Describe the effect of the Law Reform (Marriage & Divorce) Act 1976 on the Chinese and Hindu

customary law in Malaysia.

Customary law is the regular pattern of social behaviour which has been accepted by the bulk of

the society as binding upon its members. In Malaysia, there is no customary law of general application.

As an example, Malay customary law only applicable to Malay people. In the past, Chinese customs of

polygamous marriage raised a potential conflict between Chinese customary law and the modern civil

law. However, Chinese and Hindu customary laws on marriage and divorce have diminished relevance

since the coming into force of Law Reform (Marriage & Divorce) Act 1976 on 1 March 1982.

The coming into force of the new legislation has several effects. First is polygamous marriage

among the Chinese people is abolished. There is no more practice of polygamous marriage among this

people since section 5 of this Act introduced monogamy to all people specifically to Hindu and Chinese

community. This practice forbids the people to marry another person if he is already married. All

marriage taking place on or after 1 March 1982 must be monogamous. According to section 494 of CPC,

practice of polygamous is punishable offence up to 7 years imprisonment.

The second effect of polygamous marriage is there is a practice of a common system of

solemnization and compulsory registration. The coming into force of this act on 1 March 1976 require a

registration of the marriage for every single marriage and if the marriage made before the law coming

into force as illustrated under section 33. Registration is not compulsory and the marriage is still valid if

it follows the customary practice of its community. Under section 34, it is stated that nothing in this Act

shall be construed to be render valid or invalid any marriage; merely by reason of it is not having been

registered. In the case of Leong Wee Sing v Chai Siew Yin, the issue is whether the non register marriage

is valid or not and it was held that by virtue of section 33 and 34 is clear to show that non register

marriage shall not be void.

The third effect of the LR (M&D) Act is it provides uniformity in law. The force of Law Reform

(Marriage v Divorce Act) Act provides a uniform law to govern the matters on divorce, marriage and

ancillary and it only govern the Chinese and Hindu and not Muslim since Muslim is governed by Syariah

Law. The new law is certain since it provide the same law and order for all marriage constructed by

Hindu and Chinese and it avoid conflict of law and involving the question of what law should be use and

apply by the court. It would be easy for the court in settle the dispute.

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With reference to the CLA 1956 and decided cases, explain the conditions for the application of

English law in Malaysia.

According to section 160 (2) of Federal Constitution, under the definition of law, it includes

common law. Common law here refers to common law of England and rules of equity and in prescribed

circumstances, English statute of general application as illustrated in sec 3 Civil Law Act 1956. Common

law means the body of rules developed by the old common law courts and equity is the body of rules

developed first by the Lord Chancellor and later on made by Court of Chancery. Equity came into being

the supplement of common law to correct its defects and mitigate its harshness.

Under section 3 (1) of CLA 1956, the Malaysian Court shall, in the absence of local law, apply the

common law of England and the rules of equity, as administered in England on 7 April 1956 in West

Malaysia, 1 December 1951 in Sabah and 12 December 1949 in Sarawak as illustrated in case of Lee Kee

Choong v Empat Nombor Ekor. In this case, the Court affirmed that any subsequent march in English law

in England would not be embodied in local legislation after the cut-off dates. The court also held that

their Lordships should not consider the developments in English law after 1956. Subsections 1(b) and

1(c) of sec 3 import English statutes of general application into Sabah and Sarawak respectively.

However, in practice the Courts may follow developments in English common law after such

dates. English decision made after such dates, though not binding, are persuasive as illustrated in the

Privy Council decision in Jamil Harun v Yang Kamsiah. In this case, it was held that it is correct for the

Malaysian court to decide and refers to English case law, since it is persuasive in nature. This practice

has allowed for continuing reception of English law in Malaysia.

More than that, there are two other conditions for the application of English law apart from cut-

off dates. First is there is lacuna in local law. This qualification is contained in the opening proviso of this

section. This proviso is merely the statutory recognition to the application of English law to fill the

lacunae of loopholes in our local law. In the case of AG Malaysia v Manjeet Singh, where the court held

that in the absence of any specific local legislation concerning contempt of court, the common law shall

be applied under sec 3 CLA 1956.

The next condition for the application of English law in Malaysia is suitability to the local

circumstances. English law is applicable to the extent permitted by local circumstances and inhabitants,

subject to qualifications necessitated by local circumstances. This can be seen in the case of UMBC v

Syarikat Batu Sinar where the court held that the English that would like to be applied in Malaysia must

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be suitable with the local circumstances or local inhabitants. The judge also added that we should

develop our own common law by directing our mind to the local circumstances and local inhabitants.

Under section 5 of this Act, it provides the application of English law in commercial matters. In

section 5 (1), for the questions arise which have to be decided in West Malaysia other than Penang and

Melaka, the law that shall be applied on commercial matters shall be the same as administered in

England in the like case at the date of this Act coming into force. In subsection (2), for the questions

arise which have to be decided in Malacca, Penang, Sabah and Sarawak, the law that shall be applied on

commercial matters shall be the same as administered in England in the like case at corresponding

period.

The different terminology used by sec 5 compared to sec 3 shows that sec 5 introduces the

whole of English law including statutes, which means, greater reception of English law on commercial

matters. More than that, the different wording between subsections (1) and (2) of section 5 means that

there is difference in the extent of which English law is applicable between the previously established

places. Theoretically, in commercial matters, there is a continuing reception of English law in the four

states while for the other states the reception stops at the cut-off dates.

Even though under section 5, it provides reception of English law for commercial matters,

section 6 expressly excludes the application in Malaysia of the English law concerning land tenure. This

section was enacted because it intended to prevent the wholesale application of English law under

section 3 (1) to land matters in Malaysia since there already local legislation concerning land matters.

Explain the qualification of sec 3 (1) of CLA 1956 on the cut-off dates and the application of the

statutes of general application to West Malaysia.

According to section 3 of CLA 1956, English law means ‘the common law of England’ and the

rules of equity, and, in prescribed circumstances, English statutes. Under section 3 (1), the Malaysian

Court shall, in the absence of local law, apply the common law of England and the rules of equity, as

administered in England on 7 April 1956 in West Malaysia, 1 December 1951 in Sabah and 12 December

1949 in Sarawak as illustrated in case of Lee Kee Choong v Empat Nombor Ekor. In this case, the Court

affirmed that any subsequent march in English law in England would not be embodied in local legislation

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after the cut-off dates. Subsections 1(b) and 1(c) of sec 3 import English statutes of general application

into Sabah and Sarawak respectively.

There are two views whether English statutes of general application is applicable in West

Malaysia or not. First view is in favour for allowing the application the statute of general application

supported by Prof G.W. Bartholomew. The rational for the inclusion of statute first is not applying the

English statute means applying an outdated law. Second is applying common law and rules of equity

without statute is the same with applying half of the English law. Third is the definition of the word

common law means the law applicable in England.

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