Marriage, divorce and domicile in Malaysia

UNTIL the Law Reform (Marriage and Divorce) Act 1976 there was a variety of family laws in Malaysia the application of which often resulted in inter-personal conflicts.

People professing the Muslim faith married according to Islamic law whilst the Chinese, Hindus and the natives of East Malaysia, for example the Dayaks, could marry according to their own law or customs as determined by the courts. Anyone, except a person professing the religion of Islam, could have his or her marriage solemnised under the Civil Marriage Ordinance 1952, which provided for civil monogamous marriages before registrars of marriages.

A marriage between Christians or between persons, one of whom was a Christian, could be solemnised in accordance with the provisions of the Christian Marriage Ordinance 1956. It was held that a convert to the Christian faith was guilty of bigamy for going through a ceremony of marriage with another woman under the rites of the Christian Church while his first wife whom he married according to Ceylon Hindu rites was still alive. See the case of Re Maria Huberdina Hertogh; Inche Mansor Adabi v Adrianus Petrus Hertogh (1951).

The validity of a marriage under Islamic law and the capacity of the parties to contract a valid marriage under such law had to be ascertained by reference to the law of the country of domicile of the parties. The call for legislative action to revamp the heterogeneous personal laws in regard to marriage, divorce and succession in so far as they affect non-Muslims was first raised by Lord President Thomson as it was thought that these questions were questions which go to the very root of the law relating to the family which is the basis of society, and the existence of a civilised society demands that these questions be settled beyond doubt by legislation which will clearly express the modern mores of the classes of persons concerned and put the rights of individuals beyond the chances of litigation.

As a result, the Royal Commission which was appointed by the Yang diPertuan Agong on 4 February 1970 to study and examine existing laws in the light of the United Nations Convention resolutions and to recommend changes or reform if any, completed its report in 1971 and annexed a bill that was eventually passed as the present Law Reform (Marriage and Divorce) Act 1976.

The Law Reform (Marriage and Divorce) Act 19761 came into force on 1 March 1982 in Malaysia. The Act was passed 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. On or after the appointed day, any marriage entered into in Malaysia implies the voluntary union for life of one man with one woman to the exclusion of all others and may be contracted only in accordance with the Law Reform (Marriage and Divorce) Act 1976. Provisions were made for the registration of a marriage previously solemnised under religion or custom and for the dissolution of any such marriages.

Unless otherwise expressly provided, the Law Reform (Marriage and Divorce) Act 19761 will apply to all persons in Malaysia and to all persons domiciled in Malaysia but who are residents outside Malaysia. A person who is a citizen of Malaysia will be deemed, until the contrary is proved, to be domiciled in Malaysia.

In Neduncheliyan Balasubramaniam v Kohila a/p Shanmugam [1997], Court of Appeal, it was held that the Act applies to all persons physically present in Malaysia and all persons residing outside Malaysia provided they are domiciled in Malaysia unless the Act provides to the contrary.

The Act applied on the facts of this case as the wife and children of the appellant were physically present in Malaysia at all times material to the custody application under the Act although the wife was not domiciled in Malaysia but was an ordinary resident in Canada.

A person may properly be said to be resident in a place when his stay there has a considerable degree of permanence, ordinary residence, as opposed to occasional or temporary residence: means no more than that the residence is not casual and uncertain but that the person held to reside does so in the ordinary course of his life.

There are three types of domicile; the domicile of origin, the domicile of choice and the domicile of dependency. There is no definition of the word ‘domicile’ which is not open to some sort of criticism. For this reason it has been said that the term ‘domicile’ lends itself to illustration but not to definition, unless one is content to define it as ‘permanent home’. Thus, the domicile of a person is that country in which he either has or is deemed by law to have his permanent home. The notion which lies at the root of the concept of domicile is that of permanent home, so that in order to acquire a domicile in a country a person must intend to reside in it permanently or indefinitely. The object of determining a person’s domicile is to connect that person with some system of law. It therefore follows that he cannot have more than one domicile.

For the same reason the law attributes to every person a domicile at birth which is called the domicile of origin, and a legitimate child born during the subsistence of the marriage of his parents has his domicile of origin in the country in which his father was domiciled at the time of his birth.

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