INSYIRAH MOHAMAD NOH UKM LAW SCHOOL 2018

CHAPTER 3: MARRIAGE/CONTRACT OF MARRIAGE/PERKAHWINAN

CHECKLIST

APPLICATION OF LRA

A. MARRIAGES BEFORE THE ENFORCEMENT OF LRA (1st MARCH OF 1982)

1. STATUTORY MARRIAGES
2. COMMON LAW MARRIAGES
3. CUSTOMARY MARRIAGES
i. CHINESE
ii. HINDU
iii. NATIVES OF SABAH & SARAWAK
iv. ABORIGINES OF PENINSULAR MALAYSIA

B. MARRIAGES AFTER THE ENFORCEMENT OF LRA (1st MARCH OF 1982)

1. REQUIREMENTS OF MARRIAGE
2. PROHIBITIONS OF MARRIAGE
3. PROCEDURE & SOLEMNIZATION
i. SOLEMNIZATION UPON PRESENTATION OF A CERTIFICATE OF
MARRIAGE
ii. SOLEMNIZATION UPON PRESENTATION OF A LICENSE
iii. SOLEMNIZATION THROUGH RELIGIOUS CEREMONY, CUSTOM OR
USAGE
iv. SOLEMNIZATION OF MARRIAGES ABROAD

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APPLICATION OF LRA

 Law relevant to non-Muslim in Malaysia  Law Reform (Marriage and Divorce) Act 1976
(LRA)
 Gazetted: 1976
 Enforcement: 1st March 1982 (throughout the whole Malaysia)
 Provided for (inter alia):
i. Monogamous marriages
ii. Solemnization
iii. Registration of such marriages
iv. Matters incidental thereto
 Application:
i. To the whole of Malaysia – English text is the authoritative text1
ii. S.3(1):
a. The Act shall apply to all persons in Malaysia & those who domiciled in
Malaysia but are the residents outside Malaysia
b. Although that person is domiciled in other country but he is subjected to
the act if he is a resident in Malaysia at the relevant point of time
c. Domicile in Malaysia isn’t the requirement for application of the Act
iii. S.3(2):
a. A person who is a citizen of Malaysia shall be deemed, until the contrary is
proven, to be domiciled in Malaysia
iv. S.3(3):
a. The act shall not apply to a Muslim or any person who is married under
Muslim law
b. No marriage of 1 of the parties which professes Islam shall be
solemnized/registered under LRA
c. Exception: Divorce cases between a Muslim & non-Muslim
d. Conclusion: the act is only applied to
o non-Muslims
o non-Muslim marriages
o divorce cases between non-Muslim & Muslim (S.51)
v. S.4:
a. LRA shall not apply to any native of Sabah/Sarawak/any aborigines of
Peninsular Malaysia  their marriage is governed by native customary
law/aboriginal custom
UNLESS
o He elects to marry under the act
o He contracted his marriage under the Christian Marriage Ordinance

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PU (B) 127/1976

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o He contracted his marriage under the Church and Civil Marriage

Ordinance
b. The native of Sarawak/Sabah/aborigine has the choice whether he wants
to be subjected under LRA or not
c. If a native Sarawak/Sabah/aborigine chooses to marry under LRA he’ll
be subjected to the provisions of LRA (in the matters of marriage, divorce,
etc.)
d. If a native of Sarawak/Sabah/aborigine doesn’t want to marry under LRA
 he isn’t subjected to LRA
 LRA doesn’t apply to him
vi. S.4(1):
a. Nothing in the LRA shall affect the validity of any marriage solemnized
under any law, religion, custom or usage prior to 1/3/82
b. The legal status of these marriages will have to be ascertained
vii. S.4(2):
a. If such marriage is valid under the law, religion, custom or usage  shall
be deemed to be registered under LRA
b. Expressed condition: Such marriage is valid in accordance with the law,
religion, custom or usage under which it’s solemnized
c. From 1/3/82  If the marriage had been/was deemed to be registered
under LRA  the courts have jurisdiction to entertain a petition for
divorce, judicial separation or nullity of marriage
viii. S.4(3):
a. Prior to 1/3/82  A marriage that was solemnized under any law, religion,
custom or usage shall continue until dissolved:
o By the death of 1 of the parties
o By order of a court of competent jurisdiction (decree of divorce)
o By a decree of nullity made by a court of competent jurisdiction

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A. MARRIAGES PRIOR TO THE ENFORCEMENT OF LRA (BEFORE 1st MARCH OF 1982)

Marriages solemnized prior to 1st March of 1982 included marriages solemnized in

accordance with:

 Provisions of the statutes (eg. Christian Marriage Ordinance 1956 & Civil Marriage
Ordinance 1952)
 Common law marriages
 Customary marriages: Chinese, Hindu, natives of Sabah & Sarawak, aborigines
 Muslim marriages

1. STATUTORY MARRIAGES
 Peninsular: solemnized under
o Civil Marriage Ordinance 1952
o Christian Marriage Ordinance 1956
 Re Loh Toh Met, Decd, Kong Lai Fong & Ors v Loh Peh Heng [1961]
 Sarawak:
o Church and Civil Marriage Ordinance
o Didn’t apply to Muslims, Hindus, Dayaks & others who’re subjected to their
respective laws/customs
 Sabah:
1. Christian Marriage Ordinance 1953
2. Marriage Ordinance 1959
o Lee Nyuk Wan @ Julia v Chin Oi Jin [1996]
o Kupok binte Limpongan v Kandilong binte Lantayan [1967]

2. COMMON LAW MARRIAGES

 Marriage under common law:
 Voluntary union between a man and a woman for life to the exclusion of all others
– Hyde v Hyde (1866)
 Common law marriages in Malaysia refer to:
 2 persons cohabiting for a considerable length of time accompanied by the repute
and presumption of marriage although the initial marriage ceremony wasn’t
complete and might have been defective
 Cases:
1. Carolis De Silva v Tim Kim (1902)
o Respondent was a Straits-born Chinese
o Carolis isn’t Chinese but a Sinhalese
o Respondent accompanies Carolis to the Szya Meow Temple, KL  lit joss
papers & candles  declared themselves as husband & wife  they threw
feast for their friends

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o After ceremony: They lived together  had a child who was registered as
Carolis’ child
o Jackson JC: The marriage was valid & lawful
“The law also will presume a contract of marriage from evidence of
cohabitation with the habit & repute of matrimony without any or with
imperfect formalities for its commencement.”

2. Isaac Penhas v Tan Soo Eng [1953]

o Mixed marriages between inhabitants of different religious belief or races
could validly be contracted in Singapore

3. Chua Mui Nee v Palaniappan [1967]

o Since the parties were a Hindu and a Buddhist, the law which governed such
marriage shouldn’t be Hindu law but the law of the place where the marriage
was contracted
o The marriage was held to be valid – Barakbah LP, Azmi Cj & Raja Azlan Shah

3. CUSTOMARY MARRIAGES
Sir Peter Benson Maxwell – Reg v Willans (1858)
“But where the law of the place is inapplicable to the parties by reason of peculiarities of
religious opinions and usages, then from a sort of moral necessity the validity of the
marriage depends upon whether it was performed according to the rites of their religion.”

I. CHINESE
 The ingredient of a valid marriage was a marriage based on mutual consent
 The requirements of ceremony, a contract and repute of marriage were only
evidentiary  not essential for the validity of the marriage
 Cases:
1. Dorothy Yee Yeng Nam v Lee Fah Kooi [1956]
2. Yeap Leong Huat v Yeap Leong Soon & Anor [1989]
3. The Six Widow Case (1908)

II. HINDU
 The view in Reg v Willans regarding customary marriages is applicable to Hindus
as well
 Cases:
1. Rex v Govidasamy [1933]

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o The accused was sought to prove the marriage by proof of a ceremony

of marriage, by the production of a marriage certificate, and by evidence
of cohabitation and repute

2. Paramesuari v Ayadurai [1959] – Expert evidence

o The evidence that the she & the respondent were parties to a valid &
binding monogamous marriage was given by:
- The priest who performed the marriage ceremony
- Expert witness who gave expert evidence on the traditional
features of a marriage between Ceylon Tamil Hindus
- Mere claiming isn’t sufficient

3. Nagapushani v Nesaratnam & Anor [1970] – Other evidences

o The priest who performed the ceremony couldn’t be located but P
described the ceremony in detail
o She produced a ‘thali’ (a golden chain)  she claimed that D had tied it
around her neck during the wedding ceremony  a symbol of marriage
o Raja Azlan Shah J concluded: Based on the evidence 
- P & D had gone through a ceremony of marriage according to Hindu
rites
- Cohabited for a number of years
- Enjoy the reputation of husband & wife

III. SABAH & SARAWAK

 Marriages were held according to customs or any written laws
 Case: Nancy Kual v Ho Thau On [1994]

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B. MARRIAGES AFTER THE ENFORCEMENT OF LRA (FROM 1ST MARCH OF 1982)

**Undang-undang Keluarga (Sivil) – Shamsuddin Suhor & Noor Aziah Awal (2007)

Akta ini bertujuan untuk membuat peruntukan berkenaan dengan:-

1. Perkahwinan monogami & upacara pendaftaran perkahwinan itu
2. Meminda & menyatukan undang-undang berhubung dengan penceraian
3. Membuat peruntukan berkenaan perkara-perkara yang berkaitan dengannya

3 perkara penting yang ditegaskan melalui Akta ini:-

1. Penyatuan semua undang-undang berhubung dengan perkahwinan & penceraian
bagi bukan Islam
2. Semua perkahwinan merupakan perkahwinan monogami
3. Semua perkahwinan hendaklah didaftarkan

1. REQUIREMENTS

MONOGAMOUS AGE – S.10

MARRIAGES - S.5

REQUIREMENTS
OF MARRIAGES

MAN AND CONSENT –

WOMAN – S.12(1)
S.69(d)

NOT IN
PROHIBITED
RELATIONSHIP – S.11

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1. SOLEMNIZATION OF MARRIAGE UNDER THE LRA BY A REGISTRAR

 S.28 LRA – provides the appointment of Registrars
 A marriage under the LRA may be solemnized only by a Registrar
 Registrars:-
o Registrar of Marriages appointed under this Act
o Registrar-General
o Assistant Registrar-General
o Superintendent-Registrar
o Deputy Registrar
o Assistant Registrar of Marriages

2. MONOGAMOUS MARRIAGE*
 S.5 – Disability to contract marriages otherwise that under this Act
 A man can’t have 2 wives at one time
 If a man has already married a woman, he is prohibited from marrying another
woman & vice versa
o S.5(1): A person who (on the appointed date @ after 1st March of 1982)
is lawfully married under any law, religion, custom or usage to 1/more
spouses shall be incapable of contracting a valid marriage with any
other person  whether the marriage is contracted within/outside
Malaysia
- If a man has 2 wives from 2 customary marriages prior to 1/3/82 
those 2 marriages are valid  He is incapable of marrying a 3rd
woman after that date
- S.6: Every marriage contracted in contravention of S.5 shall be void
- If a man lawfully married during the continuance of such marriage
contracted another union with any other woman  such woman
would only be his mistress
o S.7: It’s an offence for any person who was lawfully married to purport
any other marriage in contravention of S.5  this is also an offence
within the meaning of S.494 PC
 Cases:- PP v Rajappan [1986]
- This is a case decided before the 1986 amendment of LRA come into force (the
amendment was made in regard to this case)
- A Malaysian man, who was already married when he went abroad, had
married another woman
- Court held: The courts in Malaysia didn’t have the jurisdiction to try him for
the offence of bigamy because the 2nd marriage took place in another country

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3. AGE*
 S.10 – Age of the parties
 Male : 18 yo
 Female : 18
: 16 yo – the solemnization of such marriage will be authorised by a license
granted by the Chief Minister under S.21(1)
 Chief Minister:-
o Malaysian Embassy, High Commission, Consulate: Malaysian
Ambassador, High Commissioner, Consul
o Federal Territory: Deputy Minister in the Prime Minister’s Department
o State: Chief Minister/Menteri Besar
 A marriage of minors will be held void as stated in S.69(b)

4. NOT IN A PROHIBITED RELATIONSHIP (RESTRICTIONS ON PROHIBITED R/SHIPS)*

 S.11 – The parties must not be in a prohibited relationship/degree
 Prohibited relationships:-
o S.11(1): A person can’t marry his/her grandparent, parent, grandchild,
child, sister, brother, great-aunt, great-uncle, aunt, uncle, niece,
nephew, great-niece, great-nephew – (anyone who was blood related)
EXCEPTION – a Hindu is allowed to marry his sister’s daughter (niece)
or her mother’s brother (uncle) under Hindu law or custom
o S.11(2): A person can’t marry his/her grandparent or parent, child or
grandchild of his/her spouse or former spouse
- A man can’t marry his ex-wife’s daughter from her previous
marriage or from her subsequent marriage
- A woman can’t marry her ex-husband’s father (her former father-
in-law
o S.11(3): A person can’t marry the former spouse of his/her grandparent
or parent, child or grandchild
- A woman can’t marry the divorced 1st husband of her mother
- A man can’t marry the divorced wife of his son
o S.11(4): A person can’t marry another whom he/she has adopted or by
whom he/she has been adopted
- 1 of the effects of adoption  the child is considered as a child born
out of lawful wedlock  the liabilities, duties and rights of adopter
and adoptee are to regarded as if they’re parent & child2
- If a man is prohibited to marry his daughter  he should also be
prohibited from marrying his adopted daughter (same goes to the
woman)
o S.11(5): R/ship of the half blood is as much as an impediment as the
r/ship of the full blood

2
S.9(1) of the Adoption Act 1952

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- Prohibited marriage include a marriage between half-siblings

- It’s immaterial whether a person was born legitimate/illegitimate

5. CONSENT*
 S.12 – Requirements of consent by a parent
 Consent must be obtained from parent
PARENT
o S.12(1): If the girl and boy are less than 21 yo  the necessary consent
to the marriage must be obtained
- The consent must be in writing
- Consent can be obtained from:-
 Father or mother
 Father or mother (for cases of illegitimate child/death of parent)
 Adopted father or mother (for adopted child)
 A person standing in loco parentis3 (if the child has no parents &
was under the guardianship of the said person)
o S.12(2): Allowed the court, on application, to give consent for any
person for marriage
- This consent shall have the same effect as if it had been given by
the person whose consent was required by S.12(1)
- The situation where the court may do so are:-
 The consent of any person to a proposed marriage is being
withheld unreasonably
 All those persons who could give consent under S.12(1) are dead
 It’s impracticable to obtain such consent
o S.12(5): Marriage of a minor who has previously married
- If a person I below 21 yo and is a widow/widower or a divorcee 
he/she isn’t a minor
- The consent to the marriage of a minor shall not be necessary if the
minor has been previously married
- Case: Re CHS [1997]
 This case was decided before the amendment of S.124
 Facts of the case: The mother of a minor had asked the court to
dispense with her husband’s consent and that she be allowed to
give the necessary consent to her daughter’s marriage. The
daughter had undergone a customary marriage with one LEW
and wished to marry in accordance with the LRA. She was also 6
months’ pregnant at the time of the application
 Court held: Augustine Paul CJ – The mother could consent only
if the child’s father is dead and not on any other grounds  If

3
Loco parentis – A person who stands vis-à-vis the child as the child’s parents OR the child’s guardian
4
S.3(3), 12(1), 51, 51A, 76, 95 were amended in October 2017

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the father’s consent is impracticable to be obtained, therefore,

the court could give its consent instead

 S.22(6) – Requirements of consent by both parties

 Consent must be obtained from both male and female
PARTIES
o S.22(6): No marriage shall be solemnized unless the Registrar is
satisfied that both parties to the marriage are freely consented thereto
o If any person uses any force/threat to compel a person to marry against
his will  shall be guilty of an offence  will be held liable on
conviction to imprisonment (< 3 years) or to a fine (< RM 3000) or both5

6. THE COUPLE MUST BE A FEMALE & MALE*

 S.69(d) – The parties must be respectively be male & female
 If 1 of the parties isn’t female and the other a male  The marriage will be
rendered void
 Case: Corbett v Corbett (otherwise Ashley) [1970]
- The parties had gone through a marriage ceremony
- At that time the petitioner knew that the respondent had been registered at
birth as a male and had 3 years earlier undergone a sex-change operation
consisting in removal of the testicles & most of the scrotum & the formation
of an artificial vagina & had lived as a woman
- They had lived together in matrimony for only 14 days
- The petitioner had filed a petition for a declaration that the marriage was null
& void because the respondent was a person of the male sex
- Court held: Omrod J – There are 4 criteria for assessing the sexual condition of
an individual:-
1. Chromosomal factors
2. Gonadal factors
3. Genital factors
4. Psychological factors
- His Lordship concluded that the marriage was void as the respondent wasn’t a
woman for the purposes of marriage but was a biological male and had been
so since birth
 Other cases:-
1. Regina v Tan & Others [1983]
2. Lim Ying v Hiok Kian Ming Eric [1992]

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S.37(a)

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2. PROHIBITIONS OF MARRIAGE
 The prohibitions of marriage can be found under S.69
 Any marriage that has been prohibited, if contracted, will be rendered void
 The prohibitions are:-
SECTIONS DESCRIPTIONS
69(a) Polygamous marriage
69(b) Marriage of a minor (Male: < 18, Female: < 16 < 18)
69(c) Prohibited degrees of r/ship
69(d) Parties aren’t respectively male & female

3. PROCEDURE & SOLEMNIZATION

i. SOLEMNIZATION UPON PRESENTATION OF A CERTIFICATE OF MARRIAGE

1. S.14: Notice of marriage – Parties sign & give notice to the Registrar
2. S.16: Declaration to accompany notice – Notice given under S.14 must be
accompanied by a written declaration
3. S.15: Publication of notice – Registrar will publish the notice by posting a
copy & to make it visible to the public
4. S.17: Issue of certificate of marriage – The Registrar will issue a certificate of
marriage after the expiration of 3 moths from the date of the publication of
the notice
5. S.18: Marriage to take place within 6 months – Marriage must be held
within 6 months after the date of the publication of the notice  If the
marriage doesn’t take place: the notice & all proceedings consequent
thereon shall be void & a fresh notice shall be given before the parties can
lawfully marry
6. S.19: CAVEAT – The caveat may be entered by interested persons who are
aware of the intended marriage and who may have objections thereto
7. S.22: Solemnization of marriages – Every marriage under LRA shall be
solemnized at:-
a. The Registrar’s office (S.22)
b. Malaysian Embassies etc. & abroad (S.26)
c. Abroad & not being a marriage registered under S.26 (S.31)

ii. SOLEMNIZATION UPON PRESENTATION OF A LICENSE

 The Chief Minister only needs to grant a license in the prescribed form &
authorizing the solemnization upon an application between the parties named in
the license
 The parties may be married in accordance with S.23
 The marriage shall be registered in accordance with S.25

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iii. SOLEMNIZATION THROUGH RELIGIOUS CEREMONY, CUSTOM OR USAGE

 LRA enables marriages to be solemnized according to religion, custom or usage
 It’s permissible to not register the marriage as long as the solemnization was
done in accordance with LRA
 S.24: The parties to the intended marriage have to deliver to the clergyman,
minister or priest of any church or temple appointed by the Minister to act as
Assistant Registrar
 Priest of a temple: Includes any member of a committee of management or
governing body of that temple & any committee member of any religious
association
 The marriage, if allowed, must be held in accordance with the rites and
ceremonies of that religion
 After the solemnization of the marriage, the Assistant Registrar shall register the
marriage in accordance with S.25

iv. SOLEMNIZATION OF MARRIAGES ABROAD

 S.26: Solemnization of marriages by the Registrar appointed under S.28(4) ath
the Malaysian Embassy, High Commission or Consulate in any country

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