An annulment, like a divorce results in the end of a marriage. However, unlike a divorce, an annulment makes the marriage null and void and that results in the marriage having never existed. Annulments can be a relief for someone who was placed in a situation where they never should have been married or where the act of marriage should have never taken place. An annulment also ends a marriage if the marriage was not legal to begin with.
Any husband or wife may present a petition to the court praying for a decree of nullity of marriage and the criteria’s are provided for under the Law Reform Act (Marriage and Divorce) Act 1976 (“LRA”).
Marriage to be registered under LRA
A marriage that is not solemnised according to the provisions of the LRA is deemed to be invalid. It is compulsory for all monogamous non-Muslim marriages to be registered under the LRA.
A monogamous marriage means that a person who is lawfully married under any law cannot lawfully marry again with any other person during the continuance of such marriage, whether in Malaysia or in any other country.
A marriage may be solemnised only by a Registrar of Marriages appointed under the LRA at the National Registration Department of Malaysia (“NRD”) and the Malaysian consulates or an Assistant Registrar of Marriages in a temple, church or association.
The registration of marriage under the LRA can be carried out only at an association/temple/church where the NRD has appointed an Assistant Registrar of Marriages. The Assistant Registrar of Marriages will be issued with a certificate of appointment for a specified period of time to conduct marriage registration at the place specified in the certificate of appointment according to the LRA and must comply with the department directives. Registration of marriages at an association/temple/church must be followed with the solemnisation of marriage according to custom/religion in a public ceremony.
Grounds for an Annulment (Section 69 & Section 70 of the LRA)
There are grounds on which a marriage is void:
- That at the time of the marriage, either person was legally married to another who is still living;
- A male person under the age of 18 years of age, or a female person who is above 16 years but under 18 years marries without a special licence granted by the Chief Minister;
- One where the relationship is prohibited, that is to say that the spouses are too close in family relation. This can include half siblings, whole siblings, aunts or uncles, nieces or nephews; and
- Where the parties are not respectively male and female. The gender of the person is to be determined at birth, and hence gender reassignment is not recognised for the purposes of marriage under the LRA.
And grounds on which a marriage is voidable:
- Where the marriage has not been consummated. Non-consummation can be willful refusal without a just excuse, and in determining whether there has been such a refusal, the courts will have regard to the whole history of the marriage. Impotency can also be a ground for annulment, if one of the spouses cannot be cured of impotence or not made aware of the problem;
- That either party did not validly consent to it whether in consequence of duress, mistake, or unsoundness of mind. A spouse is incapable of consuming a marriage if his or her mental health or physical condition makes consummation of the marriage a practical impossibility. However, a defect arising subsequently is not a ground for annulment
- Where either party is unfit for marriage within the meaning of the Mental Disorders Ordinance 1952 [Ord. 31 of 1952].;
- That at the time of the marriage, the other spouse was suffering from a sexually infectious or transmissible disease and this was not revealed to the other spouse;
- That at the time of marriage, the wife was made pregnant by another person.
It is important to note that in cases of voidable marriages, the marriage exists up to the time a decree of nullity has been made absolute and that the court has the power to order maintenance for either party to the marriage and to vary settlements.
This article was written by Aileen Lau . Aileen heads the family law practice at Donovan & Ho. She has extensive experience in both contested and uncontested divorce proceedings, and has advised clients on family law matters ranging from child custody, adoption, payment of alimony and division of matrimonial property.
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