31 (1A) provides that “Where before
the expiry of 6 months under paragraph (1)(a), either or both parties return to Malaysia
and the marriage was not registered, such person shall (a) Within six months of arrival in
Malaysia, appear before any Registrar and; (b) Register such marriage. In the instant case,
Chua and May just returned to Malaysia after their marriage in April. Not withstanding
the 6 months period given in S.31(1), they are given a new period of 6 months to register
their marriage with any Registrar from the date of arrival, ie anytime between April and
October 2021  

Next we have to determine what Chua and May need to prepare and do in order to
register their marriage with a Registrar in Malaysia. S. 31 (1B) provides that “A person
who applies to register a marriage under subsection (1) or (1A) shall – (a) Produce to such
Registrar the certificate of such marriage or such evidence either oral or documentary as
may satisfy the Registrar that such marriage took place; (b) Furnish such particulars as
may be required by the Registrar for the due registration of such marriage; and (c) Apply
in the prescribed form for the registration of the marriage to be effected and subscribe the
declaration therein. To apply, Chua and May must produce to the Registrar their
certificate of marriage granted by the English Register to prove that their marriage took
place. They must also provide the particulars of the marriage and apply the registration
through a form and sign the declaration therein.

lastly, we have to determine what is the consequence if Chua and May fail to appear
before a Register and register their marriage. S. 35 provides that “Any person who, being
required by section 31 to appear before a Registrar, omits to do so within the prescribed
time shall, on conviction, be liable to imprisonment for a term not exceeding one year or to
a fine not exceeding one thousand ringgit or both” In other words, ff Chua and May did
not register their marriage within 6 months of arrival in Malaysia, they may be
imprisonment not exceeding one year or be fined not exceeding one thousand ringgit or
both. This further emphasized the importance of registration.

As a conclusion, Chua and May are required to register their marriage .

 Procedure 

S.22 (1)(b) provides that Every marriage under this Act shall be solemnized  in such
place other than in the office of a Registrar at such time as may be authorized by a valid
licence issued under subsection 21(3). In the instant case, since the parties want to marry at
the Tun Razak Hockey Stadium, ie a place other than in the Registrar’s office, they have to
obtain a valid licence issued under section 21(3).

S. 21(1) provides that “The Chief Minister, upon proof being made to him by statutory
declaration that there is no lawful impediment to the proposed marriage, and upon his
being satisfied that the necessary consent, if any, to such marriage has been obtained, or
that the consent has been dispensed with or given under section 12 may, if he shall think fit,
dispense with the giving of notice, and with the issue of a certificate for marriage, and may
grant his licence in the prescribed form, authorizing the solemnization of a marriage
between the parties named in such licence.  To apply, the parties need to submit a statutory
declaration to the Chief Minister in order to obtain the license. The statutory declaration
must declare that there is no lawful impediment to their marriage and that they have
acquired the necessary consent. If Chief Minister is satisfied with the statutory declaration,
he may grant the parties a license to marry.

S.21(3) provides that “The Chief Minister on being satisfied, by statutory declaration or
otherwise as to him seems proper, that it is more convenient that a marriage under section
23 be solemnized in some place other than in the office of a Registrar may issue a licence in
the prescribed form for such purpose. In other words, after the Chief Minister is satisfied
with the statutory declaration, he can issue a licence to allow the parties to marry at the
Tun Hockey Stadium if he thinks it fit.

S.21 (4) provides that “A licence authorizing a marriage to be solemnized in a place other
than the office of a Registrar shall specify the place in which such marriage may be
solemnized.”. It means that in the license, it will be stated the place where the parties is
going to marry, ie Tun Hockey Stadium in the instant case.
S.21(5) provides that “If the marriage authorized by a licence under this section is not
solemnized within one month from the date of the licence the licence shall become void. ” To
apply, Anand and Geetha need to solemnize their marriage within a month after getting the
license, otherwise, the license will become void and they will have to apply a fresh license
again.

S. 22(4) provides that “Every marriage purported to be solemnized in Malaysia shall be

void unless a certificate for marriage or a licence has been issued by the Registrar or
Chief Minister or a statutory declaration under subsection (3) has been delivered to the
Registrar or Assistant Registrar, as the case may be.” To apply, before Anand and Geetha
can solemnize their marriage, the license obtained needs to be delivered to the Registrar or
Assistant Registrar who is going to solemnize their marriage.

S. 23 (mention in one sentence, solemnization process will be accordance with S.23)

Registration 
S.25
4. Anand, aged twenty, wishes to marry Geetha, the 16 year old daughter of his sister. They plan to
have the wedding at the Tun Razak Hockey Stadium as both are keen hockey players and want to
devote their life to hockey. Geetha’s parents are quite happy with the arrangement. Anand’s
father is not happy because he wants Anand to marry Thakurdas’s daughter for whom a big
dowry is being offered by her father. He has told the couple that according to the law their
marriage as planned cannot take place. Anand and Geetha wish to know if he is right.

Advise them as to the law and procedure applicable to their case, explaining the various steps that
have to be taken before the marriage can be solemnized.

First issue is whether the parties have the capacity to marry. In terms of age, S.10
provides that “For a marriage to be valid, the minimum age for marriage for the both
parties are eighteen years. However, a female party who has completed her sixteenth year
can marry if a licence is granted by the Chief Minister under S.21 (2) for the solemnization
of the marriage”. In the instant case, Anand will not encounter any issue as he is twenty-
year-old. For Geetha who is 16, two circumstances will arise. If Geetha has completed her
16 years, she will require a licence from the Chief Minister to marry Anand. If Geetha has
not completed her 16 years, she could not marry Anand at the time until her sixteenth
birthday has passed where she would also need her parents consent under section 12.

In terms of prohibited relationship, S. 11(1) provides that “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.” However, there is an
exception where a Hindu can marry under Hindu law or custom his niece or her uncle. In
this case, Geetha is Anand’s niece. However, exception applies as both parties are most
likely to be Hindu therefore there is no prohibition. 

In terms of requirement of consent, S. 12(1) provides that “A person who has not
completed his or her twenty-first year shall obtain consent in writing before marrying from
the following person” (a) consent of his/her father or mother; (b) If the person is
illegitimate, consent of his/her mother ; (c) If the person is adopted, consent of his/her
adopted father or adopted mother; or (d) If both parents are dead, person standing in locus
parentis to him/her. To apply, as both parties in this case are under the age of 21, they are
required to obtain the necessary consent from the appropriate person in the list. Geetha
would have no problem in obtaining the consent as her parents are quite happy with the
arrangement. This would not be the case for Anand as his father is not happy about the
arrangement as he wants Anand to marry Thakurda’s daughter due to the big dowry.
Furthermore, his action of telling the couple that “according to the law their marriage
planned cannot take place” implied that he might know his minor son will have to rely on
his consent to marry which he will refuse to give.  However, according to section 12(1)(a),
Anand can obtain his mother’s consent as an alternative unless his mother refuses to give
consent as well. S. 12 (2) provides that “If the consent of any person to a proposed marriage
is being withheld unreasonably or all those persons who could give consent in S.12(1) is are 
or that it is impracticable to obtain such consent, application can be made to the court for
consent and such consent shall have the same effect as if had been given by the person
whose consent was required by S. 12(1).” To apply, if both parents of Anand refuses to give
 consent, both parties can apply the consent from the court on the ground that the consent is
being withheld unreasonably as Anand’s father refusal is due to his desire for a big dowry,
which is said to be an unreasonable excuse. If the court is satisfied by the facts, a consent
will be granted which will enable both parties to marry. The decision is final as provided
under section 21(6)/

In terms of gender capacity. S.69 (d) provides that the marriage shall be void if the parties
are not respectively male and female. In this case, both parties are male & female
respectively. Thus, the marriage is valid.

In terms of free consent. S.22 (6) provides that “No marriage shall be solemnized by
the Registrar unless satisfied that both parties freely consent to the marriage” The facts did
not show that any form of duress, threat or coercion was used to induce the marriage. Thus,
the marriage can be solemnized.

As a conclusion, they can marry if consent is granted by Anand’s mother or the

court and the licence is granted under S.21(2).

5. In May 1980, Achi went through a Hindu marriage ceremony with Rajappan at the temple in the
rubber estate where they both worked. A visiting priest from India performed the ceremony.
Achi has just found out that Rajappan has a wife in Johore whom he has married in 1975
according to Hindu rites.

Achi wishes to know:

(i) What is the present legal status of her marriage?

(ii) Should she register her marriage?

Would your advice be different of Achi’s marriage had taken place in May 1982.
6.