WHEN ARE YOU OLD ENOUGH AND CAPABLE OF MARRIAGE

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LAW IN NEWS SERIES – WHO CAN OR CANNOT MARRY?
Report in the DAILY EXPRESS NEWS yesterday 13th June 2007 Wednesday
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“Concern over 13-yr-old brides
PENSIANGAN: A Non-Government Organisation involved in outreach work among the poor near the Kalimantan border in Mukim Pegalungan, here, has expressed concern that local girls as young as 13 are ending up as brides.
The Sabah Agape Counselling Association said Pegalungan is also in dire need of health education and family planning services.
"There are many young mothers there. On another occasion, one of the doctors told me that one of his patients turned out to be a mother in her thirties and having 10 children," said Ooi Kong Eow who has been involved in medical camps in the interior together with the State Health Department.
Ooi, a volunteer with Agape, observed that early marriage for girls aged between 13 and 16 in most parts of the interior in recent years was due to the parents' mentality.
Ooi himself attended one wedding celebration where the bride was only 13.
"Many parents don't send their children to school for one reason or another. Girls who manage to complete their primary education but have no chance for further education normally get married.
"The nearest secondary school is too far away, compounded by the lack of hostel facilities," he said.
He cited the children in nearby Babalitan who must walk to school via a hanging bridge and then go through jungle or take a boat ride to their destination.
In this regard, he called on the Government to build a hostel for the pupils of SK Babalitan. "I learned from the headmaster that the hostel built by the Rotary Club can only accommodate 30 children."
Pegalungan is a seven-hour road journey from Kota Kinabalu, and it is half an hour by boat to Babalitan from Pegalungan.”
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LEX BORNEO – SO WHEN IS A MALE OR FEMALE PERSON CAPABLE OF ENTERING INTO A MARRIAGE? – FOR THIS WE NEED TO LOOK AT THE RELEVANT SECTIONS OF THE LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976 (Act 164) WHICH IS “An Act to provide for monogamous marriages and the solemnisation and registration of such marriages; to amend and consolidate the law relating to divorce; and to provide for matters incidental thereto.”

MARRIAGE


Restrictions on marriage

s9. Persons by whom marriages may be solemnised
A marriage under this Act may be solemnised only by a Registrar.


s.10. Avoidance of marriages where either party is under minimum age for marriage
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).


s11. Prohibited relationships
(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 grandparent 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 Chief Minister may in his discretion, notwithstanding this section, grant a licence under this section for a marriage to be solemnised if he is satisfied that such marriage is unobjectionable under the law, religion, custom or usage applicable to the parties thereto and, where such marriage is solemnised under such licence, such marriage shall be deemed to be valid.


s12. Requirement of consent
(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
(b) if the person is illegitimate or his or her father is dead, of his or her mother; or
(c) if the person is an adopted child, of his or her adopted father, or if the adopted father is dead, of his or her adopted mother; or
(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 satisfied that the consent of any person to a proposed marriage is being withheld unreasonably or all those persons who could give consent under subsection (1) are dead or that it is impracticable to obtain such consent, the court may, on application, give consent and such consent shall have the same effect as if it had been given by the person whose consent was required by subsection (1).
(3) An application to the High Court under this section shall be made to a Judge in chambers.
(4) When an application is made to the High Court in consequence of a refusal to give consent, notice of the application shall be served upon the person who refused to give consent.
(5) Notwithstanding anything to the contrary in this Part Consent to the marriage of a minor shall not be necessary if the minor has been previously married.
(6) There shall be no appeal from an order of a Judge under this section.




Nullity of Marriage

s.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.


s68. 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.


s69. 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.



s70. 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 veneral disease in a communicable form;
(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner.


s71. 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 sincerity on the part of the petitioner or on similar grounds.


s72. 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.



s73 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.


s74. 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.


s75. 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 died before the appointed date, and does not affect the operation or construction of any disposition coming into operation before the appointed date.
(5) Notwithstanding section 6 of the Legitimacy Act, 1961 all children who are deemed legitimate at birth by virtue of the provisions of this section shall be so treated in all respects and not as persons legitimated at the date of the marriage or of the Legitimacy Act, 1961 as provided therein.
(6) Any person claiming otherwise than in a petition for a declaration of nullity of the relevant marriage that a child shall be treated as the legitimate child of his parents by virtue of the provisions of subsection (3) may apply for a decree to that effect and section 5 of the Legitimacy Act, 1961 shall apply mulatis mutandis to such petition but the court shall not make such a decree unless satisfied by the petitioner that both or either of the parties to the marriage reasonably believed that the marriage was valid as not being in any way contrary to section 71.
(7) In this section the following expressions have the meaning hereby assigned to them, that is to say -
"void marriage" means a marriage declared to be void under sections 6, 10,11, subsection (4) of section 22 or section 72.
"disposition" has the same meaning as in the Legitimacy Act, 1961;
and any reference in this section to property is a reference to any real or personal property, or any interest in such property, which is limited by any disposition (whether subject to a preceding limitation or charge or not) in such a way as to devolve as nearly as the law permits whether or not the property or some interest in the property may in some event become severed from it.