LBC (Administrator of the estate of CKH, deceased) v CYF & Ors [2021] 6 MLJ 837

Court of Appeal, Putrajaya

Family Law – Marriage – Validity of customary marriage – Grant Letter of Administration

2.    In 1974, the deceased and the Defendant co-founded Feisco Sdn Bhd, a company that later acquired a house in Bangsar in 2013. In 1975, the deceased opened a nightclub called “Ciro” in Kuala Lumpur, where the first Plaintiff (CYF, a Taiwanese entertainer) worked.

3.    The first Plaintiff claimed that she married the deceased in Taiwan in 1978 in a small ceremony, with a tea offering to her family.  She alleged all photos and memorabilia were destroyed in a 1987 fire.

4.    After the alleged marriage, the first Plaintiff and the deceased lived in Taiwan for about 1.5 years before moving to Malaysia in 1981.  They claimed to have cohabited at the Bangsar house until the deceased’s death in 2013.

5.    The Defendant argued the customary marriage never happened because the deceased’s passport had no record of travel to Taiwan in 1978 and the Ambassador Hotel in Taiwan, where the ceremony allegedly occurred, may not have existed in 1978.

6.    The Defendant denied knowledge of the Plaintiffs’ alleged family, claiming the deceased only revealed his affair and their existence days before his death.

7.    The first Plaintiff alleged that the Defendant knew about their family because they lived at the Bangsar house and were present at the deceased’s official functions. The second and third Plaintiffs (the alleged children of the deceased) were named in the deceased’s obituary.

8.    After the deceased’s death, the first Plaintiff and her daughters (second and third Plaintiffs) sought to be recognized as the deceased’s lawful widow and children, invalidate the Letters of Administration (LA) granted to the Defendant, and include them in the distribution of the deceased’s estate.

9.    The High Court held that the first Plaintiff (CYF) to be one of the lawful widows of the deceased.

10.  The learned judge also found that the second and third Plaintiffs (alleged daughters) as the lawful children and next of kin of the deceased

11.  The learned judge further held that the Defendant was ordered to distribute the estate in accordance with the Distribution Act 1958 to all recognized beneficiaries.

12.  Therefore, this was an appeal against the decisions in High Court.

2.    Whether the whether the customary marriage was deemed to be registered under section 4 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164)?

(a)      The Court of Appeal held that conflicting evidence about when the existence of the Ambassador Hotel in 1978 (some sources said between 1977 and 1981 while others said it opened in 1981). No one from the hotel testified, leaving this matter unresolved and the evidence taken together show that there is no definite answer to the question of whether the said hotel was there in 1978.

(b)      The Court of Appeal found that the deceased’s passport showed no Taiwan travel stamps in December 1978. It raised doubts on whether the deceased travelled to Taiwan at all during that time.

(c)      In the present case, there was no documentary evidence showed by the Plaintiff, no photos, invitations, or marriage certificates were presented and witness testimonies about the alleged fire and lost items were inconsistent and unconvincing.

(d)      Moreover, none of the deceased’s family attended the alleged wedding ceremony or gave blessings, which was unusual for a customary marriage.

(e)      The first Plaintiff lived in Malaysia on a social visit pass, not a spousal visa, which contradicted her claim of being a lawful wife since 1978.

(f) Therefore, the Court of Appeal was of the view that the customary marriage was not proven to have taken place due to insufficient evidence and inconsistencies in the Plaintiffs’ claims. Even if the marriage occurred, it was legally invalid because the deceased’s first monogamous marriage was still in effect under the CMO. (Lee Chee Keong v Fadason Holdings Sdn Bhd and other appeals [2017] 3 MLJ 728 (CA)).

2.    Whether the customary marriage was deemed to be registered under section 4 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164)?

(g)      The Plaintiff claimed that the marriage followed Chinese customs and it was carried out before 1 March 1982 which was when the Law Reform (Marriage and Divorce) Act 1976 (Act 164) came into force. As such, it was argued by the Plaintiff it should be deemed valid under section 4 of LRA 1976.

(h)      The Plaintiffs relied on the case of Re Lee Choon Guan and Tan Ah Bee, and argued that Chinese customary marriages can be recognized if certain conditions are met which are long cohabitation as a couple, intention to form a permanent union and reputation of the marriage, including recognition by family or the community.

(i)        The High Court concluded the marriage met the above conditions, where the deceased lived with the Plaintiffs at the Bangsar house, suggesting a long-term relationship. The deceased maintained the relationship with the Plaintiffs for over 30 years without separation. The deceased attended public events with the first Plaintiff, their children’s birth certificates listed him as the father, and the second and third Plaintiffs were included in his obituary. Thus, the High Court recognized the customary marriage as valid under section 4 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164), deeming it registered. [Relied on the case of Re Lee Choon Guan, deceased Lew Ah Lui (f) v Choa Eng Wan & Ors [1935] 1 MLJ 78 and Tan Ah Bee and in Wong Fong Yin & Anor v Wong Choi Lin & Anor and another suit [2013] 4 MLJ 82]

(j)        However, Court of Appeal found that, CMO was overlooked by the High Court. CMO, mandates monogamous marriages, prohibits a person already married under the CMO from entering another marriage, even under personal or customary law. By failing to account for the CMO, the High Court ignored the legal framework governing the deceased’s first marriage to the Defendant.

(k)       Court of Appeal was of the opinion that the High Court wrongly assumed that the disputed marriage could be recognized under Act 164 without considering the CMO’s restrictions. The CMO invalidates any subsequent marriage entered into while a statutory marriage is still in effect.

(l)        In CMO governs the validity of the deceased’s marriages, and it strictly prohibits polygamy.  Even if the customary marriage occurred, it is invalid, null, and void under the CMO.  The High Court’s decision to recognize the disputed marriage was legally flawed.

(m)     Pursuant to section 3 of LRA 1976, marriages that were solemnized under the CMO are valid in law.  Section 4 of LRA 1976 provides that a man or woman married under the CMO cannot enter another marriage (whether as a principal or secondary spouse) while their current marriage is still valid. While under section 5 of LRA 1976, it is provided that any children from a union entered into during a valid CMO marriage are considered illegitimate. As such, the secondary spouse and their children cannot inherit from the estate of the married person. According to section 6 of LRA 1976, a CMO marriage only ends when one party dies or a court dissolves the marriage or a court declares the marriage null and void.

(n)      The Court of Appeal then referred to the case of Shanmugam s/o S Kanapathy v Pappah d/o Chinniah Nadar [1994] 1 MLJ 144, a man who marries under the CMO cannot take a second wife during that marriage. Secondary marriages, even if customary, are invalid.

(o)      In case of Re Estate of Liu Sinn Min [1974] 2 MLJ 9b, a man married under the Singapore CMO (similar to Malaysia’s) could not enter a valid customary marriage during the subsistence of his CMO marriage.

(p)      In the present case, it is evident that the deceased chose to enter into a monogamous marriage with the Defendant under the CMO.  As a result, he was legally prohibited from marrying the first Plaintiff as a secondary wife while his marriage to the Defendant remained valid.

(q)      Thus, Court of Appeal held that the disputed customary marriage is invalid and void.  Consequently, the first Plaintiff is neither a secondary wife nor a lawful widow of the deceased. As there was no valid solemnization of the customary marriage under section 4 of Act 164, and in accordance with section 5 of the CMO, the second and third Plaintiffs are not recognized as lawful children or next of kin of the deceased.

(r)        Hence, the Appellant is the sole lawful widow and rightful administratrix of the deceased’s estate as the alleged customary marriage was invalid under the CMO.

2.        The burden of proving the existence of a customary marriage lies with the party asserting it, requiring substantive documentary and corroborative evidence.

3.        Courts must evaluate the credibility and consistency of evidence thoroughly, especially in disputes over marriage validity and inheritance rights.