SHERLY MORISTA

Case Significance

Clarifies the boundary between a marriage solemnised in Malaysia and one merely registered here under section 31 of the Law Reform (Marriage and Divorce) Act 1976 when a foreign divorce decree is brought home for recognition and registration.

This High Court decision at Georgetown concerns the registration in Malaysia of a divorce obtained abroad. The applicant, an Indonesian national married to a Malaysian citizen, sought registration of a foreign divorce under section 107(3) of the Law Reform (Marriage and Divorce) Act 1976 (Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976). The parties had married in Pekalongan, Indonesia, in 2012, where the marriage was officially registered; the marriage later broke down and was dissolved by decree of the District Court of Pekalongan, which also determined custody of the children. On the parties' return to Malaysia, the marriage was formalised and registered here under section 31 of the Act, which governs the registration of marriages contracted abroad by a person who is a citizen of or domiciled in Malaysia. The legal question was whether such a marriage — solemnised abroad but subsequently registered in Malaysia under section 31 — falls within the phrase "where a marriage which is solemnised in Malaysia" for the purposes of section 107(3). Following the reasoning in the Tan Joo Yen line of authority, the court took the view that a marriage of this kind does not fall within that phrase, because the procedure for solemnising a marriage in Malaysia is distinctly laid down by Parliament in sections 22(4), (5) and (6) of the Act, and registration under section 31 is not the same as solemnisation in Malaysia. The court heard the application and allowed the registration of the foreign divorce. The judgment is a useful illustration of the boundary between a marriage solemnised in Malaysia and one merely registered here under section 31, and of how that boundary is applied when a foreign divorce decree is brought home for recognition and registration. It also shows the court reading section 107(3) against the solemnisation provisions in sections 22(4) to (6) as an integrated scheme, so that the place of solemnisation, rather than the place of later registration, governs the route by which a divorce touching a foreign marriage is recognised in Malaysia.