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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