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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