Part VI Finals ‘23 Study Guide by Emil & Andrena

LAW 581 FAMILY LAW

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 Part VI Finals ‘23 Study Guide by Emil & Andrena

Divorce

DIVORCE IN THE LAW REFORM (MARRIAGE & DIVORCE) ACT 1976

Section 47 of LRA Adoption of English law in the Malaysia law of divorce

Section 48 of LRA, - The marriage was registered under the LRA; or

Jurisdiction of the court - The marriage was contracted under a monogamous marriage law; and
- Domicile of the parties is in Malaysia.
*NOTE based on section 49 of LRA, the court still has the jurisdiction to entertain the proceedings by a wife
even if the husband is not domiciled/resident in Malaysia IF: (a) the wife has been deserted by the husband OR
the wife resides in Malaysia for 2 years continuously.

Section 50 of LRA (1) General rule: Restriction of petition for divorce within two years of marriage EXCEPT
(2) “Exceptional circumstances or hardship suffered by the petitioner”.

Cases that define Bowman v Bowman [1949]

“exceptional Lord Denning gave examples of exceptional circumstances or hardship as when adultery is coupled with other
circumstances and matrimonial offences.
hardship”
Hiller v Hiller and Latham [1958]
- Exceptional circumstances or hardship was established when the defendant’s wife had left the plaintiff
and committed adultery, causing the husband distress leading to a breakdown in health.
- If the alleged hardship was founded on past behaviour and there was no allegation of continuing or
present exceptional hardship, leave will not be granted.

Kiranjit Kaur Kalwant Singh v Chandok Narinderpal Singh [2010]

- Blog postings (equating the plaintiff to a prostitute and a swindler on the internet) operates in a
borderless realm and it continues to exist until the maker of the blog removes it.
- The damage was done since it had been circulated to her friends and family and to all internet users who
had sight of it.
- The plaintiff is traumatised and this fact is supported by evidence.
- The hardship caused is not only of past hardship, but is also present and continuing.
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Ground(s) of divorce: Conversion to Islam (Section 51 of LRA)

Section 51 of LRA Only the non-convert spouse may apply for divorce 3 months after the conversion.

*NOTE the approach of the courts prior to 1994: If the non-convert spouse does not petition for divorce, the
marriage will remain as the converted spouse could not petition under any other ground of divorce by virtue of
section 3(3) of LRA, where the LRA does not apply to a Muslim.

*NOTE: Section 51 of LRA has been amended to allow both parties to petition for divorce.

Cases prior to 1994 Pedley v Majlis Agama Islam Pulau Pinang & Anor [1990]
- Under 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-converting spouse in this case does not petition for divorce, the Court held that the
marriage is not being dissolved.

Letchumy v Ramadasan [1984]

- In order for the non-convert spouse to apply for ancillary claims under the LRA, a petition for divorce
must be brought under section 51 of LRA due to section 3(3) of LRA. Ancillary claims could only be made
under the ground of conversion to Islam.
- In this case, the wife asked for ancillary claim but the husband had converted to Islam, so the Court held
that it has no jurisdiction to ask the husband to pay ancillary claim.

Interpretation of section Based on Tan Sung Mooi v Too Miew Kim [1994]
3(3) of LRA - The interpretation applies to non-Muslims and non-Muslim 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 converted spouse should be governed by the LRA.

Cases post 1994 Koh Yian Geok v Zulkifli Tan bin Abdullah [1995]
- The petitioner (wife) sought a dissolution of marriage (contracted in 1980) on the grounds that the
respondent (husband) had converted to islam in 1993.
- The learned judge held that it was obvious that the grounds upon which the petition had been brought is
based on section 51(1) of the LRA. It is one of the grounds that a person may base his petition upon, and
such a petition may be presented after the end of three months from the date of the conversion.
- The judge declared that the marriage was dissolved by virtue of section 51(1) of LRA itself.
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Nur Aishah Tey binti Abdullah v Teo Eng Hua [1999]

- The petitioner who converted to Islam petitioned for a divorce under the ground of irretrievable
breakdown of marriage under section 54(1) of LRA.
- The Court held that the LRA is also applicable to the petitioner even after her conversion to Islam.

Ground(s) of divorce: Dissolution by mutual consent (Section 52 of LRA)

Section 52 of LRA - Husband and wife mutually agrees that their marriage should be dissolved;
- They may do so after the expiration of two years from the date of their marriage;
- By presenting a joint petition.
The court may grant the divorce if it is satisfied that:
- Both parties had freely consented;
- Proper provision is made for the wife and for the support, care and custody of the children (if any) of the
marriage;
- The court may attach such a condition to the decree of divorce as it thinks fit.

Whether a joint petition Shanker J in Re Divorce Petition No. 18, 20 and 24 of 1983 [1984]
for the dissolution of - Mutual consent by the spouses to a decree of dissolution does not entitle them to a divorce.
marriage under section - The parties who petition for a divorce on the ground of mutual consent must prove the breakdown of
52 (mutual consent) is marriage.
the sole criterion
Sivanesan v Shymala [1986]
- A mutual divorce is not a contested divorce, thus the joint petitioners need not prove the breakdown of
their marriage in order for it to be granted.
- Section 52 requires proper provision to be made for the wife and the support, care and custody of the
children of the marriage.
- The “proper provision” must be freely agreed upon by the court as fair and reasonable before the decree
of divorce can be granted.
- In this case, the parties had filed a joint petition for the dissolution of marriage, together with an affidavit
providing for the settlement of their matrimonial property and a waiver by the wife of all future claims for
maintenance. The trial judge granted a decree nisi and adjourned the matter to deal with the property
settlement. Before the decree became absolute, the husband died and the wife applied to set aside the
decree nisi. In allowing the appeal, the court held: the judge was wrong in dissolving the marriage before
having dealt with the property settlement. Until the terms and conditions are settled and agreed to in the
joint petition, the court must never grant the divorce by mutual consent.
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Re Goh Hoe Ling & Anor [1996]

- It is pointed out in this case where 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 a joint petition
is to be deemed in law to have withdrawn the earlier consent.

Ground(s) for divorce: Breakdown of marriage (Sections 53 and 54 of LRA)

Section 53 of LRA (1) Either party may petition for divorce on the ground that the marriage has irretrievably broken down.
(2) Duty of the court to inquire into the facts alleged. The circumstance must be just and reasonable in order
for the marriage to be dissolved.

Section 54(2) of LRA In considering whether it would be just and reasonable to grant a divorce under section 53, the court shall take
into account the parties’ conduct and how the children’s interest or either party may be affected by the
dissolution of the marriage.

Section 54(1)(a) - Adultery

Section 54(1)(a) of LRA The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

First view of section 54(1)(a)

Goodrich v Goodrich [1971]
- 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 due to the adultery — it
is sufficient if the petitioner genuinely finds it to do so for whatever reason

Cleary v Cleary [1974]

- After the wife had committed adultery, the husband took her back. The wife continued to correspond with
the man whom she had an affair with, and finally left the husband to live with her mother.
- Held: The husband established that the marriage had irretrievably broken down as he found it intolerable
to live with her but not as a consequence of her adultery.
- The wording of the provision must be interpreted literally and that the petitioner may not only rely on the
adultery but also any other matter to prove that further cohabitation is intolerable.
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Second view of section 54(1)(a)

Roper v Roper [1972]
- The meaning of the section was that in consequence of the adultery, the petitioner finds it intolerable to
live with the respondent.

*NOTE that in Malaysia, the courts have accepted the second view, whereby as a result of the adultery,
the intolerability to live with the respondent may be read into it.

Tan Wat Yan v Kong Chiew Meng

- Where the wife had alleged adultery on part of the husband and was seeking for divorce, the court held
that once adultery is prove, then it is a ground for divorce if the court is satisified that the petitioner did
not condine the act of the adultery by the respondent and as a result it is impossible for the petitioner to
continue living with the respondent.

A spouse who has condoned the other spouse’s act of adultery cannot then complain that his or her behaviour is
intolerable.
- Kang Ka Heng v Ng Mooi Tee: Although the wife did not take the initiative to file the divorce
proceedings, this did not amount to evidence htat she had condoned the act of adultery by her husband.

Although adultery is not a crime, the standard of proof required for an allegation of adultery is beyond
reasonable doubt (Karen Cheong Yuen Yee v Phua Cheng Chuean)
- Tan Wat Yan: The allegation of adultery was not disputed as three children were born as a result of the
husband’s affair.
- Kang Ka Heng: The husband admitted to have committed an adulterous relationship from which a child
was born.

Section 58 of LRA Allows the claim of damages for adultery against the co-respondent (the third party involved in the affair).

Section 59 of LRA Section 59(3)

Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995]
- The petitioner (wife) claimed damages from the co-respondent 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
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compensatory, are not restricted to pecuniary loss.

- Since the co-respondent knew that the petitioner and the 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.

Section 54(1)(b) - Behaviour

Section 54(1)(b) of LRA The respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with the
respondent.

First view
The sole test to be prescribed as to the nature of the behaviour is that it must be such as to justify a finding that
the petitioner cannot reasonably be expected to live with the respondent.

Katx v Katz [1972]

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.

Thurlow v Thurlow [1975]

- In order to establish that the respondent had behaved in such a way that the petitioner could not
reasonably be expected to live with the respondent, it is not sufficient to merely 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.

Second 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.
- Test 1: Reasonable Man Test (Livingstone Stallard v Livingstone Stallard)
- 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?
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- It is not the behaviour that needs to be unreasonable but the expectation of further cohabitation.
- Hariram Jayaram v Saraswathy Rajahram: The respondent’s behaviour has not been such that
the court can conclude that the petitioner can reasonably be expected to live with her.
- Test 2: Behaviour Test
- The court must not only consider the respondent’s behaviour but also the character, personality,
disposition and behaviour of the petitioner (Ash v Ash).
- Test 3: Whether there is a breach of the obligation between both parties
- Pheasant v Pheasant [1972]
- 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 have irretrievably broken down.
- It was held that nothing in the wife’s behaviour which could be regarded as a breach on
her part of any of the obligations of the marriage or effectively contributing to the
breakdown of the marriage. The husband’s petition was dismissed.

In Malaysia, the court had applied the second test in such cases:

Joseph Jeganathan v Rosaline Joseph [1989]

- 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 70-80 days.
- Efforts of reconciliation had been a failure.
- 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 a way that the petitioner could not reasonably be expected to live with
the respondent. The Court in this case allowed the decree nisi to the petitioner and held that the marriage
had in this matter, irretrievably broken down.

Section 54(1)(c) - Desertion

Section 54(1)(c) of LRA That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately
preceding the presentation of the petition.

Reg v Lershe
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Desertion is willful absenting of the husband from the society of his wife in spite of her wishes.

BvP
Desertion is the separation of one spouse from the other with the intention of bringing the state of marriage to an
end without reasonable and proper cause and without the permission of the deserted spouse.

Simple desertion
Where one party leaves the other without reasonable cause. The party who leaves is in desertion.

Pulford v Pulford [1923]

Desertion is not the withdrawal from a place, but from the state of things.

Naylor v Naylor [1961]

- 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.

Constructive desertion
- Where one spouse virtually causes another to leave the matrimonial home or where due to the conduct
or behaviour of the respondent, the petitioner has to leave the matrimonial home with a good cause.

Lang v Lang [1955]

- The husband continuously mistreated the wife who eventually left the house and petitioned for divorce.
The Privy Council held that the husband was responsible for the breakdown of the marriage as he had
deserted her by driving her out of the house.
- The husband’s conduct must be such that a reasonable man would know that it would result in the wife’s
departure; it must be so grave as to make married life impossible.

Buchler v Buchler
The ordinary wear and tear of marriage would not suffice; the conduct of the spouse must exceed in gravity.

Chua Seok Choo v Ooi Chuan Lok

One occasion of beating was insufficient to amount to a conduct of a grave nature that would justify the
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constructive desertion.

Four elements that must be fulfilled:

1. De facto separation:
- A rejection of all marital obligations; a complete termination of cohabitation. It must be
proven that both parties are living in two separate households. If the parties are still living
in the same house, there must be a separation of households and absence of any sharing
of common life.
- Naylor v Naylor
2. Animus deserendi (the intention on the part of the spouse to bring the marriage to an end):
- A de facto separation would not amount to desertion if it is not accompanied with the
intention of being permanently separated from the other party.
- The element would not be fulfilled if the spouse in desertion is incapable of forming the
necessary intention, or if the absence of the spouse was involuntary due to work or health
reasons. Desertion is said to exist only upon the intention being formed.
- Mummery v Mummery
- The husband had deserted the wife for at least three years, but during that time he
returned and the couple had sexual intercourse.
- The resumption of cohabitation does not interrupt the period of desertion if the
spouse in desertion has no intention of returning to the other spouse.
3. Lack of consent to the separation on the part of the deserted spouse
- There can be no desertion where the spouse that has been left behind has freely
consented to the separation.
- Goh Soo Toon v Yuen Yoke Chee
- The husband petitioned for divorce on the ground of desertion by his wife.
However, where there existed a separation deed entered into by the parties, there
cannot be said to be a lack of consent to the separation.
- Where the separation deed is still in force, the wife is entitled to use it as a defence
against the allegation of desertion.
4. Lack of justification (no reasonable cause) for withdrawing from cohabitation on the part
of the spouse in desertion
- There can be no desertion where a spouse has a reasonable cause for leaving the other.
- A reasonable cause is only said to exist when a spouse commits a matrimonial offence
such as adultery or cruelty.
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- Young v Young
- Where the conduct of the husband was not sufficiently grave to amount to cruelty,
the wife in this case did not have a reasonable cause to withdraw from
cohabitation.
- Dowse v Dowse
- The husband petitioned for divorce on the ground of desertion by the wife. The
wife denied that she was guilty and alleged constructive desertion by the husband
as a defence, but failed to establish so.
- The wife had no reasonable cause to leave the matrimonial home and was thus
guilty of simple desertion to which the husband’s petition was granted.
-
Desertion will come to and end if any of the four elements ceases to exist.

Thambyah v Thambyah: The burden of proof is on the petitioner to prove that the desertion existed beyond
reasonable doubt.

Section 54(1)(d): Continuously living apart

Section 54(1)(d) of LRA The parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding
the presentation of the petition.

Sullivan v Sullivan
“Lived apart” means more than mere physical separation between the spouses; there must be a physical and
mental recognition that the marriage is at end.

Two elements that must be proven:

1. Factual/Physical separation
- Mouncer v Mouncer
- Where the husband and wife were still living in the same household, a rejection of normal
physical relationship together with an absence of normal affection was not sufficient to
constitute “living apart”.
- Fuller v Fuller
- Although the husband was staying in the house, the fact that he paid a weekly sum for his
stay to the wife was proof that the parties were not living together in the same household.
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2. Mental attitude
- Separation must be accompanied by a conclusive intention to terminate consortium
(companionship between spouses, which is an essential characteristic of marriage).
- Santos v Santos
- A mere physical separation for 2 years is not sufficient to constitute “living apart” if both
parties still recognize the marriage as subsisting.
- The petitioner must not only prove factual separation, but also that the petitioner had
ceased to recognize the marriage and intended to never return to the spouse.
- Leong Kwek Keong v Lee Ying Kuan
- The parties had been living apart, but the husband still returned to the matrimonial home
to spend time with his family and continued to do things he normally did with his family
before he left.
- The husband’s conduct was consistent with the recognition of a marriage. He was only
living apart from the wife by choice and was not forced to do so as a result of
circumstances. Thus, there was inconclusive evidence of intention to terminate the
marriage.

Judicial Separation

Section 64 of LRA - A petition for judicial separation can be brought by either party to the marriage.
- The grounds on which the petition can be made is on the same grounds that are brought for a petition of
divorce under section 54 of LRA.
- The effect of the decree is that the petitioner is under no obligation to cohabit with the respondent
(section 64(2) of LRA).

Section 64(3) of 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 done by the spouse, against whom the decree was made.
- E.g. if the decree was made on the ground of desertion, if there can be a reasonable cause for the
alleged desertion, the court may rescind the degree.

Section 65 of LRA - 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 LRA - The property of the wife who at the time of her death is judicially separated from her husband, shall, in
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the 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.

Section 76(1) of LRA 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) or by the sole efforts of the party as stated in section 76(3).

Section 77(b) of LRA 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.

Section 88(1) of LRA The court may order the custody of the child either to his/her father/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.

Conciliatory Body (Tribunal Perkahwinan)

Section 106 of LRA Before the petition of divorce, a person must first refer to the conciliatory body and that body must certify that it
has failed to reconcile the parties.

Requirement not applicable in cases of:

- Petitioner is deserted;
- Respondent is residing abroad with unlikeliness to return;
- Respondent had wilfully failed to appear before the body even when required;
- Respondent is imprisoned for a term of 5 years or more;
- Respondent is alleged to suffer from incurable mental illness;
- Exceptional circumstances which make reference to a conciliatory body impracticable.

Procedure - Usually done in 3 sessions, but also depends on the seriousness of the issue.
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Legitimacy and Legitimation

Introduction
- Common law: A child is legitimate if:
- The parents are married at the time of conception or at the time of birth.
- The child is conceived prior to a valid marriage but born during said marriage.
- The child was conceived during a valid marriage, but the parents have
separated through a divorce, or the father has died.
- An illegitimate child is considered as filius nullius (the son of nobody).

Statutes
1) Evidence Act 1950
- Section 112: Legitimacy
- A child must be born during the continuance of a valid marriage or the
mother remaining unmarried within 280 days after its dissolution.

2) Law Reform (Marriage and Divorce) Act 1976

- Section 75(1)
- A child of a voidable marriage shall be deemed to be born legitimate.
- Section 75(2)
- A child of a void marriage shall be deemed to be born legitimate if at the time
of the marriage one or both parties reasonably believed that the marriage was
valid

3) Legitimacy Act 1961

- Section 4
- Where the parents of an illegitimate person marry or have married one
another, whether before or after the prescribed date, the marriage shall if the
father of the illegitimate person was or is at the date of the marriage domiciled
in Malaysia, render that person, if living, legitimate, from the prescribed date
or from the date of the marriage, whichever be the later.

4) Adoption Act 1952

- Legitimation by way of adoption
- Section 9
- Upon an adoption order being made by the court, 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 shall vest on the adopter as though the adopted child was born
to the adopter in lawful wedlock.
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Ancillary claim
Introduction
The maintenance of wives, ex-wives, children, division of property and custody of children under the various statutes in Malaysia.

The main statutes related to the maintenance of wife and children are:
- Law Reform (Marriage and Divorce) Act 1976
- Married Women and Children (Maintenance) Act 1950

LRA 1976 MWCA 1950

Application Only applicable when there is a petition for divorce. Applicable only when the marriage is subsisting
and still in force.
Maintenance of spouse:
- The court may order a husband to pay maintenance to his Maintenance of spouse:
wife or former wife; OR - The court may only order a man to pay
- Order a wife to pay maintenance to her husband or her former maintenance to his wife and not to order
husband where he is incapacitated, wholly or partially, from a wife to pay maintenance to her husband
earning a livelihood by reason of mental or physical injury or even if the husband is incapacitated,
ill-health. wholly or partially, from earning a
livelihood by reason of mental or physical
injury or ill-health.
Section 51(2)
- The court upon dissolving the marriage may make provision for This Act shall not apply to any person professing
the wife or husband, and for the support, care and custody of the religion of Islam and whose wife or
the children of the marriage even if one of the parties converts legitimate or illegitimate child, as the case may
to Islamic faith. be, professes the religion of Islam.

However, the courts may grant ancillary claim even if the petition for
divorce was made under other grounds for divorce, other than section
51.
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Tan Sung Mooi v. Too Miew Kim

- A decree of divorce granted by the High Court but the husband
raised the issue that the High Court had no jurisdiction over
him in respect of ancillary relief arising from the divorce
because of his conversion to Islam as the petition for divorce
was made under section 53 of the LA and not under section 51
of the LA.
- The wife contended that since she remained a non-Muslim,
she could not come under the jurisdiction of the Syariah Court.
- The court stressed the husband’s legal obligations under a
non-Muslim marriage in the LRA could not be extinguished or
avoided by his conversion to Islam.
- If the High Court no longer had jurisdiction, it would result in
grave injustice to non-Muslim spouses and children whose only
remedy would be in the civil courts since the Syariah Courts do
not have jurisdiction over non-Muslims.

Section 3(3)
- The LA applies to non-Muslims and non-Muslim marriages.
- Nur Aishah Tey binti Abdullah v. To Eng Hua
- 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 converted spouse
should be governed by the LRA.

Assessment of Section 78 Section 3

maintenance - The husband is liable to pay for the maintenance of his
spouse/ex-spouse according to the means and needs of the
parties.
- The means and needs of the parties are important for the court
to assess a nominal sum for the maintenance of the wife.
- The husband is liable to pay for the
maintenance of his wife according to the
means and needs of the parties.
- The means and needs of the parties are
important for the court to assess a
nominal sum for the maintenance of the
wife.
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- The means and needs vary between

Koay Cheng Eng v. Linda Herawati Santoso individuals depending on their status in
- The husband, a Malaysian, and the wife, an Indonesian, were the com-munity.
married in the UK in 1980. After six years of marriage, the - If the party belongs to a respectable
husband petitioned for a divorce. family, the order for maintenance would
- While assessing the amount of maintenance, the court will take be higher.
into account
a) The duration of the marriage
b) Whether there were any children of the marriage
c) The age of the parties
d) Whether the husband had financially supported the wife
during the duration of their marriage
e) The parties earning capabilities
f) Whether the divorce would have affected the husband's
position financially in deciding the amount of
maintenance that should be paid by the husband.

Chaw Anui v. Tan Kim Chai

- The issue of fair and reasonable maintenance must be
determined by reference to the facts and circumstances of
each case.
- The court took into account
a) The devotion of the wife
b) The likelihood of the wife to be gainfully employed
c) The wife's health and medical needs
d) The husband's financial needs
e) The standard of living of the wife
f) The means and needs of the parties.

Effect of Section 78 Section 5

breakdown of - If the other party to the marriage causes the breakdown of the - If the wife lives separately from the
marriage marriage, the amount for maintenance would be affected. husband with reasonable refusal to live
with the husband, the court may make or
enforce the order although the husband
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made it a condition that the wife lives with

Lee Yu Lan v. Lim Thain Chye him and the wife fails to do so.
- Principle of the case: The court took into account the
responsibility on the part of the respondent husband for the
breakdown of the marriage before arriving at an appropriate
sum of maintenance.

Expiration of Section 81 Section 5(2)

maintenance - An order for maintenance shall expire - No wife shall entitled to receive an
order a) If the maintenance was unsecured, on the death of the allowance from her husband if,
husband or the wife, whichever is earlier a) She is living in adultery.
b) If the maintenance was secured, on the death of the spouse, in b) She refuses to live with her husband
whose favour it was made. without any sufficient reason.

Section 82
- The right to maintenance will cease on remarriage.
- The right of any divorced person to receive maintenance from
his or her former spouse under any order of court OR an
agreement (unless said otherwise), shall cease on his or her
marriage to or living in adultery with any other person.

Variation of Section 83 Section 6

subsisting - The court may vary or rescind, subsisting order for
order of maintenance, whether secured or unsecured, on the
maintenance application of the person in whose favour or of the person
against whom the order was made, if satisfied,
a) the order was based on any misrepresentation or mistake of
fact, OR
b) there has been any material change in the circumstances.
- On the application of any person receiving
Or ordered to pay a monthly allowance
under the Act, and a proof of change in
the circumstances of such person, his
wife or child, the court by which such
order was made, may rescind the order or
may vary it as it seems reasonable.

Anna Tay Siew Hong v. Joseph Ng Tiong Yong Lee Swee Peng v. Koon Kum Keng
- The respondent filed an application for a rescission of the - The respondent husband was ordered to
maintenance order as he claimed that he was 60 years old, pay to the appellant wife $50 a month for
suffering from several ailments, had no permanent work and the maintenance of their child.
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was dependent on his second wife for financial support.
- The court was satisfied that there had been a material change
in the circumstances both of the respondent and the petitioner.
- The court must be satisfied that there is extreme hardship to
the existing order.
Lim Bee Kee v. Leong Ah Chuan
- The respondent had been paying RM600 maintenance to the
petitioner and the three children of the marriage.
- He had applied to the High Court to have the amount reduced
to RM300 a month but was dismissed as there was no material
change in the circumstances.
- He applied to the Magistrate's Court to
rescind or vary the very same order.
- His only ground was that he was unable
to pay 450 a month.
- The Magistrate noted that the husband
was drawing a salary of $262 a month,
married and had to support an old mother
of 61 years.
- His monthly expenditure amounted to
$258.20 which shows strict economy in
his expenditure to meet the maintenance
of the child.
- The Magistrate varied the order.

Division of property
Section 76(1)
- The court shall have power, when granting a decree of divorce or judicial separation, to order the division between parties of any assets
acquired by them during the marriage either by their joint efforts of the sale of any such assets and the division between the parties of
the proceeds of sale.

Ong Ah Mai v. Ling Pooi Ming

1) Family property
- The court has no jurisdiction to make orders pertaining to the division of family property for the parties, if it is not made during the
divorce petition or judicial separation.

Murli a/l Naraindas v Sajni Bai a/p Bulchand (got 4 claims)

2) Matrimonial home
- Section 76(4)
- If the asset is acquired by the sole effort of one party, the party by whose effort the assets were acquired shall receive a greater
proportion.
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- The court will look into the extent of contribution by the other party who did not acquire the assets to the welfare of the family by
looking after the home or caring for the family.
- The wife claimed that she was entitled to half of the proceeds of landed properties which were registered under their joint names.
- The matrimonial home was solely acquired and its renovation was paid for by the husband.
- Another landed property in Gombak was also registered under their joint names and the husband admitted that when the property was
sold, he did not give any share of the proceeds of the sale to the wife although he agreed they pooled their resources when they were
renting the same.
- The proceeds of the Gombak property were allocated by the husband to acquire another property.
- The grounds which the court considered included that the respondent was acknowledged in a research paper and the petitioner thanked
the respondent; that the respondent had contributed to the running of the home and caring for the two children; and that the properties
were in joint names.
- Therefore, the court held that the respondent wife was entitled to half of the matrimonial home.

3) EPF
- The court decided that EPF formed part of the matrimonial assets of the parties and therefore would also attract the operation of section
76(3) and (4) and the party who acquired the assets should receive a major share.
- As such, the court was of the view that the respondent was entitled to half the amount of the petitioner's EPF (KWSP).

4) Jewellery
- Both the petitioner and the respondent had testified that the contents of a safe deposit box consisted of gold bullion, jewellery and
watches given to them as wedding gifts and/or dowry during marriage.
- Having considered the evidence and submissions, this court was of the view that all items of monetary value in the safe deposit box
were to be divided equally between the petitioner and the respondent.

5) Shares
- The petitioner also testified that he had been taking advances from BN Lakhwani Sdn Bhd to cover his monthly expenses including
paying for the instalments of the matrimonial home and paying insurances for the whole family.
- The respondent held 30% of the shares in BN Lakhwani Sdn Bhd.
- The court was of the view that the issue involving the shareholding of the respondent in BN Lakhwani Sdn Bh and the loan or advances
and the respondent's rights and entitlement as a shareholder and director in the said company were matters under the purview of
company law and enforceable by way of civil remedy.
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Guardianship and custody

Statutes
1) Guardianship of Infants Act 1961 (GIA)
- Section 11
- The court shall have regard primarily to the welfare of the infant and also to
the wishes of the parents

a) Re Satpal Singh, An Infant

- The welfare of the child as a whole must be considered which must be more
than merely a question of whether or not the child would be happier in one
place compared to another place.

b) Jv. C
- The court granted care and control of the child to the foster parents.
- Section 1 applies to disputes not only between the parents, but between
parents and strangers, and strangers and strangers.
- In applying the section, the rights and wishes of parents, whether
impeachable or otherwise, must be weighed in their bearing on the welfare of
the child, which is paramount, in conjunction with all the other factors relevant
to the issue.

2) Law Reform (Marriage and Divorce) Act 1976

- Section 88(2)
- The welfare of the child is the paramount consideration of the court in
ascertaining the custody of the child. Hence, the court shall have regard to
the wishes of the parents of the child and wishes of the child, where he/she is
of an age to express independent opinion.

a) Sivajothi a/p Suppiah v. Kunathasan all Chelliah

- In this case, the court granted the plaintiff (wife) custody, care and control of
the eldest child of the couple and reasonable access to the husband.
- However, the court took into consideration that the wife only worked two
hours in the afternoons and she would have more time to devote herself to
the care and needs of the child and considered the husband's impulsive,
violent and dangerous behaviour and him being diagnosed as 'para suicide
and held that it would not be in the best interest and welfare of the child that
he should, at this early and critical stage of his life, be brought up in an
environment that would expose him to the risks posed by the father's volatile
temperament.
- Having considered all factors and giving paramount consideration to the
welfare of the child, the custody, care and control of the child was awarded to
the wife subject to reasonable access to the husband.
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b) Gan Koo Kea v. Gan Show Lih (f)

- In this case, the husband applied for the guardianship, custody, care and
control of the children.
- In deciding the matter, the court took into account,
● The children's continuous stay with the wife ever since the separation
of the husband and wife on 21 December 2001.
● The respective tender age of the children.
● The admission of the husband pertaining to his beating of his children
by using clothes hangers.
● The inaction or failure on the husband's part in attending to the
children after the separation.

- There was nothing in the undisputed facts to show that the wife was unable to
provide the children with an adequate home environment and nothing to
militate against the wife in respect of her ability to shower love and affection
on the children.

- As the children were both below seven years of age, the rebuttable
presumption under section 88(3) was invoked that it is good for the children to
be with their mother, who has always been with the children since the
separation of the parties and it was undesirable to disturb the life of the
children by changes of custody.
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Domestic violence

Introduction

- Aims to provide protection to the victims of domestic violence which are the people in the house.
- Includes family and extended family members that live inside the same house as the abuser.

- Domestic Violence Act 1994 vs Domestic Violence Act 1994 (Amendments 2012)
- In the 1990’s, the DVA is like a toothless tiger due to people refusal to follow this act because of several reasons:
a) When people apply under this Act, it becomes a criminal case (which requires investigation) and has a chance for the abuser to
find out about the report.
b) To get a protection order, the application must be done to the Magistrate which while the applicant is waiting, the threat might get
serious.
c) When an order of protection is given, the victim is removed from the house to be sent to a women's home protection but even
then, it is small in number and very hard to find.
d) Victims are not happy for being removed from their home since it was the abuser who is the problem, so why are they the one
needing to get out.
e) The remedy for the victim is injunction (prohibition act) but it does not work properly and the threat is still there.

- This led to the amendment of DVA in 2012.

- If victim is house member: Must mention LRA + DVA + MWCA (if wife)
- If victim is a child: Must mention Child Act + DVA
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Application
DVA 1994
DEFINITION “domestic violence” means the commission of any of the The Act adds the definition of “domestic violence” to include:
following acts:
Section 2 a) wilfully or knowingly placing, or attempting to place,
the victim in fear of physical injury;
b) causing physical injury to the victim by such act which
is known or ought to have been known would result in
physical injury;
c) compelling the victim by force or threat to engage in
any conduct or act, sexual or otherwise, from which
the victim has a right to abstain
d) confining or detaining the victim against the victim’s
will; or
e) causing mischief or destruction or damage to property
with intent to cause or knowing that it is likely to cause
distress or annoyance to the victim,
SAFE PLACE “Safe place” or “shelter” means any home or institution
AND SHELTER maintained or managed by the Department of Social Welfare
or by any other agency or voluntary organisation approved by
Section 2
the Minister for the purposes of this Act or any other suitable
place the occupier of which is willing temporarily to receive
the victim.
& Andrena
AMENDMENT 2012 (in blue font)
a) causing psychological abuse which includes emotional
injury to the victim;
b) causing the victim to suffer delusions by using any
intoxicating substance or any other substance without
the victim’s consent or if the consent is given, the
consent was unlawfully obtained; or
c) in the case where the victim is a child, causing the
victim to suffer delusions by using any intoxicating
substance or any other substance.
“Safe place” means any home or institution maintained by the
Ministry or Department responsible for welfare services or by
any other agency or voluntary organisation approved by the
Minister for the purposes of this Act.
“shelter” means any home, institution or any other suitable
place of which the occupier or owner is willing to receive a
victim temporarily.
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WRITTEN LAW This Act shall be read together with the provisions of the This Act shall be read together with the Penal Code [Act 574]
Penal Code [Act 574]. or any other written law involving offences relating to domestic
Section 3 violence.

FACTOR The court hearing a claim for such compensation may take The court hearing a claim for such compensation may take
CONSIDERED IN into account – into account –
ASSESSING a) The pain and suffering of the victim, and the nature a) The pain and suffering of the victim, and the nature
COMPENSATION
and extent of the physical or mental injury suffered and extent of physical injury or psychological abuse
Section 10(2) which includes emotional injury suffered