Published on December 2, 2008
Slide 1: NULLITY OF MARRIAGE (a) Marriages which are void (b) Marriages which are voidable. Slide 2: Jurisdiction of court Under section 67 of the LRA: The Malaysian courts have the jurisdiction to issue the annulment of the marriage under the following circumstances: (a) the marriage was registered or deemed to be registered under the LRA (section 4, 21, 26) or (b) the marriage is contracted under any law which provide a monogamous marriage, and (c) both parties reside in Malaysia at the time of the commencement of the proceedings. Slide 3: Case: Mahon v. Mahon  2 MLJ 266. Principle of the case: Temporary absence does not deprive a person of his residence. Ng Wee Whye v. Wong Sook Heng  1 MLJ 100. Principle of the case: The court has no jurisdiction to entertain the petition where one party to the application was not a resident of the place where the application was made. Slide 4: Section 69 of the LRA: four grounds: void marriage. (a) at the time of the marriage, either party was already lawfully married and the former husband or wife of such party was living at the time of the marriage and such former marriage was then in force. Slide 5: PP. v. Rajappan  2 MLJ 231. Principle of the case: i) the court has no jurisdiction to entertain the petition as the act of bigamy was not committed in Malaysia. ii) If the court has jurisdiction to entertain the petition, the second marriage will be held as a void marriage. HELD: The Supreme Court held that it has no jurisdiction to decide on the validity of the second marriage, as the act of bigamy was not committed in Malaysia. After this case, there was an amendment to sections 5,6 and 7 of the LRA and section 494 of the Penal Code where a person can be charged for the offence of bigamy even if a subsequent contract of marriage was made outside Malaysia in the existence of a valid marriage. Slide 6: (b) a male person marries under years of age or a female person who is above 16 years but under 18 years, marries without a special licence granted by the Chief Minister under section 10 of the LRA. (c) the parties are within the prohibited degrees of relationship unless the chief minister grants a special licence under subsection (6) of section 11 of the LRA, or Slide 7: Case: Corbett v. Corbett  2 All ER 33 Principle of the case: A person’s sex is determined according to his birth. At the time of marriage, the petitioner knew that that the respondent had been registered at birth as a male and had three years earlier undergone a sex-change operation consisting in the removal of the testicles and most of the scrotum and the formation of an artificial vagina and had since lived as a woman. HELD: VOID. Slide 8: VOIDABLE MARRIAGES: i) Section 70(a): that the marriage has not been consummated owing to the incapacity of either party to consummate it. This is based on the very basic idea of marriage i.e. to have sexual intercourse. Marriage is not regarded as consummated until the parties had become one flesh by sexual intercourse. Slide 9: Case: Baxter v. Baxter  2 All E.R. 886 Principle of the case: Although the husband used contraceptive sheath, the marriage is considered to have been consummated. In this case, the wife did not allow the husband to have sexual intercourse with her unless he uses contraceptive sheath. The husband applied for nullity of marriage. The court overruled the decision in Cowen v. Cowen  2 All ER 197 and held that the marriage has been consummated notwithstanding the husband’s use of a sheath. Slide 10: Case: L v. L  MLJ 145 Principle of the case: Inability to consummate, may due to physiological or psychological causes and may be either general or merely quad the particular spouse. After three years of marriage, the evidence shows that the wife was still a virgin. The husband could consummate the marriage with another woman, but was incapable to consummate the marriage with her. The court granted a decree of nullity of the marriage to the wife. Slide 11: b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it. Wilful refusal means without just cause. Therefore, if the respondent can show a just excuse of his/her refusal to consummate the marriage, the court will dismiss the petition. Slide 12: Case: Rathee v. Shanmugam  1 MLJ 263 Principle of the case: Where the parties have agreed that a civil marriage will be followed by a religious ceremony, it is a just excuse of refusing to consummate the marriage. The parties are Hindus and they registered their marriage at the Registry of Marriages at Ipoh. They agreed not to consummate the marriage until a formal Hindu ceremony. The husband delayed the ceremony and told her that he does not wish to proceed with the marriage. The wife was successful in applying for nullity of marriage. Slide 13: (c) that either party to the marriage did not validly consent to it whether, in consequences of duress, mistake, unsoundness of mind or otherwise. Marriage is a contract; therefore, the absence of consent will invalidate the marriage. Case: Buckland v. Buckland  2 All ER 300. Principle of the case: Marriage out of fear (duress) is a voidable marriage. Petitioner was a policeman, employed in Malte. While working there, he went around with a Maltese girl. The girl’s parent forced him to marry her. She was only 15 years old. He married her out of fears. When returned to England, she applied for nullity of marriage and the court granted the petition. Slide 14: Case: Mehta v. Mehta  2 All ER 690 Principle of the case: Mistake as to the nature of the ceremony amounts to voidable marriage. The petitioner thought that the marriage ceremony was for her conversion to the Hindu religion but it turned out that the ceremony was a marriage ceremony and the court held that the marriage was a voidable marriage. Slide 15: Case: In the Marriage of N. Osman and O Mourrali (1990) 13 Fam LR 444. Principle of the case: If misrepresentation or fraud induces an operative mistake, the marriage will be voidable. The wife applied for the nullity of marriage based on the ground that her consent given to the marriage was not real consent because it was obtained by fraud. The husband, a foreign national, went through a marriage ceremony with the wife in Australia for the purpose of being allowed to reside there. After the marriage, the husband refused to cohabit with the wife. Slide 16: Case: In the Estate of Park  2 All ER 1411. Principle of the case: The correct test to determine unsoundness of mind is whether he or she was capable of understanding the nature of the contract of marriage that he or she had entered. The deceased contracted a second marriage and made a new will which revoked his earlier will. The beneficiaries of the first wife claimed that he was unsound of mind when he entered into the second marriage. However, the court held that the marriage was valid as the deceased was able to appreciate the responsibilities normally attaching to the marriage. Slide 17: (d) That at the time of marriage either party, though capable of giving a valid consent, was a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 of such a kind or to such an extent as to be unfit for the marriage. (e) that at the time of the marriage, the respondent was suffering from a venereal disease in a communicable form; (f) that at the time of the marriage, the respondent was pregnant by some person other that the petitioner.