Annulment of Marriage in Malaysia

In Malaysia, annulment of marriages is governed by the Law Reform (Marriage and Divorce) Act 1976. The Law Reform Act (LRA) governs non-muslim marriage and divorce in Malaysia. It does not apply to people of the Muslim religion, and it is only applicable to marriages after the appointed date, 1 March 1982.

Section 67 of the LRA grants the High Court of Malaysia the power to grant a decree of nullity of marriage if:

• The marriage was solemnised and registered under the LRA; or
• the marriage is deemed to have been registered under the LRA (marriage before 1 March 1982);
• The marriage took place overseas but under laws providing for monogamous marriage.

The court can only grant the decree if both parties to the marriage reside in Malaysia when the proceeding for annulment is commenced.

What is the difference between annulment and divorce?

Nullity of marriage, like divorce, results in the end of a marriage but is not the same as divorce. Before we look at annulment, it is crucial to understand the difference between divorce and annulment.

Divorce and annulment have the same effect on the marriage – it ends the marriage. However, the marriage is regarded differently.

Divorce ends a legally valid marriage. It terminates a marriage that existed legally before the divorce order. An annulment declares that a “marriage” was never legally valid. The “marriage” never existed in the eyes of the law; there is nothing to terminate. It wasn’t legal, to begin with.

An annulment is an excellent resolution for someone who finds himself or herself in a marriage that never should have taken place. Unlike for divorce, there is no requirement that you must wait or be “married” for at least two years before you can start a petition for annulment.

Annulment or nullity of marriage in Malaysia is achieved by a decree by the High Court of Malaysia to declare the marriage annulled.

Who may apply for a decree of nullity?

Any husband or wife may approach the court for a decree of nullity if they can satisfy the court that they have a valid ground for annulment.

What are the grounds for annulment of marriage in Malaysia?

To fully understand the meaning of annulment in Malaysia, we need to understand that the grounds for annulment fall into two categories: Void and voidable marriages.

A void marriage is void from the start. In the eyes of the law, it never took place; it never existed. A decree of nullity is simple declaratory.

Voidable marriages are valid and exist until voided. It will need a decree of nullity to end.

When is a marriage void?

Section 69 of the LRA states that a marriage is void if:

• Either party to the marriage was already married to someone else at the time of the marriage, and the other “spouse” was still alive, i.e. a polygamous marriage. Malaysian law recognises monogamous marriage only;
• The parties are of the same gender. Malaysia does not recognize same-sex marriage, and the court has defined gender as the gender determined at birth;
• The male person getting married was under 18 years of age and didn’t have a special licence granted by the Chief Minister; or
• The female person getting married was above 16 years, but under 18 and without a special licence from the Chief Minister to get married.;
• The parties are within the prohibited degrees of relationship. Relationship usually refers to blood relations; for example, it is prohibited to marry your grandparents, parents, child, grandchild, sister or brother, aunts, uncles, or niece or nephew. It can also include half-blood, or in-law relationships, for example, it is prohibited to marry the former spouse of your grandparent, parent, or child. There are exceptions where the Chief Minister may grant a licence for such a marriage if it is unobjectionable under the law, religion or custom applicable to the parties.

When is a marriage voidable?

Section 70 of the LRA sets out the grounds on which marriage is voidable.

• The marriage has not been consummated (the parties had no sexual intercourse) due to either one of the parties being unable to consummate it. The court regards the incapacity to consummate in relation to the spouse. If the husband, for example, can perform the act of intercourse with someone else, but is incapable of performing it with his wife, (for whatever reason) the court can grant a decree of nullity of marriage based on the incapacity to consummate the marriage;
• The marriage has not been consummated due to the wilful refusal of the respondent to consummate it;
• One of the parties did not validly consent to the marriage due to duress, mistake, unsoundness of mind, or other reason;
• One of the parties was unfit to consent to the marriage at the time of the marriage, due to a continuous or intermittent mental disorder as defined in the Mental Disorders Ordinance 1952. The parties must be able to understand and appreciate the responsibilities attached to marriage;
• The respondent was suffering from a venereal (sexually infectious) disease in a transmissible form at the time of the marriage, and the petitioner did not know about it;
• The wife was pregnant by someone else at the time of the marriage, and the petitioner did not know about it.

When will the court not grant a nullity decree?

It is important to note that under section 71 of the LRA, the court will not grant a decree of nullity for the above-mentioned reasons if:

• The petitioner knew at the time of the marriage that there was a ground for nullity of marriage, but he or she acted in such a way that the respondent was led to believe that he or she would not seek an annulment; and
• granting a decree of nullity would be unjust to the respondent.

Take note that the court will only grant a decree of nullity if the respondent has a venereal disease or was pregnant at the time of the marriage if the petitioner was ignorant of those facts at the time of the marriage.

Consequences of the annulment of marriage in Malaysia

In the case of a voidable marriage, the marriage existed until the time of annulment. Therefore, the court has the authority to make an order for maintenance and other property settlements.

Section 75 of the LRA deals with the legitimacy of children after an annulment. In the case of a voidable marriage, if the child would have been deemed legitimate if the marriage was dissolved instead of annulled, the child would still be deemed legitimate.

In the case of a marriage declared void under the LRA, the child shall be treated as a legitimate child, if at the time of the solemnization of the marriage, both or either of the parties reasonably believed that the marriage was valid. This only applies if the father of the child was domiciled in Malaysia at the time of the marriage, and for the distribution of property, only to children born after 1 March 1982, when the Act came into operation.

Any intestacy rights obtained from the estate of a person who died before the appointed date is not affected by this Act.

How do you apply for an annulment?

The person who wants the marriage annulled must file a Petition to the High Court. He or she needs to include an affidavit setting out the grounds on which the decree for nullity is sought.

If the court is satisfied that the petitioner has valid grounds, the court will usually grant a decree nisi which will be made final after 3 months. Nisi is a Latin word that means “unless”. It means the order will become absolute unless the party to whom it applies can show a reason why it should not apply.

For example, the husband asks for nullity of marriage on the ground that the wife was pregnant with someone else’s child at the time of the marriage. In the absence of evidence to the contrary, the court grants the nullity decree nisi. It will become final unless the wife can show cause why not. The wife gets paternity tests done and can confirm that it is the husband’s child and not someone else’s child. The decree nisi will not become final.

There are times when an annulment might be more appropriate than a divorce to end a marriage. Once the decree of nullity is granted, it is as if the marriage never existed and the parties are free to marry someone else.

If you find yourself in a situation where you never should have been married, you should speak to a lawyer with experience in annulment of marriage in Malaysia to discuss your situation. If your situation meets the grounds for a void or voidable marriage, you may be able to seek a decree of nullity.