Tutorial 5 Nullity of Marriage PDF

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TUTORIAL 5NULLITY OF MARRIAGE What is the difference between a decree of nullity of marriage and a decree of divorce? Decree of Nullity of Marriage Decree of Divorce Q as to validity of marriage Jurisdiction of the court S48(1)(c): reside Effect: marriage valid up to the date the decree was granted ...

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TUTORIAL 5 NULLITY OF MARRIAGE 1.

What is the difference between a decree of nullity of marriage and a decree of divorce? Decree of Nullity of Marriage - Q as to validity of marriage - Jurisdiction of the court S48(1)(c): reside - Effect: marriage valid up to the date the decree was granted (voidable marriage) or marriage treated as never exist at all (void marriage) - No restriction period for application of decree of nullity

2.

Decree of Divorce - dissolution of marriage which is recognized by law - Jurisdiction of the court S67(c): domicile - Effect: ending of a valid marriage- revive single status with the ability to remarry

- Restriction of divorce petition within 2 years of marriage

Muthu married Leela in India in September 2019 and brought her to Malaysia. Leela has refused to consummate the marriage saying that she wants to have nothing to do with Muthu. She told him that she only married him so that she could leave India. Angry, Muthu has sent her back to her parents. He wants to know if he can annul the marriage. Advise Muthu. S 68: Any husband or wife may present a petition to the court praying for a decree of nullity in respect of his/ her marriage, both void or voidable. Application: At the first instance, Muthu had the right to petition for decree of nullity to the court, given that subsequent grounds had been satisfied. Issue 1: Whether the Malaysian’s Courts have the jurisdiction to hear Muthu’s application for decree of nullity of his marriage with Leela which is not a Malaysian. Law: S 67: HC has the jurisdiction when such combination: (a) + (c) or (b) + (c) is fulfilled. (a) Where the marriage is registered or deemed to be registered under LRA (b) Where the marriage was contracted under a law providing that, or in contemplation of which, marriage is monogamous (c) Where both parties reside in Malaysia at the time of commencement of the proceedings Ng Wee Whye v Wong Sook Heng – the court must satisfy that the residence of both parties is at the country which hear the application at the time of commencement of the proceedings.

Application: Muthu had his marriage with Leela in India, a country which hold that polygamy is illegal. Therefore, although the marriage is not registered under LRA, it is contracted under Indian law which provide that the marriage is monogamous. (b) is satisfied. Furthermore, Muthu had brought Leela to Malaysia after their marriage. However, Muthu had sent Leela back to her parents after he knew of the reason of why she married him. Based on the facts, we are not told of where Leela’s parents specifically lived in. If it is Malaysia, (c) is satisfied as Leela is still residing in Malaysia currently. If instead her parents reside in India, limb (c) is not satisfied. Conclusion: Shall Leela’s parents reside in Malaysia, Malaysian courts have the jurisdiction to hear the applications. *Mahon v Mahon: Temporary absence does not deprive a person of his residence. Leela had reside in Malaysia since September 2002 and by then she had spent almost 18 years here. Despite being sent back to her parents either in India or Malaysia, the 18 years residence had proved her to be ordinarily resident in Malaysia. Issue 2: Whether Muthu could establish the grounds for annulment of his voidable marriage with Leela. Law: S 70 provides the grounds on which a marriage is voidable. Sub Issue 1: Whether Leela had willfully refused to consummate the marriage. Law: S 70(b) Marriage would be voidable where the marriage has not been consummated owing to the willful refusal of the Respondent to consummate it. Dredge v Dredge. Application: In this case, clearly Leela would be the Respondent as she is the one who refused to consummate the marriage saying that she wants to have nothing to do with Muthu. She has the capacity but did not want to consummate the marriage. Conclusion: Leela had willfully refused to consummate her marriage with Muthu. This ground could be used by Muthu to annul the marriage. Sub Issue 2: Whether Leela did not validly consent to the marriage in consequence of circumstantial duress caused by external circumstances. Law: S 70(c): Either party did not validly consent to the marriage, whether in consequence of duress, mistake, unsoundness of mind or otherwise. H v H: The marriage which is not induced not by own free will, but through fear and duress by reason of circumstances surrounding the party. The intention to obtain a French passport and escape from Hungary had negative the consent. Application: Leela had confessed to Muthu that the reason why she marries him is only that she wants to leave India. This intention had negative Leela’s consent to the marriage due to the circumstantial duress.

Conclusion: Leela did not validly consent to the marriage in consequence of indirect duress. Prima facie, Muthu had made a case against Leela and he can apply to the Malaysian court to annul the marriage on ground of S 70(b) and (c). * In the Marriage of N Osman and O Mourrali – fraud: the consent was obtained by fraud. In this case, the Husband enters into the marriage just for purpose of being allowed to reside in Australia as the wife is the PR there and the Husband has no intention to cohabit with her. The principle was such that if one party had defrauded the other, either party could seek relief for it to be void. Issue 3: Whether there is any bar to relief of the voidable marriage. Law: S 71(1): The court shall not grant a decree of nullity on any of the grounds in S 70 if the Respondent satisfies the court that: (a) the Petitioner with knowledge that it was open to him to have the marriage avoided, but acts in such way as to lead the Respondent to reasonably believe that he would not do so; and (b) it would be unjust to the Respondent to grant the decree. Application: The burden of proof is on Leela to prove the bar. From the facts of the case, it had showed that the Petitioner upon knowing the reasons of Leela’s refusal to consummate, had immediately sent her back to her parents and approach the means to annul the marriage. This showed that there’s no delay on behalf of Muthu. Also, it would not be unjust to Leela to grant the decree as she did not express her intention only to leave India by marrying him. It would be morally unjust to Muthu instead if he is barred from annulment of the marriage as he is the victim of the marriage. Conclusion: The bar to relief shall not operate. Shall the decree of nullity be granted by the court once Muthu’s case if found to be proved under S 73(1), such decree shall operate to annul the marriage only after the decree is coming into operation as per S 73(2). The marriage between Muthu and Leela shall be treated as if it had existed up to the date of decree.

3.

Lily was 16 years old when she was raped by Andy, an acquaintance, aged 19 years. Andy offered her marriage and she accepted. Nine months later after their wedding Lily delivered a beautiful baby girl although she and Andy had never had sexual intercourse after their wedding. A year after the marriage Andy left the country to study in England. Lily wishes to annul her marriage. Advise her on the law governing the annulment of her marriage and the status of her daughter. Main Issue: Whether Lily can annul her marriage with Andy.

S 68: Any husband or wife may present a petition to the court praying for a decree of nullity in respect of his/ her marriage, both void or voidable. Application: At the first instance, Lily had the right to petition for decree of nullity to the court, given that subsequent grounds had been satisfied. Issue 1: Whether the Malaysian’s Courts have the jurisdiction to hear Lily’s application for decree of nullity of his marriage with Andy. Law: S 67: HC has the jurisdiction when such combination: (a) + (c) or (b) + (c) is fulfilled. Application: Prima facie yes as both Lily and Andy are presumed to be Malaysians. Issue 2: Whether Lily could establish the grounds for annulment of void marriage with Andy. Law: S 69 provides the grounds on which a marriage is voidable. Sub Issue 1: Whether Lily had not granted a special license authorizing her marriage with Andy from the CM. Law: S 69(b) marriage shall be void if male under 18 years old or female between 16 and 18 years old marries without a special license granted by CM under S 10 Application: Lily was 16 years old when she was offered to marry Andy. The fact does not indicate on whether a special license from CM had been granted to authorize their wedding. If no license of CM was obtained during their marriage, the marriage shall be void as pursuant to S 69(b). Otherwise, the marriage remains valid. Conclusion: NIL AS NOT ENOUGH INFO AVAILABLE Issue 3: Whether Lily could establish the grounds for annulment of voidable marriage with Andy. Law: S 70 provides the grounds on which a marriage is voidable. Sub Issue 1: Whether Andy had willfully refused to consummate their marriage. Law: S 70(b) Marriage would be voidable where the marriage has not been consummated owing to the willful refusal of the Respondent to consummate it. Dredge v Dredge- The fact that W was already pregnant at the time of marriage did not count as consummation. Consummation must be done after the marriage. Application: The fact indicated that the couple had never had sexual intercourse after their marriage. Therefore, the marriage was not consummated. Although Lily was presumed to be already pregnant at the time of marriage as they never had sexual intercourse after the wedding, this does not count as consummation as pursuant to the case of Dredge v Dredge. Conclusion: There was a failure to consummate the marriage.

Sub Issue 2: Whether Andy did not validly consent to the marriage due to indirect duress. Law: S 70(c) Marriage would be voidable where either party did not validly consent to the marriage, whether in consequence of duress, mistake, unsoundness of mind or otherwise. Buckland v Buckland- P who was charged with corruption of R agreed to married R as he was advised to marry her in order to avoid prison. The marriage was held to be voidable due to absence of consent. Application: Based on the scenario, we acknowledged that Lily was raped by Andy and subsequently they entered into marriage. Therefore, applying Buckland in the present case, there’s a possibility that Andy offered Lily marriage just so that he can escape charge and legal consequences. If that was the case, such marriage was entered into by Andy with circumstantial duress caused by fear of facing legal consequences of raping Lily. Conclusion: Shall Andy offered the marriage just so that he could escape legal conviction, he did not validly consent to the marriage. Shall ground (b) and (c) had been established, Lily may apply to nullify her marriage. Issue 4: Whether there is any bar to relief of the voidable marriage. Law: S 71(1): The court shall not grant a decree of nullity on any of the grounds in S 70 if the Respondent satisfies the court that: (a) the Petitioner with knowledge that it was open to him to have the marriage avoided, but acts in such way as to lead the Respondent to reasonably believe that he would not do so; and (b) it would be unjust to the Respondent to grant the decree. Application: The burden of proof is on Andy. When Lily wishes to annul her marriage, she approaches the means to annul the marriage without delays. She did not act in such way as to lead Andy to reasonably believe that she would not apply to nullify the marriage. Also, it would not be unjust to Andy as he had left the country to study, leaving behind his wife and 3 months old baby. Lily will be suffering by having to take care of the baby alone without Andy’s accompaniment. Conclusion: Bars to relief shall not operate. Once the voidable marriage had been annulled, Lily’s marriage with Andy will only exist up to that time. If instead the marriage was annulled on ground of void marriage, the marriage will be treated as if it never exists at all. Issue 5: Whether the baby girl will be treated as legitimate child.

Law: S 75(1) Child of a voidable marriage who would have been legitimate if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child. S 75(2) Child of a void marriage shall be treated as legitimate if at the time of solemnization, both or either of the parties reasonably believed that the marriage is valid. Given that (3) the father was domiciled in Malaysia at the time of marriage. Application: In both scenarios, be it a voidable or void marriage, Lily’s daughter would be treated as legitimate. It is fair to say that Lily and Andy had reasonably believed that their marriage is valid and Andy was domiciled in Malaysia at the time of marriage. Conclusion: The baby girl would be treated as a legitimate child.

4.

Tan and Ah Moi were married under the Law Reform (Marriage and Divorce) Act 1976. After 3 months, Ah Moi gave birth to a baby boy. Tan alleges that the child not his. He wishes to annul the marriage. Will Tan succeed in obtaining a decree of nullity? Main Issue: Whether Tan can succeed in obtaining a decree of nullity of the marriage. S 67 Malaysian courts have jurisdiction as the marriage was contracted under LRA and it suggests that the parties are residing in Malaysia. Issue 1: Whether Tan could establish grounds for annulment of voidable marriage with Ah Moi Law: S 70(f) Marriage would be voidable if at the time of marriage, the Respondent was pregnant by some person other than the Petitioner. Application: Based on the facts, the baby was delivered in mere 3 months after the marriage which indicate that conception had been taken place before the marriage. If Tan never had sexual intercourse with Ah Moi before the marriage, then it is fair to say that the child was not his. If the marriage had been consummated, 3 months is impossible for the birth of a baby. Conclusion: If Tan never had sexual intercourse with Ah Moi before marriage, ground (f) would be successfully established. Issue 2: Whether there is any bar to relief of the voidable marriage. Law: S 71(1): The court shall not grant a decree of nullity on any of the grounds in S 70 if the Respondent satisfies the court that: (a) the Petitioner with knowledge that it was open to him to have the marriage avoided, but acts in such way as to lead the Respondent to reasonably believe that he would not do so; and (b) it would be unjust to the Respondent to grant the decree

Application: Tan wishes to annul the marriage, show no delay on his part. Shall the child be proven not Tan’s, it would not be unjust to Ah Moi as she had deceived Tan on the relationship with another man and the child’s identity. Law: S 71(2): Without prejudice to S 71(1), the court shall not grant a decree of nullity on the grounds of S 70(e) or (f) unless it is satisfied that the P= ignorant of the facts alleged at time of the marriage. Smith v Smith- P should have come to the belief that the child was not his; it is abundantly clear to any reasonable man. Test applied: What inference a reasonable man would draw from the facts that laid before him. Application: In this case, Ah Moi gave birth to a baby boy after 3 months of their marriage. Assuming Ah Moi had underwent full 10 months of pregnancy, she would be 7months pregnant when they enter into the marriage. A 7-month pregnancy would be obvious as the mother’s belly would be unflatten. If Tan never had sexual intercourse with Ah Moi, a reasonable man would have come to the conclusion that the baby was not his. He does not have to wait until the birth of the baby to assure whether the baby was his. Tan was ignorant of the facts at time of marriage. Conclusion: As the specific bar in S 71(2) is not satisfied, Tan was barred from relief. Main Conclusion: Tan shall not succeed in obtaining a decree of nullity of the marriage.

5.

Sinna and Maisey were married in 1983 according to Hindu customary rites. Soon after the ceremony, Sinna discovered that Maisey refused to consummate their marriage because she was “afraid and not ready for it”. Sinna tried to encourage her to overcome her fear and even suggested that she seek help from the doctor. Maisey refused to seek help. In 2005 Sinna was told by a friend that he could have his marriage `dissolved’ on the grounds of non-consummation. Sinna, however, still loved Maisey and suggested that they adopt a child so as to arouse Maisey’s maternal instincts and hopefully dispel her fears on consummation of the marriage. Advise Sinna as to whether he could annul his marriage. Main Issue: Whether Sinna could annul his marriage with Maisey. *Issue 1: Whether LRA is applicable to their marriage in accordance with Hindu customary rites. Law: S 3(1) LRA applies to all persons in Malaysia and all persons domiciled in Malaysia but who are resident outside Malaysia. S 22(1)(c) + S 24(2) Allow solemnization of marriage in accordance with the custom and usage which the parties practice. Application: Their marriage was in accordance with Hindu customary rites. Therefore, their marriage was deemed as valid under LRA and thus LRA was applicable. S 68: Any husband or wife may present a petition to the court praying for a decree of nullity in respect of his/ her marriage, both void or voidable.

Application: At the first instance, Sinna had the right to petition for decree of nullity to the court, given that subsequent grounds had been satisfied. Issue 2: Whether the Malaysian’s Courts have the jurisdiction to hear Sinna’s case. Law: S 67: HC has the jurisdiction when such combination: (a) + (c) or (b) + (c) is fulfilled. (a) and (c) are presumed to be satisfied in this case. Issue 3: Whether Sinna could establish the grounds for annulment of his voidable marriage with Maisey. Law: S 70 provides the grounds on which a marriage is voidable. Sub Issue 1: Whether Maisey had been incapable to consummate the marriage. Law: S 70(a) Marriage would be voidable where the marriage has not been consummated owing to incapacity of either party to consummate it. Application: The facts were such that Maisey was afraid and not ready for consummation. Her fear for consummation had indicated her incapability to carry out sexual intercourse with Sinna. Conclusion: Maisey was incapable to consummate the marriage. S 70(a) satisfied. Sub Issue 2: Whether Maisey had willfully refused to consummate the marriage. Law: S 70(b) Marriage would be voidable where the marriage has not been consummated owing to willful refusal of the Respondent to consummate it. Dredge v Dredge. Application: The fear of Maisey towards consummation had made her incapable to have sexual intercourse with Sinna. However, when Sinna suggested her to seek help from the doctor, she had refused. This show that despite Sinna’s encouragement and attempts to help to overcome her fear, she had rejected such effort. Conclusion: Maisey had willfully refused to consummate the marriage. Prima facie, Sinna can apply for decree of nullity on ground of S 70(a) and (b). Issue 4: Whether there is any bar to relief of the voidable marriage. Law: S 71(1): The court shall not grant a decree of nullity on any of the grounds in S 70 if the Respondent satisfies the court that: (a) the Petitioner with knowledge that it was open to him to have the marriage avoided, but acts in such way as to lead the Respondent to reasonably believe that he would not do so; and (b) it would be unjust to the Respondent to grant the decree. W v W- adoption= effect of approbating the marriage and no evidence showed that the P was unaware of his legal rights to annul the marriage on ground of non-consummation.

Application: The burden of proof is on Maisey to prove the bar. When Sinna was told by his friend that he could annul the marriage on grounds of non-consummation, the course was opened to him as such fact had came to his knowledge. However, Sinna in saying that he still loved Maisey and suggested adoption had acted in such way as to lead Maisey to believe that he would not annul the marriage. W v W satisfied. Sinna was aware of his legal rights to annul his marriage from his friend. Conclusion: There’s bar of relief to Sinna’s marriage. C...