Shri & Partners Assuring Your Legal Needs

Adoption in Malaysia can be done under Adoption Act 1952 [court adoption] or via the National Registration Department [“NRD”]

For court adoption there are 4 preconditions as follows :

• The applicant must have attained age of 25 years and is at least 21 years older than the child whom he propose to adopt;
• The applicant must be a resident of Malaysia and child must be likewise;
• Child must have been in continuous care and control of the applicants for at least 3 consecutive months immediately proceeding the date of the adoption order; and
• The applicant must have given not less than 3 months written notification to the Social welfare Department.

Child custody and visitation rights usually one of the major disputes arising after divorce.

In most cases, the mother and father of the child tries hard to convince the court that he or she should be given custody instead of the other leaving the faith of the child in the dark until the court makes a decision. However, the law provides that the interests or the welfare of the child shall be the paramount consideration and not the interests of the disputing parties. Many factors are taken into account by the court in determining the welfare of the child based on two important laws which govern matters pertaining to custody in Malaysia; the Law Reform (Marriage and Divorce) Act 1976 (LRA) and Guardianship of InfantAct 1961(GIA) as well as common law cases.

As provided for in Guardianship Infant Act 1961 [GIA]

DUTIES OF GUARDIAN OF PERSON

The guardian of the person of an infant shall have the custody of the infant, and shall be responsible for his support, health and education.

DUTIES OF GUARDIAN OF PROPERTY

Subject to the rights and powers of any trustee or personal representative in whom an infant’s property is vested, a guardian of the property of an infant shall have the control and management of the infant’s property, and shall deal therewith as carefully asa man of ordinary prudence would deal with his own property, and may, subject to this Act, do all acts which are reasonable and proper for the realization or protection of the infant’s property.

EQUALITY OF PARENTAL RIGHTS

• In relation to the custody or upbringing of an infant or theadministration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.
• The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as arepossessed by the father.

The main Malaysian statutes governing the breakdown of marriage and the welfare of children are:

• Law Reform (Marriage & Divorce) Act 1976;
  Guardianship of Infants Act 1961;
• Child Act 2001 [which deals primarily with children in need of care, protection and rehabilitation and related matters];
  Married Women Act 1957;
  Married Women & Children (Maintenance) Act 1950;and
  Married Women & Children (Enforcement of Maintenance) Act 1968.

Domestic Violence Interim Protection Order

• A domestic violence interim protection order is a temporary and urgent legal protection order that can be sought pending investigations by the police following an information to the commission of the offence involving domestic violence.

A domestic violence interim protection order will cease to have effect upon the completion of the investigations. However a domestic violence protection order is an order that can be sought during any criminal proceedings under the Penal Code where the accused is charged with an offence committed under circumstances that falls within the definition of domestic violence.

A domestic violence protection order is good for a period, not exceeding twelve (12) months and can be extended for a further period, not exceeding twelve (12) months if the court is satisfied that such extension is necessary for your protection and personal safety

Spousal maintenance depends on why the spouse left the home, if the wife moved out of the house and the husband offers to maintain the wife if the wife comes back to live with him. If the wife have good reasons for refusing to return to live with him the court will order him to pay the wife maintenance.

In Malaysia today general damages for personal injuries are traditionally assessed under four heads, where the heads are applicable. The four heads are (i) pain and suffering and loss of amenity (ii) loss of future earnings (iii) loss of earning capacity and (iv) future care expenses. Such claim must be filed within 6 years from the time of the accident.

Where a person’s property is damaged as a result of the wrongful act of another, it would usually be possible to quantify the loss in terms of the amount of money involved.
When such amount can be determined as in the case of cost of repairs, replacement or restitution, it is referred to as special damages. This is because in the case of damage to property, there would be a need to repair an item or replace certain parts of the item damaged.

  One need to see if there is a breach of tortious duty, or a breach of a contractual duty, or both. A lay person’s mind only asks one question “How much can I get out of this?”.
In case of tort, damages are always unliquidated, or unascertained . In case of breach of contract injured party has right only for liquidated damages, i.e. pre-settled or actual damages.

A breach of contract is an infringement of a right in personal The duty violated, in the case of a breach of contract, is a specific duty owed by either party to the other alone. Law relating to contract has been codified. In Malaysia applicable Act is Contracts Act 1950.

The following are the sources of Malaysian Company Law: [1]Companies Act 1965,
Companies Regulation 1966,
Securities Industry Act 1983,
The Registration of Business Act 1956.

A company capable of suing and being sued. A company may sue and be sued in its own name. In fact, it must sue on its own behalf according to what rights it has and duties owed to it. Case: Foss V Harbottle (FvH)- In this case two shareholders brought an action against the company’s directors. They alleged that the property of the company has been misused.
- Held: The injury complained was an injury to the company. In law, the company and its members were not the same. Therefore the members cannot maintain such suit. It was for the company to sue and not the members. In other words, the company is the proper plaintiff to initiate actions in respect of wrongs done to it. Thus, the proper organ to commence the action on behalf of the company is BOD. A single director or officer of the company cannot sue on the company’s behalf unless specifically authorized to do so.

The Bankruptcy Petition following an act of bankruptcy, a bankruptcy petition may be presented to the Court. The conditions that a creditor has to satisfy before being allowed to present the bankruptcy petition are set out under Section 5(1) BA ‘67. Under the section, the debt owed to the petitioning creditor by the debtor must amount to a minimum of thirty thousand Malaysian Ringgit. Further, the debt must be a liquidated sum payable either immediately or at some certain future date, and the relevant act of bankruptcy must have occurred within six months before the presentation of the petition.

At the hearing of the bankruptcy petition, the Court shall require proof of the petitioning creditor’s debts, the act/s of bankruptcy, and the service of the petition (should the debtor not be present at the hearing. The Court may also dismiss the petition if it is satisfied that the debtor will be able to pay his debts, or for other sufficient cause no order ought to be made.

In practice, a debtor that is advised by capable solicitors can challenge the bankruptcy proceedings against him for many years by taking legal and technical objections at every stage.

Who can be made a bankrupt in Malaysia? An individual who:

• was personally present in Malaysia; or
• ordinarily resided or had a place of residence in Malaysia; or
• was carrying on a business in Malaysia either personally or by means of an agent; or
• was a member of a firm of partnership which was carrying on a business in Malaysia.

In order to get authority to administer the estate a legal document called a Grant of Representation is required of which there are three types. If there is a will, then the executor needs to take out probate. If there is no will, or, if no executor has been appointed or the appointed person cannot act, an administrator may be appointed and he/she takes out a Letter of Administration (or a Letter of Administration with Will Annexed if there is a will).

If deceased failed to make a will, an administrator must be appointed. An administrator is also appointed where an executor is not named in the will, dies before the testator or is unwilling or unable to act.

A civil action may be initiated in the Magistrates’ Court, the Sessions Court or the High Court. The Magistrates’ and Sessions Court do not have jurisdiction over certain matters, regardless of the monetary claim involved. There are certain matters where the Sessions Court has unlimited monetary jurisdiction. There are two High Courts in Malaysia, namely the High Court of Malaya and the High Court of Sabah and Sarawak. The jurisdiction of both these High Courts is territorial in nature. Civil proceedings in Malaysia are governed by the Rules of Court 2012.

Conveyancing is the act of transferring the legal title in a property from one person to another. To ensure that the purchaser secures the title with all the rights that run with the land.

Properties can be either: (a) Freehold – held in perpetuity; or (b) Leasehold – land owned by the state and leases land owned by the state and leases are for a term of usually for 30, 60 or 99 years. (c) Malay Reserved Land – the buying and any the buying and any subsequent changing of ownership is restricted to Bumiputeras only.

Drafting the S&P Property with Title, Parties to the Agreement, Recitals, Deposit sum, Condition precedent, Mode of payment,Time Period Drafting of the S&P without title, Essential preliminaries, Recital, CP, Mode of Payment, Documentation and execution of documents, RPGT Redemption of the prop Lodgment of private caveat by purchaser and Non-perfection of the deed of assignment.