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Customary wedding but marriage not registered as husband was not legally divorce yet. Is this valid?

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asked on Nov 28, 2008 at 12:36
by   kenlee
edited on Aug 4, 2016 at 06:46
 
I am a law student myself, but I feel so regret for unable to come up with a good advice for my own sister... so here with all the experts and bro lawyers I would like to ask for opinion. Here is the summary of the case:

My sister being marry after a year ago under customary in Chinese custom (invitation card, tea ceremony, wedding photos, elder pictures during the wedding, wedding DVDs and friends are invited too). As an additional, partly the reason of my sister marry under Chinese's customary because she was pregnant during that time and the man could not marry her (legally) because of the reason he was not yet (legally divorce with his formal wife). Yet with the agreement with my sister they proceed with the customary first. However the man shows no sign of want to register the marriage as purposely delay the divorce, and even when the court order or the divorce arrives he still refuse and delay in proper registration with my sister. Recently he is suspected having another affair to another girl and my sister have some evidence (such as love SMS, the husband confession towards his family (his own sister and bros) and his own statement during argument with my sister)

Now, the child is born (currently 1 year old) and unfortunate my sister now already pregnant again around 3 months. I knew there were a lot of cases where to file a divorce and claim compensate have very high rate of failure but there are some cases where it support the customary marriage as valid such as Leong Wee Shing v Chai Siew Yin. Another point is my sister feel being cheated thus I suddenly feel will it constitute tort (as in deceit) or any relevant issue would help my sister having in fact now the husband admitted he have another women right now.

Apart from that I would like to know the child as is illegitimate, what right he will get, are there any suggestions? If the husband or my sister would like to claim for the child? The husband has better chances in income (but however divorce and currently under alimony for his formal wife and daughter up to RM1,000~RM1,500 a month if not mistaken) but my sister also have a good average job (around RM2,000) and with good backup of my father.

Thanks for all opinion ahead.
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1 Answers

answered on Jun 3, 2017 at 05:50
by   Hopefully I help
Hi there,

If a marriage is not registered with the registrar, it's considered as invalid. The date of the customary marriage is important, as the act has clearly stated, before 01 Mar 1982, any marriage is deemed legal and registrar of marriage is not necessary needed to be solemnized, however, after 01 Mar 1982 marriage will only be considered valid if it's legally registered with the registrar and customary marriage will be taken as invalid and has no legal grounds. 

I would suggest that you talk to your sister about this and discuss what is best for her. With that, have a discussion with her "husband" in harmoniously term as it's not in her best interest to bring this up to court. Slim chance of winning based on precedence case as mentioned "Chai Siew Yin vs Leong Wee Sing. The respondent won both the high court and court of appeal but lost the case at the federal court as the judges of the panel found that customary marriage is deemed illegal and it's necessary for a marriage to be registered to consider as valid. Please note, that's the final court decision (similar to supreme court decision) and no further appeal will be granted.   
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