MARRIED WOMEN ACT 1957 (MWA) It took effect on 15.8.1957 and significantly amended in 1994. Applies to the states of West Malaysia only. Section 3 provides that MWA applies to all married women, but shall have effect in Malay States and the Federal Territory of Kuala Lumpur in relation to Muslim married women and their property, rights and obligation subject to the Islamic Law and the customs of the Malays governing the relations between husband and wife so far as the same may be applicable, and in the States of Malacca and Penang subject to the Islamic law of the states and in all cases to such last-mentioned Islamic law extends. Azhani Binti Arshad Law 581 (Jul-Nov 2009) MWA
Rights and liabilities
Section 4: provides that a married woman is capable of acquiring, holding and disposing of any property, liable in respect of any tort, contract or debt or obligation, sues and being sued in her own name either in tort or in contract and is entitled to all remedies and redress for all purposes and is subject to the law relating to bankruptcy and to the enforcement of judgments and orders as if she were a feme sole or an unmarried woman.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
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Section 4A (added/ inserted in 1994):
allowing a husband or wife to sue each other in tort for damages in respect of injuries to his or her person, in the like manner as any other two separate individuals. (injuries incurred in a fight or an assault)
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
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Section 5: on married women’s property:
if the property was that of a married women or property held for her separate use in equity, that property belongs to her in all respects as if she were a feme sole or an unmarried woman and may be disposed of accordingly.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
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Section 6: abolishes a husband’s liability
for his wife’s torts and ante-nuptial contracts, debts and obligations, before or after marriage.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
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Section 9; On right of married women for
protection of their property. Section 9(2) was repealed and replaced by section 4A. Section 9(3): Any criminal charge or in any proceeding relating to the property of a married woman, it is sufficient to allege that such property is hers.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT… Section 9(4): provides 3 situation in relation to criminal proceedings against a husband and a wife are:- Where the husband and wife are living together (no criminal proceedings may be taken by any of the spouses); Where the husband and wife are living apart, but the act complained of concerning property occurred when they were living together (no criminal proceedings may be taken by any of the spouses); Where the husband and wife is leaving or deserting or about to leave or desert the other spouse and the act complained of concerning property occurred when they were living together (criminal proceedings may be taken against the offending spouses) [where the couple are living apart and the act done by either the husband or the wife occurred concerning property while they were living separately or apart, criminal proceeding may be taken against the offending spouse]
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CASES Faridah bt Dato’ Talib v Mohamed Habibullah bin Mahmood [1990] 1 MLJ 174 Facts: P had filed a petition for divorce in the Syariah Court. while the petition was pending, she commenced an action in the High Court for damages and to restrain her husband, D from assaulting, harassing or molesting her and members of her family. D sought to have P’s action struck off. The issue before the High Court was whether P could institute the action against D when section 9 (2) of MWA prohibited a wife from suing her husband in tort. Held: since the allegation of assault and battery constituting the tort were not related to the protection or security of property, P was barred by section 9(2) from suing D. This case prompted Parliament to replace section 9(2) with section 4A. Azhani Binti Arshad Law 581 (Jul-Nov 2009) CONT…
Re Ketuna Bibi [1955] MLJ 166
Facts: the wife had committed criminal breach of trust in relation to her husband’s property. The court accepted that under Islamic law, a husband or a wife may undertake an action against the other spouse for cheating, fraud or theft of his or her property committed while they are living together. MWA does not apply here as under the Islamic law, criminal action can be taken against the other spouse.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT… Section 10: A woman after her marriage will continue to be liable for all debts contracted and all contracts entered into or wrongs committed by her before the marriage. Section 11: in instances of doubt between husband and wife pertaining to the title or possession of property, either party may apply to any judge of the High Court or Session Court. any dissatisfied party may appeal either to the Court of Appeal or the High Court as the case may be. Section 12: a married woman may sue and be sued if she is an executrix of a trustee either solely or jointly with any other person or persons.