Should unmarried cohabitants in Malaysia be entitled to the same legal protection as married couples when it comes to the division of property? A Comparative and Theoretical Analysis.

Abstract

Presently there is no statutory framework to protect the property interests of unmarried cohabitants in Malaysia. Moreover, Muslim cohabitants are not recognised at all within Malaysian law. By contrast, when a marriage ends, the parties to the marriage, whether Muslims or non-Muslims have clear statutory protection as regards their property rights within the Malaysian legislation. This is despite the fact that the two types of relationships may be identical in terms of their functions. This thesis offers a comparative analysis of the English and New Zealand jurisdictions, which do provide protection for cohabitants and their relationship property. In order to offer reform in Malaysia, the theoretical paradigm of functionality is assessed and presented, upon which a legislative model framework is presented. The framework is based on the theory of functionality, which means that when the functions in the relationship are same (between marriage and unmarried cohabitation), the property sharing outcome should be the same, irrespective of the status of the relationship. Malaysia operates a pluralist legal system, thus the legislative model framework presented within this work recommends that it should be applied to the Civil legal system only and not to be incorporated within the Malaysian Sharia Law, which deems unmarried cohabitation as a criminal offence.