INTRODUCTION TO FAMILY LAW

DEFINITION
.All persons related by blood/marriage
A basic social unit constituted by at least 2 people - whose
:-relationship may fall into 1 of 3 categories
a) Husband & wife
b) Parent & children
c) Brother & sister

Definition of marriage
HYDE V HYDE (1866) LR 1 P & D 130
Lord Penzance:
A voluntary union for life of one man & one
.woman to the exclusion of all others
Legal definition
An agreement by which a man & a woman enter
&
into legal relationship with each other
&
which creates & imposes mutual rights
.duties

What are the legal consequences

?that flow from that relationship

Status of the child

Rights and
obligations

CHARACTERISTIC OF FAMILY LAW

IN MALAYSIA
Based on personal laws
- After 1st March 1982

LRA 1976

Monogamous
marriage
matters
incidental thereto
&Solemnization
registration of marriages
law relating to divorce

? Marriages solemnized prior to 1st March 1982

It is necessary to know the various marriage laws

existing prior to LRA relevant to determine
divorces
legitimacy of children
custody & guardianship
distribution of property

MARRRIAGES BEFORE LRA 1976

STATUTORY

NON STATUTORY

Common Law (inter racial/ mixed

W.M

Civil Marriage Ord. 1952

Christian Marriage Ord. 1956

Registration of Marriage Ord.1952
Chinese custom

Hindu custom

SABAH

Christian Marriage Ord. 1919

. Marriage Ord

SARAWAK

.Church & Civil Marriage Ord

Matrimonial Causes Ord
Chinese Marriage Ord. 1953

marriage)

STATUTORY MARRIAGES IN
WEST MALAYSIA
Min. age : male 16 , female 14 ( s. 31 )

C.M. O
1952

Consent of guardians / parents - (s.10 )

Consent of the parties (ss.24-26 & 30)
Kindred & Affinity - (s. 29 & 2nd
schedule)
Avoidance of marriage by prior
subsisting & subsequent
marriage (ss. 30, 4(1) & (2)
- Procedures & formalities
)ss. 11-19, ss. 24-26, s.30(

Ch . M. O 1956

min. age male 16 ,

female 14 (s.28(1)
Kindred & affinity
Consent
. of guardians/parents
)s.9(
Consent of parties
s.15(2)(b) , s.19(3) (indirect prov.)
)s.29(

(s.27 & 2nd sch

Avoidance of marriage
by prior subsisting
marriage

.Procedures & Formalities Part V of the Ord-

REGISTRATION OF
MARRIAGE
ORDINANCE 1952

Provides for registration of marriages which are not solemnized in

accordance with CMO 1952 & ChMO 1956
s.11 Registration/non registration - x affect the validity of the
marriage
Extended to Sabah & Sarawak from 1st March 1982 s.109(3) LRA
?????ADVANTAGE

NON STATUTORY
MARRIAGES
Chinese customary marriage

Nature &
application
Types

?How to prove
Tsai
Six Widows case
Dorothy Yee Yeng Nam v Lee Fah Kooi
Re Loh Toh Met
Re Ding Do Ca

Tsip

Re Lee Siew Kow[1952] MLJ184

Held: The ingredients of a valid Chinese
customary marriage was a marriage based on
mutual consent. The requirements of ceremony,
a contract, & repute of marriage were only
evidentiary & not essential for the validity of
the marriage

Lam Wai Hwa[1983] 2 MLJ 302Yeap Leong Huat[1989] 3 MLJ 157Re Estate of Chong Swee Lin [1997] 4 MLJ
Yew Kin Eng[1997] 5 MLJ 1-

464-

Hindu customary marriage

Polygamous except for Ceylon Tamil Hindu

Marriage rituals are very important
? How to prove

Ramasamy v PP [1938] MLJ133

Parameswari v Ayadurai [1959] MLJ 195

Nagapushani v Nesaratnam & Anor [1970] 2 MLJ 8

MIXED/COMMON LAW MARRIAGES

Not purely solemnised under a specific custom

Issac Penhas v Tan Swee Eng [1953] MLJ 73
: Privy Council held
Marriage between a Jew & a non-Christian woman is valid
even though there was no form of ceremony of marriage
.

has been observed by both parties

Chua Mui Nee v Palaniappa [1967] 1 MLJ 270