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Some of our visitors may be considering adoption. We are able to assist with such matters as adoption is part and parcel of the field of family law. We have a robust family law practice which includes adoption.
In Malaysia, adoptions are governed by the Adoption Act 1952 (through the courts) and Registration of Adoptions Act 1952 (through de facto adoption with JPN procedures).
Below are some questions and answers about adoptions.
Q: Who can apply for adoption?
A: The person(s) who can apply for adoption in a court of Malaysia is defined in section 4 of the Adoption Act 1952. The said section is reproduced for your information:
4. Restrictions on making of adoption orders
(1) An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants— (a) has attained the age of twenty-five and is at least twenty-one years older than the child in respect of whom the application is made unless the Court is satisfied that there are special circumstances for the making of an order; (b) has attained the age of twenty-one and is a relative of the child; or (c) is the mother or father of the child.
(2) An adoption order shall not be made in any case where the sole applicant is a male and the child in respect of whom the application is made is a female unless the Court is satisfied that there are special circumstances which justify as an exceptional measure the making of an order.
(3) An adoption order shall not be made in favour of any applicant who is not ordinarily resident in Peninsular Malaysia or in respect of any child who is not so resident.
(4) An adoption order shall not be made in respect of any child unless—
(a) the child has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order; and
(b) the applicant has at least three months before the date of the order by a written notification informed an officer of the Social Welfare Department of the State in which he is for the time being resident of his intention to apply for an adoption order in respect of the child.
Q: Who can be adopted?
A: The Adoption Act 1952 also describes the child as a subject of the application. The child may be the son or daughter of one of the applicants; or a relative of one of the applicants; or may be unrelated at all. The word "child" is described in section 2 of the Adoption Act 1952 to mean: "an unmarried person under the age of twenty-one and includes a female under that age who has been divorced."
Q: How can I go about applying for adoption?
A: You may contact a law firm that practices family law (such as ours) to assist you in making such an application. We reproduce the text of section 3 of the Adoption Act 1952 for your information:
(3) Power to make adoption orders
(1) Upon an application made in the prescribed manner by any person desirous of being authorized to adopt a child, the Court may, subject to this Act, make an adoption order, authorizing the applicant to adopt that child.
(2) Where an application for an adoption order is made by two spouses jointly, the Court may make the order authorizing the two spouses jointly to adopt, but except as provided, no adoption order shall be made authorizing more than one person to adopt a child.
(3) An adoption order may be made authorizing the adoption of a child by the mother or father of the child, either alone or jointly with her or his spouse.
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Q: What is the effect of adopting a child?
A: The natural parents of the child will lose their natural parental rights (section 6(a) of the Adoption Act 1952). Further, section 9 specifically lays out in detail the effects of the adoption order. Section 9 is reproduced for your information.
(9) Effect of adoption order
(1) Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock:
Provided that, in any case where two spouses are the adopters, such spouses shall in respect of the matters provided in this subsection and for the purpose of the jurisdiction of any Court to make orders as to the custody and maintenance of and right of access to children stand to each other and to the adopted child in the same relation as they would have stood if they had been the lawful father and mother of the adopted child, and the adopted child shall stand to them respectively in the same relation as a child would have stood to a lawful father and mother, respectively.
(2) Where, at any time after the making of an adoption order, the adopter or the adopted child or any other person dies intestate in respect of any movable or immovable property, that property shall devolve in all respects as if the adopted child were the child of the adopter born in lawful wedlock and were not the child of any other person.
(3) In any disposition of movable or immovable property made, whether by instrument inter vivos or by will (including codicil), after the date of an adoption order—
(a) any reference (whether express or implied) to the child or children of the adopter shall, unless the contrary intention appears, be construed as, or as including, a reference to the adopted child;
(b) any reference (whether express or implied) to the child or children of the adopted child's natural parents or either of them shall, unless the contrary intention appears, be construed as not being, or as not including, a reference to the adopted child; and
(c) any reference (whether express or implied) to a person related to the adopted child in any degree shall, unless the contrary intention appears, be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other person.
(4) Where an adopted child or the spouse or issue of an adopted child takes any interest in any movable or immovable property under any disposition, whether by instrument inter vivos or by will (including codicil), or under any intestacy, or where an adopter takes any interest in any movable or immovable property under any disposition as provided in this section by an adopted child or by the spouse or issue of an adopted child, or under the intestacy of an adopted child or of the spouse or issue of an adopted child, any estate or other duty which becomes leviable in respect of it shall be payable at the same rate as if the adopted child had been a child of the adopter born in lawful wedlock.
(5) Notwithstanding anything in this section, trustees or personal representatives may convey or distribute any movable or immovable property to or among the persons entitled to it without having ascertained that no adoption order has been made under which any person is or may be entitled to any interest in it, and shall not be liable to any such person of whose claim they have not had notice at the time of the conveyance or distribution; but nothing in this subsection shall prejudice the right of any such person to follow the property, or any property representing it, into the hands of any person, other than a purchaser, who may have received it.
(6) Where an adoption order is made in respect of a person who has been previously adopted, the previous adoption shall be disregarded for the purposes of this section in relation to the devolution of any property on the death of a person dying intestate after the date of the subsequent adoption order and in relation to any disposition of property made after that date.
(7) For the purposes of any written law relating to marriage for the time being in force in Malaysia or any part of it, an adopter and the child whom he has been authorized to adopt under an adoption order and all children and adopted children of the adopter shall be deemed to be within the prohibited degree of consanguinity; and this subsection shall continue to have effect notwithstanding that some person other than the adopter is authorized by a subsequent adoption order to adopt the same child.
(8) For the purposes of any written law for the time being in force in Malaysia or any part of it relating to compensation to families for loss occasioned by the death of a person caused by actionable wrong, a person shall be deemed to be the parent or child of the person deceased notwithstanding that he was only related to him in consequence of adoption; and accordingly in deducing any relationship which under such legislation is included within the meaning of the expressions "parent" and "child" an adopted child shall be treated as being the child of the adopter born in lawful wedlock and not the child of any other person.
We hope that this has helped you understand adoptions in Malaysia a little bit better.