Wednesday, February 2, 2011

Family Law 2006 Q(1)(a)

modified 02.02.2011

Allen, aged 18 years, and Vera, aged 17 years are in love. They decided to get engaged, but did not inform their parents about the engagement as they believed that it was something special between the two of them. Allan gave Vera a very beautiful gold ring and a bouquet of roses for the engagement.

Four months later, Allan fell ill and has to be hospitalised. Vera visited him every day until Allan suggested that they get married. Vera agreed and proceeded to inform her parents and Allan’s parents about their decision. Allan’s parents did not object but Vera’s parents objected and advised Vera to break off the engagement. Vera is now very upset as she wishes to marry Allan in whatever possible way. She seeks your advise on her problem. Advise Vera.                                                                           (12 ½ marks)

            Allan and Vera was in love and Allan had presented a gold ring and a bouquet of roses as a sign of their engagement which was accepted by Vera, thus, there had been a good consideration between them for a valid engagement. The parties to the engagement should remain single. In spiers v Hunt, the defendant promised to marry the plaintiff upon death of his wife, however, after 8 years, the defendant refused to marry the plaintiff who eventually sued the defendant for breach of promise. The Court decided in favour of the defendant because the promise was illegal due to the incapacity of the defendant being a married man not a single person as required. Further, Allan and Vera should have attained the minimum age for engagement. Under s.11 of the Contract Act 1950, only a person of age of majority may enter into contract and s.4 of the Age of Majority Act 1971 provides that the age of majority in Malaysia is 18. Be that as it may, the High Court in Rajeswari v Balakrishnan held that a minor can validly enter into a contract of marriage. Thus, Vera being 17 does not invalidate her engagement per say.

            Can Vera lawful marry Allan? Section 10 of the Law Reform (Marriage & Divorce) Act 1976 (LRA) provides that Allan should be 18 years of age and Vera, the female party should be above the age of 16. Nevertheless, s.12 provides that those parties to the marriage who is below the age of 21 should bet a written consent from the respective parent. In the event, Vera’s parent had unreasonably withheld his or her consent, she can petition the High Court under s.12(2), whereby the High Court upon hearing, may grant a consent on behalf on the parent. In addition, Vera, since she is below the age of 18, she should get a licence from Chief Minister [s.21(2)].

            Allan and Vera both have freely consented to the marriage [s.22(6)] without any duress and that they should not be in prohibited relationship (s.11) and that if Allan and Vera are Hindu and wish to marry according to Hindu religious rite and tradition, then even if their relationship stands as uncle and niece will not be against the law of marry. Advised accordingly.

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