FAMILY LAW IN MALAYSIA: ST TOPIC: 1 INTRODUCTION T0 FAMILY LAW IN MALAYSIA

DEFINITION OF FAMILY

Oxford Dictionary - A group of people connected by a close relationship for e.g. by blood, marriage or adoption. A basic social unit constituted by at least two people whose relationship may fall into one of three categories:
i.

The relationship of husband and wife or two persons living together in a manner similar to spouses;
A family may be constituted by a parent living with one or more children; Brothers and sisters or other persons related by blood or marriage.

ii.

iii.

Family can be categorized into several types:

i.

Nuclear Family comprising a husband, a wife and children from their marriage. Extended Family comprising a husband, a wife and their children, siblings and also parents. Polygamous Family where the same man heads two or more families.

ii.

iii.

DEFINITION OF FAMILY LAW

Family law is a branch of law which organize a family and the matters incidental thereto. According to Finlay (Australian Family Law):

Family law is the law that provides for the rights, responsibilities, authorities and also maintenance on the reason that he/she is a member of the family.

THE ROLE OF FAMILY LAW

Supporting efforts at maintaining and strengthening the family unit. To provide the procedures and rules in arranging the process of marriage. To prevent divorces, the birth of illegitimate children and the breakup of families.

To protect the rights of women and children in the case of property, maintenance and also the custody of children.

To legitimate the children born out of wedlock. To assist the process of adoption. To provide the protection for the family members from domestic violence.

FAMILY LAW IN MALAYSIA

Law Reform (Marriage and Divorce) Act 1976 (LRA) enforced in Msia 1st March 1982 It provides for monogamous marriages, solemnization, registration of marriages & matters incidental thereto: - maintenance for spouses, former spouses & children; - custody of children; - matrimonial property.

1ST CHARACTERISTIC

Generally, LRA applies to: - all persons in Msia; and - all persons domiciled in Msia but who are resident outside Msia. LRA does not apply to: - a Muslim, or - any person who is married under the Islamic law. Generally, LRA is the only law governing marriage in Msia. Exception: marriage solemnized prior to 1 March 1982 validity of marriage must be determined in accordance with the law governing at that time.

Example: - if the marriage solemnized in accordance with Chinese customs in 1960, before the court may grant a divorce in 1998, it must be satisfied that the marriage is deemed to be registered under the Act. - The marriage is deemed to be registered under the Act if it is valid under the Chinese customary law.

Section 4(3) of LRA such marriage if valid under the law, religion, custom or usage under which it was solemnised, shall continue until dissolved a) by the death of one of the parties; b) by order of a court of competent jurisdiction; or c) by a decree of nullity made by a court of competent jurisdiction.

2ND CHARACTERISTIC

Not all laws apply to all the States in the country.

Statutes apply to the whole of Msia : - LRA - Legitimacy Act 1961 - Maintenance Order (Facilities for Enforcement) Act 1949
Statutes apply only to the Peninsular Msia : - The Married Women & Children (Maintenance) Act 1950 - Distribution Act 1958 (also apply to Sarawak) Peninsular Msia, Sabah & Sarawak, each has its own adoption statute.

3RD CHARACTERISTIC

There exists a dual system of family law in Msia

Family Law in Msia

NonMuslims

Muslims

Muslims Marriages

According to 74(2) of FC: State Legislature may make laws with respect to any matters enumerated in the State List (Second List set out in the 9th Schedule). Among the matters listed in the Second List are family law of persons professing the religion of Islam including Islamic law relating to:

Succession; Testate & intestate; Betrothal & marriage; Divorce;

Dower; Maintenance; Adoption; Legitimacy; Guardianship and; Gifts.

Non-Muslims Marriage

Non-muslims marriage in Msia is subject to Law Reform Act (Marriage & Divorce) 1976 and the other statutes. In the case of custody, Guardianship of Infants Act 1961 used to be applicable to Muslims although the parties were Muslims. In legitimacy, the civil court has applied section 112 of Evidence Act 1950 to determine the status of a Muslim.

But, in 1988, the amendment to the Federal Constitution was made to avoid the conflict between civil court and Shariah court which provides that the civil court has no jurisdiction over the matters which was put under the jurisdiction of Shariah Court.

MARRIAGE BEFORE LRA

Marriage before the Law Reform Act can be divided into 2:

1) 2)

Christian Marriages Non-Christian Marriages

Christian Marriages

Marriages of all persons of the Christian faith are generally monogamous marriages, usually solemnised and registered in the Church. i. In West Msia under the Christian Marriage Ordinance No.33 of 1956 ii. In Srwk under the Church and Civil Marriage Ordinance (Cap 24) iii. In Sabah under the Christian Marriage Ordianance (Cap

Non-Christian Marriages

Usually this marriages known as customary marriages:

a) b) c)

Chinese customary Hindu customary Mixed (Inter-racial marriages) Under Chinese and Hindu customary law, as applied in Peninsular Malaysia, customary marriages can be proved by 3 ways:
i. ii. iii.

Long continued cohabitation With intention to form a permanent union Repute of marriage

Chinese Customary Marriages

Case: Re the estate of Choo Eng Choon, deceased (Six Widows case) Case: Re Ding Do Ca, deceased

b)

Hindu Customary Marriages

Paramesuari v. Ayadurai [1959] MLJ 195 Eeswari Visuvalingam v. Government of Msia [1990] 1 MLJ 86

c)

Mixed (Inter-racial marriages)

Case: Isaac Penhas v. Tan Soo Eng [1953] MLJ 73 Case: Chua Mui Nee v. Palaniappa [1966] 2 MLJ 220