TAYLOR’S LAW SCHOOL

BACHELOR OF LAWS
FAMILY LAW
(LAW65604)
ONLINE TUTORIAL QUESTIONS

INSTRUCTIONS FOR ONLINE TUTORIALS.

vPLEASE PREPARE THE QUESTIONS AS ASSIGNED BELOW. EACH

MEMBER OF THE GROUP MUST PARTICIPATE DURING TUTORIALS. EACH
GROUP IS GIVEN ​APPROX 20 MINS​TO PRESENT THEIR ANSWERS (YOU
CAN PRESENT YOUR ANSWERS IN THE FORM OF A WORD DOCUMENT,
POWERPOINT SLIDE OR ANY OTHER METHOD DEEMED FIT)
v​A TEAM’S INVITE WILL BE SCHEDULED​FOR THE TUTORIAL SESSIONS.
vFOR EASE OF REFERENCE, I HAVE INCORPORATED YOUR TUTORIAL
GROUPING.

TUTORIAL 1: INTRODUCTION TO FAMILY LAW & DOMICILE & RESIDENCE

Essential Reading:

Introductory chapters in any of the main recommended texts.

​Malaysian Statutes relevant to Family Law

GROUP 1: CHRISTY, ISHINI & SEE PEI PEI

1. (a) Identify and describe the different types of laws for non-Muslims (Chinese &
Indians) prior to enactment of Law Reform (Marriage and Divorce) Act 1976 (Primary
Act).
(b) To what extend does the LRA 1976 provide sufficient protection for non- Muslim
spouses and children in Malaysia? Discuss
QUESTION A: Identify and describe the different types of laws for non-Muslims (Chinese &
Indians) prior to enactment of Law Reform (Marriage and Divorce) Act 1976 (Primary Act).

Christy start
- In Malaysia, there are two sets of laws that are applicable in personal matters of
intestacy, marriage, divorce, custody of children and division of assets on the
breakdown of a marriage: the laws governing non-Muslims, and the laws governing
Muslims. Since they are distinct and separate jurisdictions, the law governing
non-Muslims is applied in the civil courts while that governing Muslims (Islamic Sharia
Law) is applied in the religious courts (the Syariah courts).
- 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
(treat the country as their permanent home) in Malaysia but resident outside Malaysia.
- Section 3(3(d)): the act shall only apply to non-muslims, non-muslim marriages and
divorce cases between non-muslims and muslims (S.51).
- Section 4: LRA shall not apply to any native of Sabah/Sarawak or any aborigines of
Peninsular Malaysia since their marriages are governed by native customary law/
aboriginal custom

As customary laws caused a lot of injustice, there is a need for reform:

- In 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.
- LRA 1976, generally, applies to all persons in Malaysia, however, Section 3(3) provides
that the Act does not apply to Muslims or any person who is married under the Islamic
law.

Prior to the LRA 1976, Non-Muslims were subjected to various laws, for example, the Civil Law
Ordinance 1952, Christian Marriage Ordinance 1956 and Hindu Laws. 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

Christy end
Belinda start
STATUTORY MARRIAGES

1. Peninsular: solemnized under

- Civil Marriage Ordinance 1952
- Christian Marriage Ordinance 1956
- Re Loh Toh Met, Decd, Kong Lai Fong & Ors v Loh Peh Heng [1961]
- FACT
These appeals concern the distribution of the estate of one Loh Toh Met
who died at Johore Bahru on 21 July 1958. The deceased was survived by
three women whom he married in accordance with Chinese custom,
seven children born in wedlock, four adopted children and his father. The
deceased died intestate domiciled in Johore. The trial judge held that the
deceased was a person professing the Christian religion and that as he
had not married the women in accordance with the provisions of the
Christian Marriage Ordinance of the Straits Settlements and of the
Christian Marriage Enactment of Johore, each of three purported
marriages was void and therefore none of the women nor any of the
natural or adopted children was entitled to any share in the distribution
of the estate. He held that the father of the deceased alone was entitled
to succeed to the estate. The children and the three widows appealed.
- HELD
(1)Chinese polygamous marriages are lawful and a Chinese can contract a
valid polygamous marriage;
(2)even if a Chinese is a Christian he can choose whether to contract a
monogamous marriage or a polygamous marriage;
(3)in this case the evidence does not show that the deceased was a
person professing the Christian religion at the time of any of his
marriages;
(4)the deceased was a person permitted by his personal law a plurality of
wives and he validly entered into contracts of marriage to the three
women who are therefore to be regarded as his widows and their
children born during wedlock as his legitimate natural children.
(5)as the adopted children were not adopted under the provisions of the
Adoption Ordinance, 1952, they were not entitled to any share in the
estate of the deceased.
 2. Sarawak:
- Church and Civil Marriage Ordinance
- Didn’t apply to Muslims, Hindus, Dayaks & others who’re subjected to their
respective laws/customs

3. Sabah:
- Christian Marriage Ordinance 1953
- Marriage Ordinance 1959
- Lee Nyuk Wan @ Julia v Chin Oi Jin [1996]
FACT
Plaintiff married Deceased at the Roman Catholic Church of St. Francis Xavier,
Keningau, the marriage solemnised in accordance with the Roman Catholic
Church Marriage Rites. Soon after Deceased died Plaintiff inquired as to the
position of the pension and was shocked that Deceased had purportedly
divorced her, the purported divorce granted by the Native Court Tenom on 16
August 1965. That in fact and in law she is the sole widow, the only person
entitled to the pension.
HELD
Plaintiff and Deceased have never been divorced. Plaintiff's and Deceased's
marriage being a monogamous marriage in accordance with the Roman Catholic
Church Marriage Rites and Plaintiff and Defendant never having been divorced
nor the marriage dissolved.

- Kupok binte Limpongan v Kandilong binte Lantayan [1967]

COMMON LAW MARRIAGES

1. Marriage under common law:

- “Voluntary union between a man and a woman for life to the exclusion of all
others“
– Hyde v Hyde (1866)

2. 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
3. Cases:
(1) Carolis De Silva v Tim Kim (1902)
- Respondent was a Straits-born Chinese
 - Carolis isn’t Chinese but a Sinhalese
- Respondent accompanies Carolis to the Szya Meow Temple, KL lit joss
papers & candles declared themselves as husband & wife they threw
feast for their friends
- After ceremony: They lived together had a child who was registered as
Carolis’ child
- 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]
- Mixed marriages between inhabitants of different religious belief or races
could validly be contracted in Singapore
(3) Chua Mui Nee v Palaniappan [1967]
- 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
- The marriage was held to be valid – Barakbah LP, Azmi Cj & Raja Azlan
Shah
Belinda end

Christy start

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.”

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 evidential
but not essential for the validity of the marriage
- Cases:
1. Dorothy Yee Yeng Nam v Lee Fah Kooi [1956]
- In this case the parties were married in Penang in accordance with the provisions
of the Straits Settlements Christian Marriage Ordinance, 1940 and thereafter set
 up their matrimonial home and lived in Perak. It appeared on the facts that since
October 1950 the respondent had deserted the petitioner without cause. The
petitioner applied for dissolution of the marriage.
- Held, A Chinese domiciled in Perak can validly enter into a monogamous form of
marriage;
- Although the Christian Marriage Ordinance, 1940 does not expressly provide
that a marriage under it is monogamous, it is a law enabling the parties to enter
into a marriage which they contemplate or intend shall be monogamous;
- Therefore a Chinese married under that Ordinance can apply for dissolution of
marriage under the Divorce Ordinance, 1952.
- Apart from any question of capacity but otherwise irrespective of the law of their
domicile parties may voluntarily agree to contract and then proceed to contract
a marriage of any sort which is recognized by law of the locus contractus (law of
the place where the contract is made)
- The courts in effect have given judicial recognition to certain customs prevalent
or thought to be prevalent among persons of Chinese race irrespective of their
domicile or religion.

2. The Six Widow Case (1908)

- The Six Widows’ Case discusses the application of Chinese customary law that is applied
in Malaysia. Based on the facts, a rich Chinese man died intestate leaving a vast fortune.
He married women as primary wife predeceased him leaving one son. However, there
are Six other women claimed to be his widows, some having children with him including
one born before marriage.
- Issue arose on whether all the women have equal status and entitled equal shares from
the husband’s property. Besides that, whether the children were ‘legitimate’ as required
by the English Statute of Distributions 1670. Based on this case, it concluded that the
requirements for formal validity of marriage were the same for first wife and other
wives which are a long-continued cohabitation, intention to form a permanent union
and public repute.
- The court held that Chinese customary marriages were polygamous. Thus four of the
women were lawfully married where they consist of the primary wife and others named
as inferior wives. However, the other two women failed in their claims as they did not
undergo solemnization. The law based on this case treated these marriages as of equal
status among the 4 of the widows.They are entitled to equal shares from the husband’s
property and were given equal rights to administer the deceased’s estate.
3. The case of Re Ding Do Ca deceased brought about reforms in the family law in the country
*IMPORTANT*:
- Whether Chinese who has married under Christian Marriage Enactment could contract a
polygamouse marriage according to Chinese custom
- The deceased in 1923, married Madam Wong under the Christian Marriage Enactment
and subsequently in 1937 he went through the form of marriage according to Chinese
custom with Madam Ngoi.
- After his death Madam Wong applied for and obtained letters of administration to his
estate; subsequently Madam Ngoi and her children commenced the action against
Madam Wong and sought declarations that she was the widow of the deceased and that
her children were his lawful children.
- Held: (1) in regard to persons of the Chinese race the courts have given judicial
recognition to certain customs which have been imputed to such persons and under
such customs Chinese can contract a polygamous marriage;
- (2) there is nothing in the Christian Marriage Enactment which renders a party who has
married under it incapable during its continuance of contracting a polygamous marriage
and therefore in this case the deceased could contract a valid marriage with Madam
Ngoi, despite his earlier marriage with Madam Wong under the Christian Marriage
Enactment.

2. HINDU
- The view in Reg v Willans regarding customary marriages is applicable to Hindus as well
- Cases:
(1) Rex v Govidasamy [1933]
- 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
(2) Parameswari v Ayadurai [1959] – Expert evidence
- The evidence that the she & the respondent were parties to a valid &
binding monogamous marriage was given by:
- Expert witness who gave expert evidence on the traditional features of a
marriage between Ceylon Tamil Hindus and the priest who performed
the marriage ceremony, recognised as a valid marriage
- The marriage in this case was monogamous therefore the petitioner was
entitled to dissolve the marriage due to the respondent who later
married another woman.
(3) Nagapushani v Nesaratnam & Anor [1970] – Other evidences
- The priest who performed the ceremony couldn’t be located but P
described the ceremony in detail
 - She produced a ‘thali’ (a golden chain) she claimed that D had tied it
around her neck during the wedding ceremony (recognised by the
goldsmith) which is a symbol of marriage
- It was concluded based on the evidence that, the P & D had gone through
a ceremony of marriage according to Hindu rites, Cohabited for a number
of years and thus enjoy the reputation of husband & wife

3. SABAH & SARAWAK

- Marriages were held according to customs or any written laws

Christy end

QUESTION B: To what extend does the LRA 1976 provide sufficient protection for non-Muslim
spouses and children in Malaysia? Discuss

Ishini start

Section 3(3(d)): the act shall only apply to non muslims, non muslim marriages and divorce
cases between non muslims and muslims (S.51).

Section 4: LRA shall not apply to any native of Sabah/Sarawak or any aborigines of Peninsular
Malaysia since their marriages are governed by native customary law/ aboriginal custom

Requirements of Marriages:
- Monogamous Marriages S.5
It states that under this act a person of any religion lawfully married on an appointed
date will not be able to marry someone else while the previous marriage is still valid.
Whether the first marriage or the second marriage mentioned is contracted with
malaysia or outside malaysia.
And any such person during the continuance of such a marriage purports to contract a
marriage shall be deemed to commit the offence of marrying again during the life-time
of his/her spouse under the S494 of the PC. and the subsequent marriage will also be
deemed void.
S6: 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 and such woman would only by his mistress.

Case: 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.

Age S.10
Any marriage meant to be solemnized in malaysia shall be void if on the date of
marriage either party is under the age of 18 years unless for a female who has
completed her 16th year since the solemnization of such a marriage is authorized by a
license granted by the Chief Minister under Subsection 21(2)
However this did not provide protection for females or males above the age of 18 and
under the age of 21.
A marriage of minors will be held void as stated in S69(b)

- Consent S.12(1)
A person that has not completed his/her 21st year shall be required to obtain consent in
writing before marrying. Consent could be obtained by the father, if a child is
illegitimate or father has died then the mother, if adopted then the adoptive father or if
adoptive father dies the adoptive mother and if both natural or adoptive parents are
dead then the guardian.
S22(6): Requirement of consent by both parties
And consent should be obtained by both male and female.
If consent is taken by the use of threat/force or compels a person to marry against his
will then shall be guilty of an offence and liable on conviction to imprisonment or to a
fine.

- Not in Prohibited Relationship S.11

Parties must not be in a prohibited relationship/degree
Exception to S11(1): a hindu is allowed to marry his sister’s daughter (niece) r her
mother’s brother (uncle) under the hindu law and custom.

- Man and Woman S.69(d)

States that if the parties are not respectively male and female then the grounds on
which the marriage is 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] 5 S.37(a)

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:-
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

Procedure and solemnization

i. SOLEMNIZATION UPON PRESENTATION OF A CERTIFICATE OF MARRIAGE
- S.14: Notice of marriage – Parties sign & give notice to the Registrar
- S.16: Declaration to accompany notice – Notice given under S.14 must be accompanied
by a written declaration
- S.15: Publication of notice – Registrar will publish the notice by posting a copy & to
make it visible to the public
- 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
- 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
- S.19: CAVEAT – The caveat may be entered by interested persons who are aware of the
intended marriage and who may have objections thereto
- 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)

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
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

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
Ishini end but if there is less for you belinda maybe you can do the procedure solemnization
part also

Belinda start
4. CHILDREN

Part VIII of the ​Law Reform (Marriage and Divorce) Act 1976​ is structured to deal with
protection of children. Under the Act, a parent has duty to maintain or contribute to the
maintenance of his or her children, whether they are in his or her custody or the custody of any
other person, either by providing them such accommodation, clothing, food and education as
may be reasonable, having regard to his or her means and station in life or by paying the cost
thereof

The Act (S93(1)) provides that the court may order a man to pay maintenance for the benefit of
his child if he has refused or neglected reasonably to provide for the child; if he has deserted his
wife ​and the child is in her charge; during the pendency of any matrimonial proceedings; or
when making or subsequent to the making of an order, placing the child in the custody of any
other person. Under S93(2), the court has the corresponding power to order a woman to pay or
contribute towards the maintenance of her child where it is reasonable to do so.

The duty of a parent to maintain his or her children include not only legitimate children but
illegitimate or adopted children, presumably would come to an end when the child attains the
age of 18 (S87 and ​Gisela Gertrud Abe v Tan Wee Kiat ​[1986] 2 MLJ58​ at 61).
In this case the petitioner had obtained a divorce in 1979 from the respondent and it was
ordered that the respondent should pay a monthly payment of $1,500 to the petitioner as
maintenance for herself and the two children of the marriage. At that time the respondent was
earning a salary of $5,000 a month. However, between June 1983 to January 1984 he was out
of employment. In January 1984 he obtained a temporary appointment at a salary of $3,000 a
month. He also had to incur debts to pay the judgment debt to the petitioner. Of his children,
the eldest daughter was 22 years old in April 1985 and the youngest daughter would attain 18
years in May 1985. The petitioner was the owner of a house and was the director of her own
company. She claimed that she needed $6,500 for the personal expenditure of herself and her
two children who are studying in England. For the period June 6, 1983 until January 6, 1984,
when the respondent was not gainfully employed, he was in arrears of seven months'
maintenance totalling $10,500. He applied: (1) to vacate the maintenance order made against
him on May 4, 1979 for the period June 6, 1983 to January 6, 1984, and (2) to vary the amount
of such maintenance order after January 6, 1984.
The respondent only need to maintain the petitioner and the younger child with reduced
amount.

S95 of the act contains the only exception to this rule. It provides for the extension of
maintenance beyond the age of 18, where the child is under a physical or mental disability. The
courts have circumvented the general rule of maintenance ceasing upon the child reaching the
age of 18 by its willingness to hold that the involuntary financial dependence for the purpose of
completing or pursuing the child’s first degree would come under the meaning of a ‘physical
disability’ within the exception of section 95. It appears that maintenance may be ordered for
the purpose of giving children access to tertiary education regardless of whether such
maintenance continues beyond the child’s eighteenth birthday.
The court has held that the word ‘maintenance’ does not only mean some financial provision
which will enable its beneficiary to live on a subsistence level, but signifies any form of material
provision that will enable an adult to live a normal life and a child to be brought up properly.
Sivajothi a/p K Suppiah v Kunathasan a/l Chelliah[​ 2000] 6 MLJ 48​ at 69, where Faiza Thamby
Chik J said that ‘maintenance cannot mean only mere subsistence, that is, the food she puts in
her mouth but must also mean the clothes on her back, the house in which she lives and the
money which she has to have in her pocket, all of which vary according to the means of the
man who leaves a wife behind. Moreover, it is settled law that it is the duty of the father to
maintain the standard of living the ​children​ had enjoyed in the past, that is, during the
existence of the marriage’.
SUMMARY
As a result of continuous abuse inflicted by the defendant and his family members on the
plaintiff and which acts continued even though the plaintiff and her three daughters of tender
ages (‘the children’) were eventually driven out from the matrimonial home, the plaintiff and
the children left Johor Bahru and moved to Selangor to stay with her parents. Through her
solicitors in Kuala Lumpur, the plaintiff filed an ex parte originating summons in the Shah Alam
High Court and obtained the immediate custody, care and control of the children and other
various restraining orders against the defendant and his family members. The defendant
applied to have the orders set aside. The defendant argued that the wrong forum was used and
that he was not given access to the children. Various factors were discussed by the court in
considering the issue of welfare of the children.
The plaintiff is entitled to claim arrears of maintenance payment from the day she was driven
out of the matrimonial home.

Conclusion
The Law Reform (Marriage and Divorce) 1976 is still flawed and it is called for amendment. As a
result, the Law Reform (Marriage and Divorce) (Amendment) Act 2017 is enacted for several
amendments. One of it is the amendment on section 95 of the 1976 Act, that the expiry of the
order for custody and maintenance of a child above 18 years of age is no longer determined by
“physical or mental disability”. A child who is still pursuing higher education or training is
entitled to rights under custody and payment of maintenance until the completion of the
programme. Following such a positive amendment, no child shall be deprived of the
opportunity to receive education. However, the 2017 Act is still awaiting its date of
commencement in the Federal Gazette. As evidenced with the 2017 amendment, the law will
be amended as age changes, because what necessary 30 years ago may become obsolete
today.
Belinda end
https://wccpenang.org/civil-marriage-understanding-civil-marriage/

https://www.slideshare.net/InsyirahMohamadNoh1/family-law-marriage

https://www.umlawreview.com/lex-in-breve/a-study-on-the-lra-amendment-bill-2017

Reforms under LRA is very slow

- Compare with other countries