Adoption In Malaysia
Adoption In Malaysia

Adoption In Malaysia

Adoption is a legal process through which a child acquires new parenthood, including single parenthood.

In Malaysia, there are two (2) legal regimes to provide for the adoption of children.

First, is the Adoption Act 1952 (“Adoption Act”) which is applicable only to non-Muslims in the Peninsular of Malaysia. There are also other similar Adoption Ordinances available in the East of Malaysia.

Second, is the Registration of Adoption Act 1952 (“ROAA”) which is applicable to both Muslims and non-Muslims in the Peninsular of Malaysia.

The main differences between the two (2) legal regimes are, firstly, the Adoption Act provides for adoption process through an order of the Court whereas ROAA provides for adoption process through “self-registration” by the adoptive parents; secondly, the adoption process under the Adoption Act culminated in the issuance of birth certificate of the adoptive child as if the adoptive parents are the birth parents whereas the ROAA will not have such effect.

The purpose of this article is to explore the adoption process under the Adoption Act applicable only to non-Muslims in the Peninsular of Malaysia.

  1. Which court to go

For speedier disposal of the case, the applicant may opt to apply for adoption order by filing an originating summons supported by an affidavit in Sessions Court instead of the High Court although the latter has rightful jurisdiction in adoption cases.

An adoption order under the Adoption Act can be obtained fastest in about 3-4 months time after an application was filed in the Court; as compared to a certificate of adoption under ROAA which can only be obtained after at least 2 years upon application being made.

Basically, there will be 2 hearings fixed under an application for an adoption order. The first hearing is to appoint a guardian ad litem of the child whom will usually be the Social Welfare Officer to investigate the truth of the statement in the application as well as the means and status of the adoptive parents (this is to ensure they are capable to bring up the child). The second is for the Court to consider the Social Welfare Officer’s report before granting the adoption order.

Attendance of all parties in both the application is compulsory unless exempted by Court’s order.

  1. Who may be the applicant

Basically, the person who intends to adopt may file an application. In the event a pair of spouse intends to adopt, they may jointly file an application.

The applicant must also be a resident of the Peninsular in Malaysia. That is he/she must actually living in Malaysia and has a base here where he/she work or reside in Malaysia for a sufficient duration and continuity even though he/she does not intend to live here permanently. Therefore, it is the opinion of mine that the applicant can be a foreign citizen subject to the specific conditions being fulfilled (Refer to answer in question 10A here).

Further, the applicant or, in the case of a joint application by a pair of spouse, one of the applicants must have attained the age of 25 and is at least 21 years older than the child in respect of whom the application is made unless the Court is satisfied that there are special circumstances for the making of an order.

It is also a must for the applicant to write to inform the officer of the Social Welfare Department of the State in which he/she is for the time being resident of his/her intention to apply for an adoption order in respect of the child, at least three (3) months before the date of the granting of the adoption order.

  1. Who may be adopted

Any unmarried person under the age of 21 and a resident of the Peninsular of Malaysia, including a female under that age who has been divorced, may be adopted pursuant to section 2 of the Adoption Act.

Also, the child must have been continuously in the care and possession of the applicant for at least three (3) consecutive months immediately preceding the date of the order.

  1. Requirements to be satisfied

It is the basic requirement that the natural parents or guardian of the child, as well as the applicant or the spouse in the case of the joint application, must have consented to and understands the nature and effect of the adoption order. Such consent, however, may be dispensed with if it was proven that the child was abandoned, ill-treated, neglected or the consent was unreasonably withheld.

Another overriding consideration of the Court will be the welfare of the child. With regards to this, the court will look into the report prepared by the Social Welfare Officer in apprehending the wishes of the child, having regard to their age and understanding ability.

The Court is also mindful that there shall be no pecuniary interest involved in consideration of the adoption except such as the Court may sanction.

  1. Effects of Adoption under the Adoption Act

It is vital to note that pursuant to Section 9 of the Adoption Act, upon an adoption order being made, all rights, duties, obligations, and liabilities of the adopted child shall vest in the adopter as though the adopted child was a child born to the adopter in lawful wedlock.

Therefore, Adoption Act also has the effect of legitimizing an illegitimate child borne out of wedlock if the adoption was upon the joint application by the natural parents.

Following thereof, the adopted child shall also take any interest in any movable or immovable property whether by will or under any intestacy of the adoptive parents pursuant to Section 9 Adoption Act.

Hence, as Edgar Joseph Jr states in Re TSY (an infant) [1988] 3 MLJ 43, “the general effect of an adoption order is that it destroys the legal bond between the infant and its natural parents and puts him in precisely the same position as a natural child of his adoptive parents. The making of an adoption order may, therefore, be rightly described as the using of a ‘statutory guillotine’.

Moving on, the applicant may surrender to the Registrar General of Births and Deaths, Malaysia the original Birth Certificate of the adopted child for cancellation and re-issue a Certificate of Birth with the adopter’s name as parents without and the word “adopted”, “adopter” or “adoptive” or any word to like effect shall not appear in the Certificate at all.

Further information on adoption can be found in Adoption in Malaysia: Frequently Asked Questions

 
About the Author:

This article was written by Chia Swee Yik, Partner of this Firm (+6016 2148 218, chia@chialee.com.my).

Feel free to contact him if you have any queries.

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