What is a void marriage? What is a voidable marriage? What are the differences?
A void marriage is a marriage that is void and invalid from its very beginning. Such marriage is unlawful and requires no formality to terminate. A marriage shall be void if:
- at the time of marriage either party was already lawfully married and the former spouse was still living at the time of the marriage and such former marriage was then in force;
- a male person marries under eighteen (18) years of age or a female who is between sixteen (16) and eighteen (18) years of age marries without a special marriage licence;
- the parties are within the prohibited close family relationships; or
- the parties are not respectively male and female.
The children of a void marriage will only be considered legitimate if at the time of the solemnisation, the parties to the marriage reasonably believed that the marriage was valid and this only applies if:
- the father of the child was domiciled in Malaysia at the time of marriage; and
- in so far as it affects inheritance of any property only to children born after March 1, 1982.
A voidable marriage is a legal marriage that can be cancelled at the option of one of the parties and it is subject to cancellation if contested in court. You can petition to the court for a decree of nullity to declare your marriage void on the following grounds:
- the marriage has not been consummated due to the incapacity of either of you to consummate it;
- the marriage has not been consummated owing to the wilful refusal of your spouse to consummate it;
- either of you did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
- at the time of marriage, either of you, though capable of giving a valid consent, was a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 of such a kind or to such an extent as to be unfit for marriage;
- at the time of the marriage, your spouse was suffering from veneral disease in a communicable form;
- at the time of the marriage, your wife was pregnant by some person other than you.
If you are asking for a decree of nullity of marriage on the above grounds, you must prove to the court that you were ignorant of these facts at the time of the marriage.
The court will not grant a decree of nullity if your spouse satisfied the court that:
- you, with knowledge that is was open to you to have the marriage avoided, gave your spouse the impression that lead him or her reasonably to believe that you will not seek a decree; and
- it would be unjust to your spouse to grant the decree.
Collusion does not prohibit the granting of a decree of nullity.
A decree of nullity granted on the ground that the marriage is voidable operates to annul the marriage only after the date of the decree and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.
Similar to a divorce decree, a nullity decree becomes absolute only after a period, usually three (3) months.
Only it becomes absolute, you are free to marry.
The children born of a voidable marriage which has been annulled will be and will remain legitimate.
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