INTRODUCTION TO FAMILY LAW

DEFINITION
All persons related by blood/marriage.

A basic social unit constituted by at least 2 people - whose

relationship may fall into 1 of 3 categories:-
a) Husband & wife
b) Parent & children
c) Brother & sister
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 Definition of marriage

HYDE V HYDE (1866) LR 1 P & D 130

Lord Penzance:
“A voluntary union for life of one man & one
woman to the exclusion of all others.”

Legal definition
An agreement by which a man & a woman enter
into legal relationship with each other &
which creates & imposes mutual rights &
duties.
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 Capacity

Valid
marriage
Procedures
&
formalities

3
 What are the legal consequences
that flow from that relationship?

Status of the child

Rights and
obligations

4
 Definition
&
alteration
of status

Property
Function
adjustment
& division
of Family Resolution
of disputes

Law

protection

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 CHARACTERISTIC OF FAMILY LAW
IN MALAYSIA

1) Based on personal laws

2)After 1st March 1982 -

LRA
Law Reform (Marriage &
Divorce) Act 1976
Monogamous
marriage
matters
incidental thereto
Solemnization &
law relating to divorce
registration

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Marriages solemnized prior to 1st March 1982 ?

S.4 LRA – All prior marriages are deemed to be valid

and registered under the LRA.
It is necessary to know the various marriage laws
existing prior to LRA – relevant to determine

divorces

legitimacy of children
custody & guardianship
distribution of property

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 MARRRIAGES BEFORE LRA 1976

STATUTORY
NON STATUTORY

W.M
Civil Marriage Ord. 1952
Christian Marriage Ord. 1956
Registration of Marriage Ord.1952

Chinese
custom
Hindu custom

SABAH
Christian Marriage Ord. 1919 Common Law
Marriage Ord.1959 (inter racial/ mixed
marriage)
SARAWAK
Church & Civil Marriage Ord. 8
STATUTORY MARRIAGE IN
WEST MALAYSIA

Min. age : male – 16 , female – 14 ( s. 31 )

C.M. O Consent of guardians / parents - (s.10 )

Consent of the parties – (ss.24,26 & 30)
1952 Kindred & Affinity - (s. 29 & 2nd
schedule)
Avoidance of marriage by prior
subsisting & subsequent
marriage (ss. 30, 4(1) & (2)

Procedures & formalities-

(ss. 11-19, ss. 24-26, s.30)
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 Ch . M. O
1956

min. age – male – 16 ,

female – 14 (s.28(1)
Kindred & affinity
Consent(s.27
of guardians/parents
& 2nd
(s.9 ) sch.

Consent of parties
( s.15(2)(b) – (indirect prov.) Avoidance of marriage
by prior subsisting
marriage
(s.29(1)(c)

Procedures & Formalities – Part V of the Ord.-

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 REGISTRATION OF
MARRIAGE
ORDINANCE 1952

Governs the registration of marriages which are not solemnized in

accordance with CMO 1952 & ChMO 1956

s.11 – Registration/non registration - x affect the validity of the

marriage

Extended to Sabah & Sarawak from 1st March 1982 – s.109(3) LRA

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 NON STATUTORY MARRIAGES
1. CHINESE
i) Nature
 Polygamous
Applies to all Chinese irrespective of religion / domicile

1. Dorothy Yee Yeng Nam v Lee Fah Kooi [1956] 1 MLJ 257
2. Six Widows case [1908] 12 SSLR 120
3. Re Loh Toh Met [1961] MLJ 234
4. Re Ding Do Ca [1966] MLJ 220

How to prove:-
a) Long continued cohabitation
b) Intention to form a permanent union
c) Repute of marriage
*The most important element is (b)

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ii) Types of Marriage

1. Principal (tsai)
- arranged by the family
-betrothal ceremony
- marriage ceremony – red chair / serving tea to the elders

2. Secondry (tsip)
- Husband’s own choice
- Ceremonies without connection of the family
-Public announcement /dinner party
- Initiated to the husband’s family & serving tea to the 1st -
wife -
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Re Lee Siew Kow[1952] MLJ184
Held: The ingredients of a valid Chinese customary marriage was
a marriage based on mutual consent. The requirements of
ceremony, a contract, & repute of marriage were only evidentiary &
not essential for the validity of the marriage

Lam Wai Hwa[1983] 2 MLJ 302-

Yeap Leong Huat[1989] 3 MLJ 157
According to Chinese custom a man can have one principal wife at any
one time. There cannot be two principal wives existing at the same time. But
he can have one or more secondary wives without a principal wife.
- Re Estate of Chong Swee Lin [1997] 4 MLJ 464
- Yew Kin Eng[1997] 5 MLJ 1 14
 HINDU CUSTOMARY MARRIAGE

Nature
-Mainly polygamous except for Ceylon Tamil Hindu – Ceylon
Marriage Registration Ord.1908 (Monogamous)
Marriage rituals are mandatory – failure to comply / fulfill -
will render the marriage void.

How to prove?
- Evidence from the Priest
- Expert of Hindu custom
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Ramasamy v PP [1938] MLJ 133
Cussen J : In determining the sufficiency of evidence, 2 matters
must be satisfied:-
a) what the actual ceremony was
b) whether it constituted a valid marriage

Ceylon tamil hindu custom– marriage is monogomous –

Parameswari v Ayadurai [1959] MLJ 195-

Nagapushani v Nesaratnam & Anor [1970] 2 MLJ 8

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 MIXED/COMMON LAW MARRIAGES

Not purely solemnised under a specific custom

Issac Penhas v Tan Swee Eng [1953] MLJ 73

Privy Council held:
Marriage between a Jew & a non-Christian woman is valid even
though there was no form of ceremony of marriage has been
observed by both parties.

- Chua Mui Nee v Palaniappa [1967] 1 MLJ 270

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