Marriage, Divorce, and Custody of Children after Divorce

• Marriage between persons of different religions is recognized in Myanmar.
• The enacted laws influence the marriage between persons of different religions regardless of the customs.
• Since the conditions of each individual can be different, it is recommended to get the advice and assistance from the experts and the legal professionals.

1. Marriage under Myanmar Customary Law
   • A Buddhist woman and a non-Buddhist man can marry by fulfilling the following criteria^{32 (The Burmese Women Special Marriage Law, 2015, section 4.)} –
     • Both parties are not suffered from insanity
     • Marriage is based on free consent
     • Where the woman has not reached the age of 20, the approval of parents or guardian has been obtained
     • Both parties do not have legally married spouse.
   • ထိုသို့ လက်ထပ်ထိမ်းမြားခြင်းကို မြို့နယ်အထွေထွေအုပ်ချုပ်ရေးဦးစီးဌာန အုပ်ချုပ်ရေးမှူး^{Such marriage is required to be conducted before the Township Administrator of the General Administration Office} according to the rules and procedures enshrined in the law^{34 (The Burmese Women Special Marriage Law, 2015, chapter 3, sections 5 to 18.)}.
2. Islam
   • A Muslim man can lawfully marry a woman called Kitabiah or who profess ancient scriptures (that is Christian and Jewish women). But he cannot marry non-Muslim woman who is not a Kitabiah.
   • A Muslim woman can only marry to a Muslim man. She cannot marry even a Kitabi man (a Christian or a Jewish man)
   • However, under Sunni jurisprudence, marrying non-Muslim is mere an irregular marriage and not a void marriage.
     • Under Shi’a jurisprudence, a Muslim (whether a man or a woman) cannot lawfully marry non-Muslim
   • Division of religious sects among the Muslims, such as Sunni and Shi’a or differences in jurisprudence such as Hanafi, Shafi, Malikki, Hambali never obstruct the lawful marriage. Any Islamic sects can freely intermarry.^{35 (Aziz Bano v Muhammad Ibrahim, 1925 47 Allahabad 283)}
3. Christians
   • Persons of Christianity can marry persons of non-Christianity.^{36 (The Christian Marriage Act, 1872, section 4.)}.
   • All marriage solemnized in Myanmar between persons one or both of whom professes or profess the Christian religion, shall be registered in accordance with the Christian Marriage Act, 1872.^{37 (The Christian Marriage Act, 1872, section 27.)}.
4. Hindus
   • According to the Hindu customs, Hindus of different castes cannot be married.
   • According to the Hindu customs, a Hindu cannot be legally wedded with a non-Hindu.^{38 (မောင်မန်းနှင့် ဒိုရာမိုး ၊ ၃ အယ်ဘီအာ ၂၄၄။)}.
   • 1923 Special Marriage Act allows the marriage of persons from different castes.
   • However, since the enacted laws influence the customary law, it is suggested to get advice and assistance from the legal experts.

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• Having extramarital affairs are regarded as crimes in the Penal Code as well as in other existing laws.
  • Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him, and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.^{39 (The Penal Code, section 493.)}.
  • Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine^{40 (The Penal Code, section 496.)}.
  • Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery^{41 (The Penal Code, section 497.)}. , and
    • Shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
    • In such case the wife shall not be punishable as a abettor.
• Where monogamy is not practiced after marriage, it amounts to a crime according to the existing laws.
  • Where a man or a woman who has legally married to one or more spouse in accordance with law, religion or custom, he or she shall not remarry with another person or illegally cohabit as husband and wife during the period in which the marriage still exists.^{42 (The Law relating to Monogamous Practice, section 10.)}. Imprisonment for a term not more than 7 years and fine shall be sentenced for violation.^{43 (The Law relating to Monogamous Practice, section 13.)}.
  • Whoever shall not remarry or illegally cohabit as husband and wife, during the period in which a marriage still exists in accordance with law, religion or custom.^{44 (The Law relating to Monogamous Practice, section 12.)}. Imprisonment for a term not more than 7 years and fine shall be sentenced for violation.^{45 (The Law relating to Monogamous Practice, section 13.)}.
• Remarriage during the period in which a marriage still exists, is a marital crime.^{46 (The Law relating to Monogamous Practice, section 14.)}.
• A spouse against whom a marital crime committed as a right to divorce.^{47 (The Law relating to Monogamous Practice, section 14.)}.
• The person who commits matrimonial fault shall lose his rights in respect of joint properties in divorcing.^{48 (The Law relating to Monogamous Practice, section 15.)}

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• n Myanmar, matters relating to marriage, divorce and inheritance are conducted in accordance with the enacted laws, and respective customs and religions ^{49 (The Burma Laws Act, 1898, section 13(1).)}
• If the parties to a divorce are the devotees of different customs and/or of different religions, such matters can become more complicated.
• As situation can be vary from one another, it is advisable to consult or seek help from experts and competent legal professional including lawyers
• Please note that enacted laws influence the customary law

1. Divorce under Myanmar Customary Law
   • Divorce can happen under Myanmar customary for following grounds
     1. Divorce by mutual consent
     2. Husband entering monkhood
     3. Divorce by marital crimes
   • Divorce by mutual consent
     • Divorce by mutual consent can terminate the marital relationship absolutely. ^{50 (Daw Ama v Daw Khin Tint, 1964 BLR 314.)} .
     • It does not require decree from court ^{51 (Ma Hnin Ngon v Maung Aung, AJ 73.)}
     • However, bogus divorcing under astrological or fortune telling arrangements or charm will not end the marital relationship. ^{52 (Daw Tin v Daw Khin Saw, 1976 BLR 336.)}
   • Husband entering monkhood
     • Husband entering monkhood with the intention of abandoning worldly desire (meaning not temporary) and also with the permission of the wife in doing so, it will end the marital relationship. ^{53 (Maung Tin Nyunt v Ma Pu, 1953 BLR (S.C.) 76.)}
     • Husband entering monkhood for temporary nature will not end the marital relationship. ^{54 (Maung Tin Nyunt v Ma Pu, 1953 BLR (S.C.) 76.)}
   • Divorce by marital crimes
     • Ordinary marital crimes include violence of husband/wife, cheating, taking another wife, abandonment, and fraud.
     • Violence includes not only physical but also mental. ^{55 (Mis Protima Posh v Bimar Landu Gosh, 1963 BLR 526.)}
       • Physical assault, slapping ^{56 (U Myo Myint v Dr Daw Khin May Kyi, 1968 Civil First Appeal 1.)} , pulling hair ^{57 (Mis Pearl Kyaw v U Kyaw, 1967 BLR 249.)} , constantly accusing the wife of cheating ^{58 (Maung Pho Aung v Ma Nyein, 10 BLR 132.)} , prohibiting her from visiting the parents ^{59 (Maung Ohn Kyaw v Ma Hla Mu, 1934 AIR (Rangoon) 172.)} , threatening to beat a pregnant woman ^{60 (Bimar Landu Gosh v Mis Protima Posh, 1963 BLR 598.)}  are examples of violence indicated by precedents.
       • While committing violence
         1. Offender is aiming for divorce than remorse
         2. Commission of such offence is aiming to create divorce from the spouse
         3. The damage done is amount to grievous hurt as defined in section 320 of the Penal Code.The person is committing serious violence. ^{61 (Daw Pu v Maung Tun Kha, 1946 Rangoon 125.)} .
       • The person who commits serious violence will lose his rights in respect of joint properties in divorcing and his inherent properties to marriage. ^{62 (Daw Pu v Maung Tun Kha, 1946 Rangoon 125.)}
     • Cheating: marrying while having a valid marriage earlier is not only amount to a crime but it can also be a ground for divorce. See Extra-marital affairs.
     • Abandonment means whether a husband or wife do not communicate or provide his/her spouse for a period of time
       • If a husband abandons his wife, without any support, for more than 3 years, the wife can apply for divorce. ^{63 (Ma Nyunt v Maung San Thein, 5 Yangon 537.)}
       • If a wife abandons her husband for a year, the husband can apply for divorce. ^{64 (S.A.S Cittiah Mall v U Maung Gyi, 14 Rangoon 329.)}
       • Abandonment has to be done with the intention of ending the marital relationship. (For example, prolong imprisonment or wife living separately from her husband for the fear of violence may not be considered as abandonment) ^{65 (Ma Thein Mel v Phoe Kywel, 10 BLT 212.)}
       • However, if there is no intention to end marital relationship or if the person who has been abandoned did not demonstrate any desire for divorce, the abandonment do not end the marital relationship. ^{66 (Daw Khin Pu v Dr Thar Mya, 1949 BLR (S.C.) 283.)}
     • Fraud is not only amount to a crime, but it can also be a ground for divorce
2. Divorce under Islamic Law
   • Methods of divorce under Islamic laws are as follows
     1. Divorce by husband’s will
     2. Divorce by wife under the delegated authority from her husband
     3. Divorce by mutual consent
     4. Divorce through court’s decree
     5. Dissolution of marriage for abandoning the religion
   • Divorce by husband’s will is called Talaq.
     • Talaq can be given verbally or in writing.
     • လင်၏ တွလာက်ပေးနိုင်သည့် အခွင့်အရေးကို မိမိ၏ဇနီးသည်ကိုဖြစ်စေ ၊ အခြားသူ တစ်ဉီးကို ဖြစ်စေ လွှဲပြောင်းပေးနိုင်သည်။
     • Talaq must be given in clear and precise language with intend of ending the marriage.
     • As there are different religious rulings on Talaq, it is advisable to consult or seek help from competent religious authorities or legal professional including lawyers.
   • Divorce by wife under the delegated authority from her husband
     • A Muslim can delegate his right to announce Talaq to his wife or to any other person during or after the marriage contact has been made. And such person can announce Talaq.
   • Consensual divorce by both parties has two folds, Khullar and Mubarak.
     • Khullar divorce means a consensual divorce where a wife is wishes to end the marriage and agreeing to pay her husband some compensation. ^{67 (Abdul Rahman v Ma Kyel, 16 IC 102 (Lover Burma))}
     • Mubarak divorce means a consensual divorce where both parties would like to end the marriage consensually. Mubarak divorce happened where either husband or wife offers a divorce and the other party accepted. It is equivalent to announcing one Talaq. However, unlike Khullar, a wife is not obligated to pay any compensation to her husband.
   • Divorce through court’s decree
     • A Muslim woman can apply for divorce decree on one or more of the following reasons ^{68 (1953 Muslim Husband and Wife Divorce Act, sec 2(1).)}
       • When whereabout of her husband is unknown
       • When the husband is failing or deny providing the wife for more than 6 months without any sufficient grounds
       • When the husband failure to have intercourse with her within a whole year without any sufficient grounds
       • When the husband is suffering impotency not only at the time of marriage but also suffering it throughout.
       • When the husband is suffering serious mental disease or leprosy or STD not less than a year
       • When the husband is abusing her. It includes assault, violent acts effecting her mental wellbeing whether using physical assault or not, and forcing her to prostitution.
   • Dissolution of marriage for abandoning the religion
     • This includes not only abandoning the religion of Islam but also converting to other religion
     • Conversion of either one could dissolve the marriage immediately. ^{69 (A. M. Ibrahim and Fatima Bi Bi 1939 RLR 383)}
     • A marriage is said to have been dissolved when a married Muslim wife has abandoned the religion of Islam or converted to other religion. ^{70 (1953 Muslim Husband and Wife Divorce Act, sec 4.)}
   • When a Talaq is announced, a woman has to wait a period called “Iddat” which is 3 months or 3 menstrual circles.
     • This period extends to delivery of child if a wife is pregnant.
     • The wife has to be allowed to stay in her husband’s home during that period.
     • The husband has to continue providing her throughout that period.
     • If they decided to reunion before the end of that period, the divorce could become nulled and they could become married couple again.
     • After that period and there is no reunion, the divorce has become valid. If the couple wishes to reunite, they have to marry (Nikah) again.
   • Regarding the announcement of triple Talaq (giving Talaq 3 times consecutively), it is advisable to consul or seek help with competent religious authorities and legal professionals including lawyers.
3. Divorce under Christian Law
   • There is no consensual divorce under Christian law. That is to say, married Christian couple cannot divorce at will. However, they can apply for dissolution marriage in court.
     • Courts include Hight court of the region or state, district court, courts of autonomous region or district. ^{71 (1869 Myanmar Divorce Act, sec. 3(4).)}
   • A husband can make application to the court to dissolve the marriage on the ground that his wife has been guilty of adultery since the solemnization. ^{72 (1869 Myanmar Divorce Act, sec. 10.)}
   • A wife can make application to the court to dissolve the marriage on the following grounds ^{73 (1869 Myanmar Divorce Act, sec. 10.)}
     • her husband converted to another religion and married to another woman
     • ncestuous adultery
     • bigamy with adultery,
     • marriage with another woman with adultery
     • rape, sodomy or bestiality
     • adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro,
     • adultery coupled with desertion, without reasonable excuse, for two years or upwards
   • Either husband or wife can make application the court for nullification of marriage ^{74 (1869 Myanmar Divorce Act, sec. 18.)} on the following grounds. ^{75 (1869 Myanmar Divorce Act, sec. 19.)}
     1. The respondent was impotent at the time of the marriage and at the time of the institution of the suit ၊
     2. the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
     3. either party was a lunatic or idiot at the time of the marriage;
     4. the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
4. Divorce under Hindu customary law
   • Under existing Hindu customary laws and customs, a wife cannot divorce her husband for any reason. ^{76 (U Ba Maw, Marriage Laws of Myanmar, Yangon, Win publishing, 1st edition, pg. 36. U Mya Sein, Myanmar Customary Law, Yangon, Gon Htoo publishing, 12th edition, 2014, pg. 112.)}
   • Hindu widows have the right to re-marry. ^{77 (1856 the Hindu Widow’s Remarriage Act, sec. 1.)} However, all rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance shall upon her re-marriage cease. ^{78 (1856 the Hindu Widow’s Remarriage Act, sec. 2.)}
   • However, since the enacted laws influence the customary law, it is suggested to get advice and assistance from the legal experts.

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• Best interest of the child has to be prioritized regarding the guardianship of children. ^{79 (2019 Child Rights Law, sec 2(d) and 4(b).)} . Welfare of a child has to be prioritized than religious and customary practices when considering appointing the guardian. ^{80 (Mohammad Hanid Khan v Maimon Nisar 1971 BLR 18.)}
• If the two parents are separated, either the parent that lives with and has a continuous relationship with the child or both parents shall have the rights to care and custody for the child. ^{81 (2019, Child Rights Law section 36(a).)}
• Every child shall have the right to meet with his parents, and grandparents after appointing as a guardian who is not a parent of the child by the relevant court except where there is needed to separate for the best interests of the child. ^{82 (2019 Child Rights Law, section 40.)}
• the Court shall not appoint or declare any person to be a guardian against his will. ^{83 (1890 Guardians and Wards Act, section 17(5).)}
• The Court may remove a guardian appointed or declared by the Court child for reasons such as abuse, negligence, bankrupt or insolvency. ^{84 (1890 Guardians and Wards Act, section 39.)}

1. Buddhism
   • A Buddhist woman married to a non-Buddhist husband is entitled to the guardianship of all the children and the ex-husband has to provide for the children after the divorce. ^{85 (2015 the Myanmar Buddhist Women’s Special Marriage Law, section 29.)} ။
   • The reason of not wealthy enough is not sufficient to deny the guardianship of children. ^{86 (Daw Khin Yee v U Tun Aung, 1967 BLR 205.)}
   • Myanmar Customary law follows the existing legislations including the Guardians and Wards Act 1890 when deciding the guardianship of children after divorce.

    

2. Islam
   • It is the mother who is primarily entitle to guardianship of children after the divorce or the death of her husband.
     • However, she may lose the guardianship if she remarries.
   • ccording to Hanafi school of jurisprudence, the mother can hold the custody of her son(s) up to the age of 7 years and her daughter(s) up to her puberty. According to Shi’a school of jurisprudence, the mother can hold the custody of her son(s) up to the age of 2 years and her daughter(s) up to 7 years. ^{87 (Professor Dr Khin Maung Sein, The Islamic Law as applied in Myanmar, 3rd edition, 2014, Ywet Sein publishing, pg. 115.)}

    

3. Christianity
   • According to Myanmar Divorce Act, the court can make interlocutory orders regarding the guardianship, maintenance and education of the minor children before or after making the decree. This includes placing such children under the protection of the said Court. ^{88 (1869 Myanmar Divorce Act, chapter 11, sec 41 to 44.)}

    

4. Hinduism
   • On the re-marriage of a Hindu widow may petition the court to appoint relatives of the deceased husband as guardian(s). Court shall be guided, so far as may be, by the laws and rules in force touching the guardianship of children. ^{89 (1856 the Hindu Widow’s Remarriage Act, sec 3.)}
     • no such appointment shall be made otherwise than with the consent of the mother unless the proposed guardian shall have given security for the support and proper education of the children whilst minors.

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• 2019 Child Rights Law
• 2015 the Myanmar Buddhist Women’s Special Marriage Law
• 1953 Muslim Husband and Wife Divorce Act
• 1898 Burma Laws Act
• 1890 Guardians and Wards Act
• 1872 Christian Marriage Act
• 1872 Contract Act
• 1869 Myanmar Divorce Act
• 1961 Penal Code
• 1856 the Hindu Widow’s Remarriage Act

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