Abdul Hamid Embong J:

The sole issue for determination of this court is whether the parties to an unsolemnised and unregistered customary marriage entered into after the coming into force of the Law Reform (Marriage and Divorce) Act 1976(the Act) can seek for the reliefs sought; which are:

1. that the said marriage be dissolved;

2. that the custody, care and control of their child shall be given to the petitioner;

3. the respondent shall have access to the said child during weekends;

4. that the cost of this petition be borne by the respondent;

5. further or such other relief as this Honourable Court deems fit and proper.

To commemorate their so-called marriage union, the parties organised a dinner function held at a temple in Teluk Intan on 22 February 1998. They have since cohabited as husband and wife and from that union, have a child born on 21 May 1998, a mere three months after the ceremony. Their marriage has not, to date, been registered. There is also no evidence (save for a dinner invitation card) that their marriage had been solemnised pursuant to s. 24 of the Act. They also did not produce the Marriage Register in Form I as proof of solemnisation and registration of their marriage. The wife now asks for a divorce, the respondent husband does not oppose her application.

The Scheme Under The Act

The objective of the Act is to provide for a scheme which may be discerned from its long title, namely:

An act to provide for monogamous marriagesand solemnisationand registrationof such marriages, to amend and consolidate the law relating to divorce and to provide for matters incidental thereto. (emphasis added)

The Act repealed a dozen written laws (see s. 109) in existence prior to its coming into force - as can be seen in the schedule. The Act recognises only monogamous marriages as described under part II and makes it an offence for a person lawfully married to marry again during the lifetime of his or her spouse. (see s. 7 of the Actpunishable under s. 494 Penal Code)

Part III of the Act provides for the restrictions on a marriage. It starts with s. 9, which states:

S. 9. A marriage under this Act may be solemnised only by a Registrar.

Note the use of the qualifying word 'only' in that section to emphasise that only a registrar may solemnise a marriage. The Registrar of Marriages is a public officer appointed by the Minister under s. 28. The Minister may also appoint any person whether a public officer or not to be an assistant registrar. Part III also provides for certain prohibitions for contracting a valid marriage, based either on age, degrees of consanguinity and affinity and for the requirement of consent of either parent for one below 21 years old to contract into a marriage. (see ss. 10, 11, 12 respectively).

Section 22 of the Actdeals with the solemnisation of marriages. A church or temple marriage may be held at such time as is permitted by the religion or custom. A registry marriage however can only be conducted in the office of a registrar with open doors and within the hours of six in the morning and seven in the evening. Again, public policy requires marriages to be transparent and not held in secret. As for church or temple marriages, s. 22(3)provides as follows:

A valid marriage may be solemnised under subsection (1)(c) by an Assistant Registrar if he is satisfied by statutory declaration that:

(a) either:

(i) each of the parties is twenty-one years of age or over, or, if not, is a widower or widow, as the case may be, or

(ii) if either party is a minor who has not been previously married and the female party not under the age sixteen years that the consent of the appropriate person mentioned in section 12 has been given in writing, or has been dispensed with, or has been given by a court in accordance with section 12;

(b) there is no lawful impediment to the marriage;

(c) neither of the parties to the intended marriage is married under any law, religion, custom or usage to any person other than