Marriage Requirement Marriage Requirement Capacity Age of the parties Consent Parties Parents Kindred and affinity Monogamous marriage Biologically male and female Procedures & Formalities

1) Age of the parties Section 10 of the LRA Min. age 18 years, unless for the female who has completed her 16th. year of age is allowed to get married provided that it is authorized by a license granted by the Chief Minister. Cross refer to section 2 Non compliance – void by virtue of section 69 (b). Case: Inderjit Singh v. Jinder Pal [1975] 2 MLJ 259. 2) Consent of Parent/guardian Section 12 Those who are below 21 year of age and a minor who is not previously married, must get a written consent from parents or guardians

i) Consent of Parents/guardian parties i) Consent of Parents/guardian Section 12. Those who below 21 year of age and a minor who is not previously married, must get a written consent from the High Court. Case: Re CHS [1997] 3 MLJ 152.

ii) Consent of the parties Both parties must consent to the marriage. Definition of marriage in Hyde v Hyde obviously shows that the marriage must be voluntarily entered into. Section 22(6) Section 70 ( c ) Section 37.

3) Kindred and affinity Section 11 - parties are prohibited to marry if they are within a prohibited relationship . Special exception for the Hindus. Non compliance – the marriage will be void – section 69(c).

4) Monogamous marriage– avoidance of marriage by prior subsisting and subsequent marriage. Section 5, 6, 7 of the LRA & section 494 PC. Non compliance – the marriage will be void – section 69(a) Cases: PP v. Rajappan Pong Teck Yin

5) Biologically male and female Hyde v Hyde – voluntary union of one man and one woman… Must be from a different sex. Non compliance – marriage will be void – section 69 (d). Those who have underwent a sex-change operation – - Corbett v Corbet - Lim Ying v Hiok Kian Ming Eric -Bellinger v Bellinger -JG v Pengarah Jabatan Pendaftaran Negara -Wong Chiou Yong v Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara

All marriages should be registered Registration S. 25 Entry in marriage register S. 31 Registration of foreign marriage S. 33 REGISTRATIONPART IV Voluntary registration

Legal Effect of Registration-s. 34 Two views The marriage is still valid even though it was not registered Registration has no legal effect to the validity of the marriage. But, there are two views from the decided cases concerning the validity of the customary marriage which is not registered First view Second view Marriage which was not registered under LRA 1976 is void

FIRST VIEW: Cases: Tan Sai Hong v. Joremi Kimin [1997] 5 CLJ 614 Chong Sin Sen v . Janaki a/p Chellamuthu [1997] 5 MLJ 411 Held : The Chinese customary marriage was valid and cannot be declared invalid by reason of non-registration. Another case: Leong Wee Shing v Chai Siew Yin [2000] 1 CLJ 439 Whether the Chinese customary marriage is void for non- registration. High Court held: The marriage is valid on the ground that a Chinese customary marriage had taken place between the parties & although it was not registered, s.34 of LRA 1976 had ‘validated it’.

CHAI SIEW YIN V LEONG WEE SHING [2004] 1 CLJ 762 ( Civil Appeal no CHAI SIEW YIN V LEONG WEE SHING [2004] 1 CLJ 762 ( Civil Appeal no. w-02-750-1999) ) COA : Affirmed the High Court’s judgement and dismissed the appeal Gopal Sri Ram JCA: “…there is no provision in the Act that declares / renders void any marriage contracted between non-Muslims in accordance with the customary ceremonial rites of the community to which they belong. On the contrary, s. 34 declares that a marriage is otherwise valid is not invalidated merely because it has not been registered under the Act. That is the intention of Parliament becomes clear when regard is had to the marginal notes to s. 34 of the Act.”

Second view – Marriage is not valid T V. O [1994] 4 CLJ 593 The court referred to s. 22(4) of the LRA and decided that since the parties fail to comply with the provision, the so called marriage in 1998 was a non event/void abitio.

Abdul Hamid Embong J: Yeoh v Chew [2001] 4 CLJ 631 “…..for the purpose of this Act, this customary rite alone, however recognisable & acceptable is insufficient to clothe it with legal validity for no matrimonial court will recognise a tea ceremony per se performed after 1 March 1982, as marriage…. …..in my view, an invalid marriage by reason of non-solemnization such as in this case cannot be rendered valid merely because it was not registered. The very solemnization of this marriage itself was in question as it had not complied with s. 5(4) of the Act. It was a non marriage from the start, for which this court could not exert its jurisdiction” Abdul Hamid Embong J: Yeoh v Chew [2001] 4 CLJ 631 Abdul Hamid Embong J: Yeoh v Chew [2001] 4 CLJ 631

Current decision Non registration will render the marriage void. Case: CHAI SIEW YIN V LEONG WEE SHING (Federal Court Civil Appeal no. 02-10 of 2003)

Exception: Marriages solemnised prior to LRA 1976 – see section 4(2) - but may opt for voluntary registration under section 33 Marriage solemnised abroad and outside Malaysian Embassies – s.104, s. 31 + s.34 -if fail to register, would be recognized as valid according to the lex loci celebrationis/ law of the place of celebration