Annulment of Marriage in Malaysia

What is an annulment?

An annulment is a court order, called a decree of nullity, saying a marriage is not valid. A divorce ends a valid marriage. An annulment deals with a marriage that had a legal defect.

The rules are in Sections 68 to 75 of the Law Reform (Marriage and Divorce) Act 1976. The law splits these marriages into two groups: void and voidable.

When is a marriage void?

A void marriage was never valid. Under Section 69, a marriage is void if:

• Either party was already lawfully married to someone still living.
• The man was under eighteen, or the woman was between sixteen and eighteen and married without a special licence.
• The couple are within the prohibited degrees of relationship (too closely related) and had no special licence.
• The parties are not male and female.

Such a marriage was never valid, but a court declaration still gives you certainty and a clear record.

When is a marriage voidable?

A voidable marriage is valid until a court cancels it. Under Section 70, the grounds are:

• The marriage was not consummated (no sexual intercourse) because either party is unable to.
• It was not consummated because your spouse wilfully refused.
• Either party did not truly consent, for example because of pressure, a mistake or unsound mind.
• Either party had a mental disorder at the time that made them unfit for marriage.
• Your spouse had a venereal disease in a form that could be passed on.
• Your spouse was pregnant by another man at the time of the marriage.

Under Section 71, the court can refuse if, knowing you could end the marriage, you behaved in a way that led your spouse to believe you would not, and it would be unfair to them. For the last two grounds, you must not have known the facts when you married.

A voidable marriage is only cancelled from the date of the decree. Until then, the law treats it as having existed.

How do you apply?

You file a petition for nullity in the High Court, much like a divorce petition. The court looks at the evidence and decides whether the marriage is void or voidable.

If it grants the decree, the court may also deal with ancillary matters such as property and, where relevant, custody of children.

Annulment or divorce?

Annulment is only possible if one of the grounds above applies. If your marriage was valid and none of them fit, your route is to file for divorce.

Some people prefer annulment for personal or religious reasons. A lawyer can tell you whether your facts support it.

What happens to the children?

Under Section 75, a child of a voidable marriage is treated as legitimate. A child of a void marriage is also treated as legitimate if, when you married, one or both of you reasonably believed the marriage was valid.

The court can make orders on custody, access and maintenance, as it would in a contested divorce.

Looking to engage a divorce lawyer? If you are unsure whether your marriage can be annulled or you need a divorce instead, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.