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Q2 TUTORIAL

QUESTION
Family Law - LAW 2222
prepared for: Dr. Noraini Hashim

TOPIC: Marriage
A. Historical Outline
Prepared by Group 1:
1) Nurul Afifah Aiman bt Marzuki (1918532)
2) Ainul Mardhiyyah binti Roslan (1912382)
3) Mohamad Izwan Bin Mohd Norhan (1912759)
4) Muhammad Amirul Asyraf bin Yusof (1910271)
Question 2
Timothy’s parents were married according to Chinese custom in
1984. His father Wow Kaw Kaw died intestate in 2015. He came
to know that his father had another two marriages; in 1971
under the Christian Marriage Ordinance 1956, and in 1975 under
the Chinese customary law while the first marriage was still
subsisting.

Advise Timothy as to the validity of his parents’ marriage and his


father’s earlier marriages.

(15 marks)
1971 1975 1984
Christian Marriage Chinese Customary Law Reform Act
1976 (Came into
Chinese Customary
Law
Ordinance 1974 Law effect on 1st
March 1982)

Three issues:

1. Whether or not the marriages prior to the enactment of LRA 1976 are valid
2. Whether or not the marriage of Timothy's parents after the enactment of LRA was valid
3. Whether Timothy and his mother are entitled to his deceased father's estates.
1ST ISSUE
Whether the marriages prior to the enactment of LRA 1976 were valid

DOROTHY YEE YENG NAM V LEE FAH FOOI [1956] MLJ 257

the parties were married in Penang in accordance with


1ST MARRIAGE the provision of the Straits Settlement Christian Marriage
Ordinance 1940 on 6th December 1941. The court
reaffirmed that
Section 29 of the Christian Marriage
the Chinese man might marry under Christian
Ordinance 1956
Marriage Ordinance. Such marriage was perfectly
lawful form of marriage always provided one of the
If a person, married under any
parties professed the Christian religion.
law, religion, custom or usage,
A man's personal law permitted him to enter into
entered into a marriage under the
polygamous unions
Christian Marriage Ordinance
1956, the marriage was void. nothing restricted him from entering into a
polygamous union provided the law of the locus actus
permitted it
He could do anything the law did not prohibit
2ND MARRIAGE Chinese customary marriages were polygamous in nature
- Chinese Customary Laws

RE LOH TOH MET, DECD KONG LAI FONG & ORS V LOH PENG HENG [1961] 1 MLJ 234
the deceased had contracted polygamous marriage in accordance with Chinese custom. He had 3
wives, 7 children born in wedlock and 4 adopted children. The trial judge held that the deceased was a
person professing the Christian and that as he had not married the women under the provision of the
Christian Marriage Ordinance of the Straits Settlements and of the Christian Marriage Enactment of
Johore, thus three purported marriages was void. The children and the 3 widows appealed. The issue
was whether Chinese Christian can enter into a polygamous union under his personal law. The court
of appeal held that

the marriages were lawful and valid. He can choose whether to contract a monogamous marriage
or a polygamous marriage.
the evidence does not show that the deceased was a person professing the Christian religion at
the time of any of his marriages and thus he permitted by his personal law a plurality of wives and
he validly entered into contracts of marriage to the 3 women
IN THE CASE OF RE DING DO CA, DECD [1966] 2 MLJ 220,
the deceased had married one Madam Wong under the Christian Marriage Enactment in
1923 and subsequently in 1937 he went through the form of marriage according to Chinese
custom with Madam Ngoi. After his death Madam Wong applied for and obtained letters of
administration to his estate, subsequently Madam Ngoi and her children commenced the
action against Madam Wong and sought declarations. The issue arose in this case was
whether Chinese who has married under Christian Marriage Enactment could contract a
polygamous marriage according to Chinese custom. The court held that

In regard of Chinese race, the court have given judicial recognition to certain customs
which have been imputed to such persons and under such customs Chinese can
contract a polygamous marriage.
There is nothing in the Christian Marriage Enactment which renders a party who has
married under it incapable during its continuance of contracting a polygamous marriage
and therefore in this case the deceased could contract a valid marriage with Madam
Ngoi, despite his earlier marriage with Madam Won under the Christian Marriage
Enactment.
CONCLUSION
Based on the case of Dorothy Yee Yeng Nam v Lee Fah Fooi [1956] MLJ 257, it provided that the husband
could only contract polygamous marriage after the present marriage. In the present case, the first
marriage of Timothy’s father was contracted under the Christian Marriage Ordinance 1956. As there was
definitely no subsisting marriage prior to the first marriage and assuming that his father had fulfilled the
requirements under the Christian Marriage Ordinance 1956, the first marriage of his father was valid.

Similarly, for the second marriage, according to the case of Re Loh Toh Met, Decd Kong Lai Fong & Ors v
Loh Peng Heng [1961] 1 MLJ 234 and Re Ding Do Ca, Decd [1966] 2 MLJ 220, there was no restriction or
prohibition that prevent him to contract under Chinese Customary Laws and exercise polygamous
marriage. the only restriction that prevents his father from exercising polygamy is Section 29 of the
Christian Marriage Ordinance 1956. If he chose to cotract polygamous marriage under this ordinance,
the second marriage would be invalid. For this reason, his father chose to contract polygamous
marriage under Chinese Customary Law as there was no restriction regarding the prior subsisting
marriage and thus the second marriage of his father was valid. In addition, although the Law Reform Act
(marriage and divorce) Act 1976 has been enacted, both marriages were valid due to the fact the Section
4(1) of this Act does not affect any marriage prior to the enactment of this statute. Therefore, both of the
marriages of his father prior to the enactment of Law Reform Act (marriage and divorce) Act 1976 were
valid.
2ND ISSUE
Whether the marriage of Timothy's parents after the
enactment of LRA was valid

Timothy’s parents' marriage validity


is determined by LRA 1976.

Timothy’s parents' marriage validity


is determined by LRA 1976. The
marriage was contracted in 1984,
two years after LRA came into
effect on 1st March 1982.

THEREFORE, THE MARRIAGE CONTRACT SHOULD


HAVE BEEN CONTRACTED UNDER LRA 1976.

LRA 1976 IS APPLICABLE TO EVERY CITIZEN FOR


NON-MUSLIM IN MALAYSIA ACCORDING TO SECTION
3(1) OF THE ACT.
2ND ISSUE Natives of Sabah Sarawak and
aborigines of peninsular
Malaysia, are not bound by LRA
as stated in subsection 4. In this
case,
Timothy’s parents are neither the
aborigines of Peninsular Malaysia
nor natives of Sabah Sarawak,
therefore they are bound to
follow LRA 1976.
The existence of this
law does not affect the
validity of subsisting TIMOTHY’S FATHER'S MARRIAGES
marriage CONTRACTED IN 1971 AND 1975 VIA
CHRISTIAN MARRIAGE ORDINANCE AND
Section 4(2) mention CHINESE CUSTOMARY LAW ARE VALID.
that the subsisting
marriages deem THEREFORE, THESE TWO MARRIAGES
registered under this ARE CONSIDERED REGISTERED UNDER
Act. LRA AND ITS VALIDITY REMAINS UNTIL
HIS FATHER’S DEATH.
2ND ISSUE
Whether Timothy's parents' marriage in 1984 was valid.

Section 5(1) of LRA prohibits a person


with subsisting marriage to contract
another marriage under any law,
religion, custom or usage with any
other person after LRA came into
effect.

Section 6(1) has clearly provided that any


marriage which is contravention or against the
Section 5 is void
Chong Sin Sen v Janaki a/p Chellamuthu (SUING AS
WIDOW OF MUNIAPPA PILLAI A/L MARITHA
MUTHOO, DECEASED, ON BEHALF OF HERSELF AND
THE DEPENDENTS OF THE DECEASED)[1997] 5 MLJ
411.
However, the court decided
The respondent in The court held that the
that the respondent had a
this case filed a suit respondent married
locus standi to sue the
for compensation the deceased in 1991
appellant even if the marriage
against the apellant through customary
was void as the court found
who negligently marriage that was not
that the definition of wife as
caused her in accordance with the
used in CLA 1956 included
husband's death. LRA 1976, thus the
wife contracted by customary
marriage is void
marriage
CONCLUSION
Section 3 of the LRA 1976 has clearly provided that all non-muslim citizen of Malaysia is bound
to contract their marriage under this Act. in this contaxt, any marriage after the date of the
enforcement of this Act which is on 1st March 1984, should be registered annd solemnized under
this Act. the marriage which is not solemnized and registered under this Act will become void.

based on the Section 5(1) and 6(1) of LRA 1976 as well as the case of Chong Sin Sen v Janaki a/p
Chellamuthu (SUING AS WIDOW OF MUNIAPPA PILLAI A/L MARITHA MUTHOO, DECEASED, ON
BEHALF OF HERSELF AND THE DEPENDENTS OF THE DECEASED)[1997] 5 MLJ 411, it is clear that in
the present case, after the enforcement of LRA 196, any marriage under custom law or personal
law would be invalid or void. in the present case, the marriage of Timothy's parents under
Chinese Customary Law is void as the marriage against the Section 5(1) of the LRA 1976.
furthermore, the marriage would be void by virtue of Section 6(1) of LRA 1976 as it has clearly
provided that any marriage contradict to the Section 5 would become void.
3RD ISSUE
Whether Timothy and his mother are entitled to his deceased father's estates.

Maxwell John Gray (as administrator/trustee for the estate of Cory


John Gray, deceased) v Lim Siew Shun [2019] 8 MLJ 119

After 1 March 1982, all non-Muslim marriages must be solemnised


Section 6 (2) of the LRA 1976 in accordance with Part III of the LRA and not in accordance with
any other marriage rites, except those covered by s 3(4).

Any proposition to the contrary will rock the whole foundation of


the Act, whose object in pith and substances is to regulate the
solemnisation and registration of monogamous marriages.

The defendant married the deceased by way of customary


marriage in 2008, and failed to register the marriage under LRA
1976.

The deceased left a will including his wife and child, but the will
was challenged by the administrator of the deceased's estate on
the ground that the marriage was void.

The court favored the plaintiff, and decided that the marriage was
void, and the defendant and her son are not entitled to the will.
CONCLUSION
based on the Section 6(2) of LRA 1976 as well as the case of Maxwell John
Gray (as administrator/trustee for the estate of Cory John Gray, deceased)
v Lim Siew Shun [2019] 8 MLJ 119.
any marriage which contradict to or not fulfill the requirements laid
down in the LRA 1976 would become void and the party of the void
marriage is not entitled for her/his spouse e's estates. in the present
case, as the marriage of Timothy's parents is void, therefore section 6(2)
of the LRA 1976 is applicable. Timothy's mother is not entitled to
hisfather's estates.