WARNA-WARNA KEHIDUPAN

COMPARATIVE LEGAL ISSUES ON MARRIAGE & ROLE OF GOVERNMENT AGENCY
(by:Dr.Hj.Mohd Naim Hj. Mokhtar)


INTRODUCTION:
žLove before marriage is just a beginning
žIt needs to be nurtured which can only be fully achieved/experienced through marriage
žIn the course of getting married, loving couples normally enter into engagement
žEngagement & marriage are governed by applicable laws


APPLICABLE LAWS
žIslamic Family Law Act 1984 [IFLA]
žLaw Reform Marriage & Divorce Act 1976 [LRMDA]


LEGAL ISSUES
žBreach of promise to marry (betrothal)
žMarriage requirements
¡Age
¡Consent of parents/guardian
¡Consent of parties
¡Avoidance of marriage by prior subsisting marriage
žProcedure & Formalities


BREACH PF PROMISE TO MARRY

SYARIAH
žSpecific provision i.e. section 15 under IFLA
žEffect of breach:
¡No claim for damages only return of gifts & actual expenditure

CIVIL

žNo specific provision under LRA
žEffect of breach:
¡Claim for damages


MARRIAGE REQUIREMENTS

SHARIAH

žAge
¡Male – 18
¡Female – 16
¡If below age, need judge consent

CIVIL

žAge
¡Male & female – 18
¡If below age, void
¡BUT, female @ 16 can obtain license to marry from Chief Minister

CONSENT OF PARENT & GUARDIAN

SHARIAH

žRequirement for female regardless of age
žRefusal : consent of judge
žEffect of failure to obtain consent
¡Does not rule marriage invalid
¡Marriage cannot be solemnized
¡Registrar will give permission
¡Guilty of an offence

CIVIL

žRequirement for both male & female under the age of 21
žRefusal: consent of High Court Judge in chamber
žEffect of failure to obtain consent
¡Does not rule marriage invalid
¡Marriage cannot be solemnized
¡Registrar will not issue certificate of marriage
¡Minister will not issue license

CONSENT OF PARTIES

Both parties must consent freely to the marriage
It is an offence for a person to use any force or threat
q to compel a person to marry against his / her will
Syariah & Civil


žTo prevent a person from contracting a valid marriage - SYARIAH

žTo prevent a person who has attained age of 21 from contracting a valid marriage - CIVIL


PROCEDURE AND FORMALITIES: WAYS WHICH MARRIAGE CAN BE SOLEMNIZED

SHARIAH
žAfter the issue of permission by Registrar OR Syariah Court Judge
žIn Malaysia Embassies or Consulates abroad

CIVIL

žAfter the issue of a certificate for marriage by Registrar
žAfter the issue of license by Chief Minister
žIn a church, temple or @ any place of marriage in accordance with the religion, custom or usage of parties
žIn Malaysia Embassies or Consulates abroad


EFFECT OF REGISTRATION

žBoth IFLA and LRMDA provides that nothing in the Act or rules made under the Act shall be construed to render valid or invalid any marriage that are otherwise is invalid or valid, merely by reason of its having been or not having been registered

ROLE OF RELEVANT AGENCIES

žCounseling & Family Development Unit
¡Provide counseling services & advice in the formation of an Islamic family
¡Handle family issues in relation to marriage, divorce & reconciliation
¡Disseminate information on family issues to assist Muslim families in solving their problems


žMarriage, Divorce & Reconciliation Unit
¡Ensure matters regarding marriage, divorce & reconciliation is being carried out based on IFLA
¡Keep records on marriage, divorce & reconciliation of the Muslim couples

žSyariah Court
¡Administer & enforce IFLA in order to deliver justice effectively & efficiently



CONCLUSION

žEssential to ensure that one’s marriage complies not only with religious precepts but also with requirement of laws
žThere are similarities and differences between IFLA & LRMDA to cater needs of Muslims and non-Muslims alike
žGovernment agencies do play a supportive role in safeguarding the love before marriage that has been translated into an institution of marriage will be everlasting