Family Law 2

FAMILY LAW

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TABLE OF CONTENT:

Topic Page number

Bethrotal

Domicile and residence

Marriage

Nullity of marriage

Divorce

Domestic violence

Legitimacy and legitimation

Ancillary Claim

Protection of Children under the

Child Act 2001

Tutorials

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Law Reform (Marriage and Divorce) Act 1976

o It is applicable to those domiciled in Malaysia
o It is not applicable to Muslims and those married under
Islamic law
o A person who has converted to Islam may still be
governed under LRA 1976
o Aborigines can elect or choose to marry under LRA

BETROTHAL
(In part A or Part B (promise to marry valid or not and damages))
1. Betrothal is an agreement or a promise to marry
2. In order for there to be a valid contract of betrothal, 4 elements
MUST be fulfilled

A. Offer.
 Offer is where a promise to marry is made by one party which is
the promisor to another, which is the promisee

B. Acceptance
 Acceptance is where the promise made is accepted by the
promisee

C. Consideration
o The consent of the promisee to marry the promisor which
may take the form of an act performed by the promisee
o Harvey v Johnston
The defendant promised to marry the plaintiff after her arrival
at Lisahoppin to which she performed as requested. However
the defendant failed to carry out his promise to marry her and
then claimed that there was insufficient consideration. The
court held that there was perfectly good consideration as the
plaintiff went to Lisahoppin as requested by the defendant

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D. Capacity
1. Both parties must have the capacity to marry at the time the
promise is made
o Both must be single
o Spiers v Hunt
The defendant promised the plaintiff who knew he was a
married man, to marry her upon the death of his wife who
was suffering from a heart ailment was expected to die
early. However she did not die until 8 and a half years later.
The defendant then refused to marry the plaintiff. The court
held that the promise was illegal due to the incapacity of
the defendant on the grounds that the contract was against
public policy and morals
 Exceptions to which both parties must be single
o Shaw v Shaw (the plaintiff was unaware)
The defendant represented himself to be a widower and
proceeded to marry the plaintiff when in fact he was already
married to a woman who was alive throughout the marriage.
The plaintiff, who was unaware that the defendant was
married when the promise was made, upon discovering that
she had been illegally married to the defendant all along, sued
the administrators of his estate for damages. The court held
that the plaintiff was entitled to damages for the defendant’s
breach of contract
o Fender v St John Mildway (defendant still in decree nisi)
The defendant made a promise to marry the plaintiff during the
period of decree nisi that is a period of court’s order for
divorce which has yet become absolute which means that the
marriage could still be reconciled. The defendant then broke off
the engagement and married another woman. The court held
that the although such promise may prevent reconciliation
often when a petitioner had gone so far as to obtain a decree
nisi, no reconciliation could take place. Thus where the
promise was valid, the plaintiff was entitled to damages

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o Nafsiah v Abdul Majid (allowed by Muslim law)

The plaintiff sued the defendant who was a married man for
damages for breach of contract to marry. The court held that
the defendant’s personal law, which is syariah law, allows
him to marry more than one wife, the promise to marry is
valid. Thus entitling the plaintiff to damages.
2. The religion of both parties does not prevent them from marrying
 Section 11 of LRA- Relationship must not be within the
prohibited relationship. Except for Hindus, they can marry their
uncle and niece. The Chief Minister in his discretion may grant
license if he is satisfied that under the law, religion, custom or
usage of parties it is unobjectionable that the marriage is valid
o Mary Joseph Arokiasamy v Sundram
A Hindu man made a promise to marry a Christian girl but later
breached his promise. The court held that there is no
religious impediment against a Hindu man marrying a
Christian girl. Thus the promise to marry is valid and
enforceable

3. Age
 Section 10 of LRA provides that the minimum age of marriage
for girls is 16 years old and boys is 18 years old
 Section 12 of LRA- If both parties are below 21 years old,
consent of parents is required. The consent must be made in
writing
o Khimji Kuverji v Lalji Karamsi
A minor may enter into a valid contract to marry
o Rajeswary v Balakrishnan
The parties in this case are Ceylonese Hindus. The father of the
first defendant approached the plaintiff’s father in order to
arrange a marriage between his minor son and the plaintiff’s
minor daughter. Betrothal took place and gifts were exchanged.
Later, the defendant repudiated the promise and the plaintiff

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took action of breach of contract against defendant. The

court held that there was a valid contract. Marriage contracts
are distinguishable from other contracts. The plaintiff could
maintain an action on the agreement entered into between
her father acting as guardian and on her behalf with the
defendant whereby the defendant promised to marry her.
RM1,500 was granted to her as damages
4. Parties must not be within prohibited relationship
 Section 11 of LRA- Relationship must not be within the
prohibited relationship. Except for Hindus, they can marry their
uncle and niece. The Chief Minister in his discretion may grant
license if he is satisfied that under the law, religion, custom or
usage of parties it is unobjectionable that the marriage is valid

DEFENCES
1. Misrepresentation of fact by the plaintiff
o Wharton v Lewis
o The defendant was informed, before the engagement that
the plaintiff would inherit her father’s property. However
the defendant broke off the engagement upon receiving
information regarding the questionable life that the
plaintiff had been leading. The plaintiff’s father and
brother assured him that the information was false. The
court held that the false representation or willful
suppression of the truth was not what induced the
defendant into making the promise to marry. Thus the
plaintiff was awarded damages
2. A contract to marry is not a contract of uberrimae fidei (utmost
good faith)
 Beachery v Brown (non disclosure of all past does not amount
to bad faith)
The defendant contended that had he known the plaintiff had
agreed to marry another man when she entered into
engagement with him, he would not have agreed to marry her.
However the court rejected his defence and held that although
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there are many things that a person may want to know about
his future wife, the discovery of such attributes should not
entitle him to refuse to fulfill the engagement
3. Defendant’s own moral, physical or mortal infirmity
 Jefferson v Paskell
The plaintiff contracted a chest disease soon after her
engagement and was rendered unfit for marriage. She
underwent treatment but the defendant refused to marry her
even after she was given a clean bill of health within less than 6
months. The court held that the plaintiff was awarded
damages as defendant failed to prove that he honestly and
reasonably believed that the plaintiff is unfit for marriage
 Hall v Wright (defendant’s own infirmity is not a defence)
The defendant contended that his own supervening ill health, a
serious occasional bleeding from the lungs from which he was
still suffering would cause the excitement of marriage to
endanger his life. However, the court rejected his infirmity as a
defence

CONSEQUENCES FOR BREACH OF BETROTHAL

1. Damages.
 General damages are damage for breach of promise to marry. It
is not limited to mere pecuniary loss sustained, but may also
include the injured feelings of the plaintiff
 Special damages are damages for specific items which may be
quantified in monetary terms. For example, damages for medical
expenses and wedding preparations
o Dennis v Sennyah
The plaintiff alleged that the breach had caused humiliation
and mental anguish upon her to which she then claimed both
general and special damages for. The court awarded plaintiff
general damages of RM1500 and special damages for food,
sarees, and the cost of wedding preparation, which amounted
to RM620.10

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2. Return of gifts
o Cohen v Stellar.
The court ordered for the return of the non-perishable item
that is the ring.
 If a woman who has received a gift refuses to fulfill the
conditions of the gift, she must return it. however if the man
has refused to carry out his promise of marriage, he cannot
demand the return of the ring. If the engagement was
dissolved mutually, in the absence of an agreement to the
contrary, the gifts must be returned by each party. If the
marriage does not take place due to death or disability of the
person giving the ring and the other conditional gifts, it is
implied that the gifts shall be returned.

Application of the LRA

1. Section 3(1)- The Act applies to all persons domiciled in
Malaysia
2. Section 3(2)- A citizen of Malaysia is deemed to domiciled in
Malaysia
3. Section 3(3)- The Act shall not apply to any native of Sabah or
Sarawak or any aborigine of West Malaysia whose marriage and
divorce are governed by native customary law or aboriginal
custom unless
a) He elects to marry under the Act
b) He contracted his marriage under the Christian Marriage
Ordinance
c) He contracted his marriage under the Church and Civil
Marriage Ordinance
4. Article 161A of Federal Constitution
(6) In this Article “native” means
(a) In relation to Sarawak, a person who is a citizen and either
belongs to one of the races specified in Clause (7) as indigenous
to the State or is of mixed blood deriving exclusively from those
races and

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(b) in relation to Sabah, a person who is a citizen, is the child or

grandchild of a person of a race indigenous to Sabah and was
born (whether on or after Malaysia Day or not) either in Sabah
or to father domiciled in Sabah at the time of birth
(7) The races to be treated as indigenous to Sarawak are the
Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks,
Kadayans, Kalabits, Kayans, Kenyahs, Kajangs, Lugats, Lisums,
Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns, Ukits.
5. Section 2, Interpretation (Definition of Native) Ordinance 1952:
Wherever the word “native” is used, it shall mean either
(a) any person both of whose parents are or were members of a
people indigenous to Sabah; or
(b) any person ordinarily resident in Sabah and being and living
as a member of a native community, one atleast of whose
parents or ancestors is or was a native within the meaning of
paragraph (a) hereof; or
(c) any person who is ordinarily resident in Sabah, is a member
of the Suluk, Kagayan, Simonol, Sibutu or Ubian people or of
a people indigenous to the State of Sarawak or the State of
Brunei, has lived as and been a member of a native
community for a continuous period of three years preceding
the date of his claim to be a native
(d) any person who is ordinarily resident in Sabah, is a member
of a people indigenous to the Republic of Indonesia or the
Sulu group of islands in the Philippine Archipelago or the
States of Malaya or the Republic of Singapore, has lived as
and been a member of native community for a continuous
period of five years immediately preceding the date of his
claim to be a native

Domicile and Residence

1. Domicile is a permanent place of residence or ordinary
habitation to which, if absent, he has the intention of returning
to.

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2. The issue of domicile is important for marriages solemnized

overseas but in accordance with the LRA (Section 26(1) or in
accordance with the law of a foreign country (Section 104), as
well as for the recognition of foreign marriages contracted in
any foreign Embassy (Section 105)
3. Section 26(1) of LRA provides that overseas marriage may be
done in Malaysian embassy, High Commission or Consulate by
the Registrar appointed provided that one or both parties are
Malaysian citizens, each party has capacity to marry, if either
party is not domiciled in Malaysia, if solemnized would be valid
in that country of the foreign party and notice must be given
atleast 21 days but not more than 3 months before
solemnization. The notice must be published at the office of
Register and at Registry of marriage in Malaysia where each
party was last resident at and no notice objection has been
received.
4. Section 104 of LRA, provides that marriage contracted outside
of Malaysia not at Malaysian Embassy, High Commission or
Consulate shall be valid if it was contracted in form required by
the law of the country where it was contracted, each parties had
the capacity to marry under the law of the country where he or
her is domicile and both parties had the capacity to marry
according to LRA 1976
5. Section 105 of LRA provides a marriage contracted in any
FOREIGN Embassy, high Commission or Consulate in Malaysia
shall be valid if it was contracted in a form required by the law
of the country whose embassy, high commission or consulate it
is or in a form permitted in this LRA, each party has the capacity
to enter into marriage according to the law of the country where
they are domiciled and both parties had the capacity to marry
under LRA.
6. Section 48(1)(c) of LRA provides that the court will make a
decree of divorce if at the time when the petition was presented
the domicile of both parties are in Malaysia
7. The weightage for decree of judicial separation is lower than to
make a decree of divorce. In Section 48(2)(c) of LRA, it provides
that court can make a decree of judicial separation if both parties
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RESIDE in Malaysia at the time of the commencement of

proceedings.

*Nullity of marriage is residence not domicile

*2 significance of domicile support with cases for part A
*Difference between domicile and residence
*Whether court has jurisdiction: domicile

Types of Domicile:
Domicile of origin: It is obtained at birth and is carried throughout
his lifetime. A child’s domicile follows his legitimate father or follows
his illegitimate mother. Though so, a person can also choose his
domicile of choice
Domicile of choice.
1. A male may acquire a domicile of choice provided that he is an
adult (has reached the age of majority of 18 years), while a
female must be an adult and unmarried
2. Upon acquiring a domicile of choice, will cause his domicile of
origin to be suspended and is revived upon relinquishment or
abandonment of the domicile of choice
 Udny v Udny
The act of selling off his house and its furniture indicates
intention to terminate the domicile of choice, thus reviving his
domicile of origin
3. The change of residence must be voluntary and not due to any
form of compulsion (eg: absconding from creditors, duties,
health treatments). The burden of proof lies on the person
asserting that he has obtained the domicile of choice, failure of
which means that his domicile of origin applies.
 Shaik Abdul Latif v Shaik Elias Bux
The deceased had a domicile of origin in Hong Kong but later
moved to Malaysia where he amassed wealth, bought a home
for his family and regarded Selangor as his place of residence.

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The court held that as he had no other house anywhere else in

the world and had never returned to Hong Kong, he had
acquired the domicile of choice in Selangor
 Melvin Lee Campbell v Amy Anak Edward Sumek [1988]
The petitioner failed in proving that he acquired the domicile of
choice in Malaysia despite having married a native of Sarawak
and arranging for the child to reside and be schooled in
Sarawak as he had not bought for himself any property or
made any actual investment in Malaysia and was employed in
Indonesia

Domicile of dependence
1. Of a child: Upon birth, the child attains his domicile of origin
which is that of his father’s if he is a legitimate, while an
illegitimate child attains the domicile of origin of his mother. An
adopted child takes the domicile of his adoptive father
2. Of a woman: Upon marriage, a woman takes the domicile of her
husband and retains it for as long as they are married, as both,
husband and wife are viewed as one entity. Only a decree of
divorce will release her from domicile of dependence
 Ang Gek Choo v Wong Tiew Yong (1997)
Upon the application for divorce by the petitioner, the issue
before the court was whether it has jurisdiction to hear the
case as it was uncertain whether the petitioner was domiciled
in Malaysia. The court held that the petitioner, who was
originally domiciled in Singapore, was upon her marriage to
her Malaysian husband, domiciled in Malaysia, the court has
jurisdiction to hear the case despite the petitioner being in
Singapore when the petition was presented

Matrimonial domicile
1. It is not applicable in Malaysia

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2. The validity of a marriage is to be determined by the law of the

country in which the parties intended to make their matrimonial
home
o Radwan v Radwan (1972) All ER 1026
Although the wife’s domicile of origin was England, the
marriage was valid as her capacity to enter into a polygamous
union was governed by the law of Egypt where before their
marriage, the parties had decided to set up their matrimonial
residence and where polygamy was practiced

Residence
1. One’s usual dwelling place and abode
 Fox v Strik
The court held that residence means physical presence and an
intention to remain in the same place for a sufficiently long
period. To make that presence more than fleeting or transitory
(not merely temporary), without the need to own property
2. Where divorce is concerned, Section 48(1)(c) of LRA provides
that if both parties to a marriage are not domiciled in Malaysia
at the time of the presentation of a petition, the court does not
have the jurisdiction to hear the petition and the petitioner
cannot obtain the decree of divorce
3. However, under Section 49(1)(b) of LRA, the court shall have
jurisdiction to entertain divorce proceedings by a wife although
the husband is not domiciled or resident in Malaysia if the wife
has been ordinarily resident in Malaysia for a period of two
years before the commencement of the proceedings
 Mahon v Mahon (1971) 2 MLJ 266
The parties to the marriage, since their marriage in 1955, have
for the past 15 years had their matrimonial home in Malaysia.
Despite, the petitioner being away in Ireland for 15 months out
of the three years before the filing of the petition, the court
ruled that the petitioner had been ordinarily resident in

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Malaysia as any other interpretation would mean compelling

the petitioner to seek divorce in Ireland
4. Inland Revenue Commissioner case- The court held that
residence is a question of fact.

Significance of “domicile” and “residence”

 Re Maria Huberdina Hertogh (Marriage)
Under common law, in determining the validity of the
marriage, the marriage must be held valid in accordance with
the law of the domicile of the parties
 Section 48(1)(c) of LRA- At the time when the divorce petition
is presented, the domicile of the parties to the marriage must
be in Malaysia
 Section 49(1)(b) of LRA- Where a petition is presented by a
wife, and the husband is not domiciled in Malaysia at the time of
the petition, the petition may be entertained if the wife has been
ordinarily resident in Malaysia for 2 years before the start of
the proceedings
 Section 75(3) of LRA- The child of a void marriage shall be
treated as the legitimate child of his parents if both or either of
the parties reasonably believed that the marriage was valid and
if the father of the child was domiciled in Malaysia at the time
of the marriage
 Section 14 of LRA- Each party to the intended marriage shall
sign and give a notice in a prescribed form in person to the
Registrar of the marriage district in which such party has been
resident for the period of 7 days immediately preceding the
giving of such notice
 Section 48(2)(c) & 67(c)- At the time of the commencement of
the proceedings, both parties to the marriage are required to
reside in Malaysia before the court can be said to be authorized
to make a decree of judicial separation or nullity

Marriage

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There are 5 requirements of a valid marriage:

AGE
1. Section 10 LRA- Both parties must be 18 years old
2. Section 21(2) LRA- A 16 year old girl may marry if the
solemnization of the marriage is authorized by a license issued
by the Chief Minister
CONSENT OF PARTIES
1. Section 37 LRA- The use of force or threat to compel a person to
marry against his or her will or to prevent a person who has
attained the age of 21 years from contracting a valid marriage is
an offence
2. Section 70(c) LRA- Consent obtained by way of duress, mistake
or unsoundness of mind would cause a marriage to be
voidable
3. There must be consent from both parties. If there is lack of
consent the marriage is voidable and is subject to annulment of
marriage or divorce
CONSENT OF PARENT OR GUARDIAN
1. Section 12(1)-(6) LRA- A person below 21 years old, must get
consent in writing from guardians or parents.
NOT WITHIN PROHIBITED RELATIONSHIPS
1. Section 11(1)-(6) LRA- the parties must not be within
prohibited relationship
MONOGAMOUS MARRIAGE (Section 5,6,7)
1. A second marriage that is contracted under any law, religion,
custom or usage during the subsistence of an existing and
valid marriage contracted under any law, religion, custom or
usage is void and deemed an offence

WHAT ARE THE TYPES OF MARRIAGE IN MALAYSIA

4 ways a marriage may be solemnized:

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A. After the issuance of a certificate of marriage by the Registrar

(Section 14-20)
1. Section 14- Go to JPN, get form, pay fee and give notice
2. Section 15- JPN publish notice
3. Section 16- When you give notice you must attach declaration.
One or both parties have been resident in the marriage district.
Each parties is 21 years old or if not is a widower or widow. If
either party is a minor, consent has already been obtained.
There is no lawful impediment to the marriage. Neither party is
married
4. Section 17- Registrar will issue certificate of marriage after 21
days from the date of publication of notice under Section 15 and
upon payment of fee
5. Section 18- Parties must marry within 6 months
6. Section 19- Any person upon payment of fee may enter into
caveat with the Registrar against the issue of certificate of
marriage of person named in the caveat and notice of those who
intended to marry which has been given to Registrar
7. Section 20(2)- Where Registrar has refused to issue the
certificate of marriage, the person applying the same shall have
a right of appeal to the High Court which shall thereupon
confirm the refusal or direct the grant of the certificate of
marriage.

B. After the issue of license by the Chief Minister (Section 21 &

Section 22(1))
1. Section 21- The Chief Minister upon proof being made to him by
statutory declaration that there is no lawful impediment and
necessary consent is obtained may grant his license in the
prescribed form authorizing the solemnization of a marriage
between the parties named in such license

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C. In a church, temple or at any place of marriage in accordance

with the religion, custom or usage of the parties (Section
22(2),22(3),24,28(3))
1. Section 24(1)- Where any clergyman or minister or priest of any
church or temple is appointed by the Minister to act as Assistant
Registrar of Marriages for any marriage district, such persons
may after delivery to him of a statutory declaration under
subsection 22(3) solemnize any marriage, if the parties to the
marriage or either of them profess the religion to which the
church or temple belong, in accordance with the rites and
ceremonies of that religion
2. Section 28(3)- The Minister may appoint by name or by office,
any person whether public officer or not, to be Assistant
Registrar of Marriages in respect of any race, clan, association,
church or temple, for such marriage district.
 Yeoh v Chew
The parties organized a dinner function at a temple to honour
their marriage union. However, it was never registered and
there was no evidence that the marriage had been
solemnized according to Section 24. The wife petitioned for
divorce. The issue was whether the court was authorized to
grant a decree of divorce where the solemnization of the
customary marriage itself was not performed as statutorily
required. The court held that it was a non-marriage from
the very beginning over which the matrimonial court could not
exercise its jurisdiction. Thus, the petition for divorce was
dismissed

D. In Malaysian Embassies, High Commissions or Consulates

abroad (Section 26 & 28(4))
1. Section 26- A marriage may be solemnized by the Registrar
appointed at the Malaysian Embassy, High Commission or
Consulate in any country
2. Section 28(4)-The Minister may by notification in the Gazette
appoint any member of the diplomatic staff of Malaysia in any

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country, whether by name or by office to be Registrar of

Marriages.

Registration of marriage
 Section 27: After the appointed date (1st March 1982), any
person ordinarily resident in Malaysia, and every citizen of
Malaysia residing abroad, must register their marriage under
the Act
 However, a marriage will not be invalid merely by reason of it
not having been registered under the LRA (Section 34)
 It should be noted that Section 34 and 27 contradict each other
 Chai Siew Lin v Yeong Wee Shing
Section 34 should not be read in isolation but in harmony with
the other provisions of the LRA. Thus, all marriages after the
appointed date must be registered as it confers a valid
matrimonial status upon the parties

 Marriages before the appointed date:

 If not registered, but performed in accordance with religion,
custom or usage: (Section 4(1), Section 4(2))

 Marriage after the appointed date:

 Must be solemnized according to religion, custom, or usage :
Section 5(4)
 Solemnization through religious ceremony, custom or usage:
Section 24
 If not solemnized according to Section 24 and not registered:
Yeoh v Chew

 Marriage between the parties who are natives

 Non-registration after the appointed date does not render the
marriage invalid: Section 5(4),3(1) & 3(4)
 Nancy Kual v Ho Tan

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Reading Sec. 5(4) together with Sec. 3(1), a marriage

solemnized under native customary law and not registered
under the LRA between a non-native (the defendant) and a
native (the plaintiff) is valid under Sec. 3(4). The court granted
the declaration in view of discouraging any party from treating
weddings and marriage rituals lightly. Although one of the
parties is a non-native, the marriage which both parties went
through, according to the Kadazan Tatana custom, is to be
recognized as valid as it was contracted in a form required or
permitted by the law of the country that is according to the
native customary law in Sabah. Thus, the defendant should not
be allowed to retract from the marriage.

*Aborigine: Section 3(4)

* Sec 27/ Yeoh v Chew: Chinese. Chinese IS NOT an aborigine, so use
Nancy Qual (test 1)

Effects of Marriage on Status of and Property of Married Woman

(Married Women Act 1957)
1. Section 4: A married woman is capable of acquiring, holding and
disposing of any property, liable in respect of any tort, contract,
debt or obligation, sues or is sued in her own name either in tort
or contract and is entitled to all remedies and redress for all
purposes and is subject to the law relating to bankruptcy and to
the enforcement of judgment and orders as if she were an
unmarried woman
2. Section 4A (inserted in 1994): A husband or wife may sue each
other in tort for damages in respect of injuries (incurred in a
fight or though assault) to his or her person
 Yeo Bee Lin v Lee Eng Chee
The wife sued her husband for inflicting severe injury on her
by forcing her to listen to his sexual exploits with another
woman in detail. The court held that when interpreting
“personal injuries” and “injuries to his or her person” under the

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provision, there can be no distinction between injuries of a

physical or a mental nature, as both are within the meaning of
the provision
3. Section 9(2): A husband or wife is entitled to sue each other in
tort for protection or security of property
 Faridah Dato Talib v Mohamed Habibullah Mahmood
The plaintiff had filed a petition for divorce in the Syariah
Court. While the petition was pending, she commenced an
action in the High Court for damages and to restrain her
husband, from assaulting, harassing or molesting her and
members of her family member. The defendant sought to have
the plaintiff’s action struck off. The issue before the High Court
was whether the plaintiff could institute the action against the
defendant when Section 9(2) prohibited a wife from suing her
husband in tort. The court held that since the allegation of
assault and battery constituting the tort were not related to the
protection or security of property, the plaintiff was barred by
Section 9(2) from suing the defendant.
* This case prompted the Parliament to insert Sec 4A into the Act
4. Section 9(4): No criminal proceeding shall be taken against a
husband or wife while they are living together
 Re Ketuna Bibi (Islamic matter)
The wife had committed a criminal breach of trust in relation
to her husband’s property. The court accepted that under
Islamic law, a husband or a wife may undertake an action
against the other spouse for cheating, fraud or theft of his or
her property committed while they are living together. Thus
the Act does not apply in this instance, as under the Islamic
law, criminal action can be taken against the other spouse
5. Section 10: A woman after her marriage will continue to be
liable for all debts contracted and all contracts entered into or
wrongs committed by her before the marriage
6. Section 5: A woman has a right to have and own property
7. Section 6: A husband shall not by reason of being a husband be
liable in respect of tort committed by the wife before of after
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marriage or for any contract entered into, or debt or obligation

incurred by her before marriage. He shall not be sued in respect
of those matters.

Nullity of marriage 1 question that stands on its own in exam,

void or voidable. Hint:APA YANG KELUAR TEST TAK KELUAR
DAH, keluar issue lain pulak. Yang masuk is voidable not void.
Baca jugak section 69 and 70 but emphasize on section 70.
1. Section 67: The court has jurisdiction to issue an annulment of
marriage if:
 It is registered or deemed to be registered under the LRA
 It was contracted under a law providing that marriage is
monogamous
 Both parties are residing in Malaysia at the time of the
commencement of the proceedings
 Mahon v Mahon
Temporary absence (15 months) does not deprive him of his
residence
 Ng Wee Whye v Wong Sook Heng
The court has no jurisdiction to entertain a petition where one
party to the application was not a resident of the place, where
the application was made (the wife was residing in Malaysia,
while the husband was residing in Singapore

Void Marriages
 De Reneville v De Reneville
The validity of the marriage can be challenged at any time,
either during or after the lifetime of the parties to the marriage,
by any party to the marriage or any third party. Once a decree

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Family Law 2

of nullity has been pronounced, it shall act retrospectively in

that the marriage will be regarded as never having taken place
at all
1. Section 69: There are 4 grounds which a marriage can be
declared void
a) At the time of the marriage one party was already lawfully
married and the former husband or wife of such party was
alive at the time of marriage and the former marriage was in
force

 PP v Rajappan
Where a man had contracted a marriage whilst living in India,
then later migrated to Malaysia and contracted a second
marriage the court found that it had no jurisdiction to entertain
the petition as the act of bigamy was not committed in
Malaysia. However, if it did have such jurisdiction, the second
marriage would have been found void.
 Section 5,6, 7 of LRA and Section 494 of Penal Code were
amended to allow a person committing bigamy to be charged
and for the second marriage to be void, even if it was
contracted outside Malaysia
b) Parties who have not attained the age of majority, but have
contracted a marriage without a special license granted by
the Chief Minister as under Section 10 of LRA
c) Parties are within the prohibited degrees of relationship
unless the Chief Minister has granted a special license under
Section 11(6)
d) Parties are not male and female respectively
 Corbett v Corbett
Where a person’s sex is determined according to his or her
birth, a marriage contracted with a person who was registered
at birth as male, but had undergone a sex operation to become
woman is void as he was not a woman for the purpose of

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Family Law 2

marriage but instead is a biological male and had been so since

birth
 Knowledge of the fact that the marriage is a void marriage by
one or both parties to the marriage is not a bar to the petition
of a void marriage
 JG v Pengarah Jabatan Pendaftaran Negara
It is generally accepted by the courts following the advice of the
medical profession that to assess and determine the sex of a
person, four basic criteria must be considered:
1) Chromosomal factor
2) Gonadal factor (presence of testes or ovaries)
3) Genital factor (including internal sex organs)
4) Psychological factor
 Lim Ying v Hiok Kian Ming Eric
The petitioner’s wife discovered after the marriage that the
respondent was born a female and had undergone a sex change
operation which caused repeated attempts to consummate the
marriage to fail. She filed for divorce and asked for a
declaration that there had never been a marriage between her
and the respondent. Alternatively, she sought an annulment of
marriage because of non-consummation due to the
respondent’s incapacity
The court held that the fact that the identity card and the birth
certificate have the respondent’s sex as male and female
respectively did not require the court to held that a valid
marriage had been solemnized between a man and a woman.
As the petitioner would not have consented to the marriage
had she known of the sex-change operation, her free consent to
the marriage was absent and therefore marriage was void

Voidable marriages:
 De Reneville v De Reneville
Only a party to the marriage can challenge the validity of the
marriage, which can only be done during the lifetime of the
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Family Law 2

parties to the marriage. The marriage will be regarded as a

valid and subsisting marriage until a decree annulling it has
been pronounced
1. Section 70: There are 6 grounds upon which a marriage may be
voidable:
a) The marriage has not been consummated owing to the
incapacity of either party to consummate it
 Marriage is not regarded as having been consummated until the
parties have become one flesh by sexual intercourse
 Baxter v Baxter
The husband applied for a nullity of marriage as the wife did
not allow the husband to have sexual intercourse with her
unless he uses contraceptive sheath. The court held that the
marriage has been consummated regardless of the husband’s
use of a sheath
 The court overruled Cowen v Cowen which held that the use of
a contraceptive sheath meant that the marriage has not been
consummated

 LvL
Several attempts were made to consummate the marriage, but
after 3 years of marriage, the wife remained a virgin as the
husband could consummate the marriage with another woman
but was incapable of doing so with the wife. Thus, a decree of
nullity was granted. Such inability may derive from
physiological or psychological causes and may be general or
only with that particular spouse. However, psychological
inability must amount to severe repugnance, and not mere
unwillingness or reluctance
b) The marriage has not been consummated owing to the willful
refusal of the respondent to consummate it
 Willful refusal: without just cause
 The refusal must relate to the post marriage stage; after the
marriage has been solemnized

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Family Law 2

 If a just excuse can be shown, the petition will be dismissed

 For example: Where the parties have agreed (impliedly or
expressly) that a civil marriage will be followed by a religious
ceremony before consummation can take place, if one party then
refuses to undergo a religious ceremony (without a just cause),
it would amount to a willful refusal to consummate the marriage
 Rathee v Shanmugam
The parties agreed not to consummate the marriage until a
formal Hindu ceremony was held. However the husband
delayed the ceremony and later decided not to proceed with
the marriage (willful refusal). The wife was successful in
applying for nullity of marriage
 Jodla v Jodla
Both parties were Roman Catholics who knew that their faith
required a religious ceremony before their marriage could be
consummated (implied agreement) and the husband had
promised to arrange for one. However, he did not arrange such
a ceremony, despite being repeatedly requested to do so. The
wife was willing to fulfill the matrimonial obligations subject to
the ceremony taking place. The court held that the wife’s
request for him to arrange for the church ceremony constituted
an implied request for intercourse and to live wholly as
husband and wife. These requests were refused without any
just excuse on the part of the husband. The wife therefore was
entitled to a decree of nullity on the ground of willful refusal on
the part of the husband to consummate the marriage
 Tan Siew Choon v Tan Kai Ho
The parties were Chinese and were married at the Registry.
They had agreed that the registration would be followed by
another ceremony conducted according to Chinese customary
rites. They also agreed that they would not cohabit or
consummate the marriage before the ceremony. The husband
was supposed to make arrangement for the ceremony but
delayed in doing so. When requested to do so by the wife, there
was no response. The court held that the husband’s non-

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Family Law 2

response to the wife’s request to arrange the ceremony

amounted to a willful refusal on his part to consummate the
marriage
 Kwon Sin Hwa v Lau Lee Yen
The parties agreed that after marriage they would continue to
live apart and would not cohabit until after they had undergone
the traditional Chinese rites and set up a matrimonial home.
The husband had asked to consummate the marriage but the
respondent refused on the ground that she wished to have
customary rites performed before consummating the marriage.
Subsequently, the respondent herself refused to go through the
Chinese customary rites, giving financial reasons and later
saying that she wanted to be a nun. The court held that there
was no credible evidence on which the court find willful refusal
to consummate the marriage
c) Either party to the marriage did not validly consent to it,
whether as a result of duress, mistake, unsoundness of mind or
otherwise
 The absence of free consent will invalidate the marriage
 Buckland v Buckland
The petitioner was charged for the alleged corruption of a 15-
year-old girl, and was sentenced to a lengthy imprisonment
and ordered to support the child with which the girl was
believed to be pregnant. The only alternative available to him
was to marry the girl. The court held that where consent was
given out of fear, the petition for annulment was granted. In
proving that consent was given out of fear, it must be shown
that:
i. Fear of a sufficient degree to vitiate consent was present
ii. The fear was reasonably entertained
iii. It arose from an external circumstances for which the
petitioner is not responsible
 Hirani v Hirani
The petitioner and her family were Hindus, but she had been
associating with an Indian Muslim. Her parents disapproved
26
Family Law 2

and arranged for her to marry a man that neither, she nor they,
had previously met. Her parents told her that if she did not
marry somebody of their choice, she should pack her bags and
leave the family home. Thus, she proceeded with the marriage
but it was never consummated. The court in annulling the
marriage ruled that it was a clear case of the overbearing
(arrogantly dominating) of the petitioner’s will, which thus,
invalidated or vitiated her consent
 ‘Or otherwise’ under the provision could also include fraud and
misrepresentation
 Moss v Moss (fraud)
The marriage is voidable if the consent was given to something
other then the marriage or to a marriage with someone other
than the person standing at the altar. But if a person wishes to
go through a marriage ceremony with a person whose identity
he or she is aware of, then it is irrelevant if consent was
induced by promises of eternal happiness, luxurious living or
even the promise to live together ever after.
 Mehta v Mehta
The petitioner was under the assumption that the ceremony
was for the purpose of her conversion to the Hindu faith ,which
she had previously agreed to. However, she later was informed
that not only had she been converted to the Hindu faith, but she
had, at the same time, married the respondent. The court held
that where her consent given to the marriage was obtained by
fraud, the marriage was voidable

 In the Marriage of N Osman and Mourali

The wife’s consent was obtained by fraud as the only reason
the husband, a foreign national, married her was to enable him
to be permitted to reside in Australia as the wife had a
permanent resident status. Where the parties entered into a
marriage knowingly for some ulterior motives, they cannot
later claim to be defrauded simply because they each knew

27
Family Law 2

what they were doing. However, if one defrauded the other,

then the aggrieved party could seek relief due to the voidable
marriage
d) At the time of marriage, either party, though capable of giving a
valid consent, was a mentally disordered person considered
unfit for the marriage
e) At the time of marriage, the respondent was suffering the
venereal disease in communicable form
f) At the time of marriage, the respondent was pregnant by some
person other than the petitioner
 Smith v Smith
In less than 9 months after the marriage was consummated, the
wife gave birth to a full-term child. Instead of asking the wife,
whether the child was his, the husband chose to have sexual
intercourse with her a mere fortnight after she gave birth. Only
later did he choose to confront her about the child. The court
held that the husband’s actions barred him from seeking an
annulment

Bars to relief
1. Section 71(1): The court shall not grant a decree of nullity on
any of the grounds of nullity of marriage under Section 70 if the
respondent satisfies the court:
a) That the petitioner, knowing he could have the marriage
avoided, led the respondent to reasonably believe that he would
not seek to do so
 WvW
After the parties were married, attempts by the husband to
consummate the marriage were unsuccessful. On the
suggestion of the husband, the parties adopted a child.
Subsequently, the husband left the wife, the petitioned for
nullity of the marriage on the ground that the wife was unable
to consummate the marriage or alternatively that she willfully
refused to do so. The court held that where there was evidence
that the husband had initiated the adoption in hopes that the
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Family Law 2

wife would overcome her repugnance to intercourse, the joint

adoption of the child had the effect of approving the marriage
on the part of the husband
b) That it would be unjust to the respondent to grant the decree
 Pettit v Pettit
The marriage was never consummated owing to the husband’s
incapacity. The wife contributed towards the purchase of the
matrimonial home, which she kept when the husband was in
the army. In 1945, she delivered a child conceived through
artificial insemination. In 1957, the husband found another
woman and left the wife. The husband petitioned for a decree
of nullity on the ground of his own incapacity. The court held
that in a petition by an impotent spouse, the circumstances
including the respondent’s attitude and reaction to the
situation created by the petitioner’s impotence must be looked
at to determine whether it would just or unjust for the
impotent spouse to obtain a decree. In this case, it would be
unfair, inequitable and unjust to grant the husband a decree

Void marriage Voidable marriage

1. Does not exist at the time of 1. Valid until annulled by the

marriage court

2. Validity can be determined at 2. Validity is determined after

the time of solemnization solemnization

3. Deceased (representative) can 3. Deceased (representative)

challenge marriage cannot challenge marriage

4. 3rd parties can challenge 4. Only parties to the marriage

can challenge

5. Status of marriage depends on 5. Status of marriage depends on

question of law question of fact

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Family Law 2

6. Consequence of marriage acts 6. Consequence of marriage shall

retrospectively not act retrospectively

7. Status of woman for void 7. Status of woman is not feme

marriage is feme sole sole

8. There is no bar to relief 8. There could be a bar to relief

but parties must prove to court
that if decree was granted it
would be unjust

(KNOW ALL GROUNDS FOR CONVERSION TO DIVORCE, Sec 51

include Deepa and Indira Gandhi and what is the approach by
court before and after the case of letchumy. After letchumy, the
case of tan soon mooi, the court interprets the word muslim

30
Family Law 2

differently) (52,53,54) Sec 54: Para (a) read with sec 58 and 59
and add all cases to support your answer
Divorce (Law Reform (Marriage & Divorce) Act 1976)
 Section 48(1) LRA: Nothing in this Act shall authorize the court
to make any decree of divorce except:
a) where the marriage has been registered or deemed to be
registered under this Act; or
b) where the marriage between the parties was contracted under
a law providing that, or in contemplation of which marriage is
monogamous; and
c) where the domicile of the parties to the marriage at the time
when the petition is presented is in Malaysia
 Section 49(1) LRA: Notwithstanding anything to the contrary in
paragraph 48(1)(c), the court shall have jurisdiction to entertain
proceedings by a wife under this Part, although the husband is
not domiciled in Malaysia or resident in Malaysia if:
a) the wife has been deserted by the husband or the husband has
been deported from Malaysia under any law for the time being
in force relating to the deportation of persons, and the husband
was before the desertion or deportation domiciled in Malaysia;
or
b) the wife is resident in Malaysia and has been ordinarily resident
in Malaysia for a period of two years immediately preceding the
commencement of the proceedings
o General rule, Section 50(1) LRA: Subject to subsection (2),
no petition for divorce shall be presented to the court
before the expiration of the period of two years from the
date of the marriage
o Section 50(2) LRA: A Judge of the court may, on an
application made to him, allow the presentation of a
petition for divorce within the specified period on the
ground that the case is one of exceptional circumstances
or hardship suffered by the petitioner; but in
determining the application the Judge shall have regard to
the interests of any child of the marriage and to the
question whether there is reasonable probability of a

31
Family Law 2

reconciliation between the parties during the specified

period
o Fay v Fay: It must be shown to be something out of
ordinary
o Bowman v Bowman: The wife filed for divorce within the
specified period (as under English law) on the ground of
exceptional hardship suffered by her or exceptional
depravity on the part of her husband as he had committed
adultery and also exercised cruelty and perverted lust.
Held: Mere adultery does not constitute ‘exceptional
depravity’. ‘Exceptional hardship’ suffered by the wife
would only be justified if the husband, on top of
committing adultery, had also committed other
matrimonial offences, like cruelty, abuse or neglect. Thus,
the court in this instance, granted leave to the wife to
present her petition.
Grounds for divorce:
Dissolution on the ground of conversion to Islam (Section 51)
o Section 51(1) LRA: Where one party to a marriage has
converted to Islam, the other party who has not so
converted may petition for divorce: Provided that no
petition under this section shall be presented before the
expiration of the period of three months from the date of
the conversion
o Under Syariah Law, a person’s marriage would
automatically dissolve upon conversion to Islam.
However, under the LRA, a non-Muslim marriage is not
dissolved upon the conversion of one of the parties to
Islam. It merely provides a ground upon which the non-
convert spouse may petition for divorce. Thus, where a
non-convert spouse does not petition for divorce, the
marriage will still subsist under the Act (Re Goh Hoe Ling)
o There must be a judicial pronouncement ending
o Koh Yian Geok v Zulkifli Tan Abdullah: The court declared
that the marriage was dissolved upon the petition of the
wife for a divorce to their marriage in 1980 on the ground

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Family Law 2

that the husband had converted to Islam in 1993, thus

fulfilling the requirement of a lapse of 3 months
o Subashini Subramaniam v Saravanan: The husband
converted to Islam and converted also the children to
Islam. Subashini challenged the conversion of the children
and she applied for petition for divorce in court at high
court but petition was rejected because she petitioned
before 3 months of the conversion. Subashini petitioned
for divorce in 2 months. After 3 months of conversion, she
just kept quiet so in the eyes of LRA, the marriage still
subsists

o Pedley v Majlis Agama Islam Pulau Pinang: Prior to 1994,

if a non-convert spouse does not petition for divorce, the
marriage will be treated as still subsisting as the convert
spouse cannot petition under any ground of divorce in line
with the fact that the LRA does not apply to Muslims by
virtue of Section 3(3)
o Letchumy v Ramadasan (1984): The wife asked for
ancillary claim but husband converted to islam so court
held that it has no jurisdiction to ask the husband to pay
ancillary claim.
o However, this approach changed due to the decision in
Tan Sung Mooi v Too Miew Kim, which provided that, in
interpreting Section 3(3), where the LRA applies to non-
muslims and non-Muslims marriage, the word “Muslim”
under the provision must be construed as a Muslim “at the
time of the marriage”, as a convert spouse had yet to
become a Muslim when the marriage was contracted
o Tan Sung Mooi v Tan Miew Kim: Section 3(3) of LRA
applies to non Muslim and Muslim marriage. The judge
construed the word non-Muslim as non-Muslim at the
time of marriage. Therefore a convert spouse must be
governed by LRA. Ancillary claim can be granted under
the new interpretation of Section 3(3) of LRA

33
Family Law 2

o Yong Fuat Meng v Chin Yoon Kew: In cases where the

petitioner was not born a Muslim but had later converted
to Islam, he should not be prohibited from appearing
before the Civil Court to settle his obligations or liabilities
that had arisen as a result of his civil marriage contracted
under the LRA 1976
o Nur Aisyah Tey Abdullah v Teo Eng Hua: A petition was
made by the convert spouse (the wife) under Sections
53&54(1)(d) on the ground that the marriage had
irretrievably broken down by virtue of her conversion to
Islam. Held: As the petitioner was a non-Muslim at the
time the marriage was contracted, the court granted her
application upon deciding that it would be just and
reasonable to do so where the marriage had been proven
to have irretrievably broken down
o By virtue of Section 3(3), the LRA is applicable to the
convert spouse as the parties were married under the Act
and not Syariah law
o Denying the right of the convert spouse to petition for
divorce where the marriage is irreconcilable would be
unreasonable and may cause the convert spouse to be
charged for bigamy for contracting a subsequent marriage
before the dissolution of the previous marriage
o The Parliament could not have intended for a spouse of a
non-Muslim marriage who had converted to Islam to be
denied the same legal rights enjoyed by a non-convert
spouse. Thus, the petitioner’s status as a Muslim at the
time the petition is presented is irrelevant, and that there
exists absolutely no legal impediment against the convert
spouse filing the petition.
o However, where Section 51(1) LRA explicitly provides
that only a non-convert spouse may petition for divorce
under the provision, a convert spouse seeking to petition
for divorce may only do so under the other available
grounds (Section 52&53)

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Family Law 2

Conversion of children
o Deepa case (2016): The husband converted himself and 2
of his children to Islam. The wife challenged conversion
and stated that the conversion is not valid. The syariah
and civil court granted the petition for divorce creating a
conflict of jurisdiction. Also, the federal court held that for
the custody of children, the welfare of children should be
given the utmost importance. Therefore in this case, one
children went to wife, another children went to husband.
Though so, the conversion for the children is not
considered as valid
o Indira Gandhi’s case: In this case, there were 3 children
(including one baby that was 11 months) who were
converted to Islam. The court held that the conversion of
children was not valid

Dissolution by mutual consent (Section 52)

 Section 52 LRA: If husband and wife mutually agree that their
marriage should be dissolved they may after the expiration of two
years from the date of their marriage present a joint petition
accordingly, and the court may if it thinks fit, make a decree of
divorce on being satisfied that both parties freely consent, and that
proper provision is made for the wife and for the support, care and
custody of the children, if any of the marriage and may attach such
conditions to the decree of divorce as it thinks fit
 Sivanesan v Shymala: A mutual divorce is not a contested divorce,
thus the joint petitioners need not prove the breakdown of their
marriage in order for it to be granted
 Mere mutual consent is sufficient for divorce to be granted under
this provision. However, in order to satisfy the court that both
parties had freely consent to the dissolution, both petitioners must
be physically present in court at the time of the hearing
 Re Goh Hoe Ling: A joint petition was filed in which both parties
had freely consented to the dissolution. Subsequently, the wife filed

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Family Law 2

a notice of discontinuance for that joint petition and filed a notice

of withdrawal of consent. Held: The material time to consider the
terms and conditions of the deed would be on the date of hearing
the petition. Thus, filing of notice of withdrawal of consent by one
of the parties to the joint petition deemed to have withdrawn her
“free consent”
o The material time to consider whether or not both parties
freely consent would be on the date of the hearings and not
at the time of filing the petition
 Their physical presence is also required in determining whether
the provision for the wife and for the support, care and custody of
the children are fair and reasonable
 Sivanesan v Shymala: The parties had filed a joint petition for the
dissolution of marriage, together with an affidavit providing for the
settlement of their matrimonial property and a waiver by the wife
of all future claims for maintenance. The trial judge granted a
decree nisi (a court order for divorce that has yet to become
absolute) and adjourned the mater to deal with the property
settlement. Before the decree became absolute, the husband died
and the wife applied to set aside the decree nisi. In allowing the
appeal, the court held: The judge was wrong in dissolving the
marriage before having dealt with the property settlement. Until
the terms and conditions are settled and agreed to in the joint
petition, the court must never grant the divorce by mutual consent

Dissolution on the ground of the breakdown of marriage

(Section 53&54)
 Section 53(1) LRA: Either party to a marriage may petition for a
divorce on the ground that the marriage has irretrievably broken
down
o Section 53(2) LRA: The court hearing such petition shall so
far as it reasonably can inquire into the facts alleged as
causing or leading to the breakdown of the marriage and if
satisfied that the circumstances make it just and reasonable
to do so, make a decree for its dissolution

36
Family Law 2

o Section 54(1) LRA: In its inquiry into the facts and

circumstances alleged as causing or leading to the
breakdown of the marriage, the court shall have regard to
one or more of the following facts that is to say:
a) that the respondent has committed adultery and the
petitioner finds it intolerable to live with the respondent
b) that the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the
respondent
c) that the respondent has deserted the petitioner for a
continuous period of at least 2 years immediately preceding
the presentation of the petition
d) that the parties to the marriage have lived apart for a
continuous period of at least 2 years immediately preceding
the presentation of the petition

Section 54(1)(a) LRA: that the respondent has committed adultery

and the petitioner finds it intolerable to live with the respondent
 In interpreting the provision, English law provides two differing
views (whether it should be read disjunctively or conjunctively)
 First view: The petitioner must satisfy that the respondent has
committed adultery and that the petitioner finds it intolerable
to live with the respondent. As the two phrases are independent
of one another, the petitioner need show that the intolerability
was a consequence of the adultery committed (Goodrich v
Goodrich)
o Cleary v Cleary: After the wife had committed adultery,
the husband took her back. The wife continued to
correspond with the man (whom she had an affair with)
and finally left the husband to live with her mother. Held:
The husband established that the marriage had
irretrievably broken down as he found it intolerable to
live with her but not as a consequence of her adultery
 The wording of the provision must be interpreted
literally and that the petitioner may not only rely on

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Family Law 2

the adultery but also any other matter to prove that

further cohabitation is intolerable
 Second view: Roper v Roper: Where the finding that has to be
made is that the respondent has committed adultery and
petitioner finds it intolerable to live with the respondent, the
provision means ‘in consequence of the adultery, the petitioner
finds it intolerable to live with the respondent’
 In Malaysia, the courts have accepted the second view, whereby
as a result of the adultery, the intolerability to live with the
respondent may be read into it
 Tan Wat Yan v Kong Chiew Meng: Where the wife had alleged
adultery on the part of her husband and was seeking for divorce,
the court held: once adultery is proven, then it is a ground for
divorce if the court is satisfied that the petitioner did not
condone the act of adultery by the respondent and as a result it
is impossible for the petitioner to continue living with the
respondent
 A spouse who has condoned the other spouse’s act of adultery
cannot then complain that his or her behavior is intolerable
o Kang Ka Heng v Ng Mooi Tee: Although the wife did not
take the initiative to file the divorce proceedings, this did
not amount to evidence that she had condoned the act of
adultery by the husband
 Karen Cheong Yuen Yee v Phua Cheng Chuen: Although adultery
is not a crime, the standard of proof required for an allegation of
adultery is beyond reasonable doubt
o Tan Wat Yan: The allegation of adultery was not disputed
as three children were born as a result of the husband’s
affair
o Kang Ka Heng: The husband admitted to have committed
an adulterous relationship from which a child was born
 A petitioner may seek damages for adultery against a co-
respondent (the third party involved in the affair)
 Damages for adultery under Section 58 only applies in divorce
proceedings (Shudesh Kumar v Kamlesh)

38
Family Law 2

 Section 58(1) & (2) LRA: Where adultery is alleged, the

petitioner shall make the alleged adulterer a co-respondent and
include a prayer in the petition for the co-respondent to be
condemned in damages for the adultery
 Section 58(3)(b) LRA: If at the conclusion of the hearing, the
court is satisfied that adultery between the respondent and co-
respondent has been proved, the court may award the petitioner
such damages as it may think fit, but so that the award shall not
include any exemplary or punitive element
o Leow Kooi Wah v Ng Kok Seng Philip & Anor: The amount
of damages awarded is dependent on the circumstances of
the case and are not restricted to pecuniary loss. Where in
this case, the co-respondent was aware that the petitioner
and respondent were married, the factor had to be taken
into account in calculating the damages. Thus, the value of
the injury to the aggrieved spouse’s feelings would vary
on a case-to-case basis

Section 54(1)(b): that the respondent has behaved in such a way that
the petitioner cannot reasonably be expected to live with the
respondent
 Katz v Katz: Behaviour is something more than a mere state of
affairs or a state of mind, it is an action or conduct by one person
which affects the other
 English law has provided two views under which are tests to be
applied
 First view: The sole test to be applied as to the nature of the
respondent’s behavior is that it must be such as to justify the
finding that the petitioner cannot reasonably be expected to live
with the respondent
o Thurlow v Thurlow: It is not sufficient for the petitioner to
merely establish that the marriage was dead and that it as
impossible for one to cohabit with the respondent. It must
be shown that the respondent’s behavior (negative
conduct) justified the conclusion that the petitioner could
not reasonable be expected endure cohabitation

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Family Law 2

 Second view: In determining whether or not the petitioner can

reasonably be expected to live with the respondent, the court
must take into account the character, personality, disposition
and behavior or both, the petitioner and respondent
 In doing so, there are 2 tests for the court to apply
o Reasonable man test as formulated in Livingstone Stallard
v Livingstone Stallard: Would any right thinking person
come to the conclusion that this husband has behaved in
such a way that his wife cannot reasonably be expected to
live with him, taking into account the circumstances as a
whole, and the characters and personalities of the parties?
 It is not the behavior that needs to be unreasonable
but the expectation of further cohabitation
 Hariram Jayaram v Saraswathy Rajahram: The
respondent’s behavior has not been such that the
court can conclude that the petitioner can
reasonably be expected to live with her
o Behaviour test: The court must not only consider the
respondent’s behavior but also the character, personality,
disposition and behavior of the petitioner (Ash v Ash)
o Whether there has been a breach of marital obligations by
both parties:
 Pheasant v Pheasant: The husband alleged that the
wife had not given him spontaneous demonstrative
affection, which his nature demanded, and which he
claimed had caused the marriage to be irretrievably
broken down. The court in dismissing the claim
held: There was nothing in the wife’s behavior
which could be regarded as a breach of her marital
obligations or which effectively contributed to the
breakdown of the marriage

 In Malaysia, the tests which follow the second view have been
applied by the court
 Joseph Jeganathan v Rosaline Joseph: The husband sought
divorce on the ground that it had irretrievably broken down in

40
Family Law 2

that the wife had behaved in such a way that he cannot

reasonably be expected to live with her. Evidence showed that
there was a lot of bitterness, suspicion and tension, triggered by
constant violent quarrels. There were also periods of absences
by the wife from several hours in a day, up to 70 to 80 days at a
time. Efforts of reconciliation had failed. Held: In applying the
tests, the court considered the circumstances as a whole, and the
characters and personalities of the parties and ruled that the
marriage irretrievably broken down
 Wong Seng v Lee Lo Yen: The wife had behaved in a manner not
expected of her by allowing her gambling habit to get the best of
her to such an extent that she stayed away from home, and left
the children to find their on food. Her gambling also led to
frequent quarrels with the petitioner. Held: the court was
satisfied that the marriage had irretrievably broken down and
granted the divorce

Section 54(1)(c): That the respondent has deserted the petitioner

for a continuous period of at least 2 years immediately preceding
the presentation of the petition
 Reg v Lershe: Desertion is willful absenting of the husband
from the society of his wife in spite of her wishes
 B v P: Desertion: The separation of one spouse from the other
with the intention of bringing the state of marriage to an end
without reasonable and proper cause and without the
permission of the deserted spouse
 Pulford v Pulford: Desertion is not the withdrawal from a
place but a state of things
There are two types of desertion:
 Simple desertion: Where one party leaves (spouse in desertion)
the other (the deserted spouse/petitioner) without a reasonable
cause
 Constructive desertion: Where one spouse virtually causes
another to leave the matrimonial home or where the conduct or

41
Family Law 2

behavior of one spouse has forced the other to have to leave the
matrimonial home
o The spouse who causes the departure of another is the
spouse in desertion
o Lang v Lang: The husband continuously mistreated the
wife who eventually left the house and petitioned for
divorce. Privy Council held: The husband was responsible
for the breakdown of the marriage as he had deserted her
by driving her out of the house
 The husband’s conduct must be such that a
reasonable man would know in all probability that
it would result in the wife’s departure; it must be so
grave as to take married life impossible
o Buchler v Buchler: The ordinary wear and tear of married
life would not suffice; the conduct of the spouse in
desertion must exceed in gravity
o Chua Seok Choo v Ooi Chuan Lok: One occasion of beating
was insufficient to amount to a conduct of a grave nature
that would justify the constructive desertion
 In determining whether there exists desertion (simple or
constructive), there are four elements that must be fulfilled:
o Factual (de facto) separation: A rejection of all martial
obligations; a complete termination of cohabitation. It
must be proven that the parties are living two separate
households. If the parties are still living in the same house,
there must be a separation of households and absence of
any sharing of common life
 Naylor v Naylor: The wife indicated that she no
longer had the intention to live with the husband.
The couple continued to live in the matrimonial
home but stayed in separate rooms, led separate
lives, the wife stopped performing her wifely duties,
and there was a complete absence of family life. The
court found the wife to be in desertion.
o Animus deserendi (intention on the part of the spouse in
desertion to bring the marriage to an end): A de facto
separation would not amount to desertion if it is not
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Family Law 2

accompanied with the intention of being permanently

separated from the other party. The element would not be
fulfilled if the spouse in desertion is incapable of forming
the necessary intention, or if the absence of the spouse
was involuntary due to work or health reasons. Desertion
is said to exist only upon the intention being formed.
 Mummery v Mummery: The husband had deserted
the wife for atleast three years, bur during that time
he returned and the couple had sexual intercourse.
Held: Resumption of cohabitation does not
interrupt the period of desertion if the spouse in
desertion has no intention of returning to the other
spouse
o Lack of consent to the separation on the part of the
deserted spouse: There can be no desertion where the
spouse that has been left behind has freely consented to
the separation
 Goh Soo Toon v Yuen Yoke Chee: The husband
petitioned for divorce on the ground of desertion by
his wife. However, where there existed a separation
deed entered into by the parties, there cannot be
said to be a lack of consent to the separation. Held:
Where the separation deed is still in force, the wife
is entitled to use it as a defence against the
allegation of desertion
o Lack of justification (no reasonable cause) for
withdrawing from cohabitation on the part of the spouse
in desertion: There can be no desertion where a spouse
has a reasonable cause for leaving the other. A reasonable
cause is only said to exist when a spouse commits a
matrimonial offence such as adultery or cruelty
 Young v Young: Where the conduct of the husband
was not sufficiently grave to amount to cruelty, the
wife in this case did not have reasonable cause to
withdraw from cohabitation
 Dowse v Dowse: The husband petitioned for divorce
on the ground of desertion by the wife. The wide
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Family Law 2

denied that she was guilty and alleged constructive

desertion by the husband as a defence. However,
where the court found that the wide had failed to
establish constructive desertion, it was held: The
wife had no reasonable cause to leave the
matrimonial home and was thus guilty of simply
desertion to which the husband’s petition was
granted

 Desertion will come to an end if any of the four elements ceases

to exist
 Thambyah v Thambyah: The burden of proof is upon the
petitioner to prove that desertion existed beyond reasonable
doubt

Section 54(1)(d): That the parties to the marriage have lived apart for
a continuous period of at least 2 years immediately preceding the
presentation of the petition
 Sullivan v Sullivan: ‘lived apart’: More than mere physical
separation between the spouses; there must be a recognition
(mentally and physically) that the marriage is at end
There are two elements that must be proven in a petition for divorce
under this ground:
 Factual/Physical separation:
o Mouncer v Mouncer: Where the husband and wife were
still living in the same household, a rejection of a normal
physical relationship together with an absence of normal
affection was not sufficient to constitute ‘living apart’
o Fuller v Fuller: Although the husband was staying in the
house, the fact that he paid a weekly sum for his stay to
the wife was proof that the parties were not living
together in the same household
 Mental attitude:

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Family Law 2

o Separation must be accompanied by a conclusive

intention to terminate consortium (companionship
between spouses, which is an essential characteristic of
marriage)
o Santos v Santos: A mere physical separation for 2 years as
not sufficient to constitute ‘living apart’ if both parties still
recognize the marriage as subsisting. The petitioner must
not only prove factual separation but also that the
petitioner had ceased to recognize the marriage and
intended to never return to the spouse
o Leong Kwek Keong v Lee Ying Kuan: The parties had been
living apart, but the husband still returned to the
matrimonial home to spend time with his family and
continued to do things he normally did with his family
before he left. Held: The husband’s conduct was consistent
with the recognition of a marriage. He was only living
apart from the wife by choice and was not force to do so
as a result of the circumstances. Thus, there was
inconclusive evidence of intention to terminate the
marriage
 Section 54(2) LRA: In considering whether it would be just and
reasonable to grant a divorce under Section 53, the court shall
take into account the parties’ conduct and how the children’s
interest or either party may be affected by the dissolution of the
marriage

Judicial separation
 Judicial separation occurs when both parties in a marriage
legally separate upon an application made by either party for the
decree, without having committed any matrimonial offence. The
parties are then not allowed to marry anyone else, unless they
obtain a divorce
 Section 48(2) LRA: Nothing in this Act shall authorize the court
to make any decree of judicial separation except:

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Family Law 2

a) where the marriage has been registered or deemed to be

registered under this Act or
b) where the marriage between the parties was contracted under
a law providing that or in contemplation of which marriage is
monogamous and
c) where both the parties to the marriage reside in Malaysia at the
time of the commencement of proceedings
 Section 64(1) LRA: A petition for judicial separation may be
presented to the court by either party to a marriage on the
ground and circumstances set out in Section 54 and that section
shall with the necessary modifications apply in relation to such
a petition as they apply in relation to a petition for divorce
o No restriction of time is provided under the LRA, hence
the petition can be made at any time during the
subsistence of a valid marriage
 Section 64(2) LRA: Where a court grants a decree of judicial
separation it shall no longer be obligatory for the petitioner to
cohabit with the respondent
 Section 64(3) LRA: The court may on an application by petition
of the spouse against whom a decree of judicial separation has
been made and on being satisfied that the allegations in the
petition are true, rescind the decree at any time on the ground
that it was obtained in the absence of the applicant or if
desertion was the ground of decree, that there was reasonable
cause for the alleged desertion
 Section 65(1) LRA: A person shall not be prevented from
presenting a petition for divorce, or the court from pronouncing
a decree of divorce by reason only that the petitioner has at any
time been granted a judicial separation upon the same or
substantially the same facts as those proved in support of the
petition for divorce

*Note: The effect of annulment is that parties cannot remarry

but for divorce parties can remarry each other
*Difference between conciliatory body (MASUK) and marriage
tribunal

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Family Law 2

Domestic Violence
*READ THE AMENDMENT (IPO, EFFECTIVENESS)
Chong Ah Moi before amendment (toothless tiger). After
amendment is more effective (seizable offence)

Protection under the Domestic Violence Act 1994

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Family Law 2

 Provides protection to all family members against violence

committed within the domestic sphere
 The Domestic Violence (Amendment) Act 2012 was gazetted to
make significant changes within the principal Act

Definition
 Section 2 of DVA: Domestic violence means the commission of
one or more of the following acts
a) willfully or knowingly placing or attempting to place, the victim
in fear of physical injury
b) causing physical injury to the victim by such act which is known
or ought to have been known would result in physical injury
c) compelling by force or threat to engage in sexual conduct
d) confining or detaining the victim against his or her will
e) causing mischief or damage to the property of the victim with
intent to cause distress or annoyance to her or him
f) psychological abuse and emotional injury to spouse
g) causing the victim, whether and adult or a child to suffer
delusions after being given intoxicating substances
 Section 2 of DVA: Family members means spouse, a former
spouse, a child, incapacitated adult and other members of the
family

A complaint of domestic violence:

 Section 3 of DVA: This act shall be read together with the Penal
Code or any other written law involving offences relating to
domestic violence
 Section 18A of DVA: Offences involving domestic violence shall
be deemed to be seizable offences

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Family Law 2

 It means any complaint regarding domestic violence may be

acted upon immediately by the police without warrant of
investigation or warrant of arrest
 Section 18(1) of DVA: Any person who has reason to believe that
an offence involving domestic violence is being or has been
committed may give information in respect thereof to an
enforcement officer

Protection order:
 Protection orders are granted to secure the safety of domestic
violence victims
 There are types of protection orders:
o Interim protection order
 Section 4(1) of DVA: The court may during the
pendency of investigations relating to the
commission of an offence involving domestic
violence issue an interim protection order
prohibiting the person against whom the order is
made from using domestic violence against his or
her spouse or former spouse or a child or an
incapacitated adult or any other member of the
family, as the case may be as specified in the order
 Section 12 of DVA: An interim protection order may
be sought pending investigations by the police
following an information relating to the commission
of an offence involving domestic violence
 Section 12A of DVA: An order shall be an ex-parte
application made by the applicant, applicant’s
counsel or social welfare on behalf of the
application
 Section 4(4) of DVA: The effect of the order will
cease:
 Upon completion of investigation or
 When a criminal proceeding relating to the
commission of the offence of domestic

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Family Law 2

violence is instituted against the person

against whom the order is made
 Section 12B of DVA: The perpetrator is provided a
chance to set aside the order within 14 days from
the date it is served
o Protection order:
 Section 5(1) of DVA: The victim may make an
application once a complaint of domestic violence
has been made to the police upon which the court
will then issue a restraining order
 The protection order granted by the court is only
temporary in nature until the court determines a
suitable place for the victims where normally the
victims will be placed in the women protection
homes.
 In Manggaleswari v Giritharan, during the police
report she did not tender evidence. The court held
that it would not grant PO because there was no
evidence. In this case there was a trial but she
couldn't get the PO.
 Section 17A of DVA: If the order could not be served
by the police to the perpetrator after 3 attempts, the
police shall immediately apply to the court for a
substituted service of the order
Ancillary order
 It is an order that may be included in the protection order
 Section 6(1) of DVA: The court may issue an ancillary order if it
is satisfied on the balance of probabilities that it is necessary for
the protection and personal safety of the victim
 Section 6(1) of DVA: The court may provide one or more of these
ancillary orders: (amended)
o Exclusive occupation by the victim to a part of the
residence
o Prohibit or restrain the offender from entering the
victim’s house, workplace or school

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Family Law 2

o For the victim to collect belongings in the residence

accompanied by a police officer
o To restrain the offender from making any communication
o For the victim to be permitted to use the vehicle
previously ordinarily used by her
 Section 6(1) of DVA: The duration for the ancillary order shall
be for 12 months and any extension shall not be made more than
once
 Jennifer Patricia v Calvin Martin: The court granted the ancillary
order restraining the husband from entering the wife and
children’s residence but stressed that the order should not affect
the husband’s title to or interest in the house unless satisfied
that there was no other way to secure the person safety of the
wife and child

Contravention of a protection order:

 Section 7(1) of DVA: The court may attach the power of arrest to
the interim protection order or protection order when the court
is satisfied that the offender is likely to cause actual physical
injury
 Section 7(3) of DVA: The police may arrest the offender without
warrant and bring him or her before a judge within 24 hours of
the arrest upon report of domestic violence lodged by a person
who is protected under either order
 Section 8 of DVA: Contravention of an order shall cause a person
to be liable to a fine not exceeding RM2000, or imprisonment for
a term not exceeding 6 months or both

Compensation and counseling:

 Section 10 of DVA: The court may award compensation to the
victim in respect of injury or damage or loss sustained as it
deems just and reasonable
 Chin Yoke Yin [2015], in this case, the petitioner asked for
damages. The lawyer tried to argue that we can refer to motor
accident cases. To him, injuries are still injuries. Thus, we can

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Family Law 2

refer to tort cases in motor accident cases. The lawyer referred

to motor accident cases. The court granted 4k for the wife for
damages.
 Section 11 of DVA: The court in application where PO is sought
may make order for the parties to be referred to a conciliatory
body for counseling sessions to enable reconciliation or
rehabilitation to facilitate the preservation of the family

Protection under other Laws:

 Section 103 of LRA: An injunction can be granted as against
molestation provided during any pending matrimonial
proceedings or on or after the grant of a decree of divorce,
judicial separation or annulment
 Chang Ah Moi v Phang Wai Ann: The court held that the wife
would not be able to obtain immediate injunction to restrain her
husband from molesting her unless she filed for a divorce or for
any other matrimonial proceedings against her husband
 However, in Jennifer Patricia v Calvin Martin: The court held
that the requirement for non-molestation order under Section
103 to be applied during matrimonial proceedings does not
necessarily mean that there must be a pending divorce
proceeding before the application for such injunction
 Section 4 of MWA: A husband or wife is entitled to sue each
other in tort for damages in respect of injuries

Weakness of the DVA

 In order to charge a perpetrator for domestic violence, the Act
must be read together with the provisions of the Penal Code
o All actions under the Act can only be taken if there is any
information relating to the commission of any offence
under the Penal Code
o Thus, domestic violence per se is not a specific punishable
crime
o This causes the power of the police to be less effective as
action cannot be taken immediately

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Family Law 2

o Chang Ah Moi v Phang Wai Ann [1995], the court held

that the Act is a toothless tiger implying that the Act
appears as though it is a comprehensive and effective law,
when in reality it is not. The strict procedures that is
required to be complied with will cause delay in taking
action by which point serious or severe injuries and harm
would have been caused to the victim
o Ngieng Shiat Yen v Ten Jit Hing, in this case there was an
application of PO. So court held that it cannot grant PO
because sec 4,5,6 should be read together with sec 13. In
this case there was no trial therefore the court will not
grant PO
o Contrary to Ngeing is the case of Jennifer Patricia
Thomas v Calvin, court said that section 5 can be read
independently without section 13. Even though there was
no trial, court can grant PO.

Legitimacy and Legitimation

*Legitimacy of children, popular question
Discuss on legitimacy and legitimation. Discuss evidence act…
Difference between adoption act and registration of adoption
act. Know why non muslims prefer adoption act. Adoption act is
under HC, registration of adoption act is given by the registrar.

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Family Law 2

Common law:

 A child is legitimate if the parents are married at the time of the

conception or at the time of birth (conceived during a lawful
wedlock)
 A child is legitimate if a mother conceives him prior to a valid
marriage; is subsequently born during that valid marriage; or if
he is conceived during a valid marriage, after which the parents
were divorced
 However, a child who is born illegitimate shall be considered as
filius nullius (son of nobody)

Malaysia:

 Section 112 of Evidence Act 1950: A child is presumed to be

legitimate if he is born during the continuance of a valid
marriage or within 280 days after its dissolution, the mother
having remained unmarried
 To rebut the presumption, the appellant must show that she and
the husband had no access to each other at any time when the
child should have been begotten
o The parties are physically separated
o Husband is prove impotent or incapacitated at the time
child is conceived
 Ah Chuck v Needham: There is no evidence of any kind which
would justify me in concluding that the normal and natural
human relations which exist between husband and wide did not
subsist between Hedges and his wife when the child was
conceived. It is open to the appellant to prove that it was a
natural impossibility for the husband to be the father of the child.
Proof might be given that intercourse between husband wife
was impossible that the husband and wife were separated by
distance that access could never have taken place. Again, proof
might be given that Hedges was impotent and proof of

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Family Law 2

impotence would suffice to bastardize the child. No such profit

is given in the present case
 In this case, although the child had Mongoloid features as the
applicant, he was denied in his claim.
 In Peter James Binstead v Jevencia Autor Partosa, the court held
that there is no general power provided by legislation or
through common law for any court in Malaysia to order for a
DNA test for proof of paternity. Nevertheless in 20111, in the
case of Sean O’ Casey Patterson v Chan Hoong Poh: DNA profiling
was used by the plaintiff that he was the biological father of an
illegitimate child
 Lau Zhan Chen v Makoto Togase, the court held that where
scientific evidence by means of blood test can resolve the issue
of paternity conclusively, the interest of justice requires that a
blood test should be done in the absence of strong reasons to the
contrary

There are three ways in which an illegitimate child may become

legitimate (legitimation):

 Under the LRA

o Section 75(1) of LRA: A child of a voidable marriage shall
be deemed to be born legitimate
o Section 75(2) of LRA: A child of a void marriage shall be
deemed to be born legitimate if at the time of the marriage
one or both parties had reasonably believed that it was a
valid marriage
 Under the Legitimacy Act 1961 (Legitimation by subsequent
marriage)
o Section 4 of LA: The marriage of parents to an illegitimate
child, before or after the prescribed date, will render the
child, if living, legitimate from the prescribed date or from
the date of marriage whichever later, provided that the
father was at the date of the marriage domiciled in
Malaysia
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Family Law 2

o Section 2 of LA: Prescribed date

 Perak, Selangor, Negeri Sembilan, Pahang: 1st
January 1933
 Johor, Malacca and Penang: 1st July 1936
 Kedah, Kelantan, Terengganu, Perlis: 23rd March
1961
 Sabah and Sarawak: 1st January 1972
 Adoption Act 1952 (Legitimation by way of adoption)
o Section 9(1) AA: Upon a court order for adoption, all rights,
duties, obligations and liabilities of the parents or
guardians of the adopted child with regards to the custody,
maintenance and education of the adopted child shall vest
on the adopter as though the adopted child was born to
the adopter in lawful wedlock

There exist two statutes governing adoption in Malaysia: Adoption

Act 1952 and Registration of Adoptions Act 1952. There are several
differences that can be seen in regards to adoption under both
statutes:

Application:
 Registration of Adoptions Act:
o Applicable to Muslims and non-Muslims (no restriction in
the statute)
o Section 1(2) RAA: Applicable in West Malaysia only
o Section 10(3) RAA: Parties must be ordinarily resident in
West Malaysia

 Adoption Act:
o Section 31 AA: The Act is applicable to non-Muslims only,
thus non-Muslims are disallowed from adopting a Muslim
child
o Section 4(3): Parties must be ordinarily resident in
Peninsular Malaysia

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Family Law 2

o TPC v ABU: The respondents were Australian nationals

who had lived in Penang for three years prior to the
petition for adoption, and intended to return to Australia
upon its completion. Held: The learned judge was satisfied
that the respondents were at the material time ordinarily
resident in Peninsular Malaysia
o ‘Ordinarily resident’: A person’s stay in the country has to
be of sufficient duration and continuity to satisfy the
requirement. One must go further and show that he is
actually living in this country and has a place of work even
though he does not intend to live here
permanently. However, he need not show that he has no
immediate intention of residing anywhere else

Manner of registration:

 Registration of Adoption Act

o Section 6(1) RAA: Application for legal adoption through
registration by the Registrar
 Adoption Act
o Section 3(1) AA: Application for legal adoption through a
court order

Age of applicant:

 Registration of Adoption Act

o Section 10(2)(a) RAA: One of the spouses must have
attained the age of 25 years old and is atleast 18 years
older than the child
o Section 10(2)(b) RAA: If the adopter is a relative, must
have attained the age of 21

 Adoption Act

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Family Law 2

o Section 4(1)(a) AA: One of the applicants must have

attained the age of 25 years old and is atleast 21 years
older than the child
o Section 4(1)(b) AA: If the applicant is a relative, atleast 21,
unless the court is satisfied that there are special
circumstances for making that order

Age of the child

 Registration of Adoption Act
o Section 6(1) RAA: The child must be under the age of 18
and has never married

 Adoption Act
o Section 2 AA: The child must be less than 21 years and can
be a male, female or female divorcee

Restriction as to the sex of the applicant

 Registration of Adoption Act:
o The statute is silent about this matter

 Adoption Act
o Section 4(1) AA: If the sole applicant is a male, the child
adopted must be a male unless the court is satisfied of any
exceptional circumstances

Effect of adoption:
 Registration of Adoption Act:
o There is no legal link between the adopted child and his
adopter as the relationship between the adopted child and
his natural parents is not severed (detached)

 Adoption Act:

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Family Law 2

o Section 9(1) AA: The child becomes the legitimate child of

the adopter. Hence, the legal link between the child and
his natural parents is severed
o Section 9(2) AA: The child may inherit property of the
adopter as if the child were his own

Prohibited degrees of marriage

 Registration of Adoption Act:
o Due to the fact that the adopted child does not acquire the
status or rights of a natural son or daughter, there is no
prohibited degree of marriage between the adopted child
and members of the adopting family

 Adoption Act:
o Section 9(7) AA: The adopted child is prohibited from
marrying his siblings who are children of his previous or
subsequent adopters
o The adopted child cannot marry his previous or current
adoptive parents

Requirement of continuous care and possession of the applicant:

 Registration of Adoption Act:
o Section 6 RAA: The child must be in the custody of the
adopter 2 years continuously and immediately before the
date of application
o Tan Kong Meng v Zainon Md Zain: a Malay couple had
cared A child since she was 3 months old. Despite the
Registrar of Adoptions exercising his discretion in
dispensing the father’s consent, where the couple failed to
prove that they had been maintaining the child all the
while, the court found the registration to be void ab initio
 Adoption Act
o Section 4(4)(a) AA: The child must be in the possession of
the adopter for 3 consecutive months immediately before
the date of the order

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Family Law 2

o AL Annamalai & Anor v Chandrasekaran Thangavelu &

Anor: Where the child had been in the care and possession
of the applicant for more than 3 consecutive months as
required under the Act, thus the adoption was granted

Consent of the parents or guardian:

 Registration of Adoption Act:
o Section 6(1)(b) AA: Express consent of the adoption must
be given by the parents or if both parents are dead, or
neither of the parents are within West Malaysia, any
guardian of the child to the Registrar
o The Registrar may dispense with the consent of any
parent if he is satisfied that it would be just and equitable
for the welfare of the child
 Adoption Act:
o Section 5(1) AA: The adoption order shall not be made
except with the consent of the parents of the child. The
court may dispense with any consent required by this
provision where
a) A parent or guardian of a child has abandoned or
neglected or persistently ill-treated the child;
b) A person who should support the child but has
persistently neglected or refused to contribute;
c) A person whose consent is required cannot be found; is
incapable to give consent or his consent is unreasonably
withheld;
d) Any competent authority has given permission or granted
license authorizing the care and possession of the child to
the applicant
o Section 5(3) AA: Consent is unnecessarily withheld when
the consent may be given without knowing the identity of
the applicant but is then withdrawn on the ground that
only the identity of the applicant is unknown
o Re Baby M: The natural parents of an infant baby agreed
to give her up for adoption to the proposed adoptive
parents by signing a letter of consent. They then changed

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their minds and sought the return of their child, alleging

that they had not given consent and that the letter was
invalid. The court applied an objective test that is whether
it would be reasonable for the parents to withhold consent.
Held: The court after considering the totality of the
evidence (the serious neglect by the natural parents and
the fact that the child was in need of medical attention)
found that consent was unreasonably withheld by the
natural parents and should therefore be dispensed with
o Re SS: Where the father of an illegitimate child refused to
give his consent, the court dispensed with the
requirement of consent as it found that consent was
unreasonable withheld due to the fact that the natural
father proved to be completely unfit to continue the role
of a father of whom his child could never be justifiably
proud
o Exception under Section 8 AA: Persons who have custody
of a child, brought up and educated them under a de facto
adoption (adoption by fact) before the commencement of
the Act (25th June 1953) for a period of atleast 2 years, may
apply for adoption without requiring the consent of any
parent or guardian

Ancillary claims (Part C question) (how court assess

maintenance, how much the court will give)

1) Maintenance of wife and children

Maintenance of a wife during marriage (Married Women and

Children (Maintenance) Act 1950 (MWCMA))

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o Section 3(1) of MWCMA: The court may only order a man

to pay maintenance to his wife and not to order a wife to
pay maintenance to her husband even if the husband is
unable to earn a livelihood due to mental or physical
injury
o Section 13 MWCMA: MWCMA is not applicable to Muslims

Extent of the obligation to maintain during marriage:

o Section 5(1) MWCMA: If the wife lives separately from the
husband with reasonable refusal to do so, the court may
make or enforce the order for maintenance although the
husband made it a condition that the wife lives with him
and the wife fails to do so
o Ranjit Singh v Jaswant Kaur: The husband and wife lived
separately for 9 years. The wife tried hard to reconcile the
marriage until she gave up and when she filed a petition
for maintenance, the husband sought the wife back. Held:
The husband is not genuine because when the wife
attempted reconciliation, the husband did nothing. Thus,
the application for maintenance was allowed as the wife’s
refusal to live with her husband was reasonable
o Section 5(2) MWCMA: No wife shall be entitled to receive
and allowance from her husband if
o She is living in adultery or
o Rajalachmi v Sinniah: The phrase ‘living in adultery’
implies more than a single act of adultery
o Without sufficient reason, she refuses to live with her
husband
o Section 3(1) MWCMA: In the assessment of maintenance,
the husband is liable to pay maintenance to his wife
according to the mean and needs of the parties
o The means and needs of the parties is a question of fact
o The court may reduce or increase the amount of
maintenance or rescind the maintenance order depending
on changes in the parties’ circumstances

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o Thevathasan v Thevathasan: The husband appealed

against the decision of the magistrate court which award
$450 as monthly maintenance. Held: In considering her
potential earning capacity before the marriage, the wife
was working as a teacher for a period of 2 years and
earning a monthly salary of $160. The wife ought to go out
and work in her own interest as she is still young and has
no children and the fact that she was partly to blame for
the breakup of the marriage was an additional reason for
taking her potential earning capacity into account. the
court subsequently ordered the amount of the
maintenance to be reduce to $300 monthly
o Section 3(3) MWMCA: The maintenance order shall be
payable from the date of the husband’s neglect or refusal
to maintain or from such later date as may be specified in
the order
o Amrick Lall v Sombaivati: The court should not order
payments of arrears for a period exceeding one year
o However, in Lee Yu Lan v Lim Thain Chye: Any arrears of
maintenance may be claim from the date of the first
incident of neglect or refusal be it ten or fifteen years
o Section 4 MWMCA: Failure of the husband to pay
maintenance may cause the husband to be penalized,
either by being ordered to pay an additional outstanding
sum of maintenance or imprisoned for a term which may
extend to one month for each month’s allowance remain
unpaid
o Section 6 MWMCA: The court may vary or rescind the
maintenance order upon the application of the husband or
the wife, if it is satisfied that there are changes in the
parties’ circumstances
o Lee Swee Peng v Koon Kum Keng: The husband was
ordered to pay to the wife $50 monthly for the
maintenance of their child. He applied to the court to
rescind or vary the same order. His sole ground was that
he was unable to pay $50. The court varied the order after
noting that the husband was drawing a salary of only $262
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a month, was married and had to support an old mother

of 61 years. His monthly expenditure amount to $258.20,
causing him to exercise a strict economy in his
expenditure to meet the maintenance of the child

Maintenance of a wife after divorce (LRA)

o Section 77(1) LRA: The court may order a man to pay
maintenance to his wife or former wife-
a) during the course of any matrimonial proceedings
b) when granting or subsequent to grant of a decree of divorce or
judicial separation
c) if, after a decree declaring her presumed to be dead, she is found
to be alive
o Section 77(2) LRA: The court shall have the corresponding
power to order a woman to pay maintenance to her
husband or former husband where he is incapacitated,
wholly or partially, from earning a livelihood by reason of
mental or physical injury, or ill health and the court is
satisfied that having regard to her means it is reasonable
so to order
o Section 78 LRA: In the assessment of maintenance, the
husband is liable to pay for the maintenance of his spouse
or ex-spouse according to:
o The means and needs of the parties:
o Koay Cheng Eng v Linda Herawati Santoso: In the
assessment of maintenance, the court shall have regard to
the duration of marriage, the age of the parties, whether
there were any children of the marriage, whether the
husband had financially supported the wife during the
duration of their marriage, the parties’ earning
capabilities, the standard of living the parties enjoyed
during the marriage and whether the divorce would affect
the husband’s financial position
o Chaw Anui v Tan Kim Chai: The issue of fair and
reasonable maintenance is a question of fact

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o The degree of responsibility of each party to the

breakdown of marriage:
o Yap Kim Swee v Leong Huang Yin: The wife was not
entitled to maintenance as the divorce was granted based
on her adultery

o Duration of orders of maintenance after divorce (LRA)

o Section 81 LRA: Except where an order for maintenance is
expressed to be for any shorter period or where any such
order has been rescinded, and subject to section 82, an
order for maintenance shall expire:
a) if the maintenance was unsecured, on the death of the husband
or of the wife whichever is the earlier
b) if the maintenance was secured, on the death of the spouse in
whose favour it was made
o Section 82(1) LRA: The right of any divorced person to
receive maintenance from his or her former spouse under
any order of court shall cease on his or her marriage to or
living in adultery with any other person
o Section 82(2) LRA: The right of any divorced person to
receive remuneration from his or her former spouse
under an agreement shall cease on his or her marriage to
or living in adultery with any other person unless the
agreement otherwise provides
o Section 80 LRA: An agreement for payment in money or
other property of a capital sum in settlement of all future
claims to maintenance, shall not be effective until it has
been approved or approved subject to conditions, by the
court but when so approved shall be a good defence to any
claim for maintenance
o Leow Kooi Wah v Ng Kok Seng Philip: Lump sum payment
originated from the “clean break principle”: Upon the end
of a marriage, there is no ongoing obligation to maintain a
wife. It will be ordered by the court upon the application
and must be consented by both parties

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o However, a lump sum payment is only enforceable upon a

husband who has a good a financial standing
o Watchel v Watchel: The court will not order a lump sum
payment if it would cripple the husband’s earning power
o Section 83 LRA: The court may at any time and from time
to time vary, or rescind any subsisting order for
maintenance whether secured or unsecured on the
application of the person in whose favour or of the person
against whom the order was made, or in respect of
secured maintenance, of the legal personal
representatives of the latter, where it is satisfied that the
order was based on any misrepresentation or mistake of
fact or where there has been any material change in the
circumstances
o Anna Tay Siew Hong v Joseph Ng Tiong Yong: The
respondent filed an application for a rescission of the
maintenance order as he claimed that he was 60 years old,
suffering from several ailments, had no permanent work
and was dependent on his second wife for financial
support. Held; The application was granted as the court
was satisfied that there had been a material change in the
circumstances of both the respondent and the petitioner
o There must exist extreme hardship to the existing order,
otherwise such claim will be dismissed
o Section 86(3) LRA: No amount owing as maintenance
shall be recoverable in any suit if it accrued due more than
3 years before the institution of the suit
o Effect of conversion to Islam on maintenance of a divorced
wife (LRA)
o Section 51(2) LRA: The Court upon dissolving the
marriage may make provision for the wife or husband,
and for the support, care an custody of the children of the
marriage, if any and may attach any conditions to the
decree of the dissolution as it thinks fit
o Tan Sung Mooi v Too Miew Kim: Section 51(2) was
intended to give protection to the non-Muslim spouse and
the children of the marriage. Therefore, the court has the
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jurisdiction to hear the ancillary claims made by the non-

muslim spouse against the convert spouse
o Where the convert spouse was a non-Muslim at the time
of the marriage, the provisions in regards to maintenance
on the ground of conversion to Islam is thus applicable to
the convert spouse by virtue of Section 3(3)
o The position on maintenance for the non-Muslim wife is
that the converted husband has to pay maintenance to his
former wife until the right ceases under Section 81 and
Section 82
o The position is similar where it is the wife who has
converted, the non-Muslim husband may be ordered to
pay maintenance until the right ceases
o However, where the wife is the convert spouse and the
husband is unable to earn a living as under Section 77(2),
the provision would still apply to her whereby she may be
ordered to pay maintenance to the husband despite it
being contrary to Syariah Law

Maintenance of children (MWCMA and LRA)

o An application for children’s maintenance under MCWMA
and LRA can be made at any time, either during the
marriage or matrimonial proceedings
o Section 3(1) MWCMA: If any person neglects or refuses to
maintain his wife or a legitimate child of his which is
unable to maintain itself, a court upon due proof thereof
may order such person to make a monthly allowance for
the maintenance of his wife or such child in proportion to
the means of such person as to the court seems reasonable
o Section 92 LRA: Except where an agreement or order of
court otherwise provides, it shall be the duty of a parent
to maintain or contribute to the maintenance of his or her
children whether they are in his or her custody or custody
of any other person either by providing them with such
accommodation, clothing, food and education as may be

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reasonable having regard to his or her means and station

in life or by paying the cost thereof
o Section 93 LRA: The basic responsibility of maintenance
of a child is on the father
o Leow Kooi Wah v Ng Kok Seng Phillip: Where the LRA
provides the term “a parent”, it can be interpreted to
include the mother’s contribution to maintenance of the
children if the court is satisfied that she is more capable of
providing than the father
o However, in Parkunan Achulingam v Kalaiyarasy
Periasamy: The court maintained that the wife’s
obligation to support a child is only secondary to the
husband’s basic duty of providing a child’s maintenance
o Section 95 LRA: Except where an order for custody or
maintenance of a child is expressed to be for any shorter
period or where any such order has been rescinded, it
shall expire on the attainment by the child of the age of 18
years or where the child is under physical or mental
disability, on the ceasing of such disability whichever is
the later
o Chin Seng Woah v Lim Shook Lin: In appropriate cases,
involuntary financial dependence is considered a physical
disability under Section 95. Thus, the court ordered the
father to pay for the children’s education expenses until
each of them has obtained their first university degree
o However, in Karunairajah v Punithambigai Poniah: Where
the appellant in this case stopped payments of
maintenance of his eldest child on the ground that she had
attained the age of 18, the court held: The phrase ‘physical
or mental disability’ in Section 95 should be given a literal
meaning and therefore involuntary financial dependence
cannot be brought within the meaning of physical
disability
 Effect of conversion to Islam on maintenance of children
o Tan Sung Mooi v Too Miew Kim: Conversion to Islam does
not deprive the duty of a convert father to maintain the
children as provided under Section 51(2) LRA
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2) Division of matrimonial property (LRA) (Define what is

matrimonial asset, bear in mind EPF money is also a
matrimonial asset)
Property acquired by joint effort and sole effort
 Section 76(1) LRA: The court shall have power, when granting a
decree of divorce or judicial separation to order the division
between the parties of any assets acquired by them during the
marriage by their joint effort or the sale of any such assets and
the division between the parties of the proceeds of sale
 Ong Ah Mai v Ling Pooi Ming: The court has no jurisdiction to
make orders pertaining to the division of family property for the
parties, if it is not made during the divorce petition
 Ching Seng Woah v Lim Shook Lin: Asset (property) refers to the
matrimonial home and everything which is put in by either
spouse with the intention that their home and chattels should be
a continuing resource for the spouse and their children to be
used jointly and severally for the benefit of the family as a whole.
It is irrelevant whether the assets are acquired solely or by their
joint efforts. Whilst, the marriage subsists, these assets are
matrimonial assets
 Wong Kim Fong v Teau Ah Kau: Shares are constituted as
matrimonial assets and their division depends on the extent of
the contributions made by each party
 Section 76(2) LRA: In exercising the power of division of joint
effort property, the court shall have regard to-
o The extent of the contribution made bye each party in
money, property or work towards acquiring the assets;
 Usha Rani Subramaniam v Sivanes Rajaratnam: The
court took into account the efforts, and financial and
physical contributions of the wife in the setting up
of the clinic which enabled the husband to devote
his energy to the running of the clinic, and decided
that she was entitled to one third of the total income
of the clinic
o Any debts owed by either party which were contracted for
their joint benefit

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 Lee Yu Lan v Lim Thian Chye: The court considered

the debts incurred by the husband in the course of
acquiring the matrimonial home before dividing the
matrimonial home between him and his former wife
o The needs of the minor child if any of the marriage
 Chan Choy Ling v Chua Che Teck: The wife was
awarded the custody of their three children. In
preserving the needs of the minor children, the
court awarded the matrimonial home to the wife so
that she and her three children have a house to stay
in instead of disposing the property for sale
 And subject to those considerations, the court shall incline
towards equality of division
 Section 76(3) LRA: The court shall have power when granting a
decree of divorce or judicial separation to order the division
between the parties of any assets acquired during the marriage
by the sole effort of one party to the marriage or the sale of any
such assets and the division between the parties of the proceeds
of sale
 Section 76(4) LRA: In exercising the power of division of sole
effort property, the court shall have regard to-
o The extent of the contributions made by the party who did
not acquire the assets to the welfare of the family by
looking after the home or caring the family
o The needs of minor children if any of the marriage
 And subject to those considerations, the court may divide the
sole effort property in proportions as the court thinks
reasonable; but in any case, the party by whose effort the assets
were acquired shall receive a greater proportion
 Lee Lu Yan v Lim Thian Chye: The court granted the wife
RM60,000 which was 1/3 of the proceeds of sale of the
matrimonial home, as she had contributed to the matrimonial
home by caring and nurturing the children and performed other
general duties attended by her as a housewife
o If the asset was acquired by the sole effort of one party,
that party shall receive a greater proportion, but the court

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will also look into the extent of the contributions by the

other party who did not acquire the assets to the welfare
of the family by looking after the home or caring for the
family
 Koay Cheng Eng v Linda Herawati Santoso: The husband, a
Malaysia and the wife, an Indonesian, were married in the UK in
1980. Upon a petition for divorce, the court considered the
wife’s contribution toward the household through the purchase
of furniture, kitchenware and groceries as a contribution
towards acquiring that property and held that the wife is
entitled to ½ of the assets in Malaysia and UK. The court also
considered the Employees Provident Fund (EPF) contributions
as matrimonial assets acquired during the marriage due to the
wife entering the marriage with the intention to grow old with
the husband and on his retirement, they would both enjoy the
benefit from the monies set aside in EPF contributions. Thus, the
breakdown of the marriage should not entitle the husband to
solely benefit from the EPF. The court held that the wife was
entitled to half of the amount remaining in the husband’s EPF
account as at the time of their divorce and that such monies
should be paid out to the wife when the same is payable to the
husband
 Lim Kuen Kuen v Hiew Kim Fook: Both, the EPF and gratuity
payments (any payments arising from a benefit) are
matrimonial assets thus subjected to distribution

Property owned before marriage

 Section 76(5) LRA: Property owned before marriage by one
party but substantially improved by the other party or their
joint effort during the marriage may be considered as assets
acquired during marriage
 Shirley Koo v Kenneth Mok Kong Chua: The wife’s contribution
in purchasing kitchenware and payment of servant’s salary,
food, and grocery bills amounted to substantial improvement to
a semi-detached terrace house because her efforts made the
value of the house increase

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Family Law 2

 Chin Seng Woah v Lim Shook Lin: Buying furniture amounted to

substantial improvement of the property, as once the house
value experiences an increase during the period of marriage, the
asset will fall within the ambit of the provision
 However, in Shi Fang v Koh Pee Huat: The wife claimed a share
in the matrimonial home which was acquired by the husband
long before the marriage. Held: The only way the wife could be
entitled to the claim was to prove that the property had been
substantially improved by her or their joint effort. The court
found that the wife’s effort of conceptualizing the renovation as
de minimis (too remote) and thus she was not entitled to any
share in the house

2) Custody of children (Guardianship of Infants Act) (GIA) and

LRA)
Guardianship and custody *right to access, guardianship
(control the upbringing of child) and custody: know the
difference. In Malaysia if court grants custody it will come
with guardianship

 Section 2(2)(a)(ii) GIA: ‘child’: A person who has not reached 21

years old
 Section 87 LRA and Section 2 Age of Majority Act: ‘child’: A
person who is under the age of 18
 Kanaligam v Kangaraja: Where the definition of ‘child’ given the
LRA and the Age of Majority Act is preferable, a child is thus a
person udner the age of 18

Application of custody
 Section 5(2) GIA and Section 88(1) LRA: Parents of the child are
entitled to apply for custody
 R Saraswathy v R. Palakrishnan: An application for custody
could be made under the LRA even if there was no pending
action for divorce
Types of custody:

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 Sole custody order:

o Only one party is given the care, control and custody of the
child while the other party is given the right to access
o The parent to whom custody is granted has the right to
determine the upbringing and major decisions including
the child’s religion, education and healthcare
 Joint custody order:
o Both parents continue to have an active parenting role
despite the divorce
o Even though care and control is given to one parent, the
other parent retains his or her rights and responsibilities
to be involved in the child’s upbringing
o Karen Cheong Yuen Yee: The court not only ordered joint
custody, but also joint care and control of the children as
the parties lived closely to one another and there was no
evidence of violence
o Sivajothu Suppiah v Kunathasan Chelliah: The fact that the
parties were in persistent quarrels and disagreement was
one of the important factors why joint custody was not
granted
Factors taken into consideration in custody disputes:
Welfare of the child:
 Section 11 GIA and Section 88(2) LRA: The welfare of the child
is the paramount consideration of the court in ascertaining the
custody of the child
 Re Satpal Singh, An Infant: The court in this case referred to:
o Re Thain: Welfare must be taken in its large context as
meaning that the welfare of the child as a whole must be
considered. It is more than merely a question of whether
or not the child would be happier in one place compared
to another place, but his general well-being
o Allen v Allen: Welfare in the English equivalent means
physical and moral welfare. Thus, mere adultery cannot
cause a woman to be considered as an unfit person and
who should not have the care and control of a child

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 K Shanta Kumari v Vijayan: Welfare means that the care,

comfort, attention, well-being and happiness of the child are
matters that should be taken into consideration
 The Eng Kim v Yew Peng Siong: The maintenance of a stable and
secure home in which the children can enjoy love and affection
is the most important thing that should be taken into
consideration
 Sivajothi Suppiah: The court granted custody, care and control
of the eldest child to wife, while the husband was granted
reasonable access. The court considered that the wife only
worked 2 hours in the afternoon and would have more time to
devote herself to the care and needs of the child and that it
would not be in the best interest and welfare of the child at his
early and critical stage of life to be brought up in an environment
that would expose him to the risks posed by his father’s volatile
(unstable) character resulting from his suicide attempt
 J v C: The HOL ruled that the Guardianship of Infacts Act 1925
applies to the disputes not only between parents but between
parents and strangers and strangers and strangers. In this case,
the care and control of the child was granted to the foster
parents instead of the child’s natural parents upon it being
medically proven that the child had a stronger relationship with
his foster parents and family such that if the child is returned to
the natural parents, there is a slight (very little) success for the
child to adjust to the situation, thus causing it to affect the child’s
welfare
 Masam v Salina Saropa: A natural mother sought for the custody
of her son from the foster parents who had been taking care of
him since 9 days old. In this case, since the infant had lived with
his foster parents for approximately 2 years, and they had cared
for him with love and affection, the court ruled that custody
should remain with them. Taking him away from his foster
parents may cause him to develop a permanent emotional scar

Wishes of the parents:

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 Section 11 GIA and Section 88(2)(a) LRA: The wishes of the

parents subject to the welfare of the child is to be taken into
consideration by the court
 Mahabir Prasad v Mahabir Prasad: The mere desire of a parent
to have children is secondary to the consideration of the welfare
of the children and can only be effective if it coincides with their
welfare

Wishes of the child:

 Section 88(2)(b) LRA: The court, subject to the welfare of the
child, shall have regard to the wishes of the child, where he is of
an age to express independent opinion
 Chang Ah May v A Francis Teh Thian Sar: The child preferred to
stay with her father for the sole reason that she hated to be left
in the care of a babysitter when her mother worked. However,
when her maternal grandparents were willing to care for her in
her mother’s absence, the custody of the child was given to the
mother as the court found that she and her relatives could
provide better care than the father and his relatives, and that
there was a possibility that wishes of the child were expressed
under influence
 B Ravandran Balan v Maliga Mani Pillai: The court rejected the
view of the child where there was a possibility that he was
influenced by material gains promised to be given or already
given by the father
 Whether a child can be considered of an age to express
independent opinion depends on the opinion of the court in a
particular case
 Manickam v Intherahnee: A child of 8 years could not reasonably
be expected to express an independent opinion on his
preferences
 Mahabir Prasad v Mahabir Prasad: Children aged 7 ½ and 8 ½
years should be given the opportunity to express their wishes

A child under seven years old

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 Section 88(3) LRA: There exists a rebuttal presumption that it is

good for a child under 7 years to be with his mother
o L v S: Strong grounds are need to rebut the presumption
 Gan Koo Kea v Gan Shiow Lih: The husband applied for the
guardianship, custody, care and control of the children. The
court took into account the children’s continuous stay with the
wife ever since the separation, the tender age of the children
(both below the age of 7 years), the admission of the husband
beating his children using clothes hangers and the failure on the
husband’s part to show that the wife was unable to provide for
the children with an adequate home environment and nothing
against the wife in respect of her ability to shower love and
affection on the children. Thus, the rebuttable presumption was
invoked by the court in that it is good for the children to be with
their mother, who has always been with them since the
separation of the parties and it was undesirable to disturb the
life of the children by a change in custody
 However, the presumption was rebutted in Re T (A Minor): The
court found that it was good for the 4 year old daughter to be in
the custody of her father due to her mother suffering from
severe mental depression
 Tay Chuen Siang v Wang Chiao-Wen: Children below the age of
7 that had been brought up in a stable and caring environment
should not be disturbed by a change in custody. The
presumption was rebutted where there was evidence of
irrational behavior on the part of the mother

Existence of more than one child in a marriage

 Section 88(4) LRA: Where there are two or more children of a
marriage, the court shall not be bound to place all the children
in the custody of the same person but shall consider the welfare
of each independently
 Tan Chong Pay v Tan Swee Boon: The court decided that a boy,
who was above 7 years should stay with the father as that was
his wish while the younger brother, who was 4 years old should

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be given to the mother, taking into account the presumption

under Section 88(3)
 Chong Siew Lee v Lau Mun Chong: Taking into account the
interests of the child, the court granted custody of the elder child
to remain with the mother while the younger child was given to
the father

Opinion of the Welfare Officer:

 Section 100 LRA: When considering any question relating to the
custody or maintenance of any child, the court shall, whenever
it is practicable take the advise of some person whether or not a
public officer, who is trained or experienced in child welfare but
shall not be bound to follow such advice

Conditions to order of custody:

 Section 89(1) LRA: An order for custody may be made subject to
such conditions as the court may think fit to impose, and subject
to such conditions, if any, as may from time to time apply, shall
entitle the person given custody to decide all questions relating
to the upbringing and education of the children
Variation order
 Section 96 LRA: The court may at any time and from time to time
vary or may rescind any order for the custody or maintenance
of a child on the application of any interested person, where it is
satisfied that the order was based on any misrepresentation or
mistake of fact or where there has been any material change in
the circumstances
 Sivajothi Suppiah v Kunathsan Chellilah: An 11 year old
daughter was ordered to stay with the father after he applied for
a variation order to the order made before which granted
custody to mother
Duration of custody

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 Section 95 LRA: The period of custody of a child ceases when the

child attains the age of 18 if the child has disability, on the
ceasing of such disability

*maintenance of children masuk

Protection of Children under the Child Act 2001 Remember

sections that is relevant to welfare of children.
 Provides protection to children only: Every child is entitled to
protection and assistance in all circumstances, regardless of
race, colour, language, religion, social origin, or physical, mental
or emotional disabilities, or any other status
 Section 2: Child is a person under the age of 18
 Section 2: Protector is any Social Welfare Officer that has been
appointed

Section 17
 Section 17(1): A child is in need of care and protection if:
o (a): The child has been or there is a risk that the child will
be, physically or emotionally injured, or sexually abused,
by his parent or guardian
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 Physical injury: There must be substantial and

observable injury to any part of the child’s body as
a result or such injury or abuse (Section 17(2)(a))
 Emotional injury: There must be substantial and
observable damage to the child’s mental or
emotional functioning (Section 17(2)(b))
 Sexual abuse: The child must have taken part as a
participant or observer in any sexual activity for the
purpose of any form of pornography or sexual
exploitation (Section 17(2)(c))
o (c) & (d): The parent of the child is unfit, has neglected, is
unable to exercise proper supervision and control over
the child, or is unwilling to provide adequate care, food,
clothing and shelter
o (e): The child has no parent or guardian or has been
abandoned and the parent or guardian cannot be found
and no suitable person is willing and able to care for the
child
 Section 30(1)(e): An abandoned child will be placed
in the custody of a foster parent for two years or
until he reaches 18 years old (whichever is shorter)
 Section 30(4): The parents or guardian would not
have lost their custodial rights as they may still
claim the child
 If the protector has taken reasonable steps to
trace the parent or guardian and no such
claim is made, the court may make an order
placing the child for adoption by the foster
parent or any person who wishes to adopt the
child
o (f): The child needs to be examined, investigated, or
treated in order to restore or preserve his health, where
his parent or guardian has refused to do so
 Section 20(1): The protector shall take the child to
see a doctor

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 Section 20(2): The child may be taken into custody

in which case, he will be instructed to be continued
to be cared for in a hospital
 Section 21(a): A doctor has the duty to examine the
child, diagnose the child’s condition and provide the
necessary treatment
 The standard of care required is that of doctors as
in Bolam’s case in ensuring that the treatment is
given to the child is acceptable

Any protector who is satisfied on reasonable grounds that a

child is in need of care and protection may take the child into
temporary custody, unless he is satisfied that it would be
undesirable in the child’s best interest or the proceedings are about
to be taken by some other person
 Section 30(1): If the Court for Children is satisfied that any child
brought before it is a child in need of care and protection, the
Court of Children may:
o Make an order to place the child in the custody of a “fit and
proper” person for a time specified
o Make an order to place the child in a place of safety for 3
years from the date of the order or until he reaches 18
years old whichever is shorter
 Section 30(5): In deciding upon which order should be made, the
court shall take into account the best interests of the child as the
paramount consideration
 Section 35(1): If any person intends to take a child into his care,
custody or control that person and the person in whose care the
child was at the time of taking must notify the protector
 Section 35(2): The protector shall then make an inquiry as to the
circumstances and reasons for the taking and suitability for that
purpose.
o Having made the inquiry, the protector may either:
 Order the child to be returned to the custody of his
parent or guardian or the person in whose care he
was at the time of the taking or

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 Permit the taking

 Section 36(1): The person who has taken the child shall report
to the protector if any later time:
o Intends to return the child to the custody from whom the
child was taken; or
o Without his knowledge, the child has left his custody
 Section 36(2): The protector shall then make a note of the report
and return the child to the parent or guardian or any other
persons from whom the child was taken if any of them is present
when the report is received
 The taking of a child into care, custody or control does not
amount to an adoption as Section 35 allows the person who has
taken the child to return the child to the parent or guardian at
any subsequent time

Adoption
1. Section 30(4)(aa): In making an order for adoption by the foster
parent or any person who wishes to adopt the child if the parent
or guardian has not claimed the child, if the court is satisfied that
the Protector has taken reasonable steps to trace the parent or
guardian of the child, it shall dispense with the parent’s or
guardian’s consent for the adoption.

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TUTORIAL
December 2016:
Part A consists of 2 cases. Cases regarding JPN is usually about nak
tukar jantina.
Part B Q1: Advise both parties on the weakness of each other
Q2: a) promise to marry and b) religion exchange
Q3:

December 2014
Question 1(a)

(i) The issue is whether the marriage between Romeosingam and

Maluvaty in Paris is valid

 AGE
 Section 10 LRA- Both parties must be 18 years old
 Section 21(2) LRA- A 16 year old girl may marry if the
solemnization of the marriage is authorized by a license issued
by the Chief Minister
 CONSENT OF PARTIES
 Section 37 LRA- The use of force or threat to compel a person to
marry against his or her will or to prevent a person who has
attained the age of 21 years from contracting a valid marriage is
an offence
 Section 70(c) LRA- Consent obtained by way of duress, mistake
or unsoundness of mind would cause a marriage to be
voidable
 There must be consent from both parties. If there is lack of
consent the marriage is voidable and is subject to annulment of
marriage or divorce
 CONSENT OF PARENT OR GUARDIAN
 Section 12(1)-(6) LRA- A person below 21 years old, must get
consent in writing from guardians or parents.
 NOT WITHIN PROHIBITED RELATIONSHIPS

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 Section 11(1)-(6) LRA- the parties must not be within

prohibited relationship
 MONOGAMOUS MARRIAGE (Section 5,6,7)
 A second marriage that is contracted under any law, religion,
custom or usage during the subsistence of an existing and valid
marriage contracted under any law, religion, custom or usage is
void and deemed an offence
 Section 5
 Section 6
 Section 7
 PP v Rajappan
 Section 69(a)
*only mention a bit of the requirements

The marriage in Paris is not valid as second marriage is deemed as

void

(ii) The issue is whether Romeosingam has committed any civil and
criminal wrongs
 Section 4: A married woman is capable of acquiring, holding and
disposing of any property, liable in respect of any tort, contract,
debt or obligation, sues or is sued in her own name either in tort
or contract and is entitled to all remedies and redress for all
purposes and is subject to the law relating to bankruptcy and to
the enforcement of judgment and orders as if she were an
unmarried woman
 Section 4A (inserted in 1994): A husband or wife may sue each
other in tort for damages in respect of injuries (incurred in a
fight or though assault) to his or her person
 Yeo Bee Lin v Lee Eng Chee
The wife sued her husband for inflicting severe injury on her
by forcing her to listen to his sexual exploits with another
woman in detail. The court held that when interpreting
“personal injuries” and “injuries to his or her person” under the
provision, there can be no distinction between injuries of a

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physical or a mental nature, as both are within the meaning of

the provision
 Section 9(2): A husband or wife is entitled to sue each other in
tort for protection or security of property
 Faridah Dato Talib v Mohamed Habibullah Mahmood
The plaintiff had filed a petition for divorce in the Syariah
Court. While the petition was pending, she commenced an
action in the High Court for damages and to restrain her
husband, from assaulting, harassing or molesting her and
members of her family member. The defendant sought to have
the plaintiff’s action struck off. The issue before the High Court
was whether the plaintiff could institute the action against the
defendant when Section 9(2) prohibited a wife from suing her
husband in tort. The court held that since the allegation of
assault and battery constituting the tort were not related to the
protection or security of property, the plaintiff was barred by
Section 9(2) from suing the defendant.
* This case prompted the Parliament to insert Sec 4A into the Act
 Section 9(4): No criminal proceeding shall be taken against a
husband or wife while they are living together
 Re Ketuna Bibi (Islamic matter)
The wife had committed a criminal breach of trust in relation
to her husband’s property. The court accepted that under
Islamic law, a husband or a wife may undertake an action
against the other spouse for cheating, fraud or theft of his or
her property committed while they are living together. Thus
the Act does not apply in this instance, as under the Islamic
law, criminal action can be taken against the other spouse
 Section 10: A woman after her marriage will continue to be
liable for all debts contracted and all contracts entered into or
wrongs committed by her before the marriage
 Section 5: A woman has a right to have and own property
 Section 6: A husband shall not by reason of being a husband be
liable in respect of tort committed by the wife before of after

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marriage or for any contract entered into, or debt or obligation

incurred by her before marriage. He shall not be sued in respect
of those matters.
 PP v Rajappan
 Where a man had contracted a marriage whilst living in India,
then later migrated to Malaysia and contracted a second
marriage the court found that it had no jurisdiction to
entertain the petition as the act of bigamy was not
committed in Malaysia. However, if it did have such
jurisdiction, the second marriage would have been found
void.
 Section 5,6, 7 of LRA and Section 494 of Penal Code were
amended to allow a person committing bigamy to be charged
and for the second marriage to be void, even if it was
contracted outside Malaysia
 Under the married woman act he has not committed any civil
or criminal wrongs, but under Penal Code and LRA he has
committed wrong as bigamy is considered as an offence
 Must give maintenance based on the said provisions
 *Provide LRA & Penal Code and MWA, emphasize on married
woman act

(iii) The issue is whether she can claim maintenance for herself and
both children from Romeosingam in the event she petitions for a
divorce
 Section 51(2): The court upon dissolving the marriage may
make provision for the wife or husband and for the support,
care and custody of children of the marriage although one of
the parties converts to the Islamic faith
 Tan Sung Mooi
 Section 77: Power for court to order maintenance of spouse
 Section 78: The husband is liable to pay for the maintenance of
his spouse or ex spouse according to the means (husband) and
needs (wife) of the parties. The means and needs of the parties
are important for the court to assess a nominal sum for the
maintenance of the wife. (It depends on the status of the parties

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involved. For example, if the wife used to get RM1500 per

month, after divorce she should get the same amount)
 Section 78: If the other party causes the breakdown of the
marriage, the amount for the maintenance would be affected
 Linda Herawati Santoso

 Section 87: Child has the meaning as child of marriage as defined

under Section 2 until he or she attains the age of 18 years
 Section 95 of LRA: Except where an order for custody or
maintenance of a child is expressed for any shorter period or
where any such order has been rescinded, it shall expire on the
attainment by the child of 18 years or where the child is under
physical or mental disability on the ceasing of such disability
whichever is the later
 The court has to interpret whether it includes financial ability.
In most cases, the court does not include financial ability
 Karunairajah v Punithambigai (2004), the husband after the
process of divorce was offered by the HC to pay maintenance to
his children. However, he stopped the payments of maintenance
for his eldest child on the ground that she reached 18 years old.
The wife appealed at CoA for an order for the husband to
continue the payment for their daughter to pursue her tertiary
education. However, in the FC, the husband appealed and court
granted his appeal. The court held that there is no legal basis to
interpret the word disability as financial disability. It only covers
physical and mental disability as provided in the exception to
the provision on maintenance under the LRA. Abdul Hamid
Mohamad: the court has no power to change the essence of the
provision
 Ching Seng Woah v Lim Shook Lin, CoA decided that financial
disability should be included within the exceptions of the
provision on the maintenance under the LRA. In this case, the
father of a child neglected over the order of the HC to pay
maintenance for his 2 daughters for their tertiary education.
There was an oath given by father.

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 Gisela Getrude Abe v Tan Wee Kiat, it was held that there were
no moral grounds to be included in interpreting the provision.
The learned judge justifies that moral ground can never override
the clear provision of the law in deciding a case
 Section 93: Power for court to order maintenance for children.
 Section 94: Power for court to order security for maintenance
 Section 96: Power for court to vary orders for custody or
maintenance
 Section 97: Power or court to vary agreement for custody or
agreement
 Section 98: Recovery of arrears of maintenance
 Section 99: Duty to maintain child accepted as member of family
 Section 100: Court to have regard to advice of welfare children
 Section 101: Power for court to restrain taking of child out of
Malaysia
 In Section 3 of Married Woman and Child MA: Maintenance for
an illegitimate child.
 Sean O Casey Patterson v Chan Hoong Poh’s case (refer previous
week): The mother of Jordan gave J to her sister and sister
converted to Islam and sister married to a Muslim so RAA is
applicable. In terms of registration the adoption order is
registered under the Registrar but for Adoption Act adoption is
registered in court. The status of Jordan is legitimate because it
was alleged that appellant and respondent got married in las
vegas, in birth cert the father of J is Bart. In this case, Sean
claimed he was the biological father and was proven that he was
the biological father. *The mother got married a few times and
had affairs for a few time. But in this case, the features of the
baby followed Sean O Casey.
***ONE CASE AND PROVISION FOR CHILDREN AND WIFE EACH

Question 1(b)

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Family Law 2

(i) The issue is whether Penny has a right to the division of

matrimonial property and the adopted children’s right to
inheritance
 Define what is matrimonial asset. Although owned by Daniel the
whole family lives in it therefore it should be matrimonial asset
 Section 76
 Sole effort because matrimonial home is under darren’s name
and house was registered under his sole name.
 The wife’s contribution consider that she took care of family,
parents, children, property, matrimonial home
 Add cases
 The matrimonial property should be divided accordingly.
Usually when wife is not working she would get 1/3
 Linda Herawati Santoso case: EPF
 Shares: Wong Kim Fong, shares are matrimonial asset, the
division depends on the contribution of the party.
 Lottery: Tan Chong Kiat, lottery won during marriage is
considered as matrimonial asset

 Child adopted under RAA cannot claim inheritance but adopted

under AA can claim inheritance because there is legal nexus
 Section 9 of Adoption Act

(ii) The issue is whether Penny can bring claim against Susan
and what are the implications of the claim she intends to
undertake to divorce proceedings
 Section 54
 Section 58 and 59 of LRA
 Dr Gurmal Kaur

June 2015
Part C, Question 1

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Dr Gurmal Kaur’s case

a) The issue is whether there are grounds to dissolve her marriage

 Section 48 (Jurisdiction of court in case of court)
 Breakdown of marriage: Ada 4 pilih mana satu: Section
54(1)(a): Adultery
 Section 58: An action against third party who commits adultery,
to make her as co respondent
 Add 2 cases
 Should be proven beyond reasonable doubt

 Cannot be reasonably be expected to live with her: Behaviour:

Section 54(1)(b)

(b)
 Define
 Add 2 cases atleast

(a) Right of custody of 2 children

 Define custody
 Section 88 of LRA: Welfare of children is the paramount
consideration
 Section 11 of GIA
 Siva jothi
 Dr Gurmal Kaur

Part A recent case: buku oren: Legitimacy and legitimation

Part B: Nullity (voidable)

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Mixed issues: Pattern of the question is like june 2015: Part B

Part C pattern same, divorce, + ancillary claim
Mutual consent sometimes is important.

Tutorial- Akmal and Acap

Kausalya & Kavitha (daughters of second wife) v Legal representative
of Jamuna & Jayaselan Cour of Appeal [2013]
M Pathmanathan were married to Jamuna first wife when he married
the second wife Sampurnam in 1975
They were both Hindus thus they claim to be married under hindus
law and can have polygamous marriage. They lived together as a
family for a period of time. one day husband transferred to penang and
lived with first wife. Husband died intestate in 2001 and letters of
administration for his esttae was taken out in 2003. No mention of
second wife the plaintiff’s name in that letter. First defendant denied
that the plaintiff was ever married to the deceased. They claim that the
marriage is void, since married is void they are not entitled.
Issue: Whether hindu law recognize polygamous marriage
Based on Indian Supreme Court, held though monogamy prevailed in
hindu society, polygamy was allowed but not encourage. Children
born out of polygamous marriage are legitimate.
Whether the deceased and the second wife went through a marriage
in accordance with Hindu Custom
The presumption of valid marriage is on the plaintiff to prove marriage
ceremony and cohabitation. Mohadervan case. PW2 in her evidence
testified that she and deceased were married in Kelantan, and
defendant did not challenge. Therefore, the presumption in favour of
valid marriage in mahadevan’s case is triggered therefore th marriage
between PW2 and deceased is valid.

Note:
Important notice: the alleged marriage was solemnized prior to the
enactment of the LRA which made polygamous marriage is void.
The validity of marriage was determined by hindu law.

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PYQ- Pasha and Sheenu Part C

a.
Decide whether court has jurisdiction under Section 48(1)(c) of LRA
provides that the court will make a decree of divorce if at the time
when the petition was presented the domicile of both parties are in
Malaysia

Section 54(1)(b): Behaviour

1. That the respondent has behaved in such a way that the
petitioner could reasonably be expected to live with respondent
2. Katz v Katz [1972]-
Behaviour is an action or conduct by one which affects the other.
The court held that in order to establish that the respondent has
behaved in such a way that the petitioner could not reasonably be
expected…
3. Thurlow v Thurlow [1975]
4. 1st view: Principle of the case: the sole test to be prescribed as
the nature of the behavior is that it must be such as to justify a
finding that petitioner could not reasonably be expect to live
with respondent. In this regard, it is important to define
behavior. Court will look at behavior of respondent only.

1. 2nd view: the court must take into account the character,
personality, disposition and behavior of petitioner and
respondent. Court will look at both parties’ behaviour
2. there are tests: a) reasonable man’s test- Livingstone Stallard
v Livingstone Stallard “would any right thinking person come to
the conclusion that this husband has behaved in such a way that
his wife cannot reasonably be expected to live with him takin
into account the whole of circumstances and the characters and
personalities of the parties?” b)behavior’s test: Ash v Ash, the
court held that must consider… c) whether there is a breach
of the obligation between both parties; pheasant v pheasant.
In this case, the petitioner alleged that the wife had not given

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him the spontaneous administrative affection, which his nature

demanded and for which he claimed that it caused the marriage
to be broken down. The court dismissed the husband’s petition.
3. Joseph Jeganathan v Roseline Joseph- in this case the husband
was absent for several hours and at times for a period of time.
the matrimonial was filled with bitterness. The effort for
reconciliation failed and decree nisi was granted. The court here
referred to the first test
4. Hariram Jayaram v Saraswati Rajahram, the court applied the
case of Katz v Katz.

b.
maintenance for the wife is forever until shes married, commits
aldutery or death. Maintenance of the children is…

c.
According to GIA, section 7, the welfare of the child is the paramount
consideration regardless of the wishes of the parents. Wishes of the
children will be taken into consideration. All of these can be argued.

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