Understanding Annulment of Marriage in Malaysian Law

1. Overview of Annulment of Marriage in Malaysia:

The annulment of marriage in Malaysia is regulated under the Law Reform (Marriage & Divorce) Act 1976. A distinction is made between a void marriage, which is deemed invalid from the time of solemnisation, and a voidable marriage, which remains valid from solemnisation until annulled by the court. The High Court has jurisdiction over granting a decree of nullity for both void and voidable marriages.

Under s.70 of the Law Reform (Marriage & Divorce) Act 1976 (“the Act”), the grounds for a voidable marriage include:

• Non-consummation due to incapacity of either party (s.70(a));
• Non-consummation due to wilful refusal of the respondent (s.70(b));
• Invalid consent due to duress, mistake, unsoundness of mind, or other factors (s.70(c));
• Mental disorder of a party rendering them unfit for marriage (s.70(d));
• Respondent suffering from communicable venereal disease at marriage time (s.70(e));
• Respondent being pregnant by someone other than the petitioner at marriage time (s.70(f)).

• Key Issues and Interpretations:
• A petition for nullity under Section 70 must be specific and precise.
• Evidence Consideration for ‘Incapacity to Consummate’ (s.70(a))
• The crux of s.70(a) is the presence of psychological or sexual aversion.
• Annulment cannot be based solely on mutual agreement to not consummate.
• Defining “Wilful Refusal to Consummate” (s.70(b))
• ‘Wilful refusal’ is legally interpreted as a resolute decision made without justified reasons.
• A petition for nullity on this ground must solely involve the respondent’s willful refusal, not a mutual disinterest in consummation or the marriage itself.

Case Reference: Re Kirthiga Suthan a/l Kathiravellu & Anor [2023] 12 MLJ
This recent ruling highlights and clarifies the application of Section 70 of the Act, offering valuable insight into the nuances of marriage annulment under Malaysian law