FAMILY LAW CHAPTER 6 DIVORCE

DIVORCE Jurisdiction of court: section 48(a): The marriage was registered under the LRA, OR (b): where the marriage was contracted under a monogamous marriage law, and (c): domicile of the parties is in Malaysia. • • • • Grounds of divorce i) Conversion to Islam. Section 51 of the LRA: only the non-convert spouse may apply for divorce after 3 months of conversion. The approach of the courts prior to 1994: If the non-convert spouse does not petition for divorce, the marriage will remain as the convert spouse could not petition under any other ground of divorce by virtue of section 3(3) of the LRA, where the LRA does not apply to a Muslim. • • • Case: Pedley v. Majlis Agama Islam Pulau Pinang and Anor [1990] 2 MLJ 307. Principle of the case: Under the LRA, a non-Muslim marriage is not dissolved upon one of the parties converting to Islam. It only provides a ground for the other party who has not converted to petition for divorce. Since the non-convert spouse in this case does not petition for divorce, the court held that the marriage is not being dissolved. • Case: Letchumy v. Ramadason [1984] 1 MLJ 143. • Principle of the case: In order for the non-convert spouse to apply for ancillary claims under the LRA, petition for divorce must be brought under section 51 of the LRA due to section 3(3) of the LRA. Ancillary claim could only be made under the ground of conversion to Islam. • Since in this case, the petitioner petitioned for divorce on the ground of desertion as the conversion to Islam of the petitioner‟s husband has not taken place, the court held that ancillary claim could not be granted to the petitioner as during the application for ancillary claim, the husband has converted to Islam. • Koh Yian Geok v Zulkifli Tan bin Abdullah [1995] 2 AMR 1525 • The petitioner (wife) sought dissolution of a 1980 marriage on the ground that the respondent (husband) has converted to Islam in 1993. • The judge held that it is obvious that the ground upon which the petition has been brought is based upon section 51(1) of the LRA. It is one of the grounds upon which a person may base his petition upon, and such a petition may be presented after the end of three months from the date of conversion. The judge declared that the marriage was dissolved by virtue of section 51(1) of the LRA itself. • The new approach of the courts due to Tan Sung Mooi v. Too Miew Kim [1994] 3 MLJ 117. • Interpretation of section 3(3) of the LRA: The LRA applies to non-Muslims and non-Muslims marriages. The judge construed the word “Muslim” as Muslim at the time of the marriage and not at the time of the contract of marriage. Therefore, the convert spouse should be governed by the LRA. • Since in this case, the petitioner petitioned for divorce on the ground of desertion as the conversion to Islam of the petitioner‟s husband has not taken place, the court held that ancillary claim can be granted to the petitioner although during the application for ancillary claim, the husband has converted to Islam by using the new interpretation to section 3(3) of the LRA. • Nur Aishah Tey binti Abdullah v. Teo Eng Hua [1999] 3 AMR 2779 • Principle of the case: Interpretation of section 3(3) of the LRA: The LRA applies to non-Muslims and non-Muslims marriages. The judge construed the word “Muslim” as Muslim at the time of the marriage and not at the time of the contract of marriage. Therefore, the convert spouse should be governed by the LRA. • The petitioner who converts to the Islamic faith petitioned for a divorce under the ground of irretrievable breakdown of marriage under section 54(1) of the LRA. • The court held that the petition may be made under the LRA as the petitioner was a nonMuslim at the time of the marriage was contracted. This decision leads to the decision that the LRA is also applicable to the petitioner even after her conversion to Islam. • Followed decision of Vilayat Raj v Sunila [1983] AIR Delhi 351 • Convert spouse applied on the ground of cruelty: not under conversion. • section 2(1) of Hindu Marriages Act: excludes a Muslim, Christian, Parsi, Jew by religion. • ii) dissolution by mutual consent: section 52 of the LRA • The issue or the question of law arise here is whether a joint petition for dissolution of marriage is presented under section 52 of the LRA (mutual consent) of the petitioners to the dissolution is the sole criterion for the grant of the decree nisi. • Shanker J in Re Divorce Petition No. 18, 20 and 24 of 1983 [1984] 2 MLJ 158 • Principle of the case: Mutual consent by the spouses to a decree of dissolution does not entitle them to a divorce. The parties who petition for a divorce on the ground of mutual consent must prove the breakdown of marriage. • Sivanesan v. Shymala [1986] 1 MLJ 400 • Principle of the case: The Chief Justice had made some comments and corrections on the decision of Shanker J in Re Divorce Petition No. 18, 20 and 24 of 1983. • Judge disagreed that the LRA only provides for one ground for divorce and that is the irretrievable breakdown of marriage. • Sec. 51 and 52 of the LRA clearly provide for other grounds for divorce. Section 57 of the LRA is meant to cover the case of contested divorce where a petitioner will have to prove his or her case. • In a mutual divorce there is no contest, it belongs to the class of undefended divorce. Therefore the joint petitioners do not have to prove the breakdown of marriage. • So is mutual consent TOO EASYTO BE OBTAINED? • NO. section 52 requires that proper provision be made for the wife and the support, care and custody of the children of the marriage. • This „proper provision‟ must be freely agreed upon by the court as fair and reasonable before the decree of divorce can be granted. • Sivanesan v. Shymala [1986] 1 MLJ 400. • the settlement of the matrimonial property and a waiver by the wife of all future claims for maintenance: agreed upon. • decree nisi obtained and then adjourned the matter to deal with the property settlement. • Before the decree became absolute, the husband died. • The wife then applied to set aside the decree nisi. • Trial judge: dissolve the marriage before resolving the exact terms or conditions for the mutual divorce. APPEAL: The court went on to hold that as the husband had died before the decree could be made absolute, there would in effect be no divorce and the wife being a widow was entitled to claim for the properties. • Re Goh Hoe Ling & Anor [1996] 1 MLJ 137 • It is pointed out in this case where in a joint petition for divorce, both the petitioners must be physically present in court so as to satisfy the court that they freely consent to the dissolution of their marriage. • The material times to consider as to the terms and conditions of the deed would be on the date of hearing the petition. Thus, filing of notice of withdrawal of consent by one of the parties to joint petition is to be deemed in law to have withdrawn the earlier consent. • iii) breakdown of marriage: section 53(1) of the LRA:- either party may petition for divorce on the ground that marriage has irretrievably broken down. • Section 53(2) of the LRA: - duty of the court to inquire into the facts alleged • - the circumstances must be just and reasonable in order for the marriage to be dissolved. • Section 54 of the LRA: proof of breakdown must be shown. • Section 54(1)(a) of the LRA: that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. There are 2 views in this aspect: • 1st view: Case: Goodrich v. Goodrich [1971] 2 All ER 1340, Carr v. Carr [1974] 1 WLR 1534 • Principle of the case: the petitioner must satisfy that the respondent has committed adultery and that the petitioner finds it intolerable to live with the respondent. It is not necessary to show that he finds it intolerable to live with the respondent in consequence of the adultery; it is sufficient if the petitioner genuinely finds it intolerable to do so for whatever reason. • 2nd view: Case: Roper v. Roper [1972] 1 WLR 73 • Principle of the case: The meaning of the section was that in consequence of the adultery, the petitioner finds it intolerable to live with the respondent. (differs from Goodrich’s case) • Cleary v. Cleary [1974] 1 WLR 73. • Principle of the case: A petitioner cannot rely on his own adultery as leading him to find it intolerable to live with the respondent. Position in Malaysia • Tan Wat Yan v Kong Chiew Meng & Anor (1994)3 CLJ 676 Mokhtar Saidin J : “ From theauthorities it is clear to me that once adultery is proved then it is a ground for divorce if the court satisfied that the petitioner did not condone the act of adultery by the respondent and that iit is impossible for the petitioner to continue living with the respondent… • Section 58 of the LRA allows a claim of damages for adultery against the co- respondent. • Section 58(1): On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce, and alleging adultery, the party shall make the alleged adulterer or adulteress a corespondent, unless excused by the court on special ground from doing so. • Section 58(2): A petition under subsection (1) may include a prayer that the co-respondent be condemned in damages in respect of the alleged adultery. • Section 58(3): Where damages have been claimed against a co-respondent – • Section 58(3)(a): The co-respondent shall be discharged form the proceedings if after the close of the evidence for the petitioner, the court is of the opinion that there is not sufficient evidence as against the co-respondent; or • Section 58(3)(b): The court may award the petitioner such damages but the award shall not include any exemplary or punitive element if at the conclusion of the hearing the court is satisfied that adultery between the respondent and co-respondent has been proved. • Section 59(1): provides power of the court on claims to damages for adultery and the award can be made even if the petition against the respondent is dismissed. • Section 59(2): The court shall have the power, when awarding damages or any part thereof be vested in trustees upon trust to pay the income or capital for the benefit of the minor children, if any, of the marriage or, where the petitioner is required to pay maintenance to the respondent, in or towards the payment of such maintenance, and subject thereto in trust for the petitioner. • Section 59(3): Whenever in any petition presented by a husband the alleged adultery has been established against the co-respondent, the court may order the co-respondent to pay the whole or any part of the costs of the proceedings; provided that no such order for cost shall be made if the respondent was at the time of the adultery living apart from the husband and living the life of a prostitute or if the co-respondent had not at the time of the adultery reason to believe the respondent to be a married woman • Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995] 1 MLJ 852 • The petitioner (wife) claimed damages from the corespondent on account of adultery. It was held that since the co-respondent admitted the adultery, the petitioner was eligible to damages against the co-respondent. • The quantum of such damages will depend on all the circumstances of the case and though compensatory, are not restricted to pecuniary loss. • Since the co-respondent knew that the petitioner and respondent were married when she committed adultery with the respondent, that was an aggravation to be taken into account. The value of the spouse and the injury to the aggrieved spouse‟s feelings vary from case to case. • Kang Ka Heng v Ng Mooi Tee & Anor [2001] 3 MLJ 331 • The petitioner (husband) filed a petition for divorce against the respondent (wife) on the ground that the marriage had permanently broken down. • The petitioner established that it was impossible for him to live with the respondent. The respondent filed an answer to the petition and made an application for the dismissal of the divorce petition as the ground alleged by the petitioner was untrue. • During the hearing, the petitioner admitted to commit the adulterous relationship with Y and a child was born on 14 April 2000 while his marriage with the respondent was still subsisting. The respondent (wife) claimed for damages against Y and the court allowing the respondent‟s claim for damages held that an allegation of adultery must be proved to the satisfaction of the court. • It must be proved to the satisfaction of the court and must be proved beyond reasonable doubt. On the facts of the case, the court was satisfied beyond reasonable doubt that the marriage breakdown was due to the adulterous relationship between the petitioner-husband and Y while the marriage was subsisting. The respondent was therefore entitled to damages as claimed. • Karen Cheong Yuen Yee v Phua Cheng Chuen [2004] 291 MLJU 1 • In this case, the court decided that for allegation of adultery, the standard of proof should be beyond reasonable doubt. • Based on the facts of the case, the court held that the petitioner had failed to prove that the husband has committed the act of adultery. • # Section 54(1)(b) of the LRA: that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. • Case: Katz v Katz [1972] 3 All ER 219 • Thurlow v. Thurlow [1975] 2 ALL ER 979 • 1st view: Principle of the case: The sole test to be prescribed as the nature of the behavior is that it must be such as to justify a finding that the petitioner cannot reasonably be expected to live with the respondent. • In this regard, it is pertinent to define the meaning and scope of the word “behaviour”. • Katz v Katz [1972] 3 All ER 219 • Held: “Behaviour is something more than a mere state of affairs or a state of mind…. (it) is action or conduct by one which affects the other.” ( for eg.a repugnance to a intercourse, or a feeling tht the wife is not reciprocating his love, • Thurlow v Thurlow [1975] 2 All ER 979 • Held: In order to establish that the respondent has behaved in such a way that the petitioner could not reasonably be expected to live with the respondent, it is not sufficient merely to establish that the marriage was dead and that it was impossible for the petitioner to cohabit with the respondent. • It has to be shown that it was the respondent‟s behaviour which justified a conclusion by the court that the petitioner could not reasonably be expected to endure cohabitation. For that purpose, „behaviour‟ included negative conduct. • 2nd view: • In determining whether the petitioner can or cannot reasonably be expected to live with the respondent, the court must take into account the character, personality, disposition and behaviour of the petitioner and the respondent as alleged and established in evidence. • Under this 2nd view, there are several tests to be applied as follows: (i) reasonable man‟s test. • Dunn J formulated this test in Livingstone Stallard v Livingstone Stallard as follows: • “would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole world of circumstances and the characters and personalities of the parties?” (ii) behavior test, whereby the behaviors of both parties must be considered. • • Ash v Ash [1972] 1 All ER 582 Bagnall J held that the court must not consider only behavior of the respondent but also the character, personality, disposition and also behavior of the petitioner. (iii) whether there is a breach of the obligation between both parties. • • Pheasant v Pheasant [1972] 1 All ER 587 In this case, the petitioner (husband) alleged that the wife had not given him the spontaneous demonstrative affection, which his nature demanded and for which he claimed that it caused the marriage to had irretrievably broken down. It was held that nothing in the wife‟s behavior which could be regarded as a breach on her part of any of the obligation of the marriage or effectively contributing to breakdown of the marriage. The husband‟s petition for divorce was dismissed. • • Joseph Jeganathan v Rosaline Joseph [1989] 3 MLJ 106 • KC Vohrah J referred to the test formulated by Dunn J in the case of Livingstone Stallard, in assessing what is „reasonable‟ in context of section 54(1)(b) of the LRA, when the decree nisi was ordered. • The matrimonial home was filled with bitterness, strive, suspicion, and tension, generated by frequent violent quarrels. • There were virtually daily absences of several hours by the respondent from the matrimonial home and at times for periods up to 70 to 80 days. • Efforts of reconciliation had been a failure. • Held: the test which can be applied is whether a right thinking man in all the matters would conclude that the respondent had behaved in such away that the petitioner could not reasonably be expected to live with the respondent. • The court had to consider the whole circumstances and the characters as well as personalities of the parties. The court in this case allowed the decree nisi to the petitioner and held that the marriage had in this matter, irretrievably brokendown. • Hariram Jayaram v Saraswati Rajahram [1990] 1 CLJ 285. • The court has adopted the decision in the case Katz v. Katz on the question of standard behavior to section 54 (1) (b) of the LRA. • Held: it must be decided that on the facts of the case, the respondent has not shown herself to be of such a character and personality and her behaviour has not been such that the judge can conclude that the petitioner can reasonably be expected to live with her. • # Section 54(c) of the LRA: that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. • Reg v. Lershe [1891] 2 QB 418 • Principle of the case: wilful absenting of the husband from the society of his wife in spite of her wishes, is desertion. • Two types of desertion: • 1) Simple desertion • Where one party leaves the other without reasonable cause. The party who leaves is in desertion. • Pulford v. Pulford [1923] P 18. • Principle of the case: Desertion is not the withdrawal from a place, but from a state of things. • Naylor v. Naylor [1961] 2 All ER 129 • The wife after quarrelling with the husband, cast off her wedding ring and the couple continued living in the matrimonial home although in separate rooms. They led separate lives and there was a complete absence of any family life. The court held that the wife was in desertion. • 2) Constructive desertion • Where one spouse virtually causes another to leave the matrimonial home or where due to the conduct or behaviour of the respondent, that the petitioner has to leave the matrimonial home with a good cause. • Case: Lang v. Lang [1955] AC 402. • Principle of the case: The party who stays behind is in desertion. • The main elements of desertion are as follows: • i) the fact of separation (de facto separation) • ii) animus deserendi- intention to separate i.e. either (a) lack of consent to the separation on the part of the petitioner; • (b) lack of any justification for the separation (no reasonable cause); or • (c) the respondent having the mental capacity to form the intention. • # Conduct which did not in itself amount to a matrimonial offence could nevertheless be a good cause for one spouse leaving the other so as to preclude his or her being in desertion. • The conduct must be so grave as to make the married life impossible. The ordinary wear and tear of conjugal life did not in itself suffice. • Lee Kah Wah v Cheah Paik Yean [1964] MLJ 125 • The criteria for assessing whether a spouse was justified in leaving the matrimonial home was that the conduct of the spouse remaining must exceed such behaviour, vexatious and trying though it might be, as every spouse bargained to endure when accepting the other for better or worse. • Chua Seok Choo v Ooi Chuan Lok [1968] 1 MLJ 282 • A solitary instance of assault when the petitioner was with child was not a conduct of grave and weighty character as to make the respondent guilty of constructive desertion. • Thambyah v Thambyah [1966] 1 MLJ 13 • The judge decided that the onus of proof was on the petitioner and the court had to be satisfied that the grounds had been proved beyond reasonable doubt. As the petitioner had failed to satisfy the court, the petition was dismissed. • # Section 54 (d) of the LRA: that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition. • Lived apart means more than mere physical separation, there must be a recognition that the marriage is at an end, i.e. from the physical and mental point of view. • Case: Mouncer v. Mouncer [1972] 1 WLR 321. • Although the husband left the house, the spouses continued to live as a single household from the wholly admirable motive of caring properly for their children. She failed in the petition. • Case: Fuller v. Fuller [1973] 1 WLR 730 • Although the husband became a lodger in the house where the wife and Mr Penfold, the fact that the husband paid a weekly sum of board and lodging shows that the parties were not living with each other in the same household. • Santos v Santos [1972] 2 All ER 246 • It was held that in order to establish that a husband and wife have lived apart; mere physical separation is insufficient if both the parties still recognize the marriage as subsisting. • Bhanu Sekaramani v Nagamma [1991] 3 MLJ 34 • Petition solely on the ground that the husband and the wife had been living apart continuously for more than two years before the presentation of the petition. • Held: dismissing the petition, the two year separation is only prima facie proof of the breakdown of the marriage. • It is rebuttable when the respondent can show that the two year separation per se does not cause or lead to the breakdown of the marriage. • Soo Lina v Ngu Chu Chiong [1994] 2 MLJ 145 • The (husband) pleaded marriage irretrievably broken down as they had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition of the wife. • Held: Granted only if the court is satisfied that the circumstances make it just and reasonable to do so. The court will consider other factors as required by the LRA to satisfy itself before granting the decree. • JUDICIAL SEPARATION • Requirements: • section 48(2) of the LRA must be satisfied as follows: • (a) where the marriage must be registered under the LRA; or • (b) where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and • (c) that both parties to the marriage must reside in Malaysia at the time the action is commenced • Section 64 of the LRA provides that a petition for judicial separation can be brought by either party to the marriage. The grounds on which the petition is can be the same grounds that are brought for a petition of a divorce under section 54 of the LRA. The effect of the decree is that the petitioner is under no obligation to cohabit with the respondent. This is by virtue of section 64(2) of the LRA. The court is empowered to rescind the decree at any time on the ground that it was obtained in the absence of the person against whom the decree was made. This is by virtue of section 64(3) of the LRA. This is done by the spouse, against who the decree was made. An example for a court to rescind the decree would be, if the decree was made on the ground of desertion, if there can be proven a reasonable cause for the alleged desertion, the court may rescind the decree. The fact that the petitioner had at any time been granted a decree of judicial separation upon a certain ground, it will not prevent the petitioner to petition for divorce on the basis of the same set of facts. • • • • Section 66 of the LRA provides that the property of a wife who at the time of her death is judicially separated from her husband shall, in case she dies intestate, would go as it would have gone had her husband is dead. • Therefore, her property should go to her children, if any, and to her parents, as provided by the Distribution Act 1958. • This section was deemed necessary because prior to the amendment to the Distribution Act 1958, when a woman died intestate, that is without leaving a valid will, all her property would go to her husband where this situation was thought to be unfair especially when the woman was living separately from her husband under a decree of judicial separation. • Where, upon any such judicial separation, alimony has been ordered to be paid to the wife and the same is not duly paid by the husband, he shall be liable for necessaries supplied for her use. EFFECTS: • i) The parties to the marriage are not allowed to marry anyone else unless they obtain a decree of divorce. • ii) Section 76(1): The court shall have the power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage either by their joint effort as stated in section 76(1) of the LRA or by the sole efforts of party as stated in section 76(3) of the LRA. • iii) Section 77(b): power of the court to order a man to pay maintenance to his former wife when granting, or subsequent to the grant of a decree of divorce or judicial separation. • iv) Section 88(1) of the LRA: the court may order the custody of the child either to his or her father or to his or her mother at any time, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any other association the objects of which include welfare or any other suitable person.