How to Nullify a Marriage in Malaysia

Nullity of marriage is a declaration by a court that the supposed marriage is null and void, and that no valid marriage exists between you and your partner. In other words, it is a declaration that the supposed marriage never happened.

A Nullity (or annulment) of marriage does not sit on the same equilibrium as a divorce. The former would occur from a void or voidable marriage, whilst the latter may only occur preceding the existence of a valid marriage.

Void Marriages

Albeit having gone through a marriage ceremony, no legal marriage would exist if any of the conditions below exist:

Either individual to the marriage has already been married and, that their former spouse is still alive;
A male person marries under eighteen (18) years of age, or a female who is between sixteen (16) and eighteen (18) years, marries without the issuance of a special marriage licence given by the Chief Minister;
If the person to whom one is getting married to, lies within the prohibited close family relationships;
The two people are not respectively male and female.

Should any of the above situations prevail, the marriage would be rendered as a ‘void marriage’ in law. The effect of this would thus be that the marriage did not possess any form of validity from the beginning.

Voidable Marriages

Where a legal marriage exists, a party may petition to the Court for the annulment of the marriage where any of the circumstances below arise:

Where there has been non consummation of the marriage due to incapacity of either party to the marriage;
Where subsequent to the marriage, one party evades, without valid reasoning, to consummate the marriage;
Where there was no consent obtained by either party or that the consent was obtained by way of threat, inducement, mistake or unsoundness of mind;
When at the time of the marriage, either party, though competent of communicating valid consent, was suffering from mental illness such as to render the individual to be unfit for marriage;
When at the time of the marriage your spouse was suffering from venereal disease and was able to communicate such suffering; or
Where at the time of the marriage, the woman was already pregnant by someone other than the man she was marrying.

Where any of the circumstances above apply, the marriage is construed as a ‘voidable marriage’, which would therefore mean, that a party to such marriage may file a petition to the Court for a decree of nullity. Such declaration would deem the marriage to be void.

The Court will not grant the decree of nullity if:

Since the marriage, the petitioner (party making such petition), possessed the knowledge of the existence of the grounds for nullity, but nevertheless continued to place his or her spouse under the impression that he or she will not pursue to seek a decree;
The Court’s assumption is that the grant of such a decree would be unfair and unjust.

Where a petitioner seeks to petition for a decree of nullity on the grounds that during the marriage:

his or her spouse had been suffering from a venereal disease in a communicable form; or
that the woman had already been impregnated by someone else

It is vital for the petitioner to prove to the court that he or she was unaware of such circumstances at the time of the marriage.

Collusion or a conspired intention to defraud will not prohibit the granting of a decree of nullity.

Consequences of a nullity decree

Similar to that of a divorce decree, a nullity decree would only become absolute after a stipulated period of time which is usually three (3) months.
A decree of nullity granted on the ground that the marriage is voidable operates to annul the marriage only after the date of the decree. Notwithstanding the decree, it shall be treated to have been in existence up to that time.
Once the decree becomes absolute, no restriction is placed upon parties who wish to re-marry.
Any child or children born in the interim of a voidable marriage which has been annulled will be and remain to be legitimate.
The legitimacy of a child or children born in the course of a void marriage would only be declared if, at the time of the solemnisation, the parties reasonably believed that the marriage was valid. Such a situation would only emanate where:

The father of the child was domiciled in Malaysia at the time of the marriage; and
In so far as it affects the inheritance to any property only to children born after 1st March 1982.