NULLITY OF MARRIAGE

Groups: LWB06D&E

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

DEFINITION
 Void Marriage: the marriage never existed at
all.
 Voidable Marriage: the marriage, which are
originally valid unless the court declares
otherwise (until a decree absolute of nullity is
pronounced).

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

JURISDICTION OF COURT
 The court has jurisdiction to issue the
annulment of marriage under the following
circumstances (Section 67 LRA):
 Marriage registered under LRA; or
 Marriage contracted under law provides
monogamous marriage; and
 Both parties to the marriage reside in Malaysia at the
time of the commencement of the proceedings.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

NG WEE WAI V NG SOOK HENG [1978] 1
MLJ 100
 The petitioner (husband), a Singaporean was married to a
Malaysian domiciled in Singapore. The couple were
married under the Woman Charter of Singapore. After the
marriage, the wife lived with the husband’s family in
Singapore for a few weeks. Later, she left the husband to
return to live in Penang, with her family. The husband
petition to annul the marriage on the ground that the wife
refuse to consummate the marriage.
 The High Court dismissed the husband’s petition. The
husband could not petition for nullity of marriage as both
the parties do not reside in Singapore, as the wife was not
residing in Singapore at that time. The court referred to
section 80(2) of the Women’s Charter which is pari
materia with section 67 LRA.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
GROUNDS-VOID MARRIAGE
 Section 69 LRA
 Provides 4 grounds and are as follows:-
 Either party is already married at the time of marriage and
former husband or wife was still living at the time of the
marriage;
 A male person marries under 18 years of age or a female who
is above 16 but under 18 years without license granted by CM
under section 10 LRA;
 Parties are within prohibited degree of relationship unless CM
grants special license; or
 Parties are not respectively male and female.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
SECTION 69(A)
 Either party is already married at the time of marriage and
former husband or wife was still living at the time of the
marriage
 PP v Rajappan [1985] 2MLJ 231
 Principle: the court has no jurisdiction to entertain the petition as the act of
bigamy was not committed in Malaysia
 Facts: the Respondent (R) married the petitioner in India in 1947
according to Hindu custom. In 1954, R and children migrated to Malaysia.
Their marriage was subsequently registered with the Registrar of marriage
in Malaysia. In 1984, R went to India again and contracted a 2 nd marriage
with Sarawathi in which time, the 1st marriage was still subsisting. R
brought Sarawathi to reside in Malaysia. R was charged under section 494
of the Penal Code for committing bigamy.
 Held: that the court had no jurisdiction to decide on the validity of the 2 nd
marriage as the act of bigamy was not committed in Malaysia.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 69(b)
 A male person marries under 18 year of the
female above 16 but under 18 years without
license granted by CM under section 10 LRA

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 69(c)
 Parties are within prohibited degree of
relationship unless CM grants special license
under section 11 of the LRA

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 69(d)
 Parties are not respectively male and female.
 Corbett v Corbett
 Principle: a persons sex is determined according to his birth
 Facts: At the time of the marriage, the petitioner knew that R
had been registered at birth as a male and had 3 years earlier
undergone a sex-change operation consisting in the removal of
the testicles and most of the scrotum and the formation of an
artificial vagina and had since lived as a woman. They lived
together in matrimony for only 14 days. The petitioner filed a
petition for a declaration that the marriage was null and void.
 Held: the marriage was void as R was not a woman for the
purpose of the marriage but was a biological male and had been
so since birth.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 There are at least 4 criteria for assessing the
sexual condition of an individual:-
 Chromosomal factors;
 Gonadal factors (i.e. the presence or absence of
testes or ovaries);
 Genital factors (including internal sex organs); and

 Psychological factors.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Lim Ying v Hiok Kian Ming Eric [1992] 1 SLR 184
 Facts: the petitioner’s wife discovered after the marriage that
R was born a female and had undergone a sex-change
operation in 1987. Repeated attempts to consummate the
marriage had failed. She filed for divorce and asked for a
declaration that there had never been a marriage between her
and R. alternatively annulment of marriage because of non-
consummation due to R’s incapacity.
 Held: the decree of nullity was ordered. The fact that the
identity card and the birth certificate have R’s sex as male and
female did not require the court to hold that a valid marriage
had been solemnized between a man and a woman. Because
the petitioner would not have consented to the marriage had
she known of the sex-change operation, her free consent to
the marriage was absent and therefore void.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT…
 “…a person biologically a female with an
artificial penis, after surgery and
psychologically a male, must, for purposes of
contracting a monogamous marriage of one
man and one woman, under the Charter be
regarded as a ‘woman’.”

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

GROUNDS-VOIDABLE MARRIAGE
 Section 70 LRA
 Provides 6 grounds and are as follows:-
 Marriage has not been consummated owing to incapacity of either
party;
 Marriage has not been consummated owing to the willful refusal of the
Respondent;
 Either party to the marriage did not validly consent to it;
 At the time of marriage, though capable of giving consent, was a
mentally disordered person within the meaning of Mental Disorder
Ordinance 1952;
 At the time of marriage, Respondent was suffering from a venereal
disease in a communicable forms; or
 At the time of marriage, the Respondent was pregnant by some person
other than the petitioner.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
SECTION 70(A)
 Marriage has not been consummated owing to
incapacity of either party
 Either the petitioner or the R may be the one who is
incapacitated to consummate the marriage
 The incapacity to consummate must be in relation to the other
spouse
 If a party to a marriage is unable to consummate the marriage
because of his or her incapacity but is well capable of having
sexual relations with another person, then he or she will be
taken to be incapacitated-sufficient to prove ground (a)

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Baxter v Baxter [1947] 2 All ER 886
 Principle: Although the husband used contraceptive
sheath, the marriage was considered to have been
consummated.
 Facts: the wife did not allow the husband to have
sexual intercourse with her unless he uses
contraceptive sheath. The husband applied for nullity
of marriage.
 Court held: the marriage has been consummated
irrespective of the husband’s use of a sheath.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT…
 L v L[1956] MLJ 145
 Principle: inability to consummate, may be due to
physiological or psychological causes and may be
either general or only with the particular spouse.
 Facts: after 3 years of marriage, the evidence
showed that the wife was still a virgin. The husband
could consummate the marriage with another
woman, but was incapable to consummate the
marriage with her.
 Court granted a decree of nullity of the marriage to
the wife.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
SECTION 70(b)
 Marriage has not been consummated owing to the
willful refusal of the Respondent
 Wilful refusal means without just cause. It is for R to show a
just excuse for his/ her refusal to consummate the marriage.
 The refusal has to relate to the post-marriage stage.
 If both parties to a marriage agree to undergo a religious or
customary ceremony prior to the consummation of their
marriage and if one of them refuses to go through with the
ceremony, the other may petition for a decree of nullity.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Rathee v Shanmugam [1981] 1 MLJ 263
 Principle: where the parties have agreed that a civil marriage will
be followed by a religious ceremony, it is a just cause for refusing
to consummate the marriage if one party refuses to undergo a
religious ceremony.
 Facts: the parties are Hindus and they registered their marriage at
the Registry of Marriage at Ipoh. They agreed not to consummate
the marriage until a formal Hindu ceremony was held. The husband
delayed the ceremony and told her that he does not wish to proceed
with the marriage.
 Court granted a decree of nullity of the marriage to the wife.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Kwong Sin Hwa v Lau Lee Yen [1993] 2 SCR 259
 Facts: the parties had agreed that after marriage they would continue to live apart and
there would be no cohabitation until after parties had performed and undergone the
traditional Chinese rites and set up a matrimonial home. After the marriage both parties
lived separately and never lived together as husband and wife. The appellant husband had
asked the R to consummate the marriage but the R refused on the ground that she wished
to have the customary rites performed before consummating the marriage. Subsequently
the R herself refused to go through the Chinese customary rites, giving financial reasons
and later saying that she wanted to be a nun. Appellant husband petition for a decree of
nullity.
 High Court dismissed the petition on the ground that there was no credible evidence on
which the court could find wilful refusal to consummate the marriage,
 COA allowed the appeal.
 “…a pre-nuptial agreement of the type and character as in…this case does not seek to make the
occurrence or non-occurrence of a religious or customary ceremony as having any effect in law
on the marriage of the parties. That, as we see it, was not the intention of the parties to the
agreement. The intention was to enable the parties to comply both with the law and custom or
religion.”

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 70(c)
 Either party to the marriage did not validly consent to
it (in consequence of duress, mistake, unsoundness of
mind or otherwise)
 The words ‘or otherwise’ include fraud and
misrepresentation.
 If one of the parties to the marriage is induced to enter into
the marriage which, in the absence of compulsion, he would
never have contracted, the marriage is voidable.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Buckland v Buckland [1967] 2 All ER 300
 Principle: marriage out of fear (duress) is a voidable
marriage.
 Facts: Petitioner was a policeman, employed in Malta.
While working there, he went around with a Maltese girl.
The girl’s parents forced him to marry her. She was only
15 years old. He married her out of fear. When he
returned to England, he applied for nullity of marriage.
 Court granted the application.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Mehta v Mehta [1945] 2 All ER 690
 Principle: Mistake as to the nature of the ceremony
amounts to voidable marriage.
 Facts: the petitioner went through a marriage
ceremony with Respondent, an Indian. The
ceremony was conducted in Hindustani, a language
which the petitioner did not understand. The
petitioner thought at the time that the ceremony was
for the purpose of her conversion to the Hindu faith
only, to which she had previously agreed.
 Court granted a decree nisi of nullity.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 In the Marriage of N Osman and Mourali (1990) 13 Fam LR
444
 Facts: the wife applied for a decree of nullity of marriage based on the
ground that her consent given to the marriage was not a real consent as
it was obtained by way of fraud. This was due to the fact that, after the
marriage, the husband who was a foreigner refused to cohabit with the
wife. The only reason he married her was to enable him to be permitted
to reside in Australia where the marriage took place as the wife had a
permanent resident status.
 Court referred to the case of Moss v Moss
 “…the marriage is void because the purported consent was given to
something other than marriage, or to a marriage with someone other than
the person physically standing at the altar. But if a person wishes to go
through a ceremony of marriage with a person whose identity he or she is
aware of, then it mattered not that the consent is induced by promises of
eternal happiness, luxurious living or even the promise to live together
ever after.”

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 70(d)
 At the time of marriage, though capable of giving
consent, was a mentally disordered person within the
meaning of Mental Disorder Ordinance 1952
 In the Estate of Park, decd.
 The D sought to establish that the deceased was at the time of
the marriage to P incapable of appreciating the nature of the
marriage contract, and the duties and responsibilities which it
created and that accordingly there was no consent to the
marriage ceremony. He asked the court to declare the marriage
null and void.
 Court held that the marriage was valid.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 70(e)
 At the time of marriage, Respondent was
suffering from a venereal disease in a
communicable forms

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 70(f)
 At the time of marriage, the Respondent was
pregnant by some person other than the
petitioner
 The Respondent must always be the wife and the
petitioner the husband.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

BARS TO RELIeF
 Section 71 LRA
 Applicable for voidable marriage.
 LRA is silent as to any bars to relief where
marriage is void.
 Knowledge of the fact that the marriage is a
void marriage by one or both parties to the
marriage is not a bar to the petition of a void
marriage. (Corbet v Corbet)
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT…
 W v W [1952] 1 All ER 858
 Issue: whether the conduct of the husband had approbated the marriage
and affirmed the validity of marriage.
 Facts: the parties were married in 1941 and attempts by the husband to
consummate the marriage were unsuccessful. On the suggestion of the
husband, the parties adopted a child. Subsequently, the husband left the
wife, and later presented a petition for the nullity of the marriage on the
ground that the wife was unable to consummate the marriage or
alternatively that she wilfully refused to do so.
 The husband petition was dismissed by the court. there was evidence
that he had initiated the adoption in the hope that the wife would
overcome her repugnance to intercourse. The joint adoption of the
child had the effect of approbating the marriage on the part of the
husband.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Pettit v Pettit [1963]
 Facts: the parties were married in 1939. the marriage was never
consummated owing to the husband’s incapacity. The wife had contributed
towards the purchase of the matrimonial home which she had kept between
1940 and 1946 when the husband was in the army. In 1945 she delivered a
child of the marriage who was conceived through artificial insemination.
The parties lived together until 1959. In 1957 the husband had found
another woman and left the wife. The husband petition for a decree of
nullity on the ground of his own impotence.
 Court dismissed his petition. The court was of a view that in a petition for
nullity by an impotent spouse, the whole of the circumstances including the
Respondent’s attitude and reaction to the situation created by the
petitioner’s impotence must be looked at in order to see whether it would
be just or unjust that the impotent spouse should obtain a decree. In the
circumstances, it would be unfair, inequitable and unjust to grant the
husband a decree.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

DIFFERENCES BETWEEN VOID AND
VOIDABLE MARRIAGE
 Status of marriage
 Void marriage: the marriage has never taken place (Q of law)
 Voidable marriage: valid subsisting marriage until the court
pronounces a decree annuling it (Q of facts)
 Party entitled to petition
 Void marriage: the parties to marriage and any 3 rd parties. It
can be challenged at any time whether during or after the
lifetime of the parties to the marriage
 Voidable marriage: only the party to the marriage can petition
and it can be challenged only during the lifetime of the parties
to the marriage.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT…
 Consequences to the marriage
 Void marriage: retrospective effect. The marriage will be
regarded as never having taken place at all.
 Voidable marriage: no retrospective effect. The marriage will
be regarded as having been annulled effectively on the date of
the grant of the petition.
 Status of parties
 Void marriage: the parties of the defective marriage shall gain
the status of a feme sole, once the marriage is declared as a
nullity
 Voidable marriage: -SAA-
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT…
 Status of Children
 Void marriage: shall be treated as the legitimate child of his parent if at
the time of the marriage, either or both parties reasonable believed that
the marriage was valid. Conditions: child born after the appointed date
and the father is a Malaysian domicile
 Voidable marriage: the status of the children shall be treated as the
legitimate child of his parent.
 Grounds
 Void marriage: the grounds are provided in section 69 of LRA
 Voidable marriage: the grounds are provided in section 70 of LRA
 Bars to relief
 Void marriage: LRA is silent as to any bars to relief where marriage is
void
 Voidable marriage: Bars to relief are provided in section 71 of LRA

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

EFFECT OF AN ANNULED MARRIAGE

 Section 73 LRA- shall annul the voidable marriage

any time after the coming into operation of the decree.
 Section 75 LRA-relate to the legitimacy of the
children
 Voidable marriage: child considered as legitimate child
 Void marriage: legitimate if at the time of solemnisation,
parties believed that the marriage was valid.
 Applies only if the father of the child domiciled in Malaysia at
the time of marriage and effects the devolution of any party only
to children born after appointed date.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

Azhani Binti Arshad Law 581 (Jul-Nov 2009)