TUTORIAL 6

DIVORCE

1. In July 2014, Cecilia, a Chinese girl from Selangor, married White, an English scientist
who was brought to Malaysia as an expert for a research project in Kedah. They had a
son in June 2015 and a daughter in May 2016.

Since he came to Malaysia in January 2005, White has been so involved with his research
that he has not taken any leave from work. He is at his laboratory every day from seven
in the morning till nine at night. Sometimes he even works on Sundays. At first, Cecilia
didn’t mind as she was fully occupied with her two children. Towards the end of 2018
however, she began to feel dissatisfied and started complaining about his working hours.
White asked her to be patient as he was on the brink of a major scientific discovery. He
assured her that just as soon as his experiment was completed he would take her and the
children to England to meet his family. He promised to take a long holiday with her.

Cecilia waited until July 2022. There seemed to be no change in their life-style, so she
took the two children and returned to her parents’ home in Petaling Jaya, saying that she
could no longer stand the boring life in Kedah. While in Petaling Jaya, Cecilia amused
herself by going to nightclubs at night and window-shopping during the day. She was
quite happy but the children felt insecure in their new surroundings and wanted to “go
home”. Their persistent pleas to “go back to Daddy” finally made here pack-up and return
to Kedah. She informed White that she was staying on with him only for the sake of the
children, as she was really quite fed-up with his behaviour. White says, “I am so grateful
that you have returned” but makes no attempt to change his work pattern.

In January 2023, Cecilia’s sister Jenny visits her. Jenny tells Cecilia that she is foolish to
stay married just for the sake of the children. After much persuasion from Jenny, Cecilia
takes her two children and returns to Petaling Jaya. White pleads with her not to go,
saying that his project would be completed soon but Cecilia says that she is tired of
waiting.

After a few weeks in Petaling Jaya, Cecilia decided to commence proceedings for a
divorce. She returned to Kedah to appear before the Marriage Tribunal there but White
failed to attend all the sessions saying that he could not take time off from his work. After
six months the marriage tribunal certified that the parties could not be reconciled and
Cecilia petitioned for a divorce pleading section 54(1)(b) of the Law Reform (Marriage and
Divorce) Act, 1976. White strongly opposes the petition.

Write the judgement of the court.

1 sub-issue: Whether this court has the jurisdiction to hear present case?
st

Law:

S48 of LRA
According to the S48(1) of LRA, the court has the jurisdiction when the marriage is
(a) registered or deemed registered under LRA; or
(b) monogamous; and
(c) both parties domiciling in Malaysia when the petition was filed
Therefore, the court needs to determine either (a)+(c) or (b)+(c)
Exception to section 48 of LRA

Other than s 48 of the LRA 1976, the High Court is also conferred with additional jurisdiction.
Section 49 of the LRA 1976 provide exceptions to the 'domicile test'. These exceptions are
granted to a wife to avoid the injustices contingent upon the strict adherence to the application of
the principle that a wife do not have and cannot acquire a separate domicile of choice. This is
provided in cases where the proceedings for divorce are commenced by a wife and not by a
husband. According to s49, it provides that the exception for wife whose husband isn’t domiciling
or resident in Malaysia can bring the petition for divorce. Based on the s49(1)(b), the petitioner
wife can bring the petition of divorce if the wife is residing in Malaysia and has been ordinarily
resident in Malaysia 2 years immediately before the commencement of the proceeding. In the
case of Siah Teong Woei v Janet Traynor [2010] 2 MLJ 820; [2010] 3 CLJ 361, it was ruled that
the High Court is conferred with additional jurisdiction under s 49 of the LRA to provide exceptions
to the ‘domicile test’. These exceptions are granted to a wife to avoid the injustices upon the
application of the principle that a wife does not have and cannot acquire a separate domicile of
choice. This is provided in cases where the proceedings for divorce are commenced by a wife
and not by a husband.

Domicile
Section 48 of the LRA 1976 provides that the court has the power to make a decree of divorce
only where, inter alia, 'where the domicile of the parties to the marriage at the time when the
petition is presented is in Malaysia'. Therefore, before any proceedings can be heard by this court,
it must satisfy itself that the domicile of both parties was in Malaysia at the time the petition was
presented. In the Supreme Court decision in William Tan Guan Hock v Khor Chai Heah [1990] 1
CLJ (Rep) 308, Gunn Chit Tuan SCJ at pp 311 e–f (as he then was) observed:

… The petitioner would still have to prove and satisfy the court that both he and the respondent
were domiciled in Malaysia at the time when the petition was presented before the court
could exercise its powers under s 48 of the Law Reform (Marriage and Divorce) Act to
grant any relief to the parties.

Meanwhile, Tan Thiaw Chong J in Melvin Lee Campbell v Amy anak Edward Sumek [1988] 2 MLJ
338; [1988] 1 LNS 19 also observed:

The provision of s 48(1)(c) in my view requires that the court must be satisfied that at the
time when the petition in the instant case was presented, the domicile of both the
petitioners was in Malaysia.

In this case the High Court in Kuching, Sarawak held that the husband, a foreigner, even though
he had married a native of Sarawak and had lived in Malaysia since 1977 (for a period of over ten
years before the joint petition for divorce was filed) had failed to satisfy the court that at the time
of the filing of the joint petition his domicile was in Malaysia. The husband was the joint petitioner
for divorce by mutual consent. He had to prove that at the time the petition was presented he had
abandoned his domicile of origin in favour of a domicile of choice in Malaysia. His counsel
stressed a few points on his behalf and they were: that the husband had married a native of
Sarawak; that he had set up the matrimonial home of his family in Sarawak; that he had resided
in Sarawak for a long period; that he had arranged for the issue of the marriage to reside and be
educated in Sarawak; that he had expressed his intention to be converted to Islam and had taken
steps to have that intention materialized; and that he had taken steps to explore the possibility of
investing in Malaysia. It was also submitted that he had contributed towards the purchase of a
house for his parents- in-law and that his wife and their child were living therein too, and he had
contributed towards a small business of a food stall run by his wife. He, however, had no
permanent residence in Malaysia. The High Court ruled that the husband had not succeeded in
proving that he had acquired a domicile of choice in Malaysia. The court; therefore, had no
jurisdiction to entertain the joint petition of divorce. As a consequence, the court held that the court
had no jurisdiction to entertain the joint petition.

Referring to the Oxford English Dictionary, domicile means a place of residence or ordinary
habitation, a house or home, the place where one has his permanent residence, to which, if
absent, he has the intention of returning.

In Malaysia, the law on domicile is similar to common law. Applying English common law, a
married woman acquires her husband’s domicile during the subsistence of the marriage which
has been accorded statutory recognition in s 48(1)(c) of the LRA. This domicile of
dependence/marriage was affirmed in Charnley v Charnley and Betty [1960] 1 MLJ 29, where it
was held that this domicile of a married woman is that of her husband while the marriage subsists,
even though the parties may be living apart. As regard to a domicile of choice, any person may
acquire a domicile of choice provided he is an adult, that is to say, 18 years old as required by s
2 of the Age of Majority Act 1971. When a domicile of choice is obtained, the domicile of origin
would be held in abeyance until abandonment of the domicile of choice. In the local case of Ang
Geck Choo v Wong Tiew Yong [1997] 3 MLJ 467; [1997] 3 CLJ 201, the petitioner wife a
Singaporean was originally domiciled in Singapore but was married to the respondent whose
domicile was Malaysia. She filed a divorce petition in the High Court of Malacca. Suriyadi Halim
Omar J, (as he then was), held that the court had jurisdiction to hear her petition because her
domicile of origin (Singapore) had changed to that of dependence (domicile of choice) upon her
marriage to her Malaysian husband, and since she has not abandoned her domicile of choice
(Malaysia) she can petition for divorce in Malaysia. At held 5 it is stated:

[5] The respondent not only had not succeeded in proving the animus but also the factum.
The facts showed that when she was in Malaysia the petitioner had already exercised her
choice by making Malaysia her place of domicile. The petitioner cannot be said to have
abandoned Malaysia as her place of domicile merely by her remaining a Singaporean and
seeking employment in Singapore during the temporary period. The petitioner's return to
Singapore was clearly due to the abusive behavior of the respondent. Her act was never
pursuant to a free choice and therefore cannot be construed as unequivocal. There was
also no evidence that the petitioner had 'burnt his boats' as to indicate a desire to
permanently move back to her country of origin.

Application:

LRA
The fact clearly shows that the petitioner and the respondent were get married in July 2014 in
Malaysia. Thus, S48(1)(a) of LRA is fulfilled. Now, we come to the question of domicile as
provided in s48(1)(c) of LRA.

Domicile
In the present case, this court only needs to consider the domicile of choice of the respondent (Mr
White) since the petitioner will follow the domicile of her husband based on the common law
principle. It is clear from the facts that the domicile of origin of the respondent is the UK. The
question before this court is whether the respondent has acquired a domicile of choice in Malaysia
in July 2020, the date of the presentation of the petition. Based on the findings of this court, the
respondent had assured to the petitioner that he would take her and the children to England to
meet his family and promised to the petitioner to take a long holiday with her. In our view, this
shows that the respondent had no desire to permanently to stay in Malaysia. Thus, we can’t find
that the respondent had acquired the domicile of choice in Malaysia. In conclusion, this court had
no jurisdiction to hear this petition of divorce.

Exception to section 48 of LRA

Nonetheless, there is an exception to section 48 of LRA, in which this court had

the jurisdiction to hear the petition for divorce. Based on the fact in the present
case, the petitioner(Cecilia) can bring the petition of divorce because she was residing
in Malaysia and has been ordinarily resident in Malaysia 2 years immediately before the
commencement of the proceeding. The petitioner had residing in Malaysia since 2014,
which had been residing in Malaysia for a period of 6 years before the commencement of
the proceeding. In conclusion, this court had the jurisdiction to hear this petition based on
the exception in s49(1)(b) of LRA.

Conclusion: this court has the jurisdiction to hear present case.

2. Erik Thor Ericson is a consultant engineer in Miri, Sarawak. He married Ann Goldkin under
the Law Reform (Marriage and Divorce) Act, 1976 in March 2022. A few weeks after the
marriage, Anna found out that Erik was having an affair with Sue their neighbour’s wife.
Ann threatened to leave Erik if he did not end the relationship. Erik promised that he would
not see Sue again.

Sue and her husband were transferred to Indonesia. All was well with Ann and Erik. Erik
wrote back and soon the two were corresponding quite regularly. This infuriated Ann and
one day she burnt all the letters that Erik had received from Sue. Enraged, Erik beat up
Anna. She was injured and had to be rushed to the hospital.

After two weeks in hospital, Anna went back to her parent’s house. She has decided to
end her marriage. Erik however regrets his behaviour. He has been trying to see Anna
but she refuses to let him near her. Erik’s contract is due to end in August 2023 and he
will have to leave Malaysia then. Anna wants to petition for a divorce now.

Advise Anna on the relevant law and procedure; explain the various steps that have to be
taken and the grounds of any, that she can rely on.

The main issue is whether Anna could file a petition of divorce?

The sub-issue is whether the court has the jurisdiction over the case?

According to S48(1), the court only has the jurisdiction over the case if the marriage
is registered or deemed registered under the LRA or it is a monogamous marriage and
both parties were domiciling in Malaysia. In the case of Melvin Lee Campbell, the court
has the dismissed the case on the ground that it doesn’t has any jurisdiction over the case
due to the domicile of the husband petitioner was not in Malaysia as he didn’t own any
house nor make any investment in Malaysia. According to s.49 (1) (a) of LRA, the
petitioner wife can file a petition of divorce even though they are not domiciling in Malaysia
if the husband has deserted his wife or been deported from Malaysia. According to s.49
(1) (b) of LRA, the court shall have the jurisdiction over the case if the wife is resident in
Malaysia and has been ordinarily resident in Malaysia for a period of 2 years immediately
preceding the commencement of the proceedings.

In application, assuming that Erik has no house nor made any investment in
Malaysia and most importantly he only came to Malaysia for his career purpose. In
addition, he is currently residing in Indonesia rather than Malaysia. In other words, he is
presumably has no intention to reside in Malaysia permanently which are prerequisites for
domiciliary. However, the wife petitioner could relied on exception provided by s.49 (1) (b)
of LRA as she has been a ordinary resident in Malaysia for than 2 years.

In short, the court has the jurisdiction over the case.

Sub-issue 2: Whether Anna can petition for divorce right now

Law 2:

S50(1)= Cannot bring petition for divorce 2 years from the date of marriage

However, under s.50(2) – can divorce within the two years if exceptional circumstances OR
hardship suffered by P happens + the court will considering the child’s interest & possibility of
reconciliation during the specific period

*This section is unclear, but when we refer English Matrimonial Causes Act 1973, what should
be proved is that:

“exceptional hardship suffered by the P or exceptional behaviour/depravity committed by the R”

Bowman v Bowman- mere adultery is not amount to exceptional depravity of the respondent. If
it is accompanied with other matrimonial offence, it constitutes exceptional conduct.
Furthermore, in aggravating circumstances, such as a husband has sex with many woman or a
wife bring a child with other man back to home for the husband, mere adultery can constitute
exceptional depravity.

In that case, the exceptional depravity committed by the respondent was proved through the
cruelty, adultery and perverted lush by the respondent while the exceptional hardship suffered by
the petitioner is caused by all those conducts of the respondents

V v V- see notes (for conduct, past is sufficient)

Application:

there is exceptional conduct by Erik because he was committing adultery with Sue before she left
to Indonesia, keep in contact with her via letters and beat Anna. By applying the case of V v V,
the husband committed adultery within the visible area of the wife. The court held that
exceptional depravity was proven through the peculiarly revolting and the wife was injured very
severely by the husband. The court held that the exceptional depravity need not to be continuous,
past conduct is sufficient. Ann was badly beaten by Erik, and she needs to stay in the hospital for
2 weeks. Therefore, there is exceptional depravity on the part of Erik for committing adultery
with a married woman and beat up Anna with severe violence, which cause her to stay in
hospital for 2 weeks.
Conclusion: Anna can petition for divorce within 2 years after their marriage because there is
exceptional circumstance or conduct as required under s50(2)

Sub-issue 3: What shall Anna do before she petition for a divorce

Law 3:

S57(2)-the parties must include the proof of reconciliation steps taken by them into the petition
for divorce

S106(1)-the parties must appear before a conciliatory body to certify the failure to reconcile

Exception: if the respondent willfully failed to attend before the conciliatory body

S106(3)-definition of conciliatory body

S106(5)-the reconciliation must be done within 6 months, if the matrimonial difficulty is unable
to be solved, certificate shall be given to the parties, together with recommendation regarding the
ancillary matters

Application:

Anna must appear before a conciliatory body defined by s106(3), after getting a certificate to
prove that they have no chance to reconcile, she can submit this evidence together with the
petition of divorce. If Erik refuse to the reconciliation, leave could be granted to Anna to be
exempted from the reconciliation proceeding.

Conclusion: Anna must take steps to reconcile with Erik before petition for divorce.

Sub issue 4: what is the grounds of divorce for Anna

Law 4:

S53- breakdown of marriage to be sole ground for divorce

s54(1)(a)= R committed adultery and the P finds it intolerable to live with R

2 conflicting opinions, whether the intolerable must be caused by the adultery

Goodrich v Goodrich – the word “intolerable” refers to a subjective test, whether this particular
petitioner feel intolerable to live with this particular respondent, but not from the perspective of a
reasonable man. Intolerable need not to be the consequence of adultery

Other cases-cleary v cleary, carr v carr

Roper v Roper – the only case which stated that the intolerable feeling must be a consequence
from the adultery
s54(1)(b) = R behaved in such a way that P cannot reasonably be expected to live with R

Ash v Ash (use subjective test)

Livingstone-Stallard v Livingstone-Stallard (objective test)

Application 4:

S54(a)-In this case, Erik had committed adultery.

The factors causing Ann to feel intolerable to live with him included the adultery. The violence
and continuous of relationship between Erik and Sue also contributed to such feeling.

Even if the intolerable feeling must be the consequence of the adultery, Ann had fulfilled the
requirement, because her conduct of burning all the letters indicate that she already got mad with
Erik’s relationship with Sue. Even if Erik didn’t hit her, she would not be able to tolerate further
his conduct. The violence subsequently committed by Erik is just an additional factor for Ann to
leave.

BTW, in my opinion, the intolerable feeling need not to be the result of adultery as most of the
judgment said so and it is unjust to the petitioner if the court X consider other matrimonial
offences committed by the petitioner other than the adultery.

Tan Wat Yan- once R committed adultery and P X condone- impossible for P to live with him
anymore

Therefore, Ann could petition for divorce under s53(1)(a)

S53(1)(b)- cannot expect P to live with R due to R’s behavior

According to Ash, O’Neil, Thurlow and Hariram Jayaram, the subjective test should be applied
to determine whether it is unreasonable for the petitioner to live with the respondent

The conflicting stand was stated in Livingstone- it must be an objective test

Why should apply subjective test? A person may get mad for something which may be trivial in
other person’s eye. What makes a person to feel impossible to stay together with her husband
anymore, it is a subjective question. Matrimonial love itself is subjective feelings. If an objective
view is applied to determine matrimonial difficulties, the petitioner is forced to bear with the
respondent act which keep torturing her.

In this case, what Erik had done was having inappropriate relationship with another married
woman and hit Anna because she destroyed the letter from the woman. Such behavior expressed
his thought that the woman is much more important than Anna and he doesn’t care how she think
and feel. Although he requested Anna to get back to him, it would not erase his fault before that.

Conclusion: Anna may also petition for divorce under s53(1)(b)

Sub issue 5: Whether there is any bar to the divorce between Anna and Erik

Law:

53(2),54(2)- the court shall consider everything including the child’s interest and any party who
would be affected by the divorce

Application:

There is no matrimonial child between Anna and Erik, nothing makes their divorce unreasonable
and unjust

Conclusion: there is no bar to divorce

Sub-issue 6: Whether Anna can claim compensation from Sue, the correspondent

Law:

s58- the petitioner can claim for damages from the correspondent

Even if the petition for divorce isn’t successful, damages could be awarded against the
correspondent if the adultery had been proven

S59- even if the petitioner X claim for adultery damages, the court can award such compensation
against the co respondent
Soo Lina v Ngu Chu Chiong

Application: Anna could claim damages against Sue. However, since she already left Malaysia, it
is impracticable to order her to pay damages.

Conclusion: if Sue is staying in Malaysia, Anna could claim damages against her.

Conclusion: there are various steps that have to be taken and the grounds of any, that Anna can
rely on in order to petition for a divorce

Issue regarding Decree nisi -61,62

 3. Leela, aged 35 was born in Teluk Anson, Malaysia. She was married in August 2022 to
Anand a 27 years old Indian citizen working as an engineer with the Jabatan Kerja Raya
in Kuala Lumpur. Barely a week after the marriage Leela discovers that Anand has been
having an affair with Datin Shanti the wife of a prominent Malaysian. Datin Shanti had
advised Anand to marry a local girl so that he could obtain permanent residence in
Malaysia. Leela is upset because Anand refuses to break off his relationship with Datin
Shanti. Anand says he loves Datin Shanti and will never leave her.

Leela’s family advises Leela to let Anand have his way as they fear that he may leave her.
They tell Leela that she should be grateful to have got a young and handsome husband
at her age. They also tell her that being poor and unable to provide a dowry, she would
never be able to get herself another husband.

At first Leela accepts the situation but Anand persists in returning home late every night
and at times stays away for days when Datin Shanti’s husband goes overseas. Leela
became increasingly depressed and one night in December 2022 when Anand came
home in the early hours of the morning, she started screaming at him. He told her to keep
quiet so that the neighbours would not hear but she carried on screaming. He tried to
close her mouth and nose with his hands. Unable to breathe, Leela fainted. Anand then
left the house and has not returned since. All attempts by Leela to get Anand back have
failed. She has not been able to eat or sleep since Anand left. She now wants to know
how she can get a divorce. Advise Leela.

Main issue: how can Leela get a divorce

Sub-issue 1: whether court has the jurisdiction

Law:
- S48(1)(a) + (c).
- Cases: Melvin Lee Campbell v Amy anak Edward Sumek
DOO
DOC-voluntary change of residence, intention to stay here permanently
Property, intention, wife and children, duration
Paramesuari v Ayadurai– if apply citizenship=strong evidence for domicile -INTENTION

Application:
Anand’s DOO is India
When he came to Malaysia for work, there may be no intention to stay here permanently, however,
according to Joseph Wong, such intention can appear subsequently

In this case, Anand had married a Malaysian, Leela. He had intention to stay in Malaysia
permanently as he expressed such intention. That’s why he married Leela. His intention
could also be seen through the relationship between Shanti and him. Further, he is
working in Malaysia too.

2 possibility:
1) both parties domicile in Malaysia
2) both parties X domiciling in Malaysia – exception under s49

Reasonable to assume the solemnized and registered their marriage under LRA
Conclusion: Anand is domiciling in Malaysia, the court has jurisdiction to hear this case, even if
no, s49 exception applied

Sub-issue 2: what are the grounds for divorce

Law 2:
s54(1)(a)= R committed adultery and the P finds it intolerable to live with R
Goodrich v Goodrich, Cleary v Cleary, Carr v Carr- the intolerable need not to be a consequence
of the adultery
Roper v Roper – intolerable must be a consequence of adultery
As the majority judgment suggest that the petitioner need not to feel intolerable to live with the
respondent as a result of the latter’s adultery, it is possible for the petitioner to prove the
second requirement under s54(1)(a) without relying on the commission of adultery
It is unjust to the petitioner if the court ignore other matrimonial offences which caused the
petitioner to be intolerable with the respondent.

s54(1)(b) = R behaved in such a way that P cannot reasonably be expected to live with R
Ash v Ash, Thurlow v Thurlow, O’Neil v O’Neil- subjective test- this particular P and R, not
reasonable man in their position
Livingstone- objective test-reasonable man
The subjective test should be applied, considering the particular petitioner and respondent’s
personalities, characteristics, conducts, and their history in the marriage.
According O’Neil v O’Neil, the court held that it doesn’t matter that the respondent’s conducts are
of trivial stuffs, but the accumulation of such behavior for a long period is sufficient for the
petitioner to rely on to petition for a divorce. According to Katz and Thurlow, both active
and passive conduct of the respondent could be considered.

Application:
S54(1)(a)-Anand had in fact committed adultery with Datin Shanti, first requirement fulfilled
There are several factors causing Leela to feel intolerable to live with Anand: the adultery, and he
doesn’t care that Leela knows his relationship with Datin Shanti, he even expressed his
love to Shanti. He did not take Leela as his wife, but merely as a tool to obtain permanent
residence in Malaysia. This could be seen through his conduct by returning home late
everyday and even stay away from home.
Leela got mad.
After Leela expressed her unsatisfaction toward Anand’s conduct, he treated her with violence
and left her after she turned unconscious. He doesn’t care about her health and life. All
those behaviors are sufficient to support Leela’s intolerable feeling to stay with Anand.

S54(1)(b)- Even if objective test is applied, Leela can still succeed to petition for divorce. No one
can bear with her husband to have inappropriate relationship with another married woman
right in front you, without and intention to hide it, and quarrel, hit you for the woman

Any bar? No

Conclusion: Leela can petition for divorce under s54(1)(a and s54(1)(b)
Sub-issue 3: whether she can claim the damages for adultery against Datin Shanti
Law:
- s.58, 59(1).
- Case =Soo Lina, Bhanu Sekaramani

Application: she can claim the damages

Effect of Decree of divorce -s.61 and 62

Conclusion: Leela get a divorce