By Tanushaa Dewi & Chloe Lim

Marriage is a sacred institution, a union of two individuals, bound by love and commitment. However, not all marriages stand the test of time. In Malaysia, as in many other countries, there are legal processes in place to address marital issues. Two of the most common legal remedies sought by couples facing problems in their marriages are nullity of marriage and divorce. While both involve the dissolution of a marital relationship, they are fundamentally different in terms of their legal basis, procedure, and consequences.

What is Annulment of Marriage?

Nullity of Marriage, also known as annulment, is a legal declaration that a marriage was never valid from the beginning. It is essentially a declaration that the marriage never existed in the eyes of the law. In Malaysia, the law on nullity of marriage is governed primarily by the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976).

Any husband or wife may present a petition to the court praying for a decree of nullity in respect of his or her marriage [Section 68 LRA 1976]. The mandatory pre-requisites of making this type of application are [Section 67 LRA 1976]:

(a) Marriage must be registered or deemed registered;

(b) Monogamous Marriage; and

Bearing in mind that those who are under customary marriage cannot apply to annul their marriage but they may seek a declaration as to their status.

The grounds to annul a marriage are as follows:

Section 69 LRA 1976 : Marriage is void from the outset

At the time of the marriage, either party was already lawfully married and the former husband or wife of such party was living at the time of the marriage and such former marriage was then in force [This is a criminal offence under Section 494 of the Penal Code 1965];
A male marries under 18 years old or a female who is above 16 years old but under 18 years old marries without a special licence granted by the Chief Minister under Section 10;
The parties are within the prohibited degrees of relationship under Section 11 LRA unless the Chief Minister grants a special licence under sub-section 11(6);
Parties are not respectively male and female [No same-sex/gay marriage is allowed in Malaysia – Section 377A & Section 377D Penal Code 1965]; or

Section 70 LRA 1976 : Marriage is voidable from the outset

Lack of Capacity: either party lacked the capacity to enter into the marriage at the time of the ceremony. This includes situations where one party was already married if there was a legal impediment preventing the marriage, physical abnormality or psychological impotence;
Consent to the marriage was obtained through fraud, duress, mistake (identity of state of ceremony), misrepresentation;
Willful refusal without just excuse of Respondent to have sexual intercourse after marriage;
At the time of marriage, though capable of giving valid consent, was a mentally disordered person within the meaning of Mental Disorder Ordinance 1952 of such kind or to such extent as to be unfit for marriage;
Suffering Venereal Disease in a communicable form (disease transmitted by sexual intercourse); or
Pregnant with someone else child.
If the court finds that the case has been proven, the court shall pronounce a decree of nullity [Section 73 LRA 1976]. Ultimately, the parties are considered to have never been married. The child of a void marriage shall be treated as a legitimate child if the parents believe that the marriage was valid [Section 75 LRA 1976].

However, the court may reject this application if the court is satisfied that the respondent satisfied the Court that (a) the petitioner has knowledge that it was open to him/her to have marriage avoided, so conducted himself/herself in relation to a respondent as to lead a respondent reasonably believe that he/she would not seek to do so; or (b) it is unjust to grant the decree of nullity.

What is Divorce?

Divorce, on the other hand, is the legal dissolution of a valid marriage. It acknowledges that a valid marriage existed but has broken down irretrievably. In Malaysia, divorce is primarily governed by the Islamic Family Law Act 1984 (for Muslims) and the Law Reform (Marriage and Divorce) Act 1976 (for non-Muslims).

Unlike annulment of marriage, either husband or wife can only file divorce proceedings after maturity of 2 years from the date of registration of marriage.

For Muslims, under Islamic law, a Muslim may seek a divorce (known as “talaq”) for various reasons, including cruelty, desertion, or incompatibility. Syariah courts handle divorce proceedings for Muslims.

Whereas, non-Muslims can seek divorce on grounds such as adultery, cruelty, or living separately for a specified period and so on.

Conclusion

In Malaysia, the legal processes of nullity of marriage and divorce serve different purposes and address distinct situations. Nullity of Marriage is a remedy for marriages that were never valid due to specific legal impediments and there are no financial or custody issues to resolve, while Divorce addresses the dissolution of valid marriages that have irretrievably broken down and the court may address matters such as division of assets, alimony, and child custody. Nullity cases typically involve a court hearing to establish the grounds for nullity, while divorce proceedings involve the dissolution of a legally recognized marriage. Understanding these differences is essential for whoever seeking legal remedies for your marital issues, as it will guide you in selecting the appropriate legal avenue to pursue.

Disclaimer: The contents of this article do not constitute legal or other professional advice or an opinion of any kind. It is provided for general information purposes only. Please contact us for further enquiry.