INTRODUCTION TO

FAMILY LAW
(LAW 65604)
LECTURE 1
BY DR HEAMA LATHA NAIR
OBJECTIVES
o provide students with an introduction to the areas of law to be
covered within this module;

o understand the scope and concept of Family Law; and

o promote informed debate on the changing role of the family within

society;

o appreciate the Malaysian family law legal framework.

Lecture Outline
hy do we need Family Law?
• An Overview

hat is “family”?
• various definitions

The changing facade of family

Functions of family law

Family Law in Malaysia

Statutes governing family law

Library Exercise
DO WE NEED FAMILY LAW?

WHY?
Introduction
he law relating to the family is of crucial
importance to every individual, whether
adult or child. It is family law that
regulates interpersonal relationships.

amily law provides the legal framework

for the establishment of marriage, the
dissolution of marriage, the legal
consequence of marriage (custody of
minor children, issues in relation to
maintenance, property division and
related issues) and the legal regulation
of domestic violence.

uch of family law nowadays is concerned

with the law relating to children. The
status of a child, its parentage, the rights
of a child, the child’s welfare and the
powers of the state in relation to children
are all central concerns of this subject.
 LAW DISTINGUISHED FROM OTHER LAWS:
How different is Family Law compared to
other areas of law?

Contract
Law

Law of Tort

Constitutional
Law
What is “family”?
Definitions of family

It varies
based on the following views:

Social Phenomenon

Legal Structure

Complex Question

factual Definition
Defining the family?
 A Social phenomenon
 ‘The family is in fact ,a community in itself, a
small, relatively permanent group of people,
related to each other in the most intimate way,
bound together by the most personal aspects
of life; [..] who have to strive continually to
resolve those claims and counter-claims which
stem from mutual but often conflicting needs;
who experience continual responsibilities and
obligations towards each other; who
experience the sense of “belonging’ to each
other in the most intimately felt sense of that
word’.
 R.Fletcher, The Family and Marriage in Britain (1966)
Pelican Books.
The family cont……..
• A Legal Structure
• Article 16 Universal Declaration of Human
Rights 1948:
• 1. Men and women of full age, without any
limitation due to race, nationality or religion,
have the right to marry and to found a family.
They are entitled to equal rights as to
marriage, during marriage and at its
dissolution.
• 2.Marriage shall be entered into only with the
free and full consent of the intending spouses
• 3.the family is the natural and fundamental
group unit of society and is entitled to
protection by society and the State.
The family cont…
• A Complex Question
• “…the family unit may be constructed from a
variety of perspectives including the genetic,
focusing upon the blood-tie; social,
emphasising the functions carried out by
those standing in a family relationship to one
another; psychological, exploring the ties of
affection and emotion between individuals;
legal, defining the family for the purposes of
legally binding decisions and rules; and
ideological, promoting a particular form of
family structure and behaviour as the
desirable norm…”
• G. Douglas, Introduction to Family
Law (2e, OUP, 2004) at p.2
Cont……..

factual definition:
A family is a married, civil partnered or cohabiting couple with
or without children, or a lone parent with at least one child.
Children may be dependent or non-dependent.”
• Population Trends, Office for National Statistics, Statistical Bulletin
– Families and households in the UK 2001-2010.
Changing facade of “family” today

any areas of family law have been required to

change to take into account the varying types of
relationships entered into.

he historical basis of much of family law which is the

married couple still makes up a proportionately
high number of relationships but different types of
relationships such as co-habitation, same sex and
transgender relationships are now being
recognized in many countries.

(However, note same sex and transgender

relationships are NOT recognized in Malaysia)
cont……..
t is therefore true to say that the term ‘family' has no independent general
legal meaning. As discussed above, it changes over time, and according to
the context in which it is used.

he fact that there is not one accepted definition of “family” may not always
present a problem. In law, however, certainty is a key aim and the fact that
the term ‘family' has no generalised meaning can lead to problems. However,
the lack of certainty may be an advantage as it allows the law to develop to
consider sociological and other changes.
Malaysian Perspective
amala M.G Pillai in Family Law In
Malaysia has adopted the
meaning of family to mean:

all persons related by blood or

marriage……A family may
constitute of a parent living with
one or more children”.

• Note: adopting Bromley’s Family

Law (7th Ed)p1.
CLASSROOM EXERCISE - WHO ARE YOUR
FAMILY?

RACE YOUR FAMILY TREE - HOW FAR BACK CAN YOU GO.
 FAMILY LAW
WHAT ARE ITS FUNCTIONS?
FUNCTIONS OF FAMILY LAW
F
amily law deals with the following distinct but related
functions in domestic affairs:

rotection of the weakest: unequal bargaining power.

upport mechanism to respond to family breakdown and to

facilitate disputes resolution.

tatus of children, their protection, their

rights, liabilities and duties.

roperty adjustments/divisions; financial provisions upon

separation or death ; and

o affect social change or law reform.

Protection of the weakest: unequal
bargaining power of members

he courts are empowered to grant non-

molestation orders and exclusion orders to
give protection to the victims of domestic
violence, including wives, husbands, co-
habitants and children.
Support mechanism to respond to family
breakdown and to facilitate disputes resolution

hen the family unit breaks down, the

court has the power to resolve disputes
between members of the family.

he role of alternative dispute mechanism:

mediation, conciliation is also gaining
popularity in resolving disputes between
parties.
Property adjustments/divisions; financial
provisions upon separation or death
hen the family unit ceases to exist through
separation or death, the courts have powers
to make orders for financial provision. On the
breakdown of a marriage, justice requires the
redistribution of capital assets.

f a person dies intestate, the deceased

person’s property has to be distributed
amongst his family members. Hence, the law
of intestate succession is essentially a part of
family law.
Status of children, their protection, their
rights, liabilities and duties

he status of children is a fundamental

question – who prima facie has parental rights
and duties;

hat is in the best interest of the child when

deciding the issue of custody and access upon
divorce of parents;

Issues in relation of adoption and other

matters pertaining to the protection and
rights of the child are all central to family law.
FAMILY LAW IN MALAYSIA
FAMILY LAW IN MALAYSIA
 FAMILY LAW IN MALAYSIA

CIVIL LAW ISLAMIC LAW

(CIVIL COURTS) (SYARIAH COURTS)

GOVERNING ALL GOVERNING ALL

NON-MUSLIMS MUSLIMS
Family law in Malaysia cont…
NON-MUSLIMS
•The main law governing family matters in Malaysia now is
the LAW REFORM ( MARRIAGE AND DIVORCE) ACT 1976
(LRA 1976).
•The Act is applicable to non-Muslims in Malaysia and to non-
Muslims who are domiciled in Malaysia but resident outside
Malaysia.
•The LRA 1976 recognized monogamous marriages.
•It, however, DOES NOT apply to Muslims or to any person
who are married under the Islamic law.
•The case of Re Ding Do Ca deceased brought about reforms
in the family law in the country.
 Non-Muslim’s subjected to various laws: Civil Law
Ordinance 1952,Hindu Laws, Christian Marriage Ordinance
1956 etc before LRA 1976.
Repeal of customary laws and old legislation
s customary laws caused a lot of injustice, an urgent need for reform
was needed.

n 1976, the Law Reform ( Marriage and Divorce) Act 1976 (the LRA)
was enacted and became law on 1 March 1982. In addition to
providing for marriages and divorces, the Act stipulates the law on
maintenance of spouse, former spouses and children, custody of
children and for division of the matrimonial property.

RA 1976, generally, applies to all persons in Malaysia. Section 3(3)

provides that the Act does not apply to Muslims or any person who is
married under the Islamic law.
 STATUES REGULATING FAMILY LAW OF NON-
MUSLIMS IN MALAYSIA

aw Reform (Marriage and Divorce)Act 1976 (LRA 1976); LRA ( Amendment Act 2017;

ourt of Judicature Act 1964 (CJA 1964);

arried Women and Children ( Maintenance) Act 1950;

arried Women and Children ( Enforcement of Maintenance) Act 1968

omestic Violence Act 1994;

hild Act 2001

uardianship of Infants Act 1961

MUSLIMS
•Muslims are governed by the Islamic law of the respective states
and the ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984

 By virtue of Article 74(2) of the Federal Constitution provides

that the State may make laws with respect to any of the matter
enumerated State List, that is to say, the Second List set out the
Ninth Schedule.
• Among the matters listed in the Second List are family law of persons
professing the religion of Islam, including the Islamic law related to
succession, testate and intestate, betrothal, marriage, divorce,
dower, maintenance, adoption, legitimacy, guardianship and gifts.
List IIA - Supplement to State List for State of
Sabah and Sarawak
1. Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law
and personal and family law of persons professing the religion of Islam, including the Islamic
law relating to succession, testate and intestate, betrothal, marriage, divorce, dower,
maintenance, adoption, legitimacy guardianship, gifts, partitions and non- charitable trusts;
Wakafs and the definition and regulation of charitable and religious endowments,
institutions, trusts, charities and charitable institutions operating wholly within the State;
Malay customs. Zakat, Fitrah and Baitulmal or similar Islamic religious revenue, mosques or
any Islamic public places of worship, creation and punishment of offences by persons
professing the religion of Islam against precepts of that religion, except in regard to matters
included in the Federal List; the constitution, organisation and procedure of Syariah courts,
which shall have jurisdiction only over person professing the religion of Islam and in respect
only of any of the matters included in this paragraph, but shall not have jurisdiction in
respect of offences except in so fat as conferred by federal law*, the control of propagating
doctrines and beliefs among persons professing the religion of Islam; the determination of
matters of Islamic law and doctrine Malay custom.
OTE:-

ot all laws apply to all the States in the country.

• Some Statutes apply to the whole Malaysia, while others are confined to
Peninsular Malaysia, Sabah or Sarawak.
• The statutes that apply to 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 the
Distribution Act 1958 apply only in Peninsular Malaysia and Sarawak,
• While Peninsular Malaysia, Sabah and Sarawak each has its own adoption
statutes.
LIBRARY RESEARCH (Student Learning Time )
You are to conduct library research to research on the following:-
You may have a table/ chart for ease of reference in respect of the
following:-
1.List and describe the relevant provisions under the LRA 1976 in
relation to Marriage, Dissolution of Marriage, Custody of Minor
Children and Maintenance.
2.What are the reform under the LRA ( Amendment) Act 2017
3.Categorise the various sources of law governing family law in
Malaysia : Civil and Islamic Law

NOTE: This exercise is to be conducted over 2 weeks (2 hours of SLT)

and is very relevant as we study the subsequent topics for this module.
ANY QUESTIONS?