Annulment of marriage in Malaysia is governed by the Law Reform (Marriage and Divorce) Act 1976 (Act 164).
Before proceeding further it is important to note the primary distinction between void marriage and voidable marriage.
A void marriage means the valid marriage does not exists at all at the time of solemnization of the marriage whereas a voidable marriage exists at the time of solemnization until it is annulled by the Court.
It is pertinent to note that the jurisdiction to grant a decree of nullity regardless whether it is pursuant to void or voidable marriages lies with the High Court. It is also important to note that Malaysian High Court can only grant the decree of nullity when both the parties to the marriage reside in Malaysia at the time of the commence of the proceedings and this is provided for in Section 67(c) of the Law Reform (Marriage and Divorce) Act 1976.
Moving on will be the when a marriage is considered to be void and this is provided for in Section 69 paragraph (a)-(d) of the Law Reform (Marriage and Divorce) Act 1976 and they are as follows:-
(a) at the time of the marriage either party was already lawfully married and the former or wife of such party was living at the time of the marriage and such former marriage was then in force
[here it means marriage is only between one man and one woman to the exclusion of others and if a person who was already lawfully married marries again, the latter marriage is considered as void marriage].
(b) a male person marries under 18 years of age or a female person who is above 16 years but under 18 years marries without a a special licence granted by the Chief Minister under section 10 of the Law Reform (Marriage and Divorce) Act 1976;
(c) the parties are within the prohibited degrees of relationship unless the Chief Minister grants a special license under subsection (6) of section 11; or
(d) the parties are not respectively male and female.
Dissolution of a marriage by way of divorce by joint petition or by mutual consent is allowed under Section 52 Law Reform(Marriage and Divorce) Act 1976 (Act 164) and the jurisdiction to grant the divorce lies with the High Court. It is worth to pause that the Law Reform (Marriage and Divorce) Act 1976 (Act 164) is governing statutes regulating among other things marriages and divorces for non-muslims in Malaysia.
As long as the parties agreed to the divorce, one of them is domiciled in Malaysia (or is a citizen of Malaysia) and have been married for at least two (2) years at the time of the presentation of the Petition for divorce they are eligible to apply for a divorce by way of a joint petition under Section 52 Law Reform(Marriage and Divorce) Act 1976 (Act 164).
It is equally important to note that dissolution of the marriage by way of joint petition is out of the free will of the parties and hence it necessarily means that the parties will have to agree to the few key areas following the divorce (where applicable) such as custody of the children, maintenance of the wife and distribution of matrimonial properties.
In my view, as long as the arrangement between the parties in these key areas are legal, the Court is ready to grant the order as per the joint petition without going into the merits and/or the entitlement of the parties. For example, if the parties have agreed that the wife will get the custody of the son, the Court will not enquire whether the welfare of the son is best served with the wife having the custody of the son. The same will go to the maintenance of the son, if the husband agreed to pay the monthly maintenance of RM2,000.00 to the wife as maintenance of the son, the Court will not enquire whether the husband can afford to pay such sum and/or whether the son really need this amount. If the parties are unable to agree on the relevant key areas then they will not be able to obtain divorce by mutual consent. One of them will have to present a petition for divorce and the matter now has become a Contested Divorce.
The legal process for divorcing by joint petition will commence with: