THE LAWIN SARAWAK

THE LAWIN SARAWAK

    In Sarawak, the administraton of estates=s ordinance provides that on obtaining probate or letters of admistration the executor or admistrator as the case may be shall forthwith collect and recover all the property, assets and effects covered by the grant and discharge thereout all the debts due bythe deceased which are legally recoverable and thereafter distribute the residue of the estate among the beneficiaries of heirs of the deceased, according to the will of the deceased or, as the case may be, in the shares to which they are entitled by recognized law or custom.
    In the absence of any custom applicable to the estate of the deceased, it would appear that the English law as contained in the administration is applicable by virtue of the application of laws ordinance
    It has beeb held in chan bee noe v. ea siok choo that the formalities of execution f a will are governed in the absence of any Sarawak legislation by the English law as contained in the wills act. In supama v. kalimuthu it was held that the rule against perpetuities was applicable in Sarawak and that a devise which infringed the rule was therefore void. In morris v.  norie lim it was held that a divise to the roman catholic mission should be set aside for trough there was no direct evidence of fraud or indue influence, the plaintiffs had not discharged their duty of proving that the will propounded was the will of a free and capable testatrix.
    Among the dayaks, wills are nt knows but rules of descent or inheritance do regulatethe transmission of real property and personal property. These principles are sometimes modified by the wishes of the original owner, who has some power of verbal testamentary disposition. It has been held in the case of sat v. randong that a dayak can make a valid written will and can by such will dispose of his own property, real or personal, to someone who would not on intestacy inherit it by customary law. In the case of pasaka land however the land code prevents the disposition of the land without the prior consent of the resident unless the land is bequeathed to the testaor’s heirs.  In the case of the temuda land (that is customary tenure over crown land) there exists a form of entail and such land may not be disposed of so long as there are heirs entitled to exercise farming rights over the land. In the case of entail, and a dayak may not dispose of such property between his heirs. The property real or personal of a husband and wife revents on their deaths to their or personal of a husband and wife revent on their deaths to their children, who in theory should receive equal shares. It is customary that some of the personal property of the deceased will be either that some of the personal property of the deceased will be either destroyed at death or buried with its owner. A widower or widow and applied for probate. The respondent his step-brother enterd a caveatand claimed to be a co-parcener in the joint hindu family property. Nevertheless the respondent claimed to have a share in the joint hindu family firm of PL.A.R. in the high court the learned trial judge held that the only isuue left to be determined was whehere the deceased could lawfully dispose of by will his one-third share in the joint hindu family firm. He held that the testator’s one-trird share I =n the joint hindu family should be excluded from probate and that this one third share should form part of the deceased’s estate on intestacy. The appellant appealed to the federal court, which allowed the appeal. It was held that on obtaining an order for partition of the joint hindu family property the respondent ceased to be a member the joint hindu family property the respondent ceased to be a member of the co-parcenary in relation to what was left of the property after such partition. The only co-parceners left thereafter were the father and the appellant. On the death of the father the property goes to the appellant by survivorship, he being the only living co-parcener. The federal court also held that the probate couth is only concerned with the question of the genuineness of the will, its due execution and attestation and testamentary capacity of the testator and it is not  part of the jurisdiction of the probate court to pronounce on the validity of the bequest. Probate of the will was therefore isuued to the appellant subject to the proviso that before disposing or distributing any property bequeathed under the will or the proceeds of such property there shall be an order of court to that effect.
    Under the inheritance (family provision) act, power is given to the court to make reasonable provision for the wife or husband or a dependent son or daughter of a deceacsed person if the court is of opinion that no such reasonable provision has been made by his will or by the law of intestacy or by a combination of the will and the law. 

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LEGAL STATUS OF UNMARRIED WOMEN

LEGAL STATUS OF UNMARRIED WOMEN

    The legal status of unmarried women in peninsular Malaysia, sabah, Sarawak and Singapore is substantially similar to tahat of men in respect of righs, duties and liabilities out of contract, tort and the acquisition, ownership, occupancy and transfer of property. Unmarried women have the same liability as men under the criminal law expect that homosexual conduct between women of full age is not a punishable offence whereas such conduct between men is punishable in puninsular Malaysia and Singapore by sections 377 and 377A of the penal code.
    Unmarried women have no disabilities in public life. They have in peninsular Malaysia and Singapore, if of age the right to vote and to stand for elections; they are liable to serve as jurors and they have, if qualified, a right of adminssion to the university. They are also eligible to enter the government service and the learned professions.
    The legislation relating to working conditions applies equally to men and women but certain restrictions, imposed for theirsafety and wellbeing, apply only to women. Thus in peninsular Malaysia, under shall work in any industrial or agricultural undertaking between the hours of ten o’clock in the evening and five o’clock in the morning, nor commence work for the day without having had a period of eleven consecutive hours free from such work. It is also provided that no female lebourer whatever shall be employed in any underground work.
    The minister may by order prohibit or permit the emplovment of female labourers in such circumstances or under such conditions as may be described in such order.
    In Singapore under the employment Act(cap. 122) it is provided thatno famele worker sall be employed in any kind of labour during the night or any part thereof, and night is defined to mean a period of not less than eleven consecutive hours including the internal between ten o’clock in the evening and five o’clock in the morning or such other internal of seven hours as the minister may in respect of female worker prescribe by notification in the gazette for any particular industrial undertaking or branch or any kind of labour. It is also provided that no female worker shall be employed in any underground work.
    In Sarawak and sabah, under the labour ordinance, it is provided that no female shall be employed during the night in any indusrial undertaking. ‘night’ is defined as the period of at least eleven consecutive hours including an internl to be prescribe of at least seven consecutive hours falling between ten o’clock in the evening and seven o’clock in the morning. It is also provided that no female shall be employed on underground work in any mine expect in certain specified circumstances.
    INHERRITANCE RIGHTS
A. the law in peninsular Malaysia
    The law relating to the distribution of intestate estates is contained in the distribution ordinance, 1958. This ordinance does not apply to the estates of persond professing the muslim religion oor to any estate distribution of which is governed by the parsee intestate succession ordinance. The distribution ordinance, 1958, provides that the distribution of the movable property of a person deceased shall be regulated by the law of the country in which he was domiciled at the time of his death. The distribution of immovable property in peninsular Malaysia of a person dying intaste shall be regulated by the ordinance wherever he may have been domiciled at the time of his death.
    Under the distribution ordinance, 1958. When a person dies intestate his property shall be distributed in the manner set out in section 6 of the ordinance. If a women dies instate leaving a husband, the whole of her estate shall go to him. If a man dies leaving a wife and isuue, the surviving wife shall be entitled to one-third of the estate but if he leaves a wife and no isuue, the surviving wife is entitled to one-half of the estate. Subject to the rights of a surviving husband or wife the estate of an intestate who leaves isuue shall be held on trust for the isuue, that is in equal shares if more than one for all or any of the children or child of the inteatate living at the death of the intestate, who attain the age of twenty-one years or marry under that age; and for all or any of the issue living at the death of the intestate, such issue to take through all degrees according to their stocks, in equal shares if more than one, the shere which their parent would have takn if alive at the death is still living at the death of the instate and so capable of taking. If the instate leaves no issue, then subject to the rights of a surviving husband or wife the estate of an instate shall be held upon trust for the following persond living at the death of the instate and in the following order and manner. 

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Parent and Child The Law in Peninsular

Parent and Child

The Law in Peninsular

A. The law in peninsular Malaysia

The right, liabilites and duites of parents in relation to their children are contained in the Guardianship of infants act, 1961. This act is not applicable to person professing the muslimreligioan until it has been adopted by the legislative council of a state of the federatio and such law may provide taht (a) nothing in the act which is country to the muslim religion of the custom of the malaysia shall applyto any person under theagr of eigthteen years and whose fathe profess the muslim religioan, (b) that the provisions so profeses or professwd of the act so far as they are contry to the muslim religion shall cease to apply to any person upon his professing the muslim religion, if at hte date of such professing he has comlate the age of eighteen years or if not having complate the age of eighteen years or if no heaving complate that age he professes the muslim religion whit the of his guardian.

1) Guardianship and custody

The guardiaship of infnts act, 1961, provides that the fathwr of an infant shall be that guargdian of the infants person an property but the court or a jugde may make such order as it or he thinks fit regartidfwefhg the custobpdy of the infsnts and the ghohsrh rghwrgh ghwfdkfsdwjdv. Where and infants has no lawful father living the mother of the infsnt shall bethe guargdian of his erson and properti, but the court or a judge may appoint some other person to be the guargdian of the infsnts person and property or either of them, to act joint whith teh mother, if bots the parents of an infants are are dead, the testamentary guardian (if any) appointed by the last srving parents, shall ordinarily. Whre but parent of an uefefhv Hve3  died whit out fiwofh evhvfcvnsr eeddvrgmsg . in axercising the powers conferresd bt the act the infanat, and shall where the oinfafeg fewf fdfefdev.

In re balaisingam and paravathy, it was heldthat the hight courtf has no jurisdiction to entertined an applikation fot the custobody of an illegimate child under the gusrgdianship of infants act.

In loh kon fah, v lee moy lan the fact were that in 1970 the responship (the mother) and the childreen by mutul agreement with the applement (the father) had moved to singapore where dey had lived sice. The applemen the father visited the  trial judge had family regulary until 1973 when he stoped visiting them enti telybecsuse he fillunder welcome be respondenrefused the and childreen. The courd should be contens ih the position of a reasonle terms. The courd should put it self in the position of a reasonable and wise parentswants the infants to haeve. Having regard to the circumstansnces of the case the learned trial judge gave custobody of the childreen to the respondent. On appela it was held by a majoryti that heaving regeart to the evidence before hi it could no be said that the learned to the evu dance before him it could no be said that the learnwd trial jugde had wrongly exrcised hi discretion.

2) Maintenance

The maintenance orders (facilities for enforcement) act, 1949, provides for the enforcemenof mainrenance ordes madi in the federatioan in a number of commonwealth countries. Provinsin for the enforcemen of maintebance orders made in the federation in a number of commonwealth contries. Provisoin for the  enfrocemen of mainterangs or der bay making of arttatemenc of earning orederes was made by the married women and childreen.

The parents as such have no rights to the use and enjoymen of theris chilsd property during the lifetime of the child. On the wat childis death intrfefsvg  brigvrguiv ffu f4 vvvfe hfnvm vha sva vn dfe tsd vgv. Parents also right to conselent to the marriege of their infsnt childreen but are under no obligatio to pay debts incured bt their infant childreen and incur no liability for the of cungh childreen by children and incur no liability for the torts of scu chldreen by virtue only of their natular relationship.

The childreen young persons ordinance, 1947, provides that any person who having the custody, charge or careof any child or young person wilfully assaults.

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FAMYLI LAW OF NON-MUSLIMS INTRODUCTIO

This chapter deals with the family law (other than that of the muslims) in force in Malaysia and Singapore. The law is to be found mainly in the local statutes of the states of Malaysia of Singapore. The personal law relating to marriage, divorce, guardianship, maintenance, adoption and family law generally were in the Federal List in the Concurrent List for the Borneo states. There are therefore four groups of laws to be considered, the laws of the Peninsular Malaysia (the original Federation of Malaysia) and the laws respectively of Sarawak, Sabah and Singapore. In addition the provisions of the Law Reform (Marriage and Divorce) Act, 1976 have also to be considered. 

PART I. MARRIAGE SECTION I: SUBSTANTIVE MARRIAGE REQUIREMENTS

A. the Law in peninsular Malaysia

The law relating to marriage in Peninsular Malaysia might be dealt with under four heads: muslim marriages, Civil marriages, Chistian marriages and Customary marriages. It is proposed to deal in this chapter only with Civil, Christian and Customary marriages.

i. Betrothal 

There are on statutory provisions relating to betrothal in Peninsular Malaysia and breaches of contract of marriage are death with under the ordinary law following the contract Act and the English Common Law. It is not necessary that a contract to marry should be evidenced by writing no even that the mutual promises should be made by express words. So long as a promise to marry is supported by some kind of valuable consideration it will be enforceable even though the promise has not in turn made an axpress promise to marry to promisor. In the English case of Harvey v. Johnston it was held that the defendant could be sued on a promise to marry the plaintif, made in consideration of the plainntiff’s going to Ireland at the deferant’s request to marry him.

The conduct of the parties, such as the giving of an engagement ring, the fixing of a date for marriage or their behavior towards each other, may justify an inference that they have mutually promised to marry. The only remedy for breach of contract to marry is an action for damages. The remedy is mutual, that is to say, either the man or the woman may sue for the breach. The damages in an action for breach of promise are not measured by any fixed standard and are in the discretion of the judge. The conduct of the parties may properly be considered in aggravation or mitigation of damages. The damages may be aggravated in the case of a male defendant by the fact that the woman has become pregnant or he has infected her with a disease. If one of the parties to a contract to marry is, to the knoeledge of the other party, already married and is not entitled to marry polygamously, the contract even after the death of the suit of either party for not fulfilling the contract even after the death of the existing wife or husband. The principle does not however apply in the case of promises, made after a decree nisi of divorce, to marry after the decree has been made absolute.

In the English case of Frost v. knight it was held that when the contract is to be performed at a future time the promise has an inchoate right to the performance has arrived and that in the meantime he has a right to have the contract open as a subsisting and effective contract. Accordingly he or she may sue immediately on breach, even though the defndant’s  promise is conditional and might never in fact have to be performed at all. In that case the defendant promised to marry the plaintiff after the defendant’s father died. He repudiated the contract  during his father’s lifetime and the plantiff sued him immediately. It was held that the plaintiff could recover not with standing that the defendant might die before his father. A breach will occur if the defendant might die before his fatrher. A breach will occur if the defendant by his own act puts it out of his power to perform the contract. Thus if he marries someone other than the plaintiff, the latter has an immediate cause of action.

In Khem Singh v. Anokh Singh it was held that a marriage brokage agreement is void as having an object opoosed to public policy within the meaning of what is now section 24 of the contract Act, 1950; but such an agreement falls within section 66 of the Act and money paid under it can be recovered by the person who paid it.

Contract of betrothal entered into on behalf of minors by their guardians of the minors. Although section 11 of the Contract Act, if he is of the age of majority according to the law to which he is subject, it has been held that this as no application to marriage contract. Where the betrothal agreement provides for the payment clause might be unenforceable, this does not vitiate the whole of the contract and the agreement to marry is per se binding and enforceable.

In England it is provided that the plaintiff cannot recover in an action for breach of promise unless his or her tertimony is corroborated by some other material evidence but this statutory provision does not seem to be applicable in Malaysia.

(ii) Civil Marriages

Civil marriages are goverved by the civil marriage ordinance, 1952. The ordinance provides for the solemnization and registrasi of monogamous marriage. It is provided that no marriage, one of the parties to which professes the religion of islam, shall be solemnised or registered under the ordinance. A marriage solemnised and registered under the ordinance is however valid, even though one of the parties professes the chistian religion. The substantive requirements for a valid marriage under the ordinance are as follows:

(a) Age 

 

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FAMILY LAW IN MALAYSIA AND SINGAPORE INTRODUCTION

Malaysia is federation consisting of thirteen States, that is, Johore, Kedah, Kelantan, Negri Sembilan, Pahang, Penang, Perlak Perlis, Selangor, Trengganu ( Collectively known as west or peninsular Malaysia) and sabah abd Sarawak. The federation follows the usual pattern of dividing executive and legislative powers between the Federation and the States and there are three lists of subjects, the Federal List, the State List and the Concurrent List. Civil and criminal law including family law is within the competence of the Federal Government and Legislatures; moreover in the East Malaysia States of sabah and Sarawak personal law is placed in the Concurrent List.

Apart feom the Muslim courts and Native courts, all the courts in Malaysia are Federal. There is one Federal courts which exercises appellate jurisdiction and also a limited original jurisditon in constutional matters. There are two High Courts, one for Peninsular Malaysia and one for East Malaysia and below these there are the Subordinate Courts, the Sessions Courts, the Magisrates Courts and the Penghulu Courts.

Each of the states in peninsular Malaysia has its own system of Muslim religious courts which deal with questions of Muslim personal law and in the East Malaysian States of sabah and Sarawak there are native customary courts which deal with native law and custom.appeals from the Muslim courts are heard by State Appeal Biards and appeal, presided over by a High Courts Judge.

Appeals from the Federal Courts in civil cases may go to the head of stase, the yang di-Pertuan Agong, who under the present arrangements refers them to the Judicial Committee of the Privy Council for hearing and for their advice.

There are a variety of family laws in Malaysia and this has given rise to some inter-personal conflicts. The muslims marry according to Islamic law and the various state enactments which deal with deal according to oslamic to law and the muslim law provide that they are applicable only to persons professing the muslim religion. The Chinese and Hindus may marry according to their own law or customs as determined by the courts. The natives of east Malaysia may marry according to their customs. In peninsular Malaysia, anyone, except a person professing the religion of islam, may have his or her marriages solemnized under the civil Marriage Ordinance, 1952, which provides for civil monogamous marriages before registrars of marriages. A marriage between Chistians or between persons one of whom is a Christian may be solemnised in according to the usages of Muslims, hindus, Dayaks or other persons governed by their own laws and customs may be solemnised under the Chursch and Civil Marriages Ordinance. In sabah marrianges between persons one or both of whom is or are a Chystian or Chystians are required to be solemnised in accordance with the Chystian Marriage Ordinance.

Divorces under the religious or customary laws are recognized. The Divorce Ordinance, is applicable only to monogamous marriages and there fore does not apply to muslim, Chinese or native customary marriage, or to most Hindu Marriages.

In Singapore the principal statutes are the women’s Charter and the administration of muslim Law Ac

In Martin v. umi Kelsom the facts were that the petitioner and the respondent went through a form of marriages for Selangor in accordance with the provisions of the Chystian marriage enactment on February 25, 1950. At the time of solemnization the petitioner was a Chystian domiciled in England while the respondent was a muslim domiciled in Salangor. The petitioner petitioned that the marriage be declared void ab initio on the ground that at the date of its solemnization he was a Chystian and the respondent a musim and there fore by reason of her personal law she was incapable of inter-marrying with him. Thomson C.J. in the high Court held that in exercise of its jurisdiction under the Divorce Ordinance (which provides that in all proceedings under it, the court should act on the principles on which the English court would act) the court must determine the validity of the Marriage according to the law of the husband’s domicile, which was English law and that so determined the marriage was valid. The decision has been criticized and it is doubtful if it would be followed today. It may perhaps be defended on the ground that the marriage was valid by the law of the interded matrimonial domicile.

The effect of a conversion to Islam was considered in public prosecutor v. white. In that case the accused married a Chistian lady at Taiping, Federated malay states, in 1918 according to the rites and ceremonies of the Church of England. In 1936 while his wife was still alive, the accused married another Chistian lady according to the Islamic law after they had been converted to the Islamic religion. In a  prosecution instituted at the instance of the first wife for bigamy, it was  held that a person who enters into a marriage relationship with a women according to monogamous rites takes relationship with a women according springing from a monogamous relationship and acquires by law the status of a ‘husband’ in a monogamous marriage and he cannot whatever his religion may be, during the subsistence of that monogamous marriage marry or go through a legally recognized form of marriage with another women. The accused was therefore held to have commited the offence of bigamy. In attorney-General of Ceylon v. Reid however in an appeal from Ceylon, the privy councilheld that there is an inherent right religion and personal law and so to contract a valid polygamous marriage if riage. It was held that the respondent in that case who had remarried after his conversion to Islam was not guilty of bigamy. It must be noted that the Ceylonese legislation dealt with in that case was rather ambiguous on the prohibition of subsequent marriages. In Singapore the position has been clarified by an amendent to section 3(2) of the Womans’s charter which clearly prevents a person who is married under the Woman’s charter and who subsequently becomes a Muslim from marrying again while the marriage is still subsisting.

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