CONSTITUTIONAL RIGHT- BALLOT BOX VS SOPS: COURT OF APPEAL UPHOLDS CONSTITUTIONAL RIGHT TO VOTE
In Tamileswaaran a/l Ravi Kumar v Suruhanjaya Pilihan Raya Malaysia & Anor [2025] MLJU 2371, the Court of Appeal held that the Election Commission acted unconstitutionally when it barred a COVID-positive voter from casting his ballot under SOPs issued during the Johor State Elections. The Court reaffirmed that the right to vote under Article 119 of the Federal Constitution is a fundamental constitutional right that cannot be curtailed by subsidiary legislation or administrative protocols. While acknowledging a breach, the Court declined to award damages as the Commission acted in good faith under extraordinary public health circumstances.
CONSTITUTIONAL LAW – CITIZENSHIP – CITIZENSHIP DENIED: HIGH COURT REFUSES TO LEGALISE CHILD TRADING
In Ow Man Yaw & Ors v Kementerian Dalam Negeri & Anor [2024] 9 MLJ 77, the High Court dismissed an application for Malaysian citizenship brought by adoptive parents on behalf of a child obtained through an agent. The Court held that the child was not “abandoned” within the meaning of section 19B of the Federal Constitution but was instead the subject of a planned arrangement amounting to child trading. As such, the presumption of citizenship by operation of law could not be invoked. The Court further affirmed that applications under Article 15A rest solely with the Federal Government, beyond judicial intervention. The ruling underscores that the best interests of the child cannot override constitutional requirements or validate unlawful conduct.
FAMILY LAW – COSTLY AFFAIRS: A LANDMARK DECISION ON ADULTERY, SPOUSAL MAINTENANCE, AND ASSET DIVISION IN MALAYSIA
In Hai v Pai & Anor [2025] 8 MLJ 211, the Court decisively addressed the delicate intersection of marital betrayal and financial fairness. Affirming the award of damages against a third-party “homewrecker,” the decision underscores the judiciary’s firm stance on compensating emotional and financial harm arising from adultery. Furthermore, the ruling clarifies the importance of precise documentation and the consequences of commingling inherited wealth, reinforcing that matrimonial asset division requires careful, individualized assessment to achieve true equity.
FAMILY LAW – CHILDREN’S CUSTODY – CUSTODY DISPUTES IN MALAYSIA: ESSENTIAL INSIGHTS ON CHILD WELFARE AND PARENTAL ROLES
In a recent custody dispute, the court emphasized the importance of child welfare, reaffirming the maternal custody presumption for young children unless strong evidence suggests otherwise. In high-conflict situations, the court favored sole custody over joint arrangements to minimize stress on the children. This case underscores that Malaysian parents should provide credible evidence for their claims and focus on practical, child-centered solutions.
FAMILY LAW – EQUITABLE DIVISION OF MATRIMONIAL ASSETS: EVALUATING PROPERTY AND INCOME IN DIVORCE PROCEEDINGS
This update discusses the equitable division of matrimonial assets in divorce proceedings, focusing on the valuation of property and income. It highlights the court’s decision to fairly allocate assets between the parties, including property value and business income.
FAMILY LAW – DIVISION OF MATRIMONIAL ASSETS
Many people have this false conception that all assets of the husband including EPF, shares and monies will be divided equally when there is a divorce.
What is the law that governs division of matrimonial assets in Malaysia?
DISTRIBUTION OF ASSETS – LEGAL RIGHTS OF CHILDREN BORN IN UNREGISTERED CUSTOMARY MARRIAGES TO INHERIT INTESTATE ESTATES
Born to parents in an unregistered Chinese customary marriage, an individual was deemed illegitimate following their father’s intestate death. The key legal issue is whether this individual can inherit under the Distribution Act 1958 (DA). The DA does not restrict inheritance to legitimate children only; it includes all bloodline descendants. Therefore, the individual qualifies as ‘issue’ and is entitled to inherit their father’s estate despite questions of legitimacy.
FAMILY LAW – ANALYZING THE EFFICIENCY OF DIVORCE PROCEEDINGS IN CASES OF ADULTERY WITHOUT CLAIMS FOR DAMAGES
A husband filed for divorce due to living apart from his wife for two years, while the wife attributed the breakdown to adultery, involving the alleged adulteress without seeking damages. This raises questions about the necessity of addressing adultery in divorce when no compensation is sought, as Section 54 of the Law Reform (Marriage and Divorce) Act 1976 emphasizes irretrievable breakdown without fault.
FAMILY LAW – BEHAVIOUR CANNOT BE EXPECTED TO LIVE TOGETHER
Divorce can be petitioned on the ground marriage has irretrievably broken down. In deciding whether there is breakdown, the court will consider issues such as adultery, behaviour of the parties, desertion and living apart for more than 2 years.
FAMILY LAW – ADULTERY AND MAINTENANCE
Adultery is a legal ground for divorce. However, complication arises in proving adultery. This legal update covers proof and effect when adultery is proven as well as maintenance of wife and children.
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