Annulment of marriage in Malaysia is governed by the Law Reform (Marriage and Divorce) Act 1976 (Act 164).
Before proceeding further it is important to note the primary distinction between void marriage and voidable marriage.
A void marriage means the valid marriage does not exists at all at the time of solemnization of the marriage whereas a voidable marriage exists at the time of solemnization until it is annulled by the Court.
It is pertinent to note that the jurisdiction to grant a decree of nullity regardless whether it is pursuant to void or voidable marriages lies with the High Court. It is also important to note that Malaysian High Court can only grant the decree of nullity when both the parties to the marriage reside in Malaysia at the time of the commence of the proceedings and this is provided for in Section 67(c) of the Law Reform (Marriage and Divorce) Act 1976.
Void Marriage
Moving on will be the when a marriage is considered to be void and this is provided for in Section 69 paragraph (a)-(d) of the Law Reform (Marriage and Divorce) Act 1976 and they are as follows:-
(a) at the time of the marriage either party was already lawfully married and the former or wife of such party was living at the time of the marriage and such former marriage was then in force
[here it means marriage is only between one man and one woman to the exclusion of others and if a person who was already lawfully married marries again, the latter marriage is considered as void marriage].
(b) a male person marries under 18 years of age or a female person who is above 16 years
but under 18 years marries without a a special licence granted by the Chief Minister under section 10 of the Law Reform (Marriage and Divorce) Act 1976;
(c) the parties are within the prohibited degrees of relationship unless the Chief Minister grants a special license under subsection (6) of section 11; or
(d) the parties are not respectively male and female.
Voidable Marriage
Section 70 (a)-(f) of the Law Reform (Marriage and DIvorce) Act 1976 provides when a marriage is voidable and they are as follows:-
(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) that at the time of the marriage either party, though capable of giving a valid consent, was (Whether continuously or intermittently) a mentally disordered person within the meaning of the Mental Disorders Ordinance 1953 of such a kind or to such an extent as to be unfit for marriage;
(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
(f) that at the time of marriage the respondent was pregnant by some person other than the petitioner.
Procedure
Based on the existence of any of aforesaid grounds the Petitioner or the person intending to have the marriage annulled can file a Petition together with an affidavit in support in the High Court to have the marriage annulled.
If the High Court is satisfied that the ground for nullity exists it will order for the marriage to be annulled.
Usually the High Court will grant a decree nisi which is to be made absolute after 3 months.
