The Marriage and Divorce Statistics Report in 2020 saw a decline in marriage rates and an increase in divorce rates in 2019; attributed to the increase in urbanization between 2010 and 20191.
There has been much discussion, particularly abroad, regarding the likely causes of declining marriage rates in several urbanized countries. Such decrease in marriage rates have also occasionally been accompanied by an increase in cohabitation particularly among the younger generation2.
The reasons for couples to delay and / or choose not to marry are numerous and varied, ranging from economic reasons to the changing social perceptions of marriage. Though cohabitation is more acceptable than it once was and marriage may not have the same social implications as it once did, there are nevertheless many legal reasons why a couple should get married, some of which are listed below.
- Public acknowledgement and social status
Marriage is essentially a declaration to the world at large that “I intend to form a permanent union with this person”. Such a declaration is essentially asking the world at large to treat their partner with the due respect and dignity usually afforded to a wife / husband. This elevated legal status accordingly confers with it certain rights which would otherwise not be available to their partner. For example, a spouse may apply to extract their partner’s marriage certificate, death certificate and/or register of identity card and address from our National Registration Department, whereas an unmarried partner would not.
- Financial protections in the event of a breakup / divorce
a) Division of matrimonial assets
In a divorce, married persons have a claim to any asset acquired by them throughout the duration of their marriage, such as the matrimonial home, investments properties, shares, et cetera. How the Courts divide such assets will depend on the facts and circumstances of each case. For example, a wife may make a claim for the matrimonial home purchased by the couple during the marriage even if she is not a registered joint owner of the property. However, how the Court divides the property will then depend on the couple’s respective financial and non-financial contributions toward the marriage, care of the children and the acquisition of the home.The same principles do not apply to cohabiting couples. The unmarried woman / man would have no claim on the home when no financial contributions have been made for its acquisition or unless they are a joint registered owner. Although parties may plan around this by making sure both of them are joint owners of the properties, this could potentially lead to other problems later on when parties cannot agree on when to sell the property or how much to sell the property for.
b) Custody, care and control of the children and access rights
It is much easier for married persons to have a say in the custody, care and control of the children of a marriage than illegitimate children, for both legal and practical reasons. Previously, a father would have faced an uphill battle trying to obtain custody of an illegitimate child as the parental rights and duties of an illegitimate child were deemed to vest exclusively in the natural mother. Although more recent case law has ruled that a biological father now has equal parental rights over an illegitimate child, it still remains that it is generally simpler and more expeditious to seek custody of a legitimate child than an illegitimate child.
In Malaysia, the primary duty to maintain the wife and children still falls with a husband, although the wife may be asked to contribute the maintenance (or also known as alimony in other countries) of the children. A wife is entitled to receive maintenance from her husband regardless of whether she is a working woman or not. Children are entitled to maintenance until they reach the age of 18 years old and/or complete their tertiary education. Although much less common, husbands may also be entitled to maintenance albeit where the husband is incapacitated from earning a livelihood and the court is satisfied that having regard to the wife’s means, it is reasonable to so order.
Conversely, a cohabiting couple will have no rights to claim for maintenance in the event of a break-up, notwithstanding the length of the relationship.
Adultery is still considered a matrimonial offence in Malaysia. So, if a spouse is cheating on their significant other with a third party, the “innocent spouse” can sue the third party for damages. But just before you “innocent spouses” begin planning your lives as millionaires, do keep in mind that the Courts do not usually award large sums in damages for adultery, and it is unlikely someone will become a millionaire from such a suit. The objective of damages is to compensate, not punish. If you are the lucky one who is awarded a large sum, do let us know.
For a cohabiting couple there is generally no legal recourse for damages if one partner cheats on the other although it would certainly be easier to leave the relationship.
- Legitimacy of children and their right to inherit
Marriage is important to ensure that the children born within a marriage are legitimate persons recognized under the law. Children born out of wedlock are considered illegitimate and have limited legal rights, particularly rights of inheritance of an intestate estate and in some circumstances, to citizenship. Presently, under intestacy laws, illegitimate children do not have automatic rights to inherit and are not recognized as beneficiaries of their biological father’s estate. An illegitimate child may inherit from their mother’s estate but only if the mother dies without leaving any legitimate issue surviving her3. Unfortunately, this same principle does not apply to the father.Usually, only the mother’s name would be registered on an illegitimate child’s birth certificate and the child would take on the mother’s surname4. A father’s name may be added to the birth certificate and the child may adopt the father’s surname but only at the joint request of the mother and person acknowledging himself as the father5.
- Estate planning
When a person dies without a will during the marriage, the surviving spouse is entitled to apply for the grant of the letters of administration of the deceased’s estate as a beneficiary of the estate. If the parties are unmarried at the time of the deceased’s death, the unmarried partner would not be automatically entitled to apply as they would not be a beneficiary of the estate. Further as earlier mentioned, illegitimate children are not entitled to inherit an intestate deceased’s estate. Although this restriction may be overcome with adequate estate planning and by drawing up a will and / or trusts to specifically address these issues, this may still be a factor a couple may want to consider when deciding whether to marry or not.
- Transfers of property
Married couples are entitled to enjoy exemptions and / or reductions on stamp duty for transfers of properties between one another or their children. Spouses and parents are able to transfer immovable property as a gift and would only need to pay a nominal stamp duty instead of the usual ad valorem duty applicable to sale and purchase agreements. Moreover, the procedure for such transfers is much simpler and speedier.
- Spousal Consent in medical decisions
Ordinarily, in a doctor-patient relationship, the duty of care is owed only to the patient. If a patient is unable to give informed or valid consent, a relative, next-of-kin or legal guardian may be asked to give consent on the patient’s behalf6. Unfortunately, this does not include the consent of an unmarried partner. A spouse’s consent may also have to be considered in situations such as7:a) When a medical decision involves the joint reproductive rights of husband and wife8;b) When it is evident that the patient is dependent on their spouse to make decisions with regards to the proposed medical treatment; orc) When it is evident to the doctor that the decisions are being made jointly by both spouses in respect of the treatment for one of the spouses.
- Domestic violence
In Malaysia, our Domestic Violence Act 1994 only recognizes domestic violence committed by a person against their “spouse”, “former spouse”, “child”, “an incapacitated adult” or “any other member of the family”. An unmarried person cannot be charged for domestic violence against their intimate partner, irrespective of how long or committed their relationship was. The abusive partner may nevertheless be charged for crimes such as wrongful restraint / confinement, voluntarily causing hurt, assault, et cetera but not domestic violence.
- Citizenship / nationality
Malaysia is one of only a few countries which deny men equal rights in conferring citizenship to their children born out of wedlock. An illegitimate child born overseas generally follows the citizenship of the mother. This position was confirmed again recently by the Federal Court on 31st May 2021 when it ruled that a boy born illegitimately to a Malaysian father and foreign mother was not entitled to Malaysian citizenship.It is not uncommon for foreign children to face difficulties accessing healthcare and public education. Such complications may be more serious as of recent due to the travel restrictions imposed due to the COVID-19 pandemic which have left many families stranded overseas and unable to return.
- Tax benefits
There are certain tax benefits that married couples are entitled to. For example, a married person may be entitled to claim tax relief if their spouse has no source of income. Married couples may also choose to file joint or separate assessments on their incomes because under Malaysian tax law a married couple can either be treated as a single entity or two persons. Filing a joint assessment is usually beneficial if one spouse earns a lot more than the other. In such a case, by filing a joint assessment, the aggregate income would be lowered and place the couple in a lower tax bracket. To check whether you are entitled to any tax benefits, please consult your family accountant.
Although these factors are generally applicable to both Muslims and Non-Muslims, there may be additional requirements and other considerations for Muslim couples which would be better addressed by a Syariah practitioner.
This list is not exhaustive and should not be taken as legal advice. There are many reasons why people may choose to get married, religious or otherwise, and it is a personal decision that should be entirely up to the couple.
Whether or not a person chooses to marry, it is prudent for couples to understand the implications of their decision on themselves and their children (if any). If you have any doubts or wish to clarify any legal rights you may have, do consult with a family lawyer.
 https://www.brookings.edu/research/middle-class-marriage-is-declining-and-likely-deepening-inequality/;https://repository.law.umich.edu/articles/1843/; https://onlinelibrary.wiley.com/doi/full/10.1111/padr.12063;https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4861075/
 Section 11 of the Legitimacy Act 1961.
 Section 13A of the Births and Deaths Registration Act 1957.
 Section 13 of the Births and Deaths Registration Act 1957.
 See paragraphs 8 and 10 at pages 5 and 6 respectively, Malaysian Medical Council Guideline: Consent for Treatment of Patients by Registered Medical Practitioners dated 21 June 2016 (1st Revision: 19 September 2017) https://mmc.gov.my/wp-content/uploads/2019/11/Consent_Guideline_21062016.pdf
 Abdul Razak bin Datuk Abu Samah (claimed as a widower to Fatimah @ Rohani bt Zainal, on behalf of the deceased) v Raja Badrul Hisham bin Raja Zezeman Shah & Ors  10 MLJ 34, HC, Vazeer Alam Mydin JC. There were appeals filed by both parties, but both appeals were withdrawn.
 Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital & Anor  4 MLJ 260
Featured image by Denny Müller on Unsplash
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