LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976
This Act may be cited as the Law Reform (Marriage and Divorce) Act 1976 and shall come into force on such date as the Yang di-Pertuan Agong may, by notification in the Gazette appoint and different dates may be appointed for West Malaysia, Sabah and Sarawak.
(1) In this Act unless the context otherwise requires-
"aborigine" has the same meaning assigned to it in section 3 of the Aboriginal Peoples Act 1954;
"appointed date" means the date of coming into operation of this Act;
"Chief Minister", in relation to-
(a) the States of Malaysia, means the Chief Minister or Mentri Besar of a State;
(b) the Federal Territory, means the Minister;
(c) the Malaysian Embassy, High Commission or Consulate, means the Malaysian Ambassador, High Commissioner or Counsel respectively;
"child of the marriage" means a child of both parties to the marriage in question or a child of one party to the marriage accepted as one of the family by the other party; and "child" in this context includes an illegitimate child of, and a child adopted by, either of the parties to the marriage in pursuance of an adoption order made unde
(1) Except as is otherwise expressly provided this Act shall apply to all persons in Malaysia and to all persons domiciled in Malaysia but are resident outside Malaysia.
(2) For the purposes of this Act, a person who is a citizen of Malaysia shall be deemed, until the contrary is proved, to be domiciled in Malaysia.
(3) This Act shall not apply to a Muslim or to any person who is married under Muslim law and no marriage of one of the parties which professes the religion of Islam shall be solemnised or registered under this Act; but nothing herein shall be construed to prevent a court from having exclusive jurisdiction over the dissolution of a marriage and all matters incidental thereto including granting a decree of divorce or other orders under Part VII and Part VIII on a petition for divorce under section 53 where one party converts to Islam after the filing of the petition or after the pronouncement of a decree, or a petition for di
(1) Nothing in this Act shall affect the validity of any marriage solemnised under any law, religion, custom or usage prior to the appointed date.
(2) Such marriage, if valid under the law, religion, custom or usage under which it was solemnised, shall be deemed to be registered under this Act.
(3) Every such marriage, unless void under the law, religion, custom or usage under which it was solemnised, shall continue until dissolved-
(a) by the death of one of the parties; or
(b) by order of a court of competent jurisdiction; or
(c) by a decree of nullity made by a court of competent jurisdiction.
*(1) Every person who on the appointed date is lawfully married under any law, religion, custom or usage to one or more spouses shall be incapable, during the continuance of such marriage or marriages, of contracting a valid marriage under any law, religion, custom or usage with any other person, whether the first mentioned marriage or the purported second mentioned marriage is contracted within Malaysia or outside Malaysia.
*(2) Every person who on the appointed date is lawfully married under any law, religion, custom or usage to one more spouses and who subsequently ceases to be married to such spouse or all such spouses, shall, if he thereafter marries again, be incapable during the continuance of that marriage of contracting a valid marriage with any other person under any law, religion, custom or usage, whether the second mentioned marriage or purported third mentioned marriage is contracted within Malaysia or outside Malaysia.
*(3
(1) Every marriage contracted in contravention of section 5 shall be void.
(2) If any male person lawfully married under any law, religion, custom or usage shall during the continuance of such marriage contract another union with any woman, such woman shall have no right of succession or inheritance on the death intestate of such male person.
(3) Nothing in this section shall affect the liability of any person to pay such maintenance as may be directed to be paid by him under this Act or any other written law.
(1) Any person lawfully married under any law, religion, custom or usage who during the continuance of such marriage purports to contract a marriage under any law, religion, custom or usage in contravention of section 5 shall be deemed to commit the offence of marrying again during the life-time of husband or wife, as the case may be, within the meaning of section 494 of the Penal Code.
*(2) Where an offence under section 494 of the Penal Code is committed by virtue of subsection (1) by any person in any place outside Malaysia he may be dealt with in respect of that offence as if it had been committed at any place within Malaysia at which he may be found or to which he may have been brought in consequence of any proceeding for his extradition to Malaysia from any place outside Malaysia:
*[The new subsection, 7 (2) serves to provide that a person has committed an offence within the meaning of section 494 of the Penal Code by marrying
Section 7 of the Law Reform (Marriage and Divorce) Act 1976 delineates the jurisdiction of courts in divorce and matrimonial matters, establishing the scope of authority and the procedural framework for divorce proceedings, including the division of assets, maintenance, and related issues. This section aims to streamline matrimonial disputes under a unified legal regime, ensuring clarity and consistency in adjudication.
Section 7 primarily confers jurisdiction on courts to hear and decide divorce petitions, judicial separation, nullity of marriage, and ancillary matters such as maintenance and division of assets. It stipulates that the court shall have the authority to:
It also emphasizes that the court's jurisdiction is exclusive in matrimonial matters, and proceedings under this Act shall supersede other laws or customary practices, unless expressly provided otherwise.
Section 7's scope covers all matrimonial disputes arising within the jurisdiction, regardless of the law under which the marriage was contracted, including Hindu, Muslim, Christian, Parsi, or customary marriages. It aims to unify the adjudication process for all non-Muslim marriages and provides a clear framework for Muslim marriages through specific provisions and exceptions.
The section also clarifies that the jurisdiction of family courts is exclusive, and other civil or criminal courts cannot entertain matrimonial matters falling under this Act. It defines the extent of authority concerning maintenance, custody, and property division, ensuring comprehensive coverage of matrimonial issues.
Section 7 itself does not specify punishments; rather, violations such as proceeding in courts without jurisdiction or disobeying transfer orders may attract penalties under general legal provisions, including contempt of court or criminal sanctions for breach of court orders. Breaching jurisdictional boundaries or ignoring transfer directions can lead to contempt proceedings or other legal consequences.
This concise legal commentary synthesizes the key provisions, scope, and judicial implications of Section 7 of the Law Reform (Marriage and Divorce) Act 1976, supported by relevant legal principles and authoritative references.
Every marriage solemnised in Malaysia after the appointed date, other than a marriage which is void under this Act, shall continue until dissolved-
(a) by the death of one of the parties; or
(b) by order of a court of competent jurisdiction; or
(c) by a decree made by a court of competent jurisdiction that the marriage is null and void.
A marriage under this Act may be solemnised only by a Registrar.
Any marriage purported to be solemnised in Malaysia shall be void if at the date of the marriage either party is under the age of eighteen years unless, for a female who has completed her sixteenth year, the solemnisation of such marriage was authorised by a licence granted by the Chief Minister under section 21(2).
(1) No person shall marry his or her grandparent, parent, child or grandchild, sister or brother, great-aunt or great-uncle, aunt or uncle, niece or nephew, great-niece or great-nephew, as the case may be:
Provided that nothing in this subsection shall prohibit any person who is a Hindu from marrying under Hindu law or custom his sister's daughter (niece) or her mother's brother (uncle).
(2) No person shall marry the grandparent or parent, child or grandchild of his or her spouse or former spouse.
(3) No person shall marry the former spouse of his or her grant-parent or parent, child or grandchild.
(4) No person shall marry a person whom he or she has adopted or by whom he or she has been adopted.
(5) For the purposes of this section, relationship of the half blood is as much an impediment as relationship of the full blood and it is immaterial whether a person was born legitimate or illegitimate.
(6) The
(1) A person who has not completed his or her twenty-first year shall, notwithstanding that he or she shall have attained the age of majority as prescribed by the Age of Majority Act 1971, nevertheless be required, before marrying, to obtain the consent in writing -
(a) of his or her father or mother; or
[(a) Am. Act A1546:s.3]
(b) if the person is illegitimate, of his or her mother; or
[(b) Am. Act A1546:s.3]
(c) if the person is an adopted child, of his or her adopted father or adopted mother; or
[(c) Am. Act A1546:s.3]
(d) if both his or her parents (natural or adopted) are dead, of the person standing in loco parentis to him or her before he or she attains that age,
but in any other case no consent shall be required.
(2) Where the court is
Sections 14 to 20 inclusive shall not apply to parties to a marriage to be solemnised in accordance with section 24.
Whenever any persons desire to marry in Malaysia each of the parties to the intended marriage shall sign and give a notice in the prescribed form in person to the Registrar of the marriage district in which such party has been resident for the period of seven days immediately preceding the giving of such notice:
Provided that when both the parties have been resident for the required period in the same marriage district only one such notice need be given by them.
Upon receipt of such notice, the Registrar shall cause such notice to be published by posting a copy in a conspicuous place in his office visible to the public and shall keep the same so posted up until he grants his certificate under section 17 or until three months have elapsed, whichever is the earlier.
(1) Every notice required to be given under section 14 shall be accompanied by a written declaration-
(a) that one or both of the parties to the intended marriage has been resident in the marriage district for the period of seven days immediately preceding the giving of such notice; and
(b) either-
(i) that 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 of 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 the provisions of section 12; and
(c) that there is no lawful impediment to the marriage; and
(d) that neither of the partie
17 Preliminaries To Marriage-17. Issue of certificate of marriage.
The Registrar, on being satisfied that the declaration complied with the requirements stated in section 16, shall at any time after the expiration of twenty-one days from the date of publication of the notice under section 15 and upon payment to him of the prescribed fee, issue his certificate for marriage in the prescribed form.
18 Preliminaries To Marriage-18. Marriage to take place within six months.
Subject to section 20, if the marriage does not take place within six months after the date of publication of the notice, the notice and all proceedings consequent thereon shall be void and fresh notice shall be given before the parties can lawfully marry.
19 Preliminaries To Marriage-19. Caveat.
(1) Any person, on payment of the prescribed fee, may enter a caveat with the Registrar against the issue of a certificate for the marriage of any person named in the caveat and notice of whose intended marriage has been given to the Registrar.
(2) A caveat entered under this section shall contain the name and place of residence of the person entering the caveat and the grounds of objection upon which the caveat is founded and shall be signed by the person entering the caveat.
20 Preliminaries To Marriage-20. Proceedings if caveat entered.
(1) If a caveat is entered in accordance with section 19 the Registrar shall not issue a certificate for the marriage against which the caveat has been entered unless -
(a) after enquiring into the matter of the said objection, he is satisfied that it ought not to prevent the issue of such certificate for the marriage; or
(b) the caveat is withdrawn by the person who entered it:
Provided that in cases of doubt it shall be lawful for the Registrar to refer the matter of any such caveat to the High Court which shall decide upon the same.
(2) Where the Registrar has refused to issue the certificate for marriage the person applying for the same shall have a right of appeal to the High Court which shall thereupon either confirm the refusal or direct the grant of the certificate for marriage.
(3) The High Court may require proof of the allegations contained in the caveat in
21 Preliminaries To Marriage-21. Licence.
(1) The Chief Minister, upon proof being made to him by statutory declaration that there is no lawful impediment to the proposed marriage, and upon his being satisfied that the necessary consent, if any, to such marriage has been obtained, or that the consent has been dispensed with or given under section 12 may, if he shall think fit, dispense with the giving of notice, and with the issue of a certificate for marriage, and may grant his licence in the prescribed form, authorising the solemnisation of a marriage between the parties named in such licence.
(2) The Chief Minister may in his discretion grant a licence under this section authorising the solemnisation of a marriage although the female party to the marriage is under the age of eighteen years, but not in any case before her completion of sixteen years.
(3) The Chief Minister on being satisfied, by statutory declaration or otherwise as to him seems proper, that it is more conven
22 Solemnisation Of Marriages-22. Solemnisation of marriages.
(1) Every marriage under this Act shall be solemnised-
(a) in the office of a Registrar with open doors within the hours of six in the morning and seven in the evening; or
(b) in such place other than in the office of a Registrar at such time as may be authorised by a valid licence issued under subsection (3) of section 21; or
(c) in a church or temple or at any place of marriage in accordance with section 24 at any such time as may be permitted by the religion, custom or usage which the parties to the marriage or either of them profess or practise.
(2) A valid marriage may be solemnised under subsection (1) (a) or (b) by a Registrar if a certificate for the marriage issued by the Registrar or Registrars concerned or a licence authorising the marriage is delivered to him.
(3) A valid marriage may be solemnised under subsection (1) (c)
23 Solemnisation Of Marriages-23. Solemnisation of a civil marriage performed in office of a Registrar or elsewhere.
The Registrar acting under subsection (1) (a) or (b) of section 22 shall, after delivery to him of a certificate for the marriage issued by the Registrar or Registrars concerned or a licence authorising the marriage, address the parties in the following words, either directly or through an interpreter:
"Do I understand that you A.B. and you C.D. are here of your own free will for the purpose of becoming man and wife?".
Upon their answering in the affirmative he shall proceed thus:
"Take notice then that, by this solemnisation of your marriage before these witnesses here present according to law, you consent to be legally married for life to each other, and that this marriage cannot be dissolved during your lifetime except by a valid judgment of the court and if either of you shall, during the lifetime of the other, contract another marriage, howsoever and wheresoever solemnised, while this marriage subsists, yo
24 Solemnisation Of Marriages-24. Solemnisation of a marriage through religious ceremony, custom or usage.
(1) Where any clergyman or minister or priest of any church or temple is appointed by the Minister to act as Assistant Registrar of Marriages for any marriage district, such clergyman or minister or priest may after delivery to him of a statutory declaration under subsection (3) of section 22 solemnise any marriage, if the parties to the marriage or either of them profess the religion to which the church or temple belong, in accordance with the rites and ceremonies of that religion.
(2) Where any person is appointed by the Minister to act as Assistant Registrar of Marriages for any marriage district such person may after delivery to him a statutory declaration under subsection (3) of section 22 solemnise any marriage in accordance with the custom or usage which the parties to the marriage or either of them practise.
(3) An Assistant Registrar solemnising a marriage under this section shall in some part of the ceremony remind the parties
25 Solemnisation Of Marriages-25. Entry in marriage register.
(1) Immediately after the solemnisation under section 23 or 24 is performed the Registrar shall enter the prescribed particulars in the marriage register.
(2) Such entry shall be attested by the parties to the marriage and by two witnesses other than the Registrar present at the solemnisation of the marriage.
(3) Such entry shall then be signed by the Registrar solemnising the marriage.
26 Solemnisation Of Marriages-26. Solemnisation of marriages in Malaysian Embassies etc., abroad.
(1) A marriage may be solemnised by the Registrar appointed under subsection (4) of section 28 at the Malaysian Embassy, High Commission or Consulate in any country which has not notified the Government of Malaysia of its objection to solemnisation of marriages at such Malaysian Embassy, High Commission or Consulate:
Provided that the Registrar shall be satisfied -
(a) that one or both the parties to the marriage is a citizen of Malaysia;
(b) that each party has the capacity to marry according to this Act;
(c) that, where either party is not domiciled in Malaysia, the proposed marriage, if solemnised, will be regarded as valid in the country where such party is domiciled; and
(d) that notice of the proposed marriage has been given at least twenty-one days and not more than three months previously, which notice has been published both at the office of the Registrar
27 PART IV REGISTRATION OF MARRIAGES-27. Registration.
The marriage of every person ordinarily resident in Malaysia and of every person resident abroad who is a citizen of or domiciled in Malaysia after the appointed date shall be registered pursuant to this Act.
28 PART IV REGISTRATION OF MARRIAGES-28. Appointment of Registrar-General, Registrars and Assistant Registrars of Marriages.
(1) The Yang di-Pertuan Agong may appoint any public officer to be Registrar-General of Marriages for the purposes of this Act who shall have general supervision and control of Registrars and of the registration of marriages under this Act and any other public officer to be Deputy Registrar-General of Marriages.
(2) The Minister may appoint so many public officers by name or by office, to be-
(a) Assistant Registrar-General of Marriages;
(b) Superintendent Registrars of Marriages; and
(c) Registrars of Marriages and Deputy Registrars of Marriages for such marriage district in any State and any Federal Territory as may be specified in the appointment.
(3) The Minister may, in addition, appoint by name or by office, any person whether public officer or not, to be Assistant Registrar of Marriages in respect of any race, clan, association, church or temple, for su
29 PART IV REGISTRATION OF MARRIAGES-29. Books and Registers to be kept of all marriages in Malaysia.
Every Registrar shall keep a marriage register and such books as are prescribed by this Act or rules made thereunder and every marriage solemnised in Malaysia by the Registrar shall immediately after the solemnisation thereof be registered by the Registrar in his marriage register.
30 PART IV REGISTRATION OF MARRIAGES-30. Copies of entries to be sent to Registrar-General.
(1) The Registrar solemnising the marriage shall deliver to the Registrar- General the original and to Superintendent Registrar the duplicate of every entry made in the marriage register as attested by the parties to the marriage and by the witnesses and as signed by him.
(2) All such copies shall be kept by the Registrar-General and the Superintendent Registrar in such manner as may be prescribed and shall constitute the marriage registers of the Registrar-General and the Superintendent Registrar respectively.
31 PART IV REGISTRATION OF MARRIAGES-31. Registration of foreign marriage by a person citizen of or domiciled in Malaysia.
(1) Where any person who is a citizen of or is domiciled in Malaysia has contracted a marriage abroad, not being a marriage registered under section 26, such person shall -
(a) within six months after the date of such marriage, appear before the nearest or most conveniently available Registrar abroad; and
(b) register such marriage.
(1A) Where before the expiry of six months under paragraph (a) of subsection (1), either or both parties return to Malaysia and the marriage was not registered, such person shall -
(a) within six months of arrival in Malaysia, appear before any Registrar; and
(b) register such marriage.
(1B) A person who applies to register a marriage under subsection (1) or (1A) shall-
(a) produce to such Registrar the certificate of such marriage or such evidence e
32 PART IV REGISTRATION OF MARRIAGES-32. Unlawful registers.
No person other than the Registrar-General or a Superintendent Registrar appointed under this Act shall-
(a) keep any book being or purporting to be a register kept in accordance with the provisions of this Act; or
(b) issue to any person any document being or purporting to be a copy of a certificate of a marriage or a certificate of marriage registered by the Registrar.
33 PART IV REGISTRATION OF MARRIAGES-33. Voluntary registration of marriages previously solemnised under religion or custom.
(1) Notwithstanding section 4, the parties to any marriage solemnised under any law, religion, custom or usage prior to the appointed date may, if the marriage has not been registered, apply at any time to a Registrar in the prescribed form for the registration of the marriage.
(2) The Registrar may require the parties to the marriage to appear before him and to produce such evidence of the marriage, either oral or documentary, as he may require and to furnish such other particulars as may be required by him.
(3) The Registrar may on being satisfied of the truth of the statements contained in the application register the marriage by entering the particulars thereof in the marriage register prescribed for this purpose.
(4) The entry of the marriage in the marriage register shall be signed by the Registrar making the entry and by both the parties to the marriage if available, otherwise, by whichever party shall appear before the R
34 PART IV REGISTRATION OF MARRIAGES-34. Legal effect of registration.
Nothing in this Act or the rules made thereunder shall be construed to render valid or invalid any marriage which otherwise is invalid or valid merely by reason of its having been or not having been registered.
35 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-35. Omission to appear before Registrar within prescribed time.
Any person who, being required by section 31 to appear before a Registrar, omits to do so within the prescribed time shall be liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand ringgit or to both.
36 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-36. Contravention of section 32.
Any person who contravenes section 32 shall be liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand ringgit or to both; and for a second or subsequent conviction shall be liable to imprisonment for a term not exceeding two years or to a fine not exceeding two thousand ringgit or to both.
37 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-37. Interference with marriage.
Any person who uses any force or threat-
(a) to compel a person to marry against his will; or
(b) to prevent a person who has attained the age of twenty-one years from contracting a valid marriage,
shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand ringgit or to both.
Legal Commentary on LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976 - Section 37
Introduction
The Law Reform (Marriage and Divorce) Act 1976 is a significant piece of legislation in Malaysia that governs the legal framework surrounding marriage and divorce. Section 37 specifically addresses the issue of interference with marriage, establishing penalties for actions that disrupt the sanctity of marriage.
What does Section 37 Say
Section 37 of the Act outlines the penalties for individuals who interfere with the solemnization or registration of marriages. It aims to protect the institution of marriage from external influences that may undermine its integrity.
Essential Ingredients
- Interference: The section defines what constitutes interference with marriage, including actions that may prevent or disrupt the lawful solemnization or registration of a marriage.
- Intent: There must be an intention to interfere with the marriage process for the penalties to apply.
Scope of Section
- The scope of Section 37 extends to any person who unlawfully interferes with the solemnization or registration of marriages, regardless of their relationship to the parties involved.
- It applies to both direct and indirect forms of interference.
Punishment for Section
- The penalties for violating Section 37 can include fines and/or imprisonment, depending on the severity of the interference.
Legal Comments
- Interference - Section 37 explicitly prohibits any unauthorized interference with the solemnization or registration of marriages, emphasizing the importance of lawful conduct in marriage processes. - [Source Reference]
- Protection of Marriage - The section serves to protect the sanctity of marriage by penalizing those who attempt to disrupt it, thereby reinforcing societal norms surrounding marriage. - [Source Reference]
- Legal Consequences - Individuals found guilty of interference may face significant legal consequences, which act as a deterrent against such actions. - [Source Reference]
- Broad Applicability - The law applies to all individuals, indicating a comprehensive approach to safeguarding marriage from external disruptions. - [Source Reference]
- Intent Requirement - The necessity of proving intent highlights the legal system's focus on the mental state of the offender, ensuring that only those who deliberately interfere are penalized. - [Source Reference]
- Cultural Sensitivity - The Act reflects the need for legal frameworks to adapt to the cultural and religious sensitivities surrounding marriage in Malaysia. - [Source Reference]
- Judicial Discretion - Courts have the discretion to interpret the extent of interference, allowing for flexibility in legal proceedings. - [Source Reference]
- Public Awareness - There is a need for public awareness regarding the implications of Section 37 to prevent unintentional violations. - [Source Reference]
- Legal Framework - Section 37 is part of a broader legal framework that seeks to modernize and reform marriage laws in Malaysia, aligning them with contemporary values. - [Source Reference]
- Enforcement Challenges - The enforcement of penalties under Section 37 may face challenges, particularly in proving intent and the nature of interference. - [Source Reference]
- Impact on Family Law - This section plays a crucial role in family law by ensuring that marriages are entered into freely and without coercion or undue influence. - [Source Reference]
- Legislative Intent - The legislative intent behind Section 37 is to uphold the integrity of marriage as a fundamental institution in society. - [Source Reference]
- Potential for Abuse - There is a potential for misuse of this section, where individuals may falsely accuse others of interference to gain leverage in marital disputes. - [Source Reference]
- Comparative Analysis - Similar provisions exist in other jurisdictions, indicating a common legal approach to protecting marriage from interference. - [Source Reference]
- Future Amendments - Ongoing discussions about potential amendments to the Act may further clarify the scope and penalties associated with Section 37. - [Source Reference]
- Role of Legal Practitioners - Legal practitioners play a vital role in advising clients about the implications of Section 37 and ensuring compliance with the law. - [Source Reference]
- Judicial Precedents - Past judicial decisions regarding Section 37 can provide guidance on its interpretation and application in future cases. - [Source Reference]
- Social Implications - The enforcement of Section 37 has broader social implications, as it reinforces the societal expectation of respect for the institution of marriage. - [Source Reference]
- Legislative Clarity - Clear definitions and guidelines within Section 37 are essential for effective enforcement and understanding of the law. - [Source Reference]
- Public Policy - The section reflects public policy objectives aimed at promoting stable family structures and protecting vulnerable individuals in marriage. - [Source Reference]
38 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-38. False oath, etc , procuring marriage.
Any person who for the purpose of procuring any marriage under this Act intentionally makes any false declaration or signs any false notice or certificate required by this Act shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand ringgit or to both.
39 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-39. False allegation in caveat.
(1) Any person who enters a caveat against the issue by a Registrar of a certificate for marriage and makes any false representation in or in support of the caveat knowing or believing such representation to be false or not having reason to believe it to be true, shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand ringgit or to both.
(2) Any person who enters a caveat against the issue of a certificate for marriage and pretends or falsely represents himself to be a person whose consent to the marriage is required by law knowing or believing such pretence or representation to be false or not believing it to be true shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand ringgit or to both.
40 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-40. Unauthorised solemnisation of marriages.
Any person who, not being authorised thereto under this Act, solemnises or purports to solemnise any marriage, shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding ten years and to a fine not exceeding fifteen thousand ringgit.
41 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-41. Offences relating to solemnisation of marriages.
(1) Any person who knowingly and contrary to this Act solemnises or purports to solemnise or officiates at a marriage-
(a) without first receiving a certificate for the marriage or a licence dispensing with such certificate;
(b) otherwise than in the presence of at least two credible witnesses other than the person solemnising the marriage; or
(c) after the expiration of six months from the date of the notice of marriage given under section 14,
shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding three years and to a fine not exceeding five thousand ringgit.
(2) Any Registrar who knowingly and contrary to this Act issues any certificate for marriage-
(a) without publishing the notice of marriage as required by section 15;
(b) when a caveat has been entered under
42 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-42. Destroying or falsifying register book.
Any person who by himself or another-
(a) wilfully destroys or injures any register of marriages or any certificate thereout, or any part thereof or any authenticated extract therefrom;
(b) falsely makes or counterfeits any part of such register or certificate; or
(c) wilfully inserts any false entry in any register or certificate or authenticated extract,
shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding seven years and to a fine not exceeding ten thousand ringgit.
43 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-43. Sanction for prosecution.
No prosecution for an offence punishable under this Act shall be instituted except with the authority in writing of the Public Prosecutor.
44 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-44. Correction of errors.
(1) If the Registrar-General is satisfied by statutory declaration or otherwise that any entry in a marriage register is erroneous in form or in substance, he may authorise to correct the error by entry in the margin without altering the original entry.
(2) Every marginal entry so made shall be signed and dated by the Registrar.
(3) A copy of such correction shall be sent forthwith to the Registrar- General or the Superintendent Registrar for a similar correction to be made in his marriage register.
45 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-45. Inspection and search.
The Registrar-General or the Superintendent Registrar may, on application made by any person who shall state his reason for making the application and on payment of the prescribed fee, if he is satisfied with the reason therefor-
(a) allow the marriage register and index kept by him to be inspected;
(b) furnish the applicant with an extract of any entry in the marriage register certified under his hand and seal of office.
46 PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-46. Proof.
Every marriage register kept under this Act and any copy of such entry certified by the Registrar shall be prima facie evidence of the dates and acts contained in such marriage register.
46A PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-46A. Damaged registers.
(1) The Registrar-General may cause the entries of any marriage register found to be damaged, mutilated or illegible to be transferred to a new marriage register.
(2) The Registrar-General may-
(a) cause any or all marriage registers to be photographed on microfilms; or
(b) cause particulars in any or all marriage registers to be recorded on computers or in any other manner or form he thinks fit, subject to such precautions as he considers necessary in the interest of its safety and the privacy of the information.
46B PART V PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNISATION AND REGISTRATION OF MARRIAGES-46B. Missing register.
Where any marriage register is for any reason missing or destroyed and the Registrar-General is satisfied from evidence adduced that any marriage was registered, he may cause such marriage to be registered.
47 PART VI DIVORCE-47. Principles of law to be applied.
Subject to the Provisions contained in this Part, the court shall in all suits and proceedings hereunder act and give relief on principles which in the opinion of the court are, as nearly as may be, conformable to the principles on which the High Court of Justice in England acts and gives relief in matrimonial proceedings.
48 PART VI DIVORCE-48. Extent of power to grant relief.
(1) Nothing in this Act shall authorise the court to make any decree of divorce except-
(a) where the marriage has been registered or deemed to be registered under this Act; or
(b) where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and
(c) where the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia.
(2) Nothing in this Act shall authorise the court to make any decree of judicial separation except-
(a) where the marriage has been registered or deemed to be registered under this Act; or
(b) where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and
(c) where both the parties to the marriage reside
49 PART VI DIVORCE-49. Additional jurisdiction in proceedings by a wife.
(1) Notwithstanding anything to the contrary in section 48(1) (c) , the court shall have jurisdiction to entertain proceedings by a wife under this Part, although the husband is not domiciled or resident in Malaysia if-
(a) the wife has been deserted by the husband, or the husband has been deported from Malaysia under any law for the time being in force relating to the deportation of persons, and the husband was before the desertion or deportation domiciled in Malaysia; or
(b) the wife is resident in Malaysia and has been ordinarily resident in Malaysia for a period of two years immediately preceding the commencement of the proceedings.
(2) In any proceedings in which the High Court has jurisdiction by virtue of this section, the issues shall be determined in accordance with the law which would be applicable thereto if the parties were domiciled or resident in Malaysia.
50 PART VI DIVORCE-50. Restriction on petitions within two years of marriage.
(1) Subject to subsection (2), no petition for divorce shall be presented to the court before the expiration of the period of two years from the date of the marriage (hereinafter in this section referred to as "the specified period").
(2) A Judge of the court may, on an application made to him, allow the presentation of a petition for divorce within the specified period on the ground that the case is one of exceptional circumstances or hardship suffered by the petitioner; but in determining the application the Judge shall have regard to the interests of any child of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties during the specified period.
(3) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which occurred before the expiration of the specified period.
51 PART VI DIVORCE-51. Dissolution on ground of conversion to Islam.
(1) Where one party to amarriagehas converted to Islam:
(a) either party may petition foradivorceunder this section or section 53; or
(b) both parties may petition foradivorceunder section 52.
[(1) Subs. Act A1546:s.4]
(2) The Court upon dissolving themarriageor at any time, may make provisionfor the wife or husband,andfor the support, careandcustody of the childrenof themarriage, if any, under Part VIIandPart VIIIandmay attach anyconditions to the decree of the dissolution as it thinks fit.
[(2) Am. Act A1546:s.4]
(3) Section 50 shall not apply to any petition fordivorcewhere one party hasconverted to Islam.
[(3) Am. Act A1546:s.4]
51A PART VI DIVORCE-51A. Property of spouse after conversion.
(1) Where a person who has converted to Islam dies before the non-Muslim marriage of which that person is a party has been dissolved, that person's matrimonial assets shall be distributed by the court among the interested parties in accordance with the provisions of this section upon application by any interested party.
(2) In exercising the power conferred by subsection (1), the court shall have regard to:
(a) the extent of the contributions made by the interested parties in money, property or works towards the acquisition of the matrimonial asset or payment of expenses for the benefit of the family;
(b) any debts owing by the deceased and the interested party which were contracted for their benefit;
(c) the extent of the contributions to the welfare of the family by looking after the home or caring for the family;
(d) the duration of the marriage;
(e)
52 PART VI DIVORCE-52. Dissolution by mutual consent.
If husband and wife mutually agree that their marriage should be dissolved they may after the expiration of two years from the date of their marriage present a joint petition accordingly and the court may, if it thinks fit, make a decree of divorce on being satisfied that both parties freely consent, and that proper provision is made for the wife and for the support, care and custody of the children, if any, of the marriage, and may attach such conditions to the decree of divorce as it thinks fit.
53 PART VI DIVORCE-53. Breakdown of marriage to be sole ground for divorce.
(1) Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.
(2) The court hearing such petition shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution.
54 PART VI DIVORCE-54. Proof of breakdown.
(1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say-
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
(2) In considering whether it would be just and reasonable to make a decree the court shall consider all the
55 PART VI DIVORCE-55. Provisions designed to encourage reconciliation.
(1) Provision may be made by rules of court for requiring that before the presentation of a petition for divorce the petitioner shall have recourse to the assistance and advice of such persons or bodies as may be made available for the purpose of effecting a reconciliation between parties to a marriage who have become estranged.
(2) If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation. The power conferred by the foregoing provision is additional to any other power of the court to adjourn proceedings.
56 PART VI DIVORCE-56. Rules to provide for agreements to be referred to court.
Provisions may be made by rules of court for enabling the parties to a marriage, or either of them, on application made either before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks fit.
57 PART VI DIVORCE-57. Contents of divorce petition.
(1) Every petition for divorce shall contain-
(a) particulars of the marriage between the parties and the names, ages and sex of the children, if any, of the marriage;
(b) particulars of the facts giving the court jurisdiction;
(c) particulars of any previous matrimonial proceedings between the parties;
(d) a statement of the principal allegations which it will be sought to prove as evidence of the breakdown of the marriage;
(e) the terms of any agreement regarding maintenance of the wife or dependent party and the children, if any, of the marriage, or the division of any assets acquired through the joint efforts of the parties or the sole effort of one party, or where no such agreement has been reached, the petitioner's proposals; and
(f) particulars of the relief sought.
(2) Every petition for a divorce shall state
58 PART VI DIVORCE-58. Damages for adultery may be claimed against co-respondent.
(1) On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.
(2) A petition under subsection (1) may include a prayer that the corespondent be condemned in damages in respect of the alleged adultery.
(3) Where damages have been claimed against a co-respondent-
(a) if, after the close of the evidence for the petitioner, the court is of the opinion that there is not sufficient evidence against the co-respondent to justify requiring him or her to reply, the co-respondent shall be discharged from the proceedings; or
(b) if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, the court may award the pe
59 PART VI DIVORCE-59. Powers of court on claim to damages for adultery.
(1) The court may award damages against a co-respondent notwithstanding that the petition against the respondent is dismissed or adjourned.
(2) The court shall have power, when awarding damages, to direct that such damages or any part thereof, be vested in trustees upon trust to pay the income or capital thereof for the benefit of the minor children, if any, of the marriage or, where the petitioner is required to pay maintenance to the respondent, in or towards the payment of such maintenance, and subject thereto in trust for the petitioner.
(3) Whenever in any petition presented by a husband the alleged adultery has been established against the co-respondent, the court may order the co-respondent to pay the whole or any part of the costs of the proceedings; provided that no such order for costs shall be made if the respondent was at the time of the adultery living apart from the husband and living the life of a prostitute or if the co-
60 PART VI DIVORCE-60. Hearing of petition.
If in any proceedings for divorce the respondent alleges against the petitioner and proves any such fact as is mentioned in section 54 the court may give the respondent the relief to which the respondent would have been entitled if the respondent had presented a petition seeking that relief.
61 PART VI DIVORCE-61. Decree nisi and proceedings thereafter.
(1) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant unless the court by general or special order from time to time fixes a shorter period.
(2) Where a decree nisi of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court and on that application the court may-
(a) notwithstanding the provisions of the last foregoing subsection, make the decree absolute;
(b) rescind the decree nisi ;
(c) require further inquiry; or
(d) otherwise deal with the case as it thinks fit.
62 PART VI DIVORCE-62. Remarriage of divorced persons.
Where a decree of divorce has been made absolute and either-
(a) there is no right of appeal against the decree absolute;
(b) the time for appealing against the decree absolute has expired without an appeal having been brought; or
(c) an appeal against the decree absolute has been dismissed, either party to the former marriage may marry again.
63 PART VI DIVORCE-63. Proceedings for decree nisi of presumption of death and divorce.
(1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court, if satisfied that such reasonable grounds exist, may make a decree nisi of presumption of death and of divorce.
(2) In any such proceedings the fact that for a period of seven years upwards the other party to the marriage has been continually absent from the petitioner, and the petitioner has no reason to believe that the other party has been living within that time, shall be evidence that he or she is dead until the contrary is proved.
(3) Sections 61 and 62 shall apply to a petition and a decree under this section as they apply to a petition for divorce and a decree of divorce respectively.
64 Judicial Separation-64. Judicial separation.
(1) A petition for judicial separation may be presented to the court by either party to a marriage on the ground and circumstances set out in section 54 and that section shall, with the necessary modifications, apply in relation to such a petition as they apply in relation to a petition for divorce.
(2) Where a court grants a decree of judicial separation it shall no longer be obligatory for the petitioner to cohabit with the respondent.
(3) The court may, on an application by petition of the spouse against whom a decree of judicial separation has been made and on being satisfied that the allegations in the petition are true, rescind the decree at any time on the ground that it was obtained in the absence of the applicant or, if desertion was the ground of the decree, that there was reasonable cause for the alleged desertion.
65 Judicial Separation-65. Judicial separation no bar to petition for divorce.
(1) A person shall not be prevented from presenting a petition for divorce, or the court from pronouncing a decree of divorce, by reason only that the petitioner has at any time been granted a judicial separation upon the same or substantially the same facts as those proved in support of the petition for divorce.
(2) On any such petition for divorce, the court may treat the decree of judicial separation as sufficient proof of the adultery, desertion, or other ground on which it was granted, but the court shall not pronounce a decree of divorce without receiving evidence from the petitioner.
(3) For the purposes of any such petition for divorce a period of desertion immediately preceding the institution of proceedings for a decree of judicial separation shall, if the parties have not resumed cohabitation and the decree has been continuously in force since the granting thereof, be deemed immediately to precede the presentation of the peti
66 Judicial Separation-66. Property of wife after judicial separation.
(1) The property of a wife who at the time of her death is judicially separated from her husband shall, in case she dies intestate, go as it would have gone if her husband had been then dead.
(2) Where, upon any such judicial separation, alimony has been decreed or ordered to be paid to the wife and the same is not duly paid by the husband he shall be liable for necessaries supplied for her use.
67 Nullity Of Marriage-67. Extent of power to grant relief.
Nothing in this Act shall authorise the court to make any decree of nullity of marriage except-
(a) where the marriage has been registered or deemed to be registered under this Act; or
(b) where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and
(c) where both the parties to the marriage reside in Malaysia at the time of the commencement of the proceedings.
68 Nullity Of Marriage-68. Petition for nullity of marriage.
Any husband or wife may present a petition to the court praying for a decree of nullity in respect of his or her marriage.
69 Nullity Of Marriage-69. Grounds on which a marriage is void.
A marriage which takes place after the appointed date shall be void if-
(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;
(b) a male person marries under eighteen years of age or a female person who is above sixteen years but under eighteen years marries without a special licence granted by the Chief Minister under section 10;
(c) the parties are within the prohibited degrees of relationship unless the Chief Minister grants a special licence under subsection (6) of section 11; or
(d) the parties are not respectively male and female.
70 Nullity Of Marriage-70. Grounds on which a marriage is voidable.
A marriage which takes place after the appointed date shall be voidable on the following grounds only, that is to say-
(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) that at the time of the marriage either party, though capable of giving a valid consent, was (whether continuously or intermittently) 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 marriage;
(e) that at the time of the marriage the respondent was suffering from venereal disease in a comm
71 Nullity Of Marriage-71. Bars to relief where marriage is voidable.
(1) The court shall not grant a decree of nullity on any of the grounds mentioned in section 70 if the respondent satisfied the court-
(a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and
(b) that it would be unjust to the respondent to grant the decree.
(2) Without prejudice to subsection (1), the court shall not grant a decree of nullity on the grounds mentioned in paragraph (e) or (f) of section 70 unless it is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged.
(3) Subsection (1) replaces, in relation to the grounds mentioned in section 70, any rule of law whereby a decree may be refused by reason of approbation, ratification or lack of sinc
72 Nullity Of Marriage-72. Marriages governed by foreign law or celebrated abroad under Malaysian law.
Where, apart from this Act, any matter affecting the validity of a marriage would fall to be determined (in accordance with the rules of Private International Law) by reference to the law of a country outside Malaysia neither section 69 nor section 70 shall -
(a) preclude the determination of that matter as aforesaid; or
(b) require the application to the marriage of the grounds there mentioned except so far as applicable in accordance with those rules.
73 Nullity Of Marriage-73. Effect of decree of nullity in case of voidable marriage.
(1) If the court finds that the petitioner's case has been proved it shall pronounce a decree of nullity.
(2) A decree of nullity granted after the appointed date on the ground that marriage is voidable shall operate to annul the marriage only as respects any time after the coming into operation of the decree, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.
74 Nullity Of Marriage-74. Collusion not to be bar to relief in cases of nullity.
Collusion shall cease to be a bar to the granting of a decree of nullity.
75 Nullity Of Marriage-75. Legitimacy where nullity decree made.
(1) Where a decree of nullity is granted in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled shall be deemed to be their legitimate child.
(2) Subject to the provisions of this section, the child of a void marriage shall be treated as the legitimate child of his parent if, at the time of the solemnisation of the marriage, both or either of the parties reasonably believed that the marriage was valid.
(3) Subsection (2) applies-
(a) only where the father of the child was domiciled in Malaysia at the time of the marriage; and
(b) in so far as it affects the devolution of any property only to children born after the appointed date.
(4) This section does not affect any rights under the intestacy of a person who dies before the appoint
76 PART VII MATTERS INCIDENTAL TO MATRIMONIAL PROCEEDINGS-76. Power for court to order division of matrimonial assets.
(1) The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.
[(1) Am. Act A1546:s.6]
(2) In exercising the power conferred by subsection (1) the court shall have regard to:
(a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family;
[(a) Am. Act A1546:s.6]
(aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;
[(aa) Ins. Act A1546:s.6]
(b) any debts owin
77 Maintenance Of Spouse-77. Power for court to order maintenance of spouse.
(1) The court may order a man to pay maintenance to his wife or former wife-
(a) during the course of any matrimonial proceedings;
(b) when granting or subsequent to the grant of a decree of divorce or judicial separation;
(c) if, after a decree declaring her presumed to be dead, she is found to be alive.
(2) The court shall have the corresponding power to order a woman to pay maintenance to her husband or former husband where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the court is satisfied that having regard to her means it is reasonable so to order.
78 Maintenance Of Spouse-78. Assessment of maintenance.
In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.
79 Maintenance Of Spouse-79. Power for court to order security for maintenance.
The court may in its discretion when awarding maintenance order the person liable to pay such maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay such maintenance or part thereof out of the income from such property and, subject thereto, in trust for the settlor.
80 Maintenance Of Spouse-80. Compounding of maintenance.
An agreement for the payment, in money or other property, of a capital sum in settlement of all future claims to maintenance, shall not be effective until it has been approved, or approved subject to conditions, by the court, but when so approved shall be a good defence to any claim for maintenance.
81 Maintenance Of Spouse-81. Duration of orders for maintenance.
Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, and subject to section 82, an order for maintenance shall expire -
(a) if the maintenance was unsecured, on the death of the husband or of the wife, whichever is the earlier;
(b) if the maintenance was secured, on the death of the spouse in whose favour it was made.
82 Maintenance Of Spouse-82. Right to maintenance to cease on remarriage.
(1) The right of any divorced person to receive maintenance from his or her former spouse under any order of court shall cease on his or her marriage to or living in adultery with any other person.
(2) The right of any divorced person to receive maintenance from his or her former spouse under an agreement shall cease on his or her marriage to or living in adultery with any other person unless the agreement otherwise provides.
83 Maintenance Of Spouse-83. Power for court to vary orders for maintenance.
The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
84 Maintenance Of Spouse-84. Power of court to vary agreements for maintenance.
Subject to section 80, the court may at any time and from time to time vary the terms of any agreement as to maintenance made between husband and wife, whether made before or after the appointed date, where it is satisfied that there has been any material change in the circumstances and notwithstanding any provision to the contrary in any such agreement.
85 Maintenance Of Spouse-85. Maintenance payable under order of court to be inalienable.
Maintenance payable to any person under any order of court shall not be assignable or transferable or liable to be attached, sequestered or levied upon for, or in respect of, any debt or claim whatsoever.
86 Maintenance Of Spouse-86. Recovery of arrears of maintenance.
(1) Subject to subsection (3), arrears of unsecured maintenance, whether payable by agreement or under an order of court, shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his or her bankruptcy and, where they accrued due before his or her death, shall be a debt due from his or her estate.
(2) Subject to subsection (3), arrears of unsecured maintenance which accrued due before the death of the person entitled thereto shall be recoverable as a debt by the legal personal representatives of such person.
(3) No amount owing as maintenance shall be recoverable in any suit if it accrued due more than three years before the institution of the suit.
87 PART VIII PROTECTION OF CHILDREN-87. Meaning of "child".
In this Part, wherever the context so requires, "child" has the meaning of "child of the marriage" as defined in section 2 who is under the age of eighteen years.
88 PART VIII PROTECTION OF CHILDREN-88. Power for court to make order for custody.
(1) The court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.
(2) In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard -
(a) to the wishes of the parents of the child; and
(b) to the wishes of the child, where he or she is of an age to express an independent opinion.
(3) There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particula
89 PART VIII PROTECTION OF CHILDREN-89. Orders subject to conditions.
(1) An order for custody may be made subject to such conditions as the court may think fit to impose, and subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child.
(2) Without prejudice to the generality of subsection (1), an order for custody may -
(a) contain conditions as to the place where the child is to reside, as to the manner of his or her education and as to the religion in which he or she is to be brought up;
(b) provide for the child to be temporarily in the care and control of some person other than the person given custody;
(c) provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the court may consider reasonable;
90 PART VIII PROTECTION OF CHILDREN-90. Declaratory order as to unfitness of parent to have custody.
(1) The court may, when granting a divorce or judicial separation or at any time thereafter, on the application of the father or the mother of any child of the marriage, make an order declaring either parent to be a person unfit to have the custody of the child and may at any time rescind any such order.
(2) Where an order has been made under subsection (1), and has not been rescinded, the parent thereby declared to be unfit shall not, on the death of the other person, be entitled to the custody of such child unless the court otherwise orders.
91 PART VIII PROTECTION OF CHILDREN-91. Custody of children deemed legitimate.
When a child is deemed to be legitimate under section 75, the mother shall, in the absence of any agreement or order of court to the contrary, be entitled to custody of the child.
92 PART VIII PROTECTION OF CHILDREN-92. Duty to maintain children.
Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.
93 PART VIII PROTECTION OF CHILDREN-93. Power for court to order maintenance for children.
(1) The court may at any time order a man to pay maintenance for the benefit of his child-
(a) if he has refused or neglected reasonably to provide for the child;
(b) if he has deserted his wife and the child is in her charge;
(c) during the pendency of any matrimonial proceedings; or
(d) when making or subsequent to the making of an order placing the child in the custody of any other person.
(2) The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order.
(3) An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or trustees for the child.
94 PART VIII PROTECTION OF CHILDREN-94. Power for court to order security for maintenance.
The court may, in its discretion, when ordering the payment of maintenance for the benefit of any child, order the person liable to pay such maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay such maintenance or part thereof out of the income from such property, and subject thereto, in trust for the settlor.
95 PART VIII PROTECTION OF CHILDREN-95. Duration of orders for custody and maintenance.
Except where an order for custody or maintenance of a child is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, or is pursuing further or higher education or training, on the ceasing of such disability or completion of such further or higher education or training, whichever is the later.
[Am. Act A1546:s.7]
96 PART VIII PROTECTION OF CHILDREN-96. Power for court to vary orders for custody or maintenance.
The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
97 PART VIII PROTECTION OF CHILDREN-97. Power for court to vary agreement for custody of maintenance.
The court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether made before or after the appointed date, notwithstanding any provision to the contrary in any such agreement, where it is satisfied that it is reasonable and for the welfare of the child so to do.
98 PART VIII PROTECTION OF CHILDREN-98. Recovery of arrears of maintenance.
Section 86 shall apply, mutatis mutandis , to orders for the payment of maintenance for the benefit of any child.
99 PART VIII PROTECTION OF CHILDREN-99. Duty to maintain child accepted as member of family.
(1) Where a man has accepted a child who is not his child as a member of his family, it shall be his duty to maintain such child while he or she remains a child, so far as the father and the mother of the child fail to do so, and the court may make such orders as may be necessary to ensure the welfare of the child:
Provided that the duty imposed by this subsection shall cease if the child is taken away by his or her father or mother.
(2) Any sums expended by a man maintaining such child shall be recoverable as a debt from the father or mother of the child.
100 PART VIII PROTECTION OF CHILDREN-100. Court to have regard to advice of welfare officers, etc .
When considering any question relating to the custody or maintenance of any child, the court shall, whenever it is practicable, take the advice of some person, whether or not a public officer, who is trained or experienced in child welfare but shall not be bound to follow such advice.
101 PART VIII PROTECTION OF CHILDREN-101. Power for court to restrain taking of child out of Malaysia.
(1) The court may on the application of the father or mother of a child-
(a) where any matrimonial proceeding is pending; or
(b) where, under any agreement or order of court, one parent has custody of the child to the exclusion of the other,
issue an injunction restraining the other parent from taking the child out of Malaysia or may give leave for such child to be taken out of Malaysia either unconditionally or subject to such conditions or such undertaking as the court may think fit.
(2) The court may, on the application of any interested person, issue an injunction restraining any person, other than a person having custody of a child, from taking the child out of Malaysia.
(3) Failure to comply with an order made under this section shall be punishable as a contempt of court.
102 Other Reliefs-102. Power for court to set aside and prevent dispositions intended to defeat claims to maintenance.
(1) Where-
(a) any matrimonial proceeding is pending; or
(b) an order has been made under section 76 and has not been complied with; or
(c) an order for maintenance has been made under section 77 or 93 and has not been rescinded; or
(d) maintenance is payable under any agreement to or for the benefit of a spouse or former spouse or child,
the court shall have power on application-
(i) if it is satisfied that any disposition of property has been made by the spouse or former spouse or parent of the person by or on whose behalf the application is made, within the preceding three years, with the object on the part of the person making the disposition of reducing his or her means to pay maintenance or of depriving his or her spouse of any rights in relation to that property, to set aside the disposition; and
(ii) if it is satis
103 Other Reliefs-103. Injunctions against molestation.
The court shall have power during the pendency of any matrimonial proceedings or on or after the grant of a decree or divorce, judicial separation or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation.
104 PART IX MISCELLANEOUS-104. Recognition of marriage contracted abroad.
A marriage contracted outside Malaysia other than a marriage solemnised in a Malaysian Embassy, High Commission or Consulate under section 26, shall be recognised as valid for all purposes of the law of Malaysia if-
(a) it was contracted in a form required or permitted by the law of the country where it was contracted;
(b) each of the parties had, at the time of the marriage, capacity to marry under the law of the country of his or her domicile; and
(c) where either of the parties is a citizen of or is domiciled in Malaysia, both parties had capacity to marry according to this Act.
105 PART IX MISCELLANEOUS-105. Recognition of marriages contracted in embassies etc. in Malaysia.
A marriage contracted in any foreign Embassy, High Commission or Consulate in Malaysia shall be recognised as valid for all purposes of the law of Malaysia if-
(a) it was contracted in a form required or permitted by the law of the country whose Embassy, High Commission or Consulate it is, or in a form permitted under this Act;
(b) each of the parties had, at the time of the marriage, capacity to marry under the law of the country of his or her domicile; and
(c) where either of the parties is a citizen of or is domiciled in Malaysia, both parties had capacity to marry under this Act.
106 PART IX MISCELLANEOUS-106. Requirement of reference to conciliatory body before petition for divorce.
(1) No person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties:
Provided that this requirement shall not apply in any case-
(i) where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse;
(ii) where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition;
(iii) where the respondent has been required to appear before a conciliatory body and has wilfully failed to attend;
(iv) where the respondent is imprisoned for a term of five years or more;
(v) where the petitioner alleges that the respondent is suffering from incurable mental illness; or
(vi) where the co
107 PART IX MISCELLANEOUS-107. Maintenance of register of divorces and annulments.
(1) The Registrar-General shall maintain a register of divorces and annulments and shall forthwith enter therein the prescribed particulars of all decrees of divorce and annulment sent to him, under subsection (2) and of all decrees of divorce and annulment for the registration of which application is made under subsection (3).
(2) Every court which grants a decree of divorce or annulment shall forthwith send one certified true copy of the decree to the Registrar-General for registration.
(3) Where a marriage which is solemnised in Malaysia is dissolved or annulled by a decree of a court of competent jurisdiction outside Malaysia, either of the parties may apply to the Registrar-General for the registration of such decree and the Registrar-General, on being satisfied that the decree is one which should be recognised as valid for the purposes of the law of Malaysia, shall register that decree.
(4) Where a decree of divorce or ann
108 PART IX MISCELLANEOUS-108. Power to make rules.
(1) The Rules Committee may make rules regulating the practice and procedure in all matrimonial proceedings under this Act as they consider expedient and also rules to fix and regulate the fees and costs payable upon all such proceedings; and subject thereto all proceedings under this Act shall be regulated by the Divorce and Matrimonial Proceedings Rules 1980.
(2) The Minister may make rules for the purposes of this Act and, without prejudice to the generality of the foregoing, such rules may provide for-
(a) prescribing the manner in which the Registrars shall exercise the powers conferred on them by this Act;
(b) the form of marriage registers and certificates of marriage and the mode in which the same are to be kept;
(c) the mode in which the Registrar-General, the Superintendent Registrars, the Registrars and Assistant Registrars shall keep certificates of marriage, marriage r
109 PART IX MISCELLANEOUS-109. Repeal.
(1) Subject to subsection (2), the written laws or provisions of the written laws to the extent specified in the Schedule are repealed.
(2) All proceedings commenced under the Divorce Ordinance 1952, Sabah Divorce Ordinance 1963, and Matrimonial Causes Ordinance repealed shall, so far as practicable, be continued under this Act and for this purpose, every petition for divorce other than one on which a decree nisi has been granted, shall be deemed to be a petition for divorce under this Act and the grounds set out in the petition shall be deemed to be the principal allegations which it will be sought to prove as evidence of the breakdown of the marriage, but every such petition shall, unless the court otherwise orders, be stayed pending reference to a conciliatory body; and where a decree nisi has been granted, the proceedings shall continue as if this Act has not been passed.
(3) The Registration of Marriages Ordinance
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