Nullity of marriage - Family Law (Malaysia)

1. INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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4. NULLITY/PEMBATALAN PERKAHWINAN
CHECKLIST
A. DISTINCTIONS BETWEEN VOID & VOIDABLE MARRIAGE
B. JURISDICTION OF THE COURT
C. GROUNDS FOR ANNULMENT
i. VOID MARRIAGES
ii. VOIDABLE MARRIAGES
D. BARS TO RELIEF
E. EFFECT OF AN ANNULLED MARRIAGE
A. DISTINCTIONS BETWEEN VOID & VOIDABLE MARRIAGE
DESCRIPTIONS VOID VOIDABLE
Decree requirement to
annul it
Lord Green MR in De
Reneville v De Reneville
[1949]
√ X
Actions can be taken by Everyone Parties to the marriage
Purpose of proceeding
Lord Reid in Ross Smith
v Ross Smith [1962]
To establish that there was no
marriage taken place
To destroy a valid marriage
Facts that will be taken
into consideration
 Facts that instantly verifiable
at the date of marriage (Lord
Reid)
 Question of law
 Anytime whether
during/after lifetime of the
parties
 Decision depends on
supervening
circumstances
 Question of fact
 During the lifetime of the
parties
Sections 69 70
S.68 – Any husband/wife may present a petition to the court praying for a decree of nullity
in respect of his/her marriage  refers to both void & voidable marriage

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B. JURISDICTION OF THE COURT
Relevant provision to hear applications for decrees of nullity: S.67 LRA
Relevant court: the High Court
1. 1st ALTERNATIVE – S.67(a)
 The marriage must be 1 either registered under LRA or deemed to be registered
o Marriages that were registered under LRA: Registered under S.25, 31, 33 LRA
o Marriages that deemed to be registered under LRA: Solemnized prior to the
enforcement of LRA (before 1st March 1982) & deemed to be registered under
S.4(2)
2. 2ND ALTERNATIVE – S.67(b)
 The marriage between the parties was contracted under a law providing that, or in
contemplation of which, marriage is monogamous
o This refers to marriages contracted overseas either in accordance with
written/unwritten laws
3. 3rd ALTERNATIVE – S.67(c)
 Both of the parties are residents in Malaysia at the time of the commencement of the
proceedings
CASES: 1. Ng Wee Whye v Wong Sook Heng [1978]
2. Yong Fui Phin v Lim Tow Siew [1996]

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C. GROUNDS FOR ANNULMENT
VOID – S.69 VOIDABLE – S.70
(a) Polygamous marriage (a) Non-consummation due to the
incapacity of either party
(no sexual intercourse)
(b) Under age marriage (b) Non-consummation due to wilful
refusal of the respondent
(c) Prohibited degrees of r/ship (c) No valid consent due to duress,
mistake, unsoundness of mind or
otherwise
(d) Same-sex marriage
(not respectively male & female)
(d) No valid consent due to mental disorder
(within the meaning of the Mental
Disorder Ordinance 1952)
(e) Respondent was suffering CVD1
unknown to the Petitioner
(f) Respondent was pregnant by other
person unknown to the Petitioner
VOID – S.69
(a) Existence of a valid marriage
- Polygamous marriage
 Marriage must be monogamous
 Must be in accordance to S.5(1) & S.6
 Lord Penzance – Hyde v Hyde:
“Marriage is a voluntary union between
a man & a woman…”
 Whiston v Whiston [1995]
 Re Estate of Liu Sinn Minn, decd [1975]
(b) Under age marriage
- Party to the marriage being a
minor
 Parties of the marriage must achieve
age requirement – S.10 & S.22(6)
 Male: 18 yo
Female: > 16 < 18 without special
license granted by the Chief Minister
 Indarjit Singh v Jinder Pal
- P filed a petition for the dissolution
of his marriage to the R
- Petitioner: 23 yo
1
CVD – Contagious Vulnerable Disease

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- Respondent: 15 yo
- The marriage in this case is invalid &
the petition for divorce was
therefore dismissed
(c) Prohibited degrees  S.11
 Exception for Hindu professes: S.11(6)
 Elliot & Anor v Gurr
(d) Same-sex marriage
- Requirement of a valid gender
 The parties must be 1 man & 1 woman
 Lord Penzance – Hyde v Hyde:
“Marriage is a voluntary union between
a man & a woman…”
 Corbett v Corbett (otherwise Ashley)
[1970]
- The parties had gone through a
marriage ceremony
- At that time the petitioner knew that
the respondent had been registered
at birth as a male and had 3 years
earlier undergone a sex-change
operation consisting in removal of
the testicles & most of the scrotum
& the formation of an artificial
vagina & had lived as a woman
- They had lived together in
matrimony for only 14 days
- The petitioner had filed a petition for
a declaration that the marriage was
null & void because the respondent
was a person of the male sex
- Omrod J – There are 4 criteria for
assessing the sexual condition of an
individual:-
1. Chromosomal factors
2. Gonadal factors
3. Genital factors
4. Psychological factors
- His Lordship concluded that the
marriage was void as the respondent
wasn’t a woman for the purposes of
marriage but was a biological male
and had been so since birth

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 Regina v Tan & Ors [1983]
 Aleesha Farhana @ Mohd Ashraf Abd
Aziz [2011]
 Wong Chiou Yong v Ketua Pengarah
Jabatan Pendaftaran Negara [2005]
- VT Singham J – The biological
constitution of an individual is fixed
at birth and can’t be changed either
by natural development of organs of
the opposite sex or by
medical/surgical means
 JG v Pengarah Jabatan Pendaftaran
Negara [2005] – Progressive approach
VOIDABLE – S.70
(a) Non-consummation due to the
incapacity of either party
(no sexual intercourse)
 Either the P/R may be the 1 who is
incapacitated to consummate the
marriage
 The incapacity to consummate must be
in relation to the other spouse
 If a party is unable to consummate the
marriage because of his/her incapacity
but is well capable of having sexual
relations with others  he/she will be
taken to be incapacitated vis-à-vis
his/her spouse
- D v A (1845)
- The meaning of consummation 
Sexual intercourse is ordinary &
complete intercourse; it doesn’t
mean partial & imperfect
intercourse
 Baxter v Baxter [1948]
- The use of contraceptives didn’t
prevent the consummation of the
marriage
 L v L [1956]

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- The parties were married & several
attempts were made by the
respondent to consummate
marriage but failed as he couldn’t
maintain an erection
- Tan Ah J: Agreed that a person
might be generally capable of the
act of coition and yet incapable of
performing it with a particular
individual owing to certain causes
- A decree of nullity was pronounced
(b) Non-consummation due to wilful
refusal of the respondent
 The refusal has to relate to the post-
marriage stage
 Dredge v Dredge [1947]
- The husband sought a decree of
nullity on the ground of the alleged
wilful refusal of his wife to
consummate the marriage
- At the time of the marriage
ceremony, the wife was already
pregnant by the husband
- Held: The wife had wilfully refused
to consummate the marriage thus
the marriage was null & void
 If both parties agree to undergo a
religious/customary ceremony prior to
the consummation of their marriage 
1 of them refuses to go through the
ceremony  the other party may file a
petition for a decree of nullity on the
ground that the 1st party has wilfully
refused to consummate the marriage
 Jodla v Jodla [1960]
 Kaur v Singh [1972]
 Tan Siew Choon v Tan Kai Ho [1973]
(c) No valid consent due to duress,
mistake, unsoundness of mind or
otherwise
 The duress might be brought by a
person or circumstances
 The fear must be of sufficient degree to
vitiate consent

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 The fear must be reasonably
entertained
 Duress brought by a person:
- Scott v Sebright (1887)
 Duress by circumstances:
- H v H [1953]
- Buckland v Buckland [1967]
 No valid consent due to mistake –
Attribution: Can’t revoke the marriage
Identity/Nature of ceremony: Can
- Mehta v Mehta [1945]
(d) No valid consent due to mental disorder
(within the meaning of the Mental
Disorder Ordinance 1952)
 To ascertain the nature of the contract
marriage  a man must be mentally
capable of appreciating that it involves
the responsibilities normally attaching
to marriage
 W/out that degree of mentality  can’t
be said that he understands the nature
of the contract
 Singleton J – In The Estate of Park, decd
(e) Respondent was suffering CVD
unknown to the Petitioner
 If P knows that R was suffering CVD 
no decree of nullity will be granted
(f) Respondent was pregnant by other
person unknown to the Petitioner
 Decree of nullity will only be granted if
P didn’t know that R was pregnant by
some other person at the time of the
marriage
 Smith v Smith [1948]

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D. BARS TO RELIEF
 S.71: The court shall not grant a decree of nullity on any of the grounds mentioned in S.70
if the R satisfies the court of 2 things;
(a) That the P, with knowledge that it’s open to him to have the marriage avoided  So
conducted himself in relation to the R  lead the R reasonably to believe that he
wouldn’t seek to do so
(b) That it would be unjust to the R to grant the decree
 Cases:-
1. G v M (1885)
2. W v W [1952]
E. EFFECT OF AN ANNULLED MARRIAGE
 S.73: If a court found that the petitioner’s case has been proved  a decree of nullity
will be pronounced