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TUTORIAL 3EFFECTS OF MARRIAGETHE MARRIED WOMEN’S ACT, 1957 How would you define “marriage”? Under common law, Hyde v Hyde describes marriages as the voluntary union between a man and a woman for life to the exclusion of others, also known as the doctrine of unity of marriage. According to section 2 ...

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TUTORIAL 3

EFFECTS OF MARRIAGE THE MARRIED WOMEN’S ACT, 1957 1.

How would you define “marriage”?

Under common law, Hyde v Hyde describes marriages as the voluntary union between a man and a woman for life to the exclusion of others, also known as the doctrine of unity of marriage. According to section 2 of the Married Women Act, a married woman is any woman married in accordance with the rites and ceremonies required by her religion, manners or customs. 2. What are the effects of marriage on the parties to the marriage? Under common law, when a woman marries, she and her husband becomes one person in law, they are considered one entity. Due to the doctrine of unity of marriage, any civil matters relating to the wife is under the wings of her husband. In matters of debt, where a wife is indebted before marriage, the husband is bound to pay the debt. In matters of property, the wife cannot bring a claim to the court without her husband’s consent and under his name as well as her own. In liability for tort, they are not allowed to give evidence for or against each other.The only exception is in criminal matters where the man and wife can be charged and punished separately because their union is only a civil union. A married woman acquires the domicile of dependence which is that of her husband’s domicile. This is seen in Ang Geck Choo v Wong Tiew Yong, where the court held the petitioner who was originally domiciled in Singapore had acquired a domicile in Malaysia when she married her husband who was domiciled in Malaysia. Her domicile upon marriage is a domicile of dependence and she retains it until her marriage is dissolved. However, her marriage does not affect her residency. A wife and husband can retain different residencies if they are living in different places. 3. Explain how the status of married women has been changed by the Married Women’s Act, 1957. The Married Women Act has changed the rights and legal liabilities of a married woman, which means Malaysia no longer completely follows common law. According to section 4, a married woman shall be capable of acquiring, holding and disposing of any property, be capable to render herself and being rendered liable for any debt, tort, contract, or obligation, be capable of suing and being sued in her own name and entitled to any all remedies and redress, and be subject to the law relating to banktruptcy and enforcement of judgments as if she were a feme sole, an unmarried woman. Section 4A allows for a husband and wife to sue each other for damages in tort for injuries to his or her person. In the case of Yeo Bee Lin v Lee Eng Chee, the plaintiff had brought an action against her husband under section 4A for the personal injury of loss of reputation and severe mental distress which was inflicted when he forced her to listen to his exploitations of adultery in detail. The court held personal injury is inclusive of both physical and mental injuries such as the loss of reputation and mental distress suffered by the plaintiff.

Section 5(1) provides 3 situations in which the property of a married woman shall belong to her in all respects as if she were a feme sole and may be disposed accordingly. Those three situations are where the property is that of a married woman’s or held for her separate use in equity immediately before 15 August 1957, where the property belongs to a married at the time of marriage after 15 August 1957, and where the property is acquired or desolved by a married woman after 15 August 1957. Section 6 provides that a husband of a married woman shall not be liable for any tort, contract, debts and obligations of his wife whether before or after the marriage. Section 8 provides that, as against the husband’s creditors, any gift given by a husband to a wife shall be rendered void and continue to be the reputed ownership of the husband. This is so a husband shall not take advantage of his wife’s position from fulfilling his obligations. Any deposit or investment of money made in the name of his wife in fraud of his creditors shall also be void and may be followed as if they belong to the husband. Section 9 provide for the rights of married women for the protection of their property. Subsection 1 states every married woman shall have in her own name against her husband the same remedies and redress for the protetion and security of her property as if they belonged to her as a feme sole. Section 9(2) provides a husband or wife has the rights to sue each in tort for the protection or security of his or her property, giving equal footing for the husband and wife. Before the repeal of section 9(2) and section 4A, spouses could not sue each other under a tort except for the protection of property, which rendered any civil suit such as those relating to personal injury unable to be made. In the case of Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib, the plaintiff had commenced an action to restrain her defendant husband from harassing, assaulting and molesting her and her family members. The Supreme Court held as the defendant and plaintiff are husband and wife and the allegations of assault and battery constituting a tort are not related to the protection or security of property, the plaintiff is barred by s 9(2) of the Married Women Ordinance 1957 from suing the defendant. Section 9(3) states that in any criminal charge or in any other procedding relating to the property of a married woman, it is sufficient to allege such property as hers. Section 9(4) provides three situations relating to criminal proceeding between spouses. Two situations in which criminal proceedings are prohibited which is where the husband and wife are living together and where the husband and wife are living apart but the act complained of concerning property occurred while they were living togehter. The third situation under this section which is where the husband or wife is leaving or deserting the other may be taken criminal proceeding. However, the two situations prohibiting criminal proceedings does not apply to muslims. In Re Ketuna Bibi, the wife had committed a criminal breach of trust of her husband’s property. The court held under Islamic law, a husband or wife may take action against the other spouse for cheating, fraud or theft of his or her property committed while they are living together. Section 10(1) provides a woman’s legal liabilities she contracted before her marriage continues to be liable upon her after marriage such as all debts, contracts entered into or wrongs committed by her before the marriage.

Section 11(1) provides in the event of any doubt as to the title to or possession of property of a husband or wife, either party may apply by summons or in a summary way to any judge of the High Court or where the value of the property falls within the jurisdiction of a sessions court judge. This can be seen in Chin Fak Len v Lin Fah where the applicant referred to the court regarding joint property of her and her husband. The respondent husband had bought a piece of land in Kajang for RM1,600. 3/4 of the price which was RM1,200 was paid by the applicant wife while the rest was paid by the respondent, and the land was registered under the respondent’s name. The respondent later deserted his wife while she remained on the land. It was found that the husband had sold a great part of the land to various purchasers. The court held the wife is entitled to the share registered in the husband's name on a resulting trust, there being no presumption of advancement where a wife provides money for the purchase of property in the husband's name. It is also seen in Nagapushani v Nesaratnam. In this case, the defendant husband (D1) bought a house and assigned it to his wife, the plaintiff. The plaintiff returned the property back to him whereupon he transferred it to his mother, the second defendant (D2). The property was purchased for the price of RM17,500 and had been paid RM5,600 by monies drawn from the plaintiff's Post Office Savings Account. The savings account was opened by D1 under the plaintiff’s name with a deposit of RM250 and various sums were then deposited by D1 from time to time. The plaintiff also deposited the savings from the household allowances given to her by the first defendant into the account. The plaintiff brought an action against the defendants for a declaration that she was the beneficial owner of the said property and for the payment to her of the rents collected from the tenants of the house, amount of which is expended for payment of quit rent and assessment rates. The court held where a husband transfers property to the name of his wife there is a presumption of an intention to effect a gift to her. In this case, the presumption of gift was rebutted by the plaintiff's re-assignment of the property to the first defendant. It was also held there was a presumption of a gift to the plaintiff of the monies deposited by the first defendant into the plaintiff's savings account. The savings from household allowances however, belonged to the first defendant. As it was not possible to ascertain the exact portion contributed by each spouse, the rule that equity leaned towards equality applied and both spouses have equal shares in the property. 4.

Sally and Robert have been married for two years and have frequent quarrels. During one of these quarrels, Robert told Sally that all the jewellery and share certificates that she has are his although the jewellery is in her keeping and the share certificates are issued in her name. Sally retorted that they are hers and will remain hers. Finally, one day, Robert stormed out of the house bringing with him all the jewellery and share certificates he could find in the drawers in their bedroom. Sally is upset and wishes to take legal action against Robert for recovery of the jewellery and share certificates and to punish him. She seeks your advice. How would you advise her?

The issue is whether Sally can sue Robert for the theft of the jewellery and share certificates? According to section 4(a) of the Married Women Act, a married woman shall be capable of acquiring, holding and disposing of any property as if she were a feme sole, an unmarried woman. Therefore, Sally has the right to acquire, hold and dispose of any property which includes the jewellery and share certificates as if she was not married to Robert.

According to section 5, there are 3 situations in which the property of a married woman shall belong to her in all respects as if she were a feme sole and may be disposed accordingly. Those three situations are where the property is that of a married woman’s or held for her separate use in equity immediately before 15 August 1957, where the property belongs to married woman at the time of her marriage after 15 August 1957, and where the property is acquired or desolved by a married woman after 15 August 1957. In this case, if the jewelleries and share certificates alleged by Sally to be her property are acquired by her in any of the 3 situations above, the jewelleries and share certificates will be regarded as belonging to her as if she were a feme sole. In order to prove those properties do indeed belong to her, Sally will need to provide some evidence to support her claim such as proof that those items were registered under her name or other such ways to prove her ownership. According to section 11(1), any question between wife or husband in regards to title or possession of property may be applied in summons or way of summary to any judge of the High Courts or where value of the property falls within the jurisdiction of a sessions court judge. For example, in Chin Fak Len v Lin Fah, the applicant had applied to the court to settle ownership of a land bought by the respondent husband and registered under his name but was greatly paid for by the wife. The court held the wife is entitled to the share registered in the husband's name on a resulting trust, there being no presumption of advancement where a wife provides money for the purchase of property in the husband's name. In this case, to determine the title or possession of the property, Sally can make an application to either a High Court judge or a sessions court judge depending on the value of the jewelleries and share certificates. If it turns out to be her property, then Sally may exercise her right to protection of her property. Such rights are provided under section 9 of the Married Women Act. According to section 9(1), every married woman shall have in her own name against her husband the same remedies and redress for the protection and security of her property as if they belonged to her as a feme sole. Section 9(2) states a husband or wife is entitled to sue each other for the protection and security of his or her property. Thus, she has the right to sue Roger for taking her property without permission and is entitled to the same remedies and redress for the protection of those properties. According to section 9(3), in a criminal charge relating to the property of a married woman, it is sufficient for her to allege such property to be hers. Therefore, in order for Sally to commence an action against theft committed by Roger, it is sufficient for her to prove that she is the owner of the property that was stolen. However section 9(4) provides circumstances in which a criminal proceeding may be prohibited or allowed. A criminal proceeding is prohibited where the husband and wife are living together and where the husband and wife are living apart but the act complained of concerning property occurred while they were living together. A criminal proceeding is allowed only where the property was taken when the husband or wife is leaving or deserting the other. In this case, Robert had stolen the jewelleries and share certificates at the moment he was leaving the house. So the act of stealing was committed when he was about to leave the house and move away from Sally, which clearly falls within the third situation in which a criminal proceeding may take place.

Therefore, on the assumption that the court finds those property to belong to Sally, Sally is able to sue Robert for stealing her property. Would it make any difference to your answer if all parties were Muslims? Section 9(4) provides for situations where criminal proceeding is prohibited. However, that is not applicable to Muslims. In Re Ketuna Bibi, the wife had committed a criminal breach of trust of her husband’s property. The court held under Islamic law, a husband or wife may take action against the other spouse for cheating, fraud or theft of his or her property committed while they are living together. Therefore, if Sally and Robert were Muslims, and if the theft was committed while they were living together Sally would be able to sue him for the crime. Nevertheless, in both situatios Sally can sue Robert in a criminal proceeding. 5.

When Leela married Mohan, Leela’s father gave her a house as part of her dowry. Mohan had asked Leela to transfer the house to him so that he could use it as security for loans taken by him for his business. Leela has just found out that Mohan has a mistress on whom he is spending a lot of money. She is worried that she may lose her house and wants to know if she can get it back from Mohan. What would you advise her to do?

The issue here is whether Leela has retained her title or ownership of property of the house? According to section 11(1) of the Married Women Act, any question between wife or husband in regards to title or possession of property may be applied in summons or way of summary to any judge of the High Courts or where value of the property falls within the jurisdiction of a sessions court judge. This can be seen in Chin Fak Len v Lin Fah where the applicant referred to the court regarding joint property of her and her husband. The respondent husband had bought a piece of land in Kajang for RM1,600. 3/4 of the price which was RM1,200 was paid by the applicant wife while the rest was paid by the respondent, and the land was registered under the respondent’s name. The respondent later deserted his wife while she remained on the land. It was found that the husband had sold a great part of the land to various purchasers. The court held the wife is entitled to the share registered in the husband's name on a resulting trust, there being no presumption of advancement where a wife provides money for the purchase of property in the husband's name. It is also seen in Nagapushani v Nesaratnam. In this case, the defendant husband (D1) bought a house and assigned it to his wife, the plaintiff. The plaintiff returned the property back to him whereupon he transferred it to his mother, the second defendant (D2). The property was purchased for the price of RM17,500 and had been paid RM5,600 by monies drawn from the plaintiff's Post Office Savings Account. The savings account was opened by D1 under the plaintiff’s name with a deposit of RM250 and various sums were then deposited by D1 from time to time. The plaintiff also deposited the savings from the household allowances given to her by the first defendant into the account. The plaintiff brought an action against the defendants for a declaration that she was the beneficial owner of the said property and for the payment to her of the rents collected from the tenants of the house, amount of which is expended for payment of

quit rent and assessment rates. The court held where a husband transfers property to the name of his wife there is a presumption of an intention to effect a gift to her. In this case, the presumption of gift was rebutted by the plaintiff's re-assignment of the property to the first defendant. It was also held there was a presumption of a gift to the plaintiff of the monies deposited by the first defendant into the plaintiff's savings account. The savings from household allowances however, belonged to the first defendant. As it was not possible to ascertain the exact portion contributed by each spouse, the rule that equity leaned towards equality applied and both spouses have equal shares in the property. According to section 9(1), every married woman shall have in her own name against her husband the same remedies and redress for the protection and security of her property as if they belonged to her as a feme sole. Section 9(2) states a husband or wife is entitled to sue each other for the protection and security of his or her property. In this case, Leela should make certain whether she still has ownership or title to the house after transferring it to Mohan by referring to a judge. If it is found she has the right to the house, Leela should transfer the house back to her name or exercise her right to remedies and redress for protecton of her property under section 9....