INTRODUCTION TO

FAMILY LAW
 Introduction
• A family in the modern world consists of a man, a woman and
their children.
• The law normally defined a family based on the relationship
related by blood, marriage, adoption and having a shared
commitment to the mutual relationship.
• In Malaysia, the family is still limited to a heterosexual
marriage between a male and female.
• Hyde v Hyde
• Marriage is a “voluntary union between a man and a
woman for life to the exclusion of all others”
• Family law strives to prevent divorces, the birth of
illegitimate children and the breakup of families, if any
of these occurs, the law comes to the rescue and assist
parties concerned.
 Functions of Family Law

Family law sets out the;

• rights, duties, powers and liabilities of spouses and
children
•provides for enforcement of those rights and liabilities
• dissolution of marriage
 Cont…

• A marriage is a domestic contract which is legally

binding.
• the procedures for marriage and divorce
• the rights and duties of both parties towards each other
and the children during the subsistence of the marriage
and upon the dissolution of the said marriage.
• Domestic Violence Act 1994, provides of making of non
molestation orders and orders and orders and excluding
a party from the matrimonial home.
 Nature of Family Law
• Different races, religious, races and customs and
usages in family matters.
• Chinese subjected to personal law of Chinese
• Hindu law in family matters govern followers of
Hindu religion.
• Muslims are governed by Islamic family law.
 Continue..

The law Reform (Marriage and Divorce) Act 1976 (LRA)

• Enforced throughout Malaysian from 1 March 1982
• Provide for monogamous marriages and the solemnization
and registration of such marriages
• To amend and consolidate the law relating to divorce
• To provide for matters incidental to law on maintenance for
spouses and former spouses, and children, the custody of
children and matrimonial property.
• Generally applies to all persons domiciled in Malaysia but
who are resident outside in Malaysia.
• Does not apply to a Muslim or person who is married under
the Islamic law.
• LRA omitted providing for adoption and number of areas of
laws.
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• There is no one single family law system which applies

to the whole country.
• The statutes that applies to the whole country include
the LRA, the Legitimacy Act 1961 and the Maintenance
Orders (facilities for Enforcement) Act 1949.
• The Married Women and Children (Maintenance Act)
1950 and Distribution Act 1958 apply only to Peninsular
Malaysia.
• For Muslims too, not the same statutes applies to all of
them in Malaysia.
 Statutes
1. Law Reform (Marriage and Divorce) Act 1976
2. Legitimacy Act 1961
3. Adoption Act 1952
4. Registration of Adoption Act 1952
5. Married Woman Act 1957
6. Guardianship of Infants Act 1961
7. Married Women Children Maintenance Act 1950
8. Child Act 2001
9. Domestic Violence Act 1994
 Concept of Domicile and Residence

• Section 3(1) provides that LRA shall be applicable to

all persons in Malaysia and to all persons domiciled
in Malaysia
• Section 3(2) states that a person who is a citizen of
Malaysia shall be deemed to be domiciled in
Malaysia.
• The LRA will be applicable to any person who is
residing or domicile in Malaysia.
 Cont…

• Domicile is also required for the validity of marriages ,see

section 26(1) ( c), section 104(b) and ( c) and section 105 (b) and
(c) LRA
• Domicile will be considered in section 75 (3) LRA for legitimacy of
a child where a decree of nullity is granted
• Domicile is important for the court’s jurisdiction in divorce
application vide section 48(1)(c ) LRA
• S49 LRA: The court will have jurisdiction to entertain proceedings
by a wife although the husband is not domiciled or resident in
Malaysia subject to section 49(1)(a) and section 49(1)(b)
 Domicile

• Definition of domicile:
• Domicile means a place of residence or ordinary
habitation; a house or a home; the place where one
has his permanent residence, to which if absent, he
has the intention of returning.
 Cont…
• Domicile determines a person’s civil status such
as his rights and other obligations especially
under family law.
• The general principle is that everyone will have a
domicile at any one time. The type of domicile
may be different.
Types of domicile
 Domicile of Origin

Domicile of origin is obtained at birth. The law attributes

to every individual as soon as he is born the domicile :
(i) Of his father if the child is legitimate
(ii) Of his mother if the child is illegitimate
Domicile of origin is for life, nevertheless this domicile of
origin can be suspended if a person acquires a domicile of
choice.
 Domicile of Choice
• Domicile of choice may be acquired by any person who
has attained the age of 18 years since he is considered
as an adult according to the Age of Majority Act 1971.
• A change of domicile must be proved by the person
who asserts the same.
• The intention to change the domicile must be proved
clearly.
• The change in place of abode or residence must be
voluntary and not due to compulsion.
• A change of residence must be followed by an
intention to live in the place on a permanent basis.
 Cases
- Udny v. Udny (1869) LR 1 Sc & Div 441
- Shaik Abdul Latif v. Shaik Elias Bux [1915]1 FMSLR
204
- Kanmani v. Sundarampillai [1957] 23 MLJ 172
- Joseph Wong Phui Lun v. Yeoh Loon Goit
- Melvin Lee Campbell v. Amy anak Edward Sumek
[1988]2 MLJ 338
 Domicile of Choice

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

• Whether Udny was still domiciled in Scotland at
the time his matrimonial affairs were being
determined.

• Udny sold his house in England, together with its

furnishings and furniture and left for France.
• The court held that his domicile was revived and the
law applicable to him was that law of his domicile of
origin that is, Scotland
Case: Shaik Abdul Latif V Shaik Elias Bux (1915) 1 FMSLR
204
• The deceased had a domicile of origin in Hong Kong
• Moved from Hong Kong to Singapore then to Kuala
Lumpur, where he lived for 19 years until his death.
• Built a home at Selangor, no other property at Hong
Kong and never returned to Hong Kong.
• The Court decided that the deceased had acquired a
domicile of choice in Selangor.
Case: Kanmani v. Sundarampillai [1957] 23 MLJ 172

• Respondent (husband) had made no attempts to secure a

permanent dwelling in Malaya and he had made no
attempt to take out Federal citizenship and as a result his
domicile is still Ceylon and the petitioner’s domicile is
Ceylon.
Case: Joseph Wong Phui Lun v. Yeoh Loon Goit [1978] 1
MLJ 236
• The petitioner became a permanent resident of
Singapore and was issued a blue card.
• Furthermore since he resigned from The Royal Selangor
Club and became a member of Singapore Island Country
Club, he had acquired the domicile of choice in
Singapore.
 Case: Melvin Lee Campbell v. Amy anak Edward Sumek
[1988]2 MLJ 338

• The court held that he had not been successful in proving

that he had acquired domicile of choice in Malaysia
although he had the intention to invest in Malaysia,
married a native of Sarawak and arranged the child of the
marriage to reside and to be educated in Sarawak.
 Domicile of dependence
2 types of domicile of dependence :
(i) Domicile of dependence of a child
(ii) Domicile of dependence of a wife
•Each child attains a domicile of origin upon birth, and
this is normally that of his father, if the child is
legitimate.
•If the child is illegitimate, he follows the domicile of his
mother.
 Cases

• Ang Geck Choo v. Wong Tiew Yong [1998] 1AMR 89

• Melvin Lee Campbell v Amy Anak Edward
• Re Beaumont (1893) 62 LJ Ch 923
• In Maria Hertogh [1951] MLJ 164
Case: Ang Geck Choo v Wong Tiew Tong (1997)
3 MLJ 467

The petitioner wife was originally domiciled in Singapore,

but according to the law of domicile applicable in Malaysia
her domicile changed to that of Malaysia upon her
marriage to her Malaysia husband.
 Re Beaument (1893) 3 Ch 490

• A mother and her infant children were domiciled in

Scotland. Upon her marriage with her second husband,
she moved to England, her domicile changed to
England.
• One of her children, Catherine did not follow to England
and stay at Scotland until she died.
• Catherine changed her own domicile, therefore her
domicile is at Scotland.
 Matrimonial domicile

• Matrimonial Domicile refers to a place where husband

and wife have established their home. It is also known
as matrimonial home.
• Case: Radwan v Radwan (1972) 3 All ER 1026
• The marriage was valid since her capacity to enter
into polygamous union was governed by the law of
Egypt.
 Residence

•Residence is to have one’s usual dwelling place or abode;

to reside.
•In the case of Fox v Stirk & Anor [1970] 3 All ER 7
(CA),residence has been defined as ‘physical presence and
an intention to remain in the same place for a sufficiently
long period to make the presence more than fleeting or
transitory’
 Residence

• LRA requires residence as a pre-requisite requirement for

the court’s jurisdiction . This can be seen in:
• (i) Judicial separation-Section 48 (2) ( c)where both parties
to the marriage reside in Malaysia at the time of the
commencement of proceedings
• (ii) Divorce-section 49(1)(b)the wife is resident in Malaysia
and has been ordinarily resident in Malaysia for a period of
two years immediately preceding the commencement of
the proceedings
• Residence is also important for jurisdiction of the court in
annulment marriages in section 67( c).
• Please read:
• Mahon v Mahon [1971] 2 MLJ 266
THANK YOU