Annulment of Marriage / Nullity of Marriage

Annulment of Marriage/ Nullity of Marriage

Malaysia marriage is governed by the Law Reform (Marriage and Divorce) Act 1976. The Law Reform Act (LRA) governs non-Muslim marriage and divorce in Malaysia. In our article, we do not discuss much on provision of law as this article is meant for study to the public.

Why Annulment of marriage but not divorce?

Annulment of marriage, like divorce, results in the end of a marriage but is not the same as divorce. A divorce ends a valid marriage, but annulment of marriage will annul and treat the marriage as if it is never existed or the marriage is not a legal marriage.

An annulment of marriage is a solution for someone who finds himself or herself in a marriage that never should have taken place. Unlike for divorce, there is no requirement that you must wait or be “married” for at least two years before you can start a petition for annulment.

What are the reasons for filing an annulment of marriage?

The reasons or grounds of filing annulment of marriage: –

• Void marriage
• Voidable marriage

What is considered a void marriage?

Section 69 of the LRA states that a marriage is void if:

• Either party to the marriage was already married to someone else at the time of the marriage, and the other “spouse” was still alive, i.e., a polygamous marriage. Malaysian law recognizes monogamous marriage only;
• The parties are of the same gender. Malaysia does not recognize same-sex marriage/ homosexual relationship/transgender, and the court has defined gender as the gender determined at birth;
• The male person getting married was under 18 years of age and didn’t have a special license granted by the Chief Minister; or
• The female person getting married was above 16 years, but under 18 and without a special license from the Chief Minister to get married.;
• The parties are within the prohibited degrees of relationship. Relationship usually refers to blood relations; for example, it is prohibited to marry your grandparents, parents, child, grandchild, sister or brother, aunts, uncles, or niece or nephew. It can also include half-blood, or in-law relationships, for example, it is prohibited to marry the former spouse of your grandparent, parent, or child. There are exceptions where the Chief Minister may grant a license for such a marriage if it is unobjectionable under the law, religion or custom applicable to the parties.

What is considered a voidable marriage?

Section 70 of the LRA sets out the grounds on which marriage is voidable. The grounds are as follows: –

• The marriage has not been consummated (the parties had no sexual intercourse) due to either one of the parties being unable to consummate it.
• The marriage has not been consummated due to the willful refusal of the respondent to consummate it meaning one party does not wish to have any sexual intercourse with the other;
• One of the parties did not validly consent to the marriage due to duress, mistake, unsoundness of mind, or other reasons;
• One of the parties was unfit to consent to the marriage at the time of the marriage, due to a continuous or intermittent mental disorder as defined in the Mental Disorders Ordinance 1952. The parties must be able to understand and appreciate the responsibilities attached to marriage;
• The respondent was suffering from a venereal (sexually infectious) disease in a transmissible form at the time of the marriage, and the petitioner did not know about it;
• The wife was pregnant by someone else at the time of the marriage, and the petitioner did not know about it.

How you start an annulment of marriage?

Appoint a lawyer and the lawyer will guide your through the proceeding.