Void and voidable marriage: civil and syariah perspectives

Ali Mohamed, Ashgar Ali and Venugopal, A. Vijayalakshmi and Ahmad, Muhamad Hassan (2026) Void and voidable marriage: civil and syariah perspectives. In: FAMILY LAW IN MALAYSIA: CIVIL AND SYARIAH PERSPECTIVES. CLJ Publication, Kuala Lumpur, pp. 161-202. ISBN 978-967-457-213-6

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Abstract

In the law of contract, for a contract to be deemed legal “there must be separate and definite parties thereto; those parties must be in agreement, that is there must be a consensus ad idem; those parties must intend to create legal relations in the sense that the promises of each side are to be enforceable simply because they are contractual promises and the promises of each party must be supported by consideration”. If the consideration of the agreement or the object of the agreement is unlawful, the agreement is void and the court will not enforce it. Likewise, a contract will be voidable in the sense that one of the parties to it is entitled to rescind the contract when it can be established with the following elements namely, undue influence, fraud, duress, misrepresentation, or mistake. If, however, the party entitled to rescind the contract affirms the contract or fails to exercise his right of rescission within a reasonable time, so that the position of the parties becomes altered; or if he takes a benefit under the contract, or if third parties acquire rights under it, he will be bound by it. While marriage is fundamentally based on the principles of contract law, statutory intervention has evolved to correct the inherent inequities that may arise from the unequal bargaining strength of the parties to the marital contract. In the context of marriage law, a void marriage is one that will be regarded by every court as never having taken place. Meanwhile, a voidable marriage is one that will be regarded by every court as a valid, subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction. The Law Reform (Marriage and Divorce) Act 1976 (LRA) applies to all persons in Malaysia and all persons domiciled in Malaysia, but resident outside Malaysia. However, this Act does not apply to a Muslim or to a person married under Muslim law. Similarly, the Act is also not applicable to any native of Sabah or Sarawak or any aborigine of Peninsular Malaysia whose marriage and divorce is governed by native customary law or aboriginal custom, except under circumstances mentioned in s. 3(4)(a) to (c) of the LRA. Either spouse is entitled to petition the court for a decree of nullity in respect of the marriage, thereby seeking a judicial declaration that the marriage is void or voidable. A decree of nullity of marriage may be granted on the ground that the marriage is void as specified in s. 69 of the LRA, or when it is voidable under s. 70 of the LRA. A decree of nullity declaring a marriage voidable operates to annul the marriage only from the date of the decree, and not retrospectively. Likewise, under the Islamic Family Law (Federal Territories) Act 1984 (IFLA), a marriage shall be void unless all conditions necessary, according to Hukum Syarak, for the validity thereof are satisfied. In a voidable marriage, the marriages remain valid until an annulment is granted by a court on several factors vitiating the marriage, such as lack of proper consent, non-consummation of the marriage, mental incapacity or infectious venereal disease at the time of the marriage, among others. Having said the above, this Chapter discusses the annulment of marriage on grounds of void and voidable marriage from the civil and Syariah perspectives, with reference to the LRA and IFLA.

Item Type:	Book Chapter
Uncontrolled Keywords:	Void Marriage, Voidable Marriage, Civil, Syariah.
Subjects:	K Law > K670 Family Law
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User:	Dr. Muhamad Hassan Ahmad
Date Deposited:	29 Jul 2026 01:41
Last Update:	29 Jul 2026 01:41
Queue Number:	2026-07-Q4294
URI:	http://irep.iium.edu.my/id/eprint/130241

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