For start, the very existence of family law is premised upon the fundamental right of a man and a woman to get married to form a family. Such right is guaranteed by Article 12 of the Federal Constitution of Malaysia.
Whilst family law seems to connote only applications to persons who are related by blood or marriage, it is pertinent to note that it is also applicable in some other relations, such as co-habitants, adopted parents and children.
It remains the fact that Malaysia has two types of family law, one being the Syariah family law that applies to Muslims and the other being the civil family law that applies to non-Muslims. The Syariah family law has long existed in our homeland even prior to the civil family law when Muslims marry according to the various states of Syariah law.
It is the objective of this article to provide some basic understanding of the civil division of the family law that governs non-Muslims and some sources for legal redress which are available in case of needs by the public.
- Relevant Acts of Parliaments or Statutes and their purpose
It cannot be gainsaid that it is the social, emotional and sentimental needs of every relationship formed that calls for the recognition and protection of rights amongst the parties.
2.1 Law Reform (Divorce and Marriages) Act 1976 (“LRA”)
The LRA is a set of family laws that governs civil marriage in our country. It laid down the laws on marriage and divorce and other matters auxiliary thereto, for example, maintenance of spouse and children, division of matrimonial property and child custody.
The LRA became law on 1st March 1982 and provides for all marriages to be registered in order for it to be regarded as a valid marriage. Therefore any marriage which is not registered, for example amongst girlfriend and boyfriend, cohabitants, shall be regarded as invalid, thus have no protection whatsoever afforded under the family law context.
Having said that, all marriages that did not register but solemnized under any law, religion or customary rites prior to 1st March 1982 are still legal marriage, thus valid so long parties can show proof of solemnization of their marriage such as certification or eyewitnesses or better still, video recording.
It is further spelled out in the LRA that bigamy is disallowed under the law.
The LRA applies to all persons in Malaysia and to all persons domiciled in Malaysia but resident outside Malaysia; and for this purpose, a person who is a citizen in Malaysia is deemed to be domiciled in Malaysia until the contrary is proven.
For any marriage registered under the LRA, the Court shall have the power to grant a decree for divorce upon petition of one party to the marriage and such decree shall notwithstanding any written law to the contrary, be valid against the other party, notwithstanding the other party has converted to Islam.
There can be 4 grounds for a party to petition for divorce as follows, provided always that 2 years shall have been expired at the time of petitioning from the date of the marriage:-
(a) Where one party to a marriage has converted to Islam;
(b) Where husband and wife mutually agreed that their marriage should be dissolved after the expiration of two years from the date of their marriage by presenting a joint petition;
(c) Where there is a breakdown of marriage which is provable by showing:-
- either party had committed adultery;
- either party behaved in such a way that the petitioner cannot reasonably be expected to live together;
- the respondent has deserted the petitioner for a continuous period of at least 2 years; or
- the parties have lived apart for a continuous period of 2 years.
(d) The presumption of the other party to a marriage is death after seven years of continuous absence.
The LRA also provide that for divorce under the sole ground of irretrievably broken down of marriage, the petitioner must first refer their matrimonial difficulties to the Marriage Tribunal or Conciliatory Body in National Registration Department (official website: www.jpn.gov.my), which is established under the purview of Ministry of Home Affairs, in order to obtain the relevant certification of whether the marriage can be reconciled.
In any divorce proceedings, regards shall have for the following auxiliary matters to be resolved.
Maintenance of Spouse (a.k.a Alimony)
The Court is empowered to award maintenance to a spouse even during the course of the divorce proceeding before a decree for divorce is granted. Maintenance can be either paid from the husband to the wife or vice versa. It is the law that the assessment of maintenance shall base primarily on the “means and needs” of the parties for the purpose of continuing their standard of living such that during the subsistence of the marriage. Such amount of maintenance awarded is regardless of the proportion that such maintenance bears to the income of the husband or wife, but having regard to the responsibility which the court apportions to each party for the breakdown of the marriage.
Maintenance of Children
Maintenance of children is essentially the obligation of both parents. However, judicial precedents inclined towards holding that the husband has the primary obligation to maintain the children whereas the mother has a secondary obligation. The law also states that the term ‘maintenance’ should be construed widely as it signifies any form of material provision that will enable the wife and children to be placed in a position to enjoy the same standard of living as they did during the subsistence of the marriage.
The inherent power of the court to order property division should be exercised judiciously in the pretext of safeguarding the benefit of the spouses but also the dependent children. This involves assets that are used jointly and severally for the benefit of the family as a whole. The principles for property division, on one hand, emphasize the equality of division considering the needs of the minor children. But on the other hand, the Court is mindful of the need to balance whether the assets were acquired jointly or by the single effort of one party wherein the latter case, the division cannot be based on the equality principle.
Custody of Children
As a general rule, there is a rebuttable presumption that it is for the good of a child below the age of 7 years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody from the father.
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.
Where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently.
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 to the wishes of the parents of the child; and to the wishes of the child, where he or she is of an age to express an independent opinion.
2.1.3 Judicial Separation
For if 2 years have not been expired from the date of the marriage for purpose of petitioning for divorce, parties may consider the option to petition for judicial separation on the same 4 grounds as a petition for divorce. Judicial separation, once granted, allows parties to live apart and end their marital obligations but parties shall remain married until the divorce. Such decree, if successfully obtained, will be useful for the winning party as a means of presenting a marriage offense leading to the breakdown of marriage and with a view to applying for divorce later.
Likewise, there are auxiliary matters to be resolved as in paragraph 2.1.2 above.
A party can present petition for nullity if the marriage is a void or voidable marriage which is the result of the absence of one of the requisites of a valid marriage, for example as regards to age (ie less than 21 years old), mental and physical capacity be incapable of contracting the marriage. Other common grounds on which the marriage will be voidable are either party to the marriage did not validly consent to it, or the marriage had not been consummated owing to the incapacity or willful refusal of either party to the marriage which facts shall be ascertained by the Court.
2.2 Domestic Violence Act 1994
This Act was enacted to protect battered women and children both physically and verbally. It became law on 1 June 1996.
Domestic violence is a crime and it is taken to have been committed if there is information tantamount to the commission of a related offense under the Penal Code. Notwithstanding that, many see it as a domestic or family affair that battered women deferred in looking for help.
When this happened, the victim can:-
- First, seek immediate medical attention at the nearest Government Hospital (remember to always get your medical report out) immediately;
- Thereafter, the victim or anyone close to the victim may make a report to the District Social Welfare Department (contact can be obtained from their official website: jkm.gov.my) or to the police; and
- Tell the Social Welfare officer or the police that if you need Interim Protection Order (which is valid for 12 months and can be renewed for a further 12 months) pending investigation and they will assist to obtain such order in court which will entail such necessary order to keep the victim safe. At this juncture, the victim can voice out their concerns to the officers in charge, for instance, any imminent physical abuse or threat in order for necessary arrangements to be made;
- Should the offender officially charged after investigation, the victim may apply for Protection Order instead;
- If the victim felt not convinced by the authority to be in handling their case, they may have a lawyer to hold a watching brief in court they have been subpoenaed to attend court to give evidence against the spouse.
2.3 Guardianship of Infants Act 1961
The present Act deals primarily with the appointment of a guardian to a child’s person and property. The corollary, also spelled out the custody, rights, and liabilities of the guardian of infants as well as provisions in regards to the control and management of the infants’ property until they attained the age of majority when they turn twenty-one years old.
2.4 Adoption Act 1952
Basically, a child under the age of 18 can be adopted by any person or couple who is 25 years old and above whom must not be less than 21 years older than the infant but this latter requirement may be waived by the court if adopter is a relative or a mother of the child as the adopter can also a person who married the natural parent of the child. An adoption order will be, made by the court only if it is satisfied that the consent of the parent or guardian of the child or the person liable to contribute to the support of the child has been obtained; or, that the adoption is in the best interest of the child.
2.5 Legitimacy Act 1961
An illegitimate child refers to him/her born out of wedlock; it is the purpose of this Act to provide for the legitimation of a person by the subsequent marriage of his/her parents.
2.6 Child Act 2001
This is basically the law that gives protection of child’s rights in Malaysia. As seen in the preamble of the Act, this is “An Act to consolidate and amend the laws relating to the care, protection, and rehabilitation of children and to provide for matters connected therewith and incidental thereto.”
3.1 Government Departments:-
3.1.1 Ministry of Women, Family and Community Development
No 55, Persiaran Perdana Presint 4,
3.1.2 National Registration Department, Ministry of Home Affair
Marriage Tribunal or Conciliatory Body
No 20, Persiaran Perdana, Presint 2
Pusat Pentadbiran Kerajaan Persekutuan
62551 Wilayah Persekutuan Putrajaya.
3.1.3 Social Welfare Department, Ministry of Women, Family and Community Development
No 55, Persiaran Perdana Presint 4,
3.2 Non-govermental organization:-
3.2.1 Woman’s Aid Organization (WAO)
– Website: http://www.wao.org.my/
3.2.2 The All Women’s Action Society (AWAM)
– assists women in crisis from all walks of life in a friendly, personal and supportive environment.
– Website: http://www.awam.org.my/
3.2.3 Sisters In Islam (SIS)
– promoting rights of women in Islam.
– Website: http://www.sistersinislam.org.my/
3.2.4 Tenaganita (Woman’s Force)
– To promote and protect the rights of womeb workers and migrant workers in a globalized world.
3.2.5 Kuala Lumpur Legal Aid Centre
– assist and deliver services to the disadvantaged, marginalised and truly deserving.
– Website: http://www.kllac.com/
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