Can You Remarry Without Getting A Divorce In Malaysia?
Past vs Present
Not so long ago, bigamous or even polygamous marriages were common practices among non-Muslims in Malaysia due to traditional believes and cultural influences. Back then, polygamous marriages were actually valid under the law. Today, under certain conditions, Shariah laws still allow Muslims to enter into a polygamous marriage. However, this is not the case for non-Muslims, because after the Malaysian Law Reform (Marriage and Divorce) Act 1976 (“the Act”) came into force, bigamous/polygamous marriages are outlawed, making all civil marriages monogamous.
What is the registration of marriage?
It is important to note that, every marriage that is to be solemnised in Malaysia shall be void unless a certificate for marriage has been issued by the Registrar of Marriages, as stated by the Act. In other words, it is mandatory to register your marriage for it to become recognised by the law. If you are lawfully married, and subsequently return to the Registrar of Marriage with the intention of registering a second marriage with a different person, your record would show that you are already married, and you probably won’t get your way with getting a second spouse. The obvious solution here would be to get a divorce in the first place, then only can you marry again.
Do customary weddings carry legal effect? – No, not anymore.
These days, we still see customary wedding ceremonies conducted across the globe, and this is common amongst all races in Malaysia as well. Some people may think that customary marriages still carries legal effect, but the fact is that after the Act was passed, a marriage solemnised solely according to customary rites does not legally bind two people in marriage anymore. More specifically, the Act provides that only customary marriages that took place before March 1, 1982, are lawful. Therefore, if you had a customary wedding after the date, and later register another marriage with a different person, then technically speaking, only your “second” marriage is valid. Again, the registration part of the Act comes into play. Since a customary marriage does not include registration, it cannot be legal.
Can I remarry without getting a divorce first? – No, it is illegal.
So what if a person is lawfully married, and now purports to marry another person? Assuming that the spouse in question is still living, that person could well be committing an offence. According to Section 494 of the Penal Code, a person who marries again during the lifetime of the spouse shall be imprisoned for a term of up to seven years and also be liable to a fine. So, unless your first spouse is deceased, or have been continually absent from you for the space of seven years, meaning that your spouse is presumably deceased, you cannot remarry without getting a divorce first. It would be worse for those who, as stated in Section 495 of the Penal Code, conceal their first marriage from the person of the subsequent marriage, as they would face imprisonment for a term which may extend to ten years, and shall also be liable to a fine. In short, if you remarry when your first and lawful spouse is still alive and well, you could be charged for bigamy.
What is the rationale behind the law?
The registration of marriages was a key reason for the enactment of the Act, and this has brought profound impact upon civil marriages. Unregistered and customary marriages are void, and in that same vein, bigamous/polygamous marriages are now forbidden. The existence of a marriage register circumvents ancillary matters to unregistered marriages such as the division of matrimonial assets and custody of children, and by extension, makes it easier to prevent non-Muslims to remarry before any previous marriages were properly dissolved. Furthermore, if a lawfully married man forms a union with another woman, she would have no right of succession or inheritance upon the death of the man since she is not a lawful spouse.
Although the current law has largely changed the ways of civil marriages, we can see that the regulating laws have become more systematic to prevent “messy divorces”. Also, perhaps more in line with modern values, bigamous/polygamous marriages that originated from a previously male-dominated society is prohibited to safeguard the welfare and financial interests of married women. The punishments for remarrying without getting a divorce in the first place can be severe, therefore, you might want to seek legal assistance to make sure that you have your divorce matters in order before you consider getting married again.
By Nicole Lee Yu Chen of TYH & Co.
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