FAMILY LAW AND YOU

 

Ř                  MARRIAGE

Ř                  DIVORCE

Ř                  JUDICIAL SEPARATION

Ř                  NULLITY OF MARRIAGE

Ř                  MAINTENANCE

Ř                  MATRIMONIAL PROPERTY

Ř                  WELFARE OF CHILDREN

Ř                  DOMESTIC VIOLENCE

 

LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976 (“the Act”)

 

The law as stated herein is as at August 2003. The following provisions under the Act on marriage, divorce, judicial separation and nullity are applicable to all persons in Malaysia and to all persons domiciled in Malaysia but are residents outside Malaysia EXCEPT:

 

v                 Muslims or any person who is married under Muslim law:

v                 Natives of Sabah and Sarawak; and

v                 Any aborigine of West Malaysia whose marriage and divorce is governed by native customary law or aboriginal custom UNLESS:

 

·                    he/she elects to marry under the Act; or

·                    he/she contracted his/ her marriage under the Christian Marriage ordinance or the Church and Civil Marriage Ordinance.

 

 

SECTION I - MARRIAGE

 

1.1             EVERY MARRIAGE MUST BE REGISTERED IN ACCORDANCE WITH THE ACT

 

1.1.1       A marriage which is valid under any law, religion, custom or usage under which it was solemnised prior to 1st March 1982 is deemed registered under the Act.

 

1.1.2       After 1st March 1982, every marriage must be registered in accordance with the Act by a Registrar/Assistant Registrar. No marriage under any law, religion, custom or usage may be solemnised except in accordance with the Act.

 

1.1.3       A person who is lawfully married before 1st March 1982 is not lawfully marry any other person after that date. Such person’s spouse will be regarded as lawfully wedded and will have the right to inheritance regardless of whether the marriage was registered or not.

 

1.1.4       Once a marriage is registered or deemed to be registered under the Act, it will be a legal and binding monogamous marriage which will continue until:;

 

(a)               one of the parties dies; or

(b)               a divorce or nullity decree is granted by a court of competent jurisdiction.

 

Neither party can marry again until the marriage is terminated by death, divorce or decree or nullity.

           

1.1.5       If during the continuance of such marriage, a party marries again, then he/she will be deemed to have committed the offence of bigamy under the Penal Code for which he/she may be liable to a fine and imprisonment of up to a maximum of seven (7) years.

 

The Subsequent marriage is also deemed null and void.

 

1.2             REQUIREMENTS FOR MARRIAGE

 

1.2.1       You must be at least eighteen (18) years old.

 

(a)               If you are a female under eighteen (18) years old but above sixteen (16) years old, you can marry if you are able to obtain a special marriage licence granted by the Chief Minister.

(b)               If you marry without such a special marriage licence, then your marriage is void.

(c)               To qualify for a special marriage licence:

 

(i)                 there must be no legal obstacle to the marriage ; and

(ii)               you must have the consent of your parents/guardian.

 

1.2.2       If you are above eighteen (18) years old but below twenty-one (21) years of age, you must also have the consent of your parents/guardian.

 

(a)               If such consent is not or cannot be given, you can apply to the High Court for the consent of the Court.

(b)               No such consent is required if you have been previously married.

 

1.2.3       Both parties must be unmarried.

 

1.2.4       Both parties must not be in certain prohibited close family relationships.

 

1.2.5       There must be no other legal obstacle to the marriage.

 

1.2.6       Both partied must consent to the marriage.

 

1.3             PROCEDURES TO GETTING MARRIED

 

1.3.1       You have a choice of three (3) different procedures to getting married. All three (3) have the same legal effect.

 

(a)               Marriage at the office of the Registrar of Marriages;

(b)               Marriages through a religious ceremony, custom or usage such as a temple or church where the temple /church official is an appointed Assistant Registrar; or

(c)               Marriage by special licence from the Chief Minister.

 

1.3.2       Marriage at the Registrar’s Office

 

(a)               Both of you must give notice of marriage in the prescribed form to the Registrar of Marriages of your marriage district in which you have been resident at least seven (7) days before the giving of such notice.

(b)               The registrar will put it up on the notice board of the Registry until he/she grants his/her certificate of marriage or until three (3) months have elapsed, whichever is earlier.

(c)               If both of you have residents for the required period in the same marriage district, only such notice is required.

(d)               Both of you must also sign a written declaration in the prescribed form stating that you have complied with all the requirements and that there are no legal obstacles.

(e)               When the notice has been on the board for at least twenty-one (21) days, the Registrar shall, upon payment to him/her of the prescribed fee, issue his/her certificate for marriage.

(f)                 You must then make a date for the marriage to be solemnised by the Registrar. This has to take place within six (6) months from the date of notice.

(g)               If the marriage does not take place within the specified period, a fresh notice has to be given.

(h)               After the marriage at the Registry, you will be legally married.

(i)                 You may go through a customary ceremony if you wish but you are required to produce your certificate of marriage to the person officiating the ceremony.

 

1.3.3       Marriage through a religious ceremony, custom and usage .

 

(a)               You may have your marriage solemnised in accordance with your religion, custom or usage by your clergyman, minister or priest.

(b)               The clergyman, minister or priest or person solemnising your marriage must have duly been appointed Assistant Registrar of Marriages and has the power to conduct marriages.

(c)                Before the marriages is solemnised, you must deliver to the Assistant Registrar of Marriages the prescribed statutory declaration signed by both of you saying that you have complied with all the requirements and that there are no legal obstacles.

 

1.3.4       Marriage by licence

 

(a)               If you are a female between sixteen (16) and eighteen (18) years of age, OR you wish to have your marriage solemnised at a place other than the office of Registrar OR at some other time than the prescribed time, then you must get a special marriage licence from the Chief Minister of such purpose.

(b)               in such a case, you do not have to give notice or obtain a certificate for marriage but you have to produce s statutory declaration that all requirements have been complied with and that there are no legal obstacles to the marriage.

(c)               The licence is valid for only one (1) month and you must get married within that period.

 

1.4             MARRIAGE ABROAD

 

1.4.1       You may also have your marriage solemnised aboard by the Registrar-General of Marriages at the Malaysian Embassy, High Commission or Consulate in any country in question if:

 

(a)               One or both of you to the marriage is/are citizen(s) of Malaysia.

(b)               Each of you has the capacity to marry according the Act.

(c)               Where either of you is not domiciled in Malaysia, the proposed marriage, if solemnised, will be regarded as valid in the country where such party is domiciled.

 

(i)                 Notice of the marriage has been given not less than twenty-one (21) days and not more than three (3) months before the marriage:

(ii)               The notice has been published both at the office of the Registrar in the Embassy, High commission or consulate where the marriage is to be solemnised and at the Registry of the Marriages district in Malaysia where each party to the marriage was last ordinarily resident; and

(iii)             There is no caveat or notice of objection to the citizen.

 

1.4.2       Registration of foreign marriage by person citizen of or domiciled in Malaysia:

 

(a)               If you are a citizen of or are domiciled in Malaysia and have married abroad without registering the marriage with the Malaysian Embassy, High Commission or consulate you MUST:-

 

(i)                 within six (6) months after the date of such marriage, appear before the nearest Registrar abroad or in Malaysia; and,

(ii)               register such marriage.

 

(b)               In order to register the above marriage you must:

 

(i)                 produce to such Registrar your certificate of marriage or any other satisfactory evidence of marriage;

(ii)               give the necessary particulars as required by the Registrar; and;

(iii)             fill in the prescribed form and affirm the declaration in it.

 

(c)               Both of you must present at the said registration unless there exists good and sufficient reason for the absence of one party.

(d)               Failure to register the foreign marriage within six (6) months is an offence and late registration will only be allowed upon application but will be penalised.

 

1.4.3       Recognition of marriage contracted abroad

 

(a)               A marriage contracted outside Malaysia other than a marriage solemnised according to Section 1.4.1 shall be recognised as valid if:

 

(i)                 it was contracted in a form required or permitted by the law of the country where it was contracted;

(ii)               each of the parties had capacity to marry under the law of the country of his/her domicile; and

(iii)             where either party is a citizen of or is domiciled in Malaysia, both parties have capacity to marry according to the Act.

 

1.5             CAVEATS

 

1.5.1       Any person who wishes to object to a marriage may, upon payment of a prescribed fee, enter a caveat with the Registrar.

 

1.5.2       The caveat must contain the name and place of residence of the name entering the caveat and the grounds of objection and must be signed by the person entering the caveat.

 

1.5.3       If the caveat is entered, the Registrar will only issue a certificate for the marriage if:

 

(a)               after enquiring into the objection, he is satisfied that it ought not to prevent the issue of such certificate for the marriage; or

(b)               the caveat is withdrawn by the person who entered it.

 

1.5.4       If the Registrar is in doubt, he/she shall refer the matter of such caveat to the Court for a decision.

 

1.5.5       If the Registrar has refused to issue the certificate for marriage, the person applying for such certificate has a right to appeal to the Court.

 

1.5.6       If the Court declares the grounds of objections to be frivolous, the person entering the caveat will be liable for costs of all related proceedings and to damages to be payable to the party against whose marriage such caveat was entered.

 

 

SECTION 2 - DIVORCE

 

A divorce of a marriage may be granted only by a court of competent jurisdiction. You may petition for a divorce:

 

v                 by mutual consent, i.e. both parties consent to the divorce, by way of a joint petition; or

v                 if there is no mutual consent, by way of a consented petition.

 

 

2.1             DIVORCE BY MUTUAL CONSENT

 

2.1.1       Before you can joint petition for  divorce by mutual consent, the following requirements must be fulfilled:

 

(a)               The marriage must have been registered or deemed registered under the Act or a law that provides for monogamous marriage.

(b)