THE RATIONALITY OF LAW REFORM (MARRIAGE AND
DIVORCE) ACT 1976 TO THE SENSITIVITY OF THE MULTI-RELIGIOUS COMMUNITY IN MALAYSIA
Siti Marshita binti Mahyut1
1 Multimedia
University Jalan Ayer Keroh Lama, 75450 Melaka. Email: marshita.mahyut@mmu.edu.my
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ABSTRACT |
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Keywords: Sensitivity; Multi-religious; Adapt; Law Reform (Marriage and Divorce)
Act 1976; |
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This paper is to discuss about to what extent does
the Law Reform (Marriage and Divorce) Act 1976 adapt to the sensitivity of
the multi-religious community in Malaysia. As Malaysians are of different races, there is a
multi-faith society in this country. The Law Reform (Marriage and
Divorce) Act is enacted to deal
with the non-Muslims marriages
while the Muslims’ are administered by the Islamic family law. So, whether or
not the application of the Law Reform (Marriage and Divorce) Act 1976 can
adapt well to the sensitivity of the multi-religious society is very
important in order to preserve the peace in this country. The Act of 1976 can
be said as assimilating well in the implication of sections 3, 5, 6, 7, 11,
22(1)(c), 24, 51, 69(a), 69(d) in the respects of monogamous marriage, same
sex marriage, conversion to Islam by one spouse during the period of a
marriage, prohibited relationship, solemnisation of marriage etc as the Act
has included the religious practice in the provisions concerned. However,
there are some issues which have been arose and should be resolved: the
section 51 is difficult to apply and has created much confusion; there is no
provision stated regarding universal conversion of a child’s religion after
one of the spouse converts to Islam. The issues of section 51 including the
converted spouse cannot apply to petition for divorce in civil court, the
rights of non-convert spouse if he or she refuses to petition for divorce,
and whether the converted party will be guilty of an offence in civil courts
if she marries again after the Shariah Court has declared that the marriage
concerned is dissolved. The issues have caused much problems, confusion and
conflict of interest between the spouses concerned. These issues are to be
identified and discussed with some suggestions given in order to rectify it. Publisher All rights reserved. |
INTRODUCTION
The Law Reform
(Marriage and Divorce) Act 1976 had enacted on 1st March 1982 to govern all the
marriages of non-Muslims. Before the Act was enacted, the marriages of
non-Muslims were governed by their own customary laws and also several civil
marriages laws such as Civil Marriage Ordinance 1952, Christian Marriage
Ordinance 1956, Sarawak Chinese Marriage Ordinance 1948 and others.
The Civil Marriage Ordinance 1952 had administered most of the civil
marriages which it could also apply to the marriages even though one party was
a Christian. However, this Ordinance did
not apply to the marriages where one of the parties was Muslim due to Muslims
were strictly governed by their own Islamic Law. The marriages which were solemnized
and registered under the Ordinance were lawful if the listed requirements were
all fulfilled. First of all, the male party and the female party must not be
below 16 and 14 years old respectively.
Consent of the parent or guardian had to be attained if one of the
parties to enter the marriage was a minor unless the minor had married before.
Besides, the parties were not allowed to marry if they were found to be within
the prohibited degrees of kindred or affinity. The marriages solemnized under
this Ordinance were all strictly to be monogamous and both parties had to give
their own consent freely to the marriage. The required process and formalities
laid down in the Ordinance must also be followed by the parties.
Likewise, the Christian Marriage Ordinance 1956 governed the Christian marriages
before the Law Reform (Marriage and Divorce) Act 1976 was enacted. Every
marriage where one of the parties was a Christian must solemnize his or her
marriage under this Ordinance or the Civil Marriage Ordinance 1952. The
requirements needed under this Ordinance were almost the same as in the Civil
Marriage Ordinance 1952 which were: age of parties, consent of the parent or
guardian if the party happened to be a minor, not within the prohibited degrees
of kindred or affinity, the marriage must be monogamous, consent of both
parties to the marriage and the process and formalities required by the
Ordinance must be followed.
However, after the Law Reform (Marriage and Divorce) Act 1976 was
introduced, those laws which could be enforced previously such as the Civil
Marriage Ordinance 1952, Christian Marriage Ordinance 1956 and the other
Ordinance as well were repealed by S.109 of the Law Reform (Marriage and
Divorce) Act 1976. Anyhow, the marriages
which were solemnized according to any of the Ordinances or customs before the
Act was enacted were valid and had to be registered under the current Act. After the Act was introduced, all the civil
marriages where the parties are non-Muslims are governed by this Act. Nevertheless,
this Act does not apply to Muslims and the natives in Malaysia. Yet, there are
arguments whether this Act has adapted the sensitivity of multi religious
community in Malaysia.
SECTION 3 OF THE LAW REFORM (MARRIAGE AND DIVORCE) ACT
1976
The Law Reform
(Marriage and Divorce) Act 1976 was enacted to govern the marriages of the
non-Muslims. In this Act, it is clearly stated that it does not apply to
Muslims, the natives in Sabah and Sarawak and also the aborigines in Peninsular
Malaysia. In s.3 (3) of the Law Reform (Marriage and Divorce) Act 1976, it
mentions that this Act shall not apply to Muslims or where the parties are
married under Islamic law or even when only one of the parties is a Muslim
except for s. 51 of this Act. This is an
absolute exception to the Muslims. In Malaysia, dual legal systems are
practised where the Muslims are governed by their own Syariah Law regarding
personal law matters whereas the others are governed by the civil law.
Therefore, when it comes to the matters about marriages, the Muslims are also
governed by the Syariah Law. Besides, it would be unfair to Muslims if the Law
Reform (Marriage and Divorce) Act 1976 could be applied on them as in this Act
marriages are monogamous but male Muslims are allowed by the Islamic law to
marry four wives.
Before the Law Reform (Marriage and Divorce) Act 1976 was enacted, the
matters on marriages of Muslims were already governed by the Syariah law.
However, there was a case where the civil court had jurisdiction on the
marriages of Muslims. In the case of Nafsiah v Abdul Majid, the plaintiff
intended to claim damages from the defendant on the ground that the defendant
had breached the contract to marry where both parties in this case were
Muslims. The High Court in this case allowed
the claim for damages. Yet, it has to be noted during that time, Article 121
(1A) of the Federal Constitution was not amended. For now, after the amendment
of Article 121 (1A) of the Federal Constitution, the civil court no longer has
the jurisdiction in the matters within the jurisdictions of the Syariah
Court. Thus, the civil court now has no
jurisdiction on the marriages of Muslims as stated in the Law Reform (Marriage
and Divorce) Act 1976 where it does not apply to Muslims at all due to the Muslims
are governed by their own Islamic Law.
Besides, in s 3(4) of the Law Reform (Marriage and Divorce) Act 1976, the
natives in Sabah and Sarawak or the aborigines of Peninsular Malaysia are not
subject to this Act where their marriages are governed by their own native
customary laws unless if he elects to marry under this act, his marriage is
contracted under the Christian Marriage Ordinance Sabah or the Church and Civil
Marriage Ordinance Sarawak. This section
is an optional exception to the natives unlike s 3(3) of the Act. In the case
of Nancy Kual v Ho Than On, the plaintiff was a Kadazan Tatana while the
defendant was a Chinese. Their marriage
underwent the ceremony of both Chinese and Native customs but was not
registered under the Law Reform (Marriage and Divorce) Act 1976. The court in this case held that the marriage
was valid due to it was solemnized according to the native customary laws which
such marriage is valid under s 3(4) of the Act as the Act does not apply to the
natives. Therefore, it is clear that the marriages of the natives are governed
by the native customary laws and it is valid under the Law Reform (Marriage and
Divorce) Act 1976.
Hence, ss 3(3) and 3(4) of the Law Reform (Marriage and Divorce) Act 1976
have adapted the sensitivity of the multi religious community as the Muslims,
the natives of Sabah and Sarawak and the aborigines of Peninsular Malaysia are
governed by their own law as the provisions in the Law Reform (Marriage and
Divorce) Act 1976 do not fit their religious and customary practices.
SS 5, 6, 7 AND 69(a) OF THE LAW REFORM
(MARRIAGE AND
DIVORCE) ACT 1976
Before the Law
Reform (Marriage and Divorce) Act 1976 was enacted, polygamous marriages were
practiced by the Chinese and Hindus as their customary laws allowed polygamous
marriages. For Hindus, most of them practiced polygamous marriages but the
Ceylon and Tamil Hindus. The ceremony of a marriage was not that important
under Chinese Customary laws but it was very important for the Hindus.
In the case of Chu Geok Keow v Chong Meng Sze, the requirement for a valid
marriage with a tsip (secondary wife) under the Chinese customary laws was
simply a consensual marriage where the ceremony and formalities were not
necessary but evidentiary only.
Nonetheless, in this case, neither the photography nor the adoption
children were evidentiary to prove the marriage was valid thus it was held that
no mutual consent was given to the marriage and the appellant was not the
secondary wife. On the other hand, in the case of Paramesuari v Ayadurai, the
marriage was solemnized according to the customs of the Ceylon Tamil Hindu
custom and there were expert witness and the priest who had performed the
marriage ceremony which these were recognized as a valid marriage. The marriage in this case was in the nature
of monogamous therefore the petitioner was entitled to dissolve the marriage
due to the respondent later married another woman. Whilst in the case of Chua
Mui Nee v Palaniappan, the second marriage of the deceased was held lawful as
the marriage was held according to the Hindu customs even though the ceremony
was not perfect.
However, there were problems arose on the validity of the subsequent
marriage when one marriage was solemnized under customary laws whereas another
was under the civil marriages laws. Since the Chinese and Hindu were and are
free to practice any religions, there were also issues arose on whether the
personal law or the civil marriages law prevailed. The marriages solemnized
under the civil marriages laws such as the Civil Marriage Ordinance 1952 and
the Christian Marriage Ordinance 1956 were all monogamous while the customary
laws allowed polygamous. Therefore, it was argued whether the subsequent
marriage solemnized under the customary law was valid if the party had
solemnized a marriage under the civil marriages laws before. Or vice versa,
whether the subsequent marriage solemnized under the civil marriages laws was
valid as the party had a marriage solemnized under the customary law before.
In the case of Re Loh Toh Met deceased, there was an argument on the
deceased was a Christian therefore he could not conduct three polygamous
marriages. The court in this case held
that the polygamous marriages were valid as the personal law of the deceased
prevailed. Besides, in the case of Re Ding Do Ca deceased, the first marriage
was solemnized under the Christian Marriage Enactment while the second marriage
was solemnized under the Chinese customary law where there was argument on the
validity of the second marriage as the Christian Marriage Enactment prohibited
polygamous marriage. Like in Re Loh Toh
Met deceased, the court held that the personal law prevailed therefore the
Christian Marriage Enactment could not prevent a party from practicing the
polygamous marriage that was allowed by his customary laws.
There were too many conflicts arose on the polygamous marriages of the
non-Muslims under the customary laws. Therefore, the Law Reform (Marriage and
Divorce) Act 1976 was enacted to provide consistency on the marriages of the
non-Muslims. Under this Act, polygamous marriages are totally prohibited thus
the non-Muslims can only conduct monogamous marriages. It has swept away the
customary laws that had been practiced by the non-Muslims as well as eliminated
the practice of polygamous marriages. S 5 of the Law Reform (Marriage and
Divorce) Act 1976 has stated that where a person has his marriages lawfully
solemnized under any laws or customs on the appointed date, or where his
marriages are valid on the appointed date but he later terminates the marriage
with his spouse or spouses and then marries again, or when he is unmarried on
the appointed date or marries under any laws or customs after the appointed
date, shall not conduct another marriage under any laws or customs when the
current marriage is still valid.
The Law Reform (Marriage and Divorce) Act 1976 has solved those problems of
the polygamous marriages that might arise from the enactment of new Act. All
the polygamous marriages that had been conducted before the Act are valid and
are deemed to be registered under the Act as stated in s 4 of the Act. It has to be noted that the Chinese custom
where the statuses of the wives in a polygamous marriage are different has been
abolished by the introduction of this Act. The status of all the wives in a
polygamous marriage after the enactment of this Act is the same. In addition, s
6 of the Act has mentioned that the marriages that contradict with section 5
are held to be void. Whilst s 7 of the
same Act states that a person who has already married conducts a marriage again
under any laws or customs which contradicts with section 5 of the Act is said
to commit an offence under s 494 of the Penal Code.
Thus, it can be seen that the Law Reform (Marriage and Divorce) Act 1976
strictly prohibits the practice of polygamous marriages by the non-Muslims. In
s 69(a) of the Law Reform (Marriage and Divorce) Act 1976, the marriage is said
to be void where one of the parties is already married at the time of
marriage. In the case of PP v Rajappan,
the respondent was said to commit an offence under s 494 of the Penal Code as
he conducted a second marriage in India while the first marriage was still
valid. However, the court held that it
did not have the jurisdiction as the second marriage took place in India.
Hence, the enactment of the Law Reform (Marriage and Divorce) Act 1976 has
abolished the customary law of the non-Muslims which is the polygamous
marriage. There were too many problems arose from the practice of polygamous
marriage by the non-Muslims as non-Muslims are free to embrace any religions
thus there may be conflicts between their personal law and the religious
practices. The issue can be clearly seen in the cases of Re Loh Toh Met
deceased and Re Ding Do Ca deceased. Some may argue that abolishing the customary
practice of polygamous marriage of the non-Muslims by the introduction of the
Law Reform (Marriage and Divorce) Act 1976 has not adapted the sensitivity of
the multi religious community in our country. However, it should be noted that
before the Act was enacted, the marriages of the non-Muslims were a mess and
many problems and conflicts arose on the polygamous marriages of the
non-Muslims. Unlike Muslims, they are allowed to have four wives which are
provided under their Islamic Law. Therefore, by the enactment of the Law Reform
(Marriage and Divorce) Act 1976, the marriages of the non-Muslims are said to
be uniform and have adapted the sensitivity of the multi religious community in
Malaysia as the religious practices for the Buddhists, Christians and Hindus
prevail due to the customary laws have been abolished.
ECTION 11 OF THE LAW REFORM
(MARRIAGE AND DIVORCE) ACT 1976
Prohibited
relationships are mentioned under Section 11 of the Law Reform (Marriage and
Divorce) Act 1976 where it is stated that one who is subjected to this Act must
not marry his grandparent, parent, child or grandchild, brother or sister,
great-uncle or great-aunt, uncle or aunt, nephew or niece, great-nephew or
great-niece. However, there is an
exception provided by section 11 that one who professes Hinduism is allowed to
marry his niece or her uncle. This is because Hindu law and custom recognised
avunculate marriage. The Law Reform Act 1976 does not prohibit the Hindus to
follow their religion and customs by giving them the freedom to marry their
niece or uncle if they choose to do so. Hence, it can be said that the Act has
adapted to the sensitivity of the multi religious community in Malaysia.
SECTION 22(1)(c) AND SECTION 24 OF THE LAW REFORM
(MARRIAGE AND DIVORCE) ACT 1976
Section 22(1)(c)
and Section 24 of the Law Reform (Marriage and Divorce) Act are the features of
the Act that showed that the Act has adapted to the sensitivity of the multi
religious community in Malaysia. Section 22(1)(c) of the Act stated that marriages
can be solemnised at any time in a temple or church or at any place of marriage
according to Section 24 as long as the religion, usage or custom of the parties
or either of them professed does not prohibit them to do so whereas Section 24 of the Act illustrated the
solemnization of a marriage in Malaysia through religious ceremonies, custom
and usage. It is expressed under Section 24(1) of the Act that a Minister could
appoint any priest of temple or church to act as Assistant Registrar of Marriage
where the priest is allow to solemnize marriages of the parties or one of the
parties who profess the religion to which the church or temple belong. The definition of priest of a temple and
priest of a church is provided under Section 24(4) of the Act. A priest of a
temple could be any member of a management or committee or body that governs
the temple and any religious association committee member whereas a priest of a
church can be any elder or officer of the church. The Hindus, Buddhist or Christians can marry
by carrying out their religious ceremonies of marriage at the temple or church
and at the end of the day, they will be given a marriage certificate. Their
marriage is said to be valid once the certificate of marriage is issued to
them. As an example, the Chinese couple would go through a solemn tea ceremony
at the bride’s and bridegroom’s parents’ house during the wedding day. This tea
ceremony is to pay respects to the elders and is an official rite to introduce
the couple to each other’s family. According to the Chinese custom, a marriage
is not considered as official unless the tea ceremony is being carried out on
the wedding day. However, after the appointed date, the court will not
recognize the marriage of the couple who had only undergone the customary
ritual. This is expressed under Section 5(4) of the Act where a marriage under
any religion or custom would only be solemnized as provided in Part III of the
Act. This means that the newlyweds must
at least solemnize and register the marriage at a temple or a clan association
premise if not the registrar’s office according to Section 22(1)(c) and Section
24 of the Act so that their marriage would be ‘official’ in the eyes of the
law. An example of a clan association where newlyweds could register their
marriage is the Heng Ann Association at Bukit Cina, Melaka. One can see that
the Law Reform (Marriage and Divorce) Act 1976 has enough tolerance to provide
and protect the freedom of worship of the citizens of Malaysia.
However, in order for the Assistant Registrar to solemnize a marriage under
Section 24, he must be satisfied with the statutory declaration mentioned under
Section 22 (3) of the Act. For example,
the parties must be above 21 years old and consent of relevant person must be
provided if the party is a minor as well as the parties is not married to
another person as polygamous marriage is unlawful if the parties are not
Muslims. A marriage cannot be solemnised
if the marrying parties did not fulfil the prerequisites expressed under Section
22(3) of the Act. The Assistant Registrar also has a duty to remind the parties
that they must not enter into another marriage before the marriage is being
dissolved or declared void during the religious ceremony. If the parties or one of the Parties fail to
do so, they could be charged under Section 494 of the Penal Code and can be
said to have committed a crime. This is clearly mentioned under Section 24(3)
of the Act. Thus, Section 22(3) must be read together with Section 24 of the
Law Reform (Marriage and Divorce) Act 1976.
In the case of Yeoh v Chew, the wife applied for a divorce, but the parties
did not register their marriage and there was no proof provided that they had
solemnized the marriage under Section 24 of the Law Reform (Marriage and
Divorce) Act 1976. Only a mere dinner
function was held at a temple on the day of marriage. The question before the
court is whether a declaration of divorce could be granted even the marriage
was not performed according to the Act. The court dismissed the divorce
petition and held that the parties did not register and solemnized their
marriage, according to Section 5(4) of the Act, which stated that no marriage
under any religion, custom or usage could be solemnized unless as expressed in
Part III of the Act after the appointed date. Therefore, the court has no
jurisdictions as it was a non-marriage. Hence, a religious marriage can be
solemnized if an assistant registrar where he could be a priest of a church or
temple appointed by the Minister is the one who solemnized the marriage and
that he had obtained the statutory declaration mentioned under Section 24(1) of
the Act. It can be concluded that the citizens’ right to freedom of worship is
protected as they are given a choice to solemnize their marriage through
religious ceremonies provided that they fulfill the prerequisites illustrated
under Section 22(1)(c) and Section 24 of the Law Reform (Marriage and Divorce)
Act 1976.
SECTION 51 OF THE LAW REFORM (MARRIAGE AND DIVORCE)
ACT 1976
On the other hand,
the application of section 51 of the Law Reform Act has also adapted to the
sensitivity of multi-religious community in this country to some extent.
Section 51 provides a ground for the non-convert spouse to petition for divorce
where the other spouse has converted to Islam for a period of more than three
months. It should be noted that only the non-convert spouse can apply for
breakdown of marriage under this ground. In other words, the converted spouse
is not entitled to petition for dissolution of marriage or seek any relief
under the section 51.
Although section 3 of the Act has also mentioned that this Act is not
applicable to a Muslim or to any person who is married under the Islamic Law
and marriage of Islam can be neither solemnised or registered under this Act,
but it is also stated that a court cannot be prevented from granting a decree
of divorce under the section 51 which involving the petition of one party to a
marriage where the other party has converted to Islam and such decree shall be
valid against the converted party. It
should be noted that in the case of Nur Aisyah Tey bt Abdullah v Teo Eng Hua,
the court had interpreted the work “Muslim” in the section 3(3) of the Act as
one who at the time of the marriage instead of one who at the time of the
contract of marriage. So, the convert spouse was held to be governed by the Law
Reform (Marriage and Divorce) Act 1976.
Besides, the courts have the power to make provision for the wife or
husband regarding the support, care and custody of the children of the marriage
upon granting the decree of divorce. There may be some conditions attached by
the courts to the decree of the dissolution if the courts think fit. In accordance to section 51(3) of the Act,
section 50 which imposes restrictions on petitions within two years of
marriage is not relevant to any petition
for divorce under this section.
The provisions of section 51 can be said as adapting to the sensitivity of
multi-religious community in Malaysia by complying with the Islamic law which
has prohibited the marriage between a Muslim and a non-Muslim. As what
mentioned in the section 51(1) of the Act, the non-convert spouse has given a
ground to petition for divorce after three months the other spouse has embraced
Islam. According to Islamic law, if the husband of a marriage has changed his
religion to Islam, the wife is given a period of three months in order to
follow her husband embracing Islam and their marriage will be broken down if
the wife does not do so. It is adapted well in the Law Reform (Marriage and
Divorce) Act 1976 where the section 51(1) has emphasized that no petition shall
be presented by the non-convert spouse within three months from the date of the
conversion. However, the marriage cannot be said as being dissolved
automatically simply because the non-convert spouse does not agree to follow
the converted spouse in embracing Islam.
In the case of Pedley v Majlis Agama Islam Pulau Pinang and Anor, it is
decided that a non-Muslim marriage is not broken down upon one of the spouses
converting to Islam as section 51 of the Law Reform (Marriage and Divorce) Act
1976 only provides a ground for the spouse who has not converted to make a
petition for divorce in the Civil courts. In the case, a Roman Catholic had
married a Roman Catholic woman according to Catholic rites and then his wife
had converted to Islam unknowingly to the plaintiff and she had also assumed a
Muslim name. The plaintiff then made an application for a proclamation that his
wife’s conversion had not determined his marriage to her according to Catholic
rites. It was then held by the court that the marriage was not being dissolved
which means it was valid despite the fact that the wife had already embraced
Islam. Therefore, it should be noted
that the marriage which has been registered under the Law Reform (Marriage and
Divorce) Act 1976 does not come to an end automatically upon one of the spouses
converting to religion of Islam which is contravened to the Islamic law in this
country which has stipulated that a marriage would be terminated automatically
if the husband or wife embraces Islam and the other spouse does not follow.
Despite that, there is an enactment under Islamic law, namely section 46(2) of
the Islamic Family Law (Federal Territories) Act 1984 clearly stated that the
conversion to Islam by either party to a non-Muslim marriage should not by
itself operate to dissolve the marriage unless and until the courts have so
confirmed it.
Other than that, there was a principle laid down by the courts that the
non-convert spouses can only apply for ancillary claims such as maintenance and
division of property under the Law Reform (Marriage and Divorce) Act 1976 on
the ground of conversion to Islam by virtue of section 51 of the Act. In
Lecthumy v Ramadasan, the petitioner was granted a decree nisi of divorce and
the High Court had also given the maintenance order. The respondent,
nevertheless, had changed his religion to Islam and applied to set aside the
maintenance order. The court had given a judgment that application of the
respondent to set aside the maintenance order was allowed because the marriage
was dissolved on the ground of desertion instead of on the ground of conversion
to Islam under section 51. The court had no the authority to order maintenance
under section 51(2) of the Act and section 77 which confers power for the
courts to order maintenance of spouse is not applicable to respondent since he
was a Muslim.
The decision held by the court in the Lecthumy’s case was criticized in the
then case of Tang Sung Mooi v Too Miew Kim. In Tang Sung Mooi’s case, the
appellant had applied to dissolve her marriage with the respondent on the
ground that their marriage had irretrievably broken down and the court had
granted her the decree of divorce. Before the decree nisi being made absolute,
the appellant had applied to claim for an order of division of matrimonial property
and maintenance under the sections 76 and 77 of the Act. The application
opposed by the respondent and he contended that the High Court had no
jurisdiction in ordering ancillary relief against him as he already embraced
Islam. The Supreme Court then held that the High Court had the jurisdiction to
hear and decide the application for ancillary reliefs against the respondent as
the wording of section 51(2) of the Law Reform (Marriage and Divorce) Act was
clearly intended to provide ancillary reliefs for non-Muslims spouses and
children. It would result in grave inequity to non-Muslim spouses and children
if the High Court had no jurisdiction to determine the issue where they could
only get their remedies in the civil courts, since the Syariah Courts had no
jurisdiction over non-Muslims.
So, it can be said that the section 51 of the Act has achieved something in
balancing the rights between Muslims and non-Muslims and adapted to sensitivity
of multi-religious community in this country by taking into consideration of
both parties’ religious or customary law although its provisions are not
absolutely effective and there are some issues which should be resolved.
SECTION 69(d) OF THE LAW REFORM (MARRIAGE AND DIVORCE)
ACT 1976
In Malaysia, other
than the age of the parties, consent of the parent or guardian, not within
prohibited relationship, must be monogamous marriage and the consent of the
parties, one more requirement needed for a valid marriage is the parties must
be female and male respectively. Same sex marriage is not allowed in Malaysia
as it contradicts the religious views in Malaysia.
For Islam, same sex marriage is strongly prohibited among the Muslims as it
contradicts with their religious practices and the Islamic views on marriage.
Whilst for other religions such as Hinduism, Buddhism, Christian and others, it
cannot tell whether the religion itself has prohibited same sex marriage as
there are conservative and liberal views among themselves. For example, there
are liberal views among the Buddhist where they neither support nor oppose same
sex marriage. However, Theravada Buddhists which is the most popular Buddhism
in South East Asian area do not support same sex marriage. The same thing
applies to other religions where there are conservative and liberal views among
themselves on supporting same sex marriage.
S 69(d) of the Law Reform (Marriage and Divorce) Act 1976 has stated that
the marriage is declared void where the parties are not male and female
respectively. There are 4 factors:
chromosomal factors, gonadal factors, genital factors and psychological
factors, which are needed to evaluate the sexual condition of a person. In the
case of Corbett v Corbett, the petitioner knew that the respondent had
undergone sex-change operation at the time of marriage. The court held that the marriage was void as
the respondent’s sex was male at birth.
In another case, Lim Ying v Hiok Kian Ming Eric, the petitioner did not
know the respondent was a female at birth and had gone through sex-change
operation earlier at the time of marriage.
The court did not have to determine whether there was a valid marriage
as it was solemnized between a male and female due to the respondent was
regarded as male and female on the identity card and birth certificate. The
marriage was declared void as the petitioner’s consent was not freely given due
to if she knew that the respondent had undergone the sex-change operation she
would not have married the respondent.
Therefore, as provided in s 69(d) of the Law Reform (Marriage and Divorce)
Act 1976, the parties to marriage must be male and female respectively so that
the marriage is valid in Malaysia. This provision can be said to have adapted
the sensitivity of the multi religious community in Malaysia due to the
community itself in Malaysia still cannot accept same sex marriage from their
own religious aspects.
PROBLEMS AND SOLUTIONS
Although the Law
Reform (Marriage and Divorce) Act 1976 seems to have adapted to the sensitivity
of the multi religious and multiracial community in Malaysia, there are still
some shortfalls that need to be improved. First and foremost, the Act does not
mention about the rights of a non-Muslim mother or spouse when it comes to the
child’s conversion to the religion of Islam by the converted spouse who
professes Islam after the marriage. This means that the Muslim spouse could
convert the religion of the child to Islam as he wishes without the consent of
the non-converted spouse even if they are not yet divorced. The Law Reform
(Marriage and Divorce) Act is not applicable to Muslims unless when the
non-Muslim spouse filed a petition of divorce against the Muslims spouse under
Section 51 of the Act on the ground of conversion to Islam and this is
expressed under Section 3(3) of the Act. Many state enactments has a provision
stating that a child would automatically become a Muslim if he is born after
one of his parents embraces Islam. One example is Section 2 of the
Administration of the Religion of Islam (State of Malacca) Enactment 2002. It
can be said that the non-converted parent is not given a choice as the law has
distinguished their parental rights over the religion of their child according
to the parents’ religion.
Not only that, as the rights of the non-converted parent on child’s
conversion to Islam was not mentioned in the Act, problems with the conversion
of the child’s religion also arise if the child is born before one of the
parent professes Islam. There are a few cases showed that the non-Muslim spouse
or mother of the child is not being consulted regarding the conversion of the
child’s religion to Islam when the child is born before the Muslim spouse
embraces Islam. An example of the case is Subashini a/p Rajasingam v Saravanan
a/l Thangathoray. The husband, Saravanan was not a Muslim at the time of
marriage but later, he professed Islam and converted his eldest son without the
consent of his wife, Subashini. The wife filed to dissolve the marriage under
Section 51 of the Law Reform (Marriage and Divorce) Act and also applied for an
injunction so that Saravanan would not obtain a relief from the Syariah Court.
The judge dismissed Subashini’s application for an injunction and upheld that
one of the parents can convert the child’s religion to Islam without the
knowledge of another spouse. From this
case, the right of the non-converted spouse on the child’s conversion is being
ignored and entrenched as there is no provisions under the Law Reform (Marriage
and Divorce) Act that require the consent of the non-Muslim spouse to be
consulted.
One can see that the Act is not sensitive enough to uphold the rights of
non-converting parent or spouse on the conversion of a child’s religion.
Therefore, relevant parties, for example, the state religious authorities
should suggest to amend or enact the Law Reform (Marriage and Divorce) Act in
order to preserve the right of non-Muslim spouse on matters of their child’s
religion conversion. This is because the unilateral conversion of a child’s
religion to Islam would definitely cause negative impacts and disrupt the
social harmony of the Malaysia’s multi religious community. The non-Muslim
party should be at least given a choice to object the conversion of the child’s
religion to Islam by including the rights of non-Muslim parent under the
provisions in the Act. Protecting and preserving parental rights over a child’s
religion is crucial and important as the multi religious community of Malaysia
is formed from the very basic family units.
Furthermore, there are some issues which should be settled in the
application of section 51 of the Law Reform (Marriage and Divorce) Act 1976
too. One of it is that there is no specific provision in the section concerned
stated whether the converted wife would be guilty of any offence if she relies
on the declaration of the Shariah Court that she cannot remain her marriage
with a non-Muslim and she marries again. This would bring much confusion and
problem as the convert parties cannot apply for divorce in civil court and they
can only seek for relief under the jurisdiction of the Shariah Court. Another
issue is that the provision of the non-convert party’s rights against the
convert party when the non-convert party refuses to petition for divorce are
not clearly stipulated in the section too. As mentioned, the convert party
cannot apply for dissolution of marriage so what would be the rights of the
non-convert and convert parties if the non-convert party refuses to petition
for divorce in civil court?
All these issues have brought much uncertainties in which what law should
be applied and which court can make decision regarding the issues. Therefore,
legal reforms are needed in order to address these issues. For instance, there
should be only one forum provided by relevant authorities for the spouses to go
and seek their rights. It can simplify the complex questions which arose
regarding which court has the jurisdiction to adjudicate and which law should
be applied when either spouse has converted to Islam. Besides, the section 51
should be amended to allow the convert spouse to apply for divorce at civil
court after three months he or she has professed Islam. According to section 51
of the Law Reform (Marriage and Divorce) Act 1976, the converted spouse can only
respond in civil court when the non-convert party has filed a petition for
divorce in the court. The convert party are not allowed to seek for dissolution
of marriage in civil court on his or her own initiative. In order to ensure and
preserve harmony in this country which is of multi-religious and multiracial,
legal reforms should be made to determine and clarify the issues arose.
CONCLUSION
In a nutshell, the
application of the provisions in the Law Reform (Marriage and Divorce) Act 1976
has adapted to the sensitivity of multi-religious society in Malaysia to some
extent. The provisions are sections 3, 5, 6, 7, 11, 22(1)(c), 24, 51, 69(a),
and 69(d) in which section 3 mentions about the application of the Act to only
non-Muslims and the Act is not applicable to Muslims, the natives in Sabah and
Sarawak and also the aborigines in Peninsular Malaysia; sections 5, 6, 7 and
69(a) which prohibits polygamous marriage; section 11 which provides prohibited
relationship and also exceptions for Hindus who can marry his niece or her
uncle; section 22(1)(c) which states that a marriage can be solemnised at any
time in a temple or church or at any place of marriage according to section 24
as long as the religion, usage or custom of the parties or either of them professed
does not prohibit them to do so; section 24 has stipulated that the
solemnisation of a marriage can be done through religious ceremonies, custom
and usage; section 51 provides a ground for a non-convert party to petition for
divorce in civil court when the convert party has embraced Islam for more than
three months; section 69(d) which states that the parties in a valid marriage
must be a male and a female respectively. In other words, same sex marriage is
not allowed in this country.
These provisions are said to have adapted the sensitivity of
multi-religious community in Malaysia because the provisions are accommodated
to the religious practices and views. Section 3 of the Act can be considered as
adaptive to the multi-faith society as it is only applicable to non-Muslims in
which its provisions are in consistent to their religious practice and the rest
religions are governed by their own law. As for section 69(d), its application
is adapted to the sensitivity of multi-religious because it prohibits same sex
marriage in which consistent with almost all of the religious practices in this
country. While for the section 51, the provision is well adapted to the
sensitivity of the multi religious as it is not contravened with the Islamic
law. The Hindu religious practice has also taken into account which can be seen
in the exception under the section 11 where the Hindus are not prohibited from
marrying niece or uncle.
However, there are still some issues with the application of the Law Reform
(Marriage and Divorce) Act 1976 which should be resolved. The issues regarding
the application of the section 51 is the most significant one as it involved
complex questions where it is not certain that which law to be applied and
which courts do have the jurisdiction to adjudicate. When there is one party
converts to Muslim and the other refuses to do so, which law is to be applied
in order to dissolve their marriage? Whether Shariah Court or Civil Court has
the jurisdiction to decide their cases? Other than that, the issue of
unilateral conversion of children religion should be highlighted too. The
rights of the non-convert spouse in deciding children religion are not provided
under the Law Reform (Marriage and Divorce) Act 1976. There are several cases
where the convert spouse had converted their children religion without the
knowledge and consent of the non-convert spouse. All these issues and problems
should be rectified in order to improve the Law Reform Act to adapt the
sensitivity of multi-religious community better.
TABLE OF CASES
1) Chu Geok Keow v
Chong Meng Sze [1961] MLJ 10
2) Chua Mui Nee v
Palaniappan [1967] 1 MLJ 270
3) Corbett v
Corbett [1970] 2 AII ER 33, [1970] 2 WLR 1306
4) Lecthumy v
Ramadasan [1984] 1 MLJ 143
5) Lim Ying v Hiok
Kian Ming Eric [1992] 1 SLR 184
6) Nafsiah v Abdul
Majid (No. 2) [1969] 2 MLJ 175
7) Nancy Kual v Ho
Than On [1994] 1 MLJ 545
8) Nur Aisyah Tey
bt Abdullah v Teo Eng Hua [1999] 3 AMR 2779
9) Paramesuari v
Ayadurai [1959] MLJ 195
10) Pedley v
Majlis Agama Islam Pulau Pinang and Anor [1900] 2 MLJ 307
11) PP v Rajappan
[1985] 2 MLJ 231
12) Re Ding Do Ca
deceased [1966] 2 MLJ 220
13) Re Loh Toh Met
deceased [1961] MLJ 234
14) Subashini a/p
Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147
15) Tang Sung Mooi
v Too Miew Kim [1994] 3 MLJ 117
16) Yeoh v Chew
[2001] 4 MLJ 373
REFERENCES
Civil Marriage
Ordinance 1952
Federal
Constitution
INSIGHTS INTO THE
INTER-RELATIONSHIP AND THE ASSOCIATED TENSION BETWEEN SHARIAH AND CIVIL FAMILY
LAW IN MALAYSIA. (2008), 6.
Law Reform
(Marriage and Divorce) Act 1976
Malaysia, T.
(1983). marriage. CLJ, 1, 220. Retrieved from
http://www.cljlaw.com.proxyvlib.mmu.edu.my/Members/DisplayArticle.aspx?ArticleId=129957897&SearchId=0mmu1
Malaysianbar.org.my,.
(2006). The Malaysian Bar - Marriage. Retrieved from
http://www.malaysianbar.org.my/marriage.html