CHAPTER 11

MARRIAGE AND MATRIMONIAL

CLAUSES
UCN2612 CONFLICT OF
LAWS
TRIMESTER 3, 2019/2020

LEE JIA CHERN

1
 Outline of Chapter
• The Concept of Marriage in Malaysia
• Capacity – lex domicilii
• Form – lex loci celebrationis
• Statutory Provisions
• Recognition of Marriages in Embassies
• Recognition of Marriages Contracted Abroad
• Common
Law
• Capacity
• Formalit
ies
• Nullity of
• Statutory Recognition
Marriage
and• Divorce
Common Law Recognition 2

• Grounds for Non-

• Recognition
Recognition
of Foreign
Decrees
 The Concept of Marriage in Malaysia
• The application of the Law Reform (Marriage and Divorce) Act
1976
• The requisites of marriage – parties should be capable in respect of sex, age, mental capacity,
single status of contracting marriage, not within degrees of prohibited relationship, compliance
with the notices and formalities etc.
• Distinction between capacity to marry and the formalities of marriage:
a man and a woman both domiciled in england, celebrated their marriage in
denmark the woman was the sister of the deceased wife of the english man
• Brook v (1861) 9 HL Cas 193 their marriage was illegal by eng law that time, but legal by danish law
HLC reluctant to allow the man to invade the prohibition
Brook
• While the forms of entering into the conni trhaolcditngoht fe mmaairrr argieawgasevoadir, meadteodibistenctroi engulated
by the lex loci contractus, the law of the country in which it is celebrated, the essentials
of the marriage depend upon the lex domicilii, the law of the country in which the
parties are domiciled, and in which the matrimonial residence is contemplated.
essential validity
• Malaysia – capacity regulated by the lex domicilii while forms regulated by the lex
3
loci
celebrationi
s.
 Statutory
Provisions
Validity of a marriage – form (lex loci celebrationis) – capacity (lex domicilii)
Recognition of Marriages in Embassies
• S105, the LRA – a marriage contracted in any foreign Embassy, High
Commission or Consulate in Malaysia shall be recognized as valid if
• It was contracted in a form required or permitted by the law of the country
whose Embassy, High Commission or Consulate it is, or in a form permitted
under this Act;
• Each of the parties had, at the time of the marriage, capacity to marry under
the law of the country of his or her domicile; and
• Where either of the parties is a citizen of or is domiciled in Malaysia,4
both
parties had capacity to marry under this Act.
Marriages Solemnised in Any Country Outside Malaysia in a
Malaysian Embassy, High Commission or Consulate.
• S26(1), the LRA – such a marriage can be solemnised if the Registrar is satisfied that:
• One or both the parties to the marriage is a Malaysian citizen;
• Each party has capacity to marry according to the Act;
• Where one party is not domiciled in Malaysia, the proposed marriage will be regarded as
valid in the country of that party’s domicile; and
• Due notice of the marriage is given both in the registrar’s office and in the marriage registry
of the district in Malaysia where each party to the marriage was last resident, and no caveat
or objection to the marriage has been lodged.
• Provided that the government of the country in which the Malaysian Embassy is located does
not
object to the practice.
• The Registrar is usually a Malaysian diplomat appointed under s28(4) of the 5

LRA.
Recognition of Marriages Contracted
Abroad
• Marriages contracted outside Malaysia, other than those solemnised in a
Malaysian Embassy, High Commission or Consulate under s26 of the LRA
• S104 , the LRA – such a marriage shall be recognized as valid if
• It was contracted in a form required or permitted by the law of the country where it
was contracted;
• Each of the parties had, at the time of the marriage, capacity to marry under the
law of the country of his or her domicile; and
• Where either of the parties is a citizen of or is domiciled in Malaysia, both parties
had capacity to marry according to the capacity follow domicile
etc, same sex marriage will not be valid aboard
LRA.

• All these provisions(ss26, 104 &105 ) are consistent in being based upon the principles
of lex loci celebrationis as regards formalities/form and the lex domicilii as
regards capacity.
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The
Problem
• S3, the LRA – it shall apply to ‘all persons in Malaysia, to all persons domiciled
in
Malaysia but resident outside it, and all citizens’.
• S104 – guide to the recognition of marriages contracted outside Malaysia.
• How about marriages falling outside its requirements?
• Reference shall be made to s72, the LRA:
“Marriages governed by foreign law or celebrated abroad under Malaysian law
72.Where, apart from this Act, any matter affecting the validity of a marriage would fall to be
determined (in accordance with the rules of Private International Law) by reference to
the law of a country outside Malaysia neither section 69 nor section 70 shall—
(a) preclude the determination of that matter as aforesaid; or
(b) require the application to the marriage of the grounds there mentioned except so far as
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applicable in accordance with those
rules.”
• This means that the principles of conflict of laws can properly determine the
validity of a marriage, in spite of the positive terminology of both ss69 and 70
which states that ‘a marriage which takes place after the appointed date shall be
void’ and ‘voidable’ respectively.
• Both sections 69 and 70 can be invoked only insofar as consistent with
those
principles. This is clearly pointed out by ss72(a) and (b).
• S72, therefore, provides for the recognition of marriages falling outside the Act,
but within the common law principles of recognition.

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 a domicile italian married his 1st wife in italy then divorce from her by proxy
in mexico
he had never set foot in mexico

Common
however the divorce is not recognize in italy as the marriage was regarded as
indissoluble
the man went tot live in denmark, meet a danish girl lived in denmark
the registered the marrage in a london register office while, then return to

Law
denmark
husband then left and did not return and later petition for a decree of nullity

Capacit
in respect of london marriage on the ground
of his own bigamy
the court found he nvr avbandon his domicile in italy, thus london

y• The ruleeach– must

ceremony
nul and void bc italy nvr recognise the divorce
have the capacity to marry each other
dual domicile theory of capacity – if one party does not have the necessary
capacity, the marriage may be void.
• Padolecchia v [1968] P 324
Padolecchia
• Ungar v [1967] 2 NSWR 618
according to the law of domicile of party, the marriage is invalidated bcs the
party was withiin
the prohibited degree (niece and uncle)
Ungar
• Sottomayor v de (No.1) (1877) 3 PD 1 CA
Barros
• The court then held the marriage valid on the basis that “the validity of a
marriage celebrated in England between persons one of whom has an English
and the other a foreign domicile is not affected by any incapacity which, though
existing under the law of such foreign domicile, does not exist under the law
of
England no longer applicable, against LRA
. 9
• The rule – intended matrimonial home of the parties
• This choice of law theory is of useful assistance when the application of the
dual domicile test obscure the equities of a case.
• Lawrence v [1985] 3 WLR 125
Lawrence
• This case involved a conflict between the issue of capacity and the
recognition of the divorce decree.
• The Court: what emerges from this case is that if the application of
traditional conflict rules leads to solutions which are undesirable in terms
of policy, then it must be accepted that the orthodox principles are not
wholly satisfactory
an american born man sought a declaration that his marriage in the us under english law, court required to recognize the validity of degree
while the wife was seeking to nullify the marriage dissolving the marriage in brazil under eng act
in 1944, the wife had been married in brazil but in 1970 she was granted a divorce in the us considering the validity of marriage , court applied law of country which10the
and immediately married her current husband marriage has real and substential connection, namely england
matrimonial home was in England but returned brazil after the breakdown of marriage and refused wife’s appl
the divorce obtained outside brazil is only = decree of separation wife’s capacity to marry in us, regulated not by her law of domicile but
wife claimed that she had always domiciled in brazil, therefore lack capacity intended matrimonial home of the parties
Formalitie external factors
gov by law of the marriage where the place celebrated

s• Nature of the ceremony, the parties to be present at the ceremony, the person officiating,
the consent to marriage etc.
• Berthiaume v [1930] AC 79
Dastous
• Lord Dunedin: apart from capacity, the formal validity of a marriage is subject to the
rule locus regit actum, i.e. an act is governed by the law where it is done.
• ‘If a marriage is good by the law of the country where it is effected, it is good all
world over, no matter whether the proceedings or ceremony which constituted
marriage according to the law of the place would or would not constitute marriage in
the country of the domicile of one or other of the spouses … if the so called
marriage is no marriage in the place where it is celebrated, there is no marriage
anywhere, although the ceremony or proceedings if conducted in the place of the
parties’ domicile would be considered a good marriage. 11
 a marriage which took place btwn eng woman domiciled in england and a man domiciled in
• Apt v Apt [1948] P 83 argentina, the ceremony performed in argentina with presence of proxy was held to be valid
but since argentina law recog such ceremony, consent is questioned

• Question of whether consent could be given by proxy was classified

as
a matter of form. when a french cp married in england, both 16
attained age of majority, but the french law only allowed parties to marry w/o

• Ogden v Ogden [1908] P 46

parents consent at 25
the court ruled that is was the formality rule,bcs obtaining consent is
formality
hence did not bind the cp bcs married in england
• Obtaining consent is a parents consent need to be obtained to marry a person from diff
formality. religion

• Simonin v (1860) 2 Sw & Tr 67 ask 3 times for the consent for 3 months
court ruled that = formality rule
Mallac court: just a procedural rule

• Starkowski v [1952] 2 All ER 1272

AG
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 Nullity of Marriage and
Divorce
Nullity of Marriage
• S67, the LRA – a Malaysian court may make a decree of nullity of marriage where
• The marriage has been registered or deemed to be registered under the LRA; or
• Where the marriage between the parties was contracted under a law providing that,
or in contemplation of which, marriage is monogamous; and
• Both parties to the marriage reside in Malaysia at the commencement
of the proceedings.

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Void
Marriages
• Ss68 & 69 - Any husband or wife may petition for nullity on the basis that the
marriage is void on any of the following grounds:
• A previous subsisting marriage;
• Either party was at the date of the marriage under the age of 18
years unless a special licence has been granted by the Chief Minister;
• The parties are within the prohibited degrees of relationship set out in s11 of
the LRA unless a special licence has been granted by the Chief Minister;
• The parties are not respectively male and female.
• A void marriage is no marriage. The parties have gone through the form of a
ceremony of marriage, but they have acquired the status of husband and wife.
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not
Voidable
Marriages
• S70 – the grounds on which a marriage is voidable
• No consummation of marriage due to incapacity of either party to the marriage;
• No consummation of marriage due to the wilful refusal of the respondent;
• Consent to marry was not validly obtained;
• At the time of the marriage, either party was a mentally disordered person;
• At the time of the marriage, the respondent was suffering from venereal disease in a
sexually transmitted disease
communicable
form;
• At the time of the marriage, the respondent was pregnant by some other person
other than the petitioner.
• In a voidable marriage, the law regards the marriage as a valid and subsisting marriage
15
until a decree annulling it has been pronounced by a court of competent
jurisdiction.
Divorc
e• S48(1) – a Malaysian court may make a decree of divorce if
• The marriage has been registered or deemed to be registered under the LRA; or
• The marriage is a monogamous marriage; and
• Both parties to the marriage are domiciled in Malaysia at the time when the petitioned is
presented
Can foreigners get divorced in Malaysia?
• S49(1) – in the event that the husband is not domiciled in Malaysia, the Court has jurisdiction to
entertain a divorce petition if
• The wife has been deserted by a husband who before such desertion was domiciled in
Malaysia;
• The husband has been lawfully deported, banished or expelled from Malaysia and before
such act was domiciled in Malaysia; or
• The wife is resident in Malaysia and was ordinarily resident in Malaysia for a period of
two 16
years immediately prior to the proceedings.
 Recognition of Foreign
Decrees
Statutory Recognition
• S47, the LRA – a Malaysian court can ‘act and give relief’ to the parties to proceedings
under Part VI of the LRA (dealing with divorce, judicial separation and nullity) of the
LRA on principles which are, ‘as nearly as may be’ those of the English High Court in
its matrimonial jurisdiction.
• S46(1), the English Family Law Act 1986 – if a foreign decree has been obtained by
‘judicial or other proceedings’, in order to be recognized as valid:
• The decree must be effective under the law of the country in which it was obtained;
and
• At the date of the commencement of the proceedings either party to the marriage
must have been habitually resident or domiciled in that country, or a national of that17
country.
• If the decree was obtained without ‘judicial or other it will only be recognized as effective if:
proceedings’,
• It is effective under the law of the country in which it was obtained; and
• At the date on which it was obtained both parties to the marriage were domiciled there, or one party to
the marriage was domiciled there, provided the other party was domiciled in a country under whose law
the decree was recognized as valid.
• Differences between decrees obtained in ‘judicial and other proceedings’ and those obtained without
such
proceedings:
Chaudhury v it must at least import the decree of formality
• Chaudhury [1984] 3 All ER 1025
• It must import a degree of formality and at least the involvement of some agency, whether lay or
religious, of or recognized by the state, having a function that is more than simply probative,
although it needs have no power of veto.
• The English Court of Appeal held that aa wbaayroef dtvi aolracqeni psi roal nmoci ulnacwed in Kashmir did not

• H v Hentail proceedings.
(The Queen’s Proctor Intervening) (Validity of Japanese ) [2007] 1 FLR
Divorce 1318
• Recognition of the Japanese kyogi rikon as a valid divorce ‘obtained by means of proceedings 18
under s46(1).
Common Law
Recognition
• A foreign nullity decree may be recognized in Malaysia if effective by the law of the country
where it was pronounced, provided that:
• The parties to the marriage were in the foreign country at the
commencement of the nullitydomiciled
proceedings;
• Abate v [1961] P 29
Abate
• The petitioner or respondent had a real and substantial with the country in
which the decree was obtained; connection a couple, with chad nationals domiciled in chaq married in 1939
husband joined chad army
after war, demobilized by england ,wife remained in chad
• Indyka v [1967] 1 All ER throughout
Indyka 689 by a foreign court in circumstances in which Malaysian
1949, wife obtained
1959 husband divorce
remarried under which law nationality form
in england
• The decree was granted basis

a
would have had court
jurisdiction ; 3 years residence by a wife in the territory of the foreign
• Robinson-Scott v Robinson- [1958] P 71 court assuming jurisdiction
eng court should accept that
Scott
• The were in such foreign country at the commencement of such
parties resident proceedings.
• Mitford v [[1923] P 130 19

Mitford
Grounds for Non-
Recognition
• S51, the English
– Recognition of a divorce or nullity decree may be refused if:
Family Law
• The Act
decree is ‘irreconcilable with a decision determining the question of the subsistence or
validity of the marriage’ previously given by a competent domestic court, or by a
competent foreign court, where the decision of that foreign court is ‘recognized or entitled
to be
recognized’ by any domestic tribunal;
• At the time of the decree, there was no subsisting marriage;
• The decree was obtained without reasonable notice of the proceedings having been given
to
a party to the marriage;
• A party to the marriage was not given a reasonable opportunity to take part in the
proceedings;
• Recognition ‘would be manifestly contrary
the husband requestto public
wife to signpolicy’.
doc, she signed w/o
obtained by deception. reading (language she cannot understand)
• Kendall v Kendall [1977] 3 All ER
husband made up story to divorrce
471 – a Bolivian decree was not recognized 20

• Golubovich v Golubovich [2010] 3 WLR 1607, Court of

because it was
Appeal