Married overseas but not present here

Be aware that even if a marriage is contracted abroad and not locally registered, that marriage is still valid.

MARRIAGE is a serious relationship, but it is not always without pro­blems.

One situation may be when a person goes to a foreign country to study and, while about to complete his studies, falls in love and gets married. He lives with the wife for two weeks before coming back to Malaysia to make the necessary arrangements for the visa, through the proper channels and procedures, for her to arrive here. Let us assume it is a monogamous marriage and the couple are non-Muslims.

The visa is sent but the wife does not arrive. The husband waits and they are in touch by mail. There could be reasons for the delay in the wife coming, but the husband does not go over to pursue the matter and bring his wife.

Eventually the correspondence decreases and comes to a stop. They have now not written to each other at all for three years. What is the status of the husband? What should he do? Does he need to do anything?

There has been a marriage and the man is therefore a married person. Do not be misled into believing that because the marriage was contracted abroad and not locally registered, the marriage is not valid or non-existent.

The Law Reform (Marriage and Divorce) Act 1976 requires all marriages to be registered in accordance with its provisions, but this does not mean that the marriage highlighted above is not a marriage or not valid and proper.

The consequences and implications of this would therefore be that our Malaysian man is a married person with the result that he cannot just forget his foreign marriage and enter into a marriage locally, as if the earlier one did not exist. To get married locally in disregard of the earlier marriage would also amount to bigamy.

By reason of the fact that the marriage is valid and recognised and subsisting, the position would be that the wife who has failed or refused to come to Malaysia and therefore lived separately for the last few years would be entitled to inheritance rights should the Malaysian man die.

Until as such time that the marriage is dissolved, she continues to be the legal wife. If any subsequent marriage is contracted, it would be null and void even though it is also registered and there are children of the marriage. This is because the entire marriage is based on a deception of the registering authority.

It could lead to a situation where the wife with whom our Malaysian man lived for two weeks could end up inheriting the property, to the exclusion of the subsequent “wife” who has spent all her life with our man and even looked after him in times of need.

In the case of a person dying interstate, that is without a will, the legislation pertaining to those not professing the Islamic faith provides that if a man dies leaving a wife and children, the wife takes one third, but if there are no children from the marriage, then the wife takes half. This is a right provided for by law.

One possible way out is to make a will setting out the marriage in which the Malaysian man’s property is to be distributed in the event of his death. By doing so, he could avoid his property being inherited by this person with whom he had a brief marriage, even though it may not solve other problems.

A more direct and practical way of dealing with the situation would be by presenting a divorce petition in the High Court. This can be done, just as in the case of all other divorces.

It may be thought that there may be a difficulty in getting the Court to grant a divorce as the earlier estranged wife has not set foot in Malaysia, in addition to the fact that the marriage must be registered under the Law Reform (Marriage and Divorce) Act 1976.

Neither of these aspects should pose a serious problem because it would be an application that the Court would be likely not to reject. Section 48(1)(b) provides that nothing in the Act will authorise the Court to make any decree of divorce except where “the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous”.

Furthermore, the Court has jurisdiction to make a decree of divorce where the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia. As the domicile of the wife after marriage follows that of the husband, the wife would also be deemed to be domiciled in Malaysia.

The fact that the wife is abroad poses only procedural problems, if at all. As she is outside the jurisdiction, leave for service of the cause papers outside the jurisdiction would have to be obtained. Once this is done, established and practical procedures enable the court papers to be filed and served.

The burden would then shift to the foreign partner of this short marriage. If she does not respond to the documents served on her, the petitioner would be entitled to ask for an order for dissolution of marriage. If she responds, she will have to have grounds for the petition to be refused.

Action to initiate a divorce may in some cases be discouraged by the fact that though everything is now quiet, a divorce petition may result in the respondent asking for a slice of the man’s property.

The Court always has the power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts, or the sale of any such assets and the division between the parties of the proceeds of sale.

In view of these provisions, it is even more important that if the marriage is to be at an end, then a divorce petition be presented as soon as possible. This is because the period “during the marriage” will grow longer and longer if this is not done.

Any comments or suggestions for points of discussion can be sent to [e-mail]. The views expressed here are entirely the writer’s own.