Family Law

1. DISSOLUTION OF
MARRIAGE:
DIVORCE

2. LEARNING OUTCOMES
• To be able to evaluate the different methods by
which a divorce can be granted.
• To be able to apply the law on divorce to a
problem question.

3. INTRODUCTION
Pre-LRA marriages:
Section 4(1) & (2)
Post-LRA marriages:
section 8(b)
Decree nisi cf decree
absolute
Provisions
Part VI LRA
Section 47
Re Divorce Petitions Nos
18, 20 & 24 of 1983
[1984] 2 MLJ 158
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4. • S48 LRA (1) (a) +(c) or (b) + (c): Extent of
power to grant relief.
• S49 LRA: Additional jurisdiction in
proceedings by a wife
JURISDICTION

5. Cases
 Mahon v Mahon [1971] 1 MLJ 287
 Melvin Lee Campbell v Amy anak Edward Sumek [1988] 2 MLJ
338 - Joint petition to divorce by mutual consent – the husband
failed to prove that he had abandoned his domicile of origin
and make Malaysia his domicile of choice – the court have no
jurisdiction to hear the petition.
 Jayasakhty Kumaranayagam v Kandiah Chandrakumaran [1996]
5 MLJ 612
Ang Geok Choo v Wong Tiew Yong [1997] 3 MLJ 467 -
petitioner wife was lawfully married to the respondent in
Malacca. She filed a petition for divorce. The respondent
however filed a preliminary objection that the petitioner was not
domiciled in Malaysia and that the High Court had no
jurisdiction to entertain the petition. The petitioner was
originally domiciled in Singapore, but according to the law of
domicile applicable in Malaysia, her domicile changed to that of
Malaysia upon her marriage to her Malaysian husband, the
respondent
Long Yan Fei v Pauls Baya [1999] 5 MLJ 491
Yeoh v Chew [2001] 4 MLJ 373
Neduncheliyan Balasubramaniam v Kohila A/P Shanmugam
[1997] 3 MLJ 768
Siah Teong Woei v Janet Traynor [2010] 2 MLJ 820

6. 6
Specified Period
Section 50 – no petition within 2 years from date of
marriage
(Note: section 106 conciliatory body)
 Bowman v Bowman [1949] 2 All ER 127 – “cruelty again
by itself, if I fear, not exceptional, but if it is coupled
with aggravating circumstances, as, for instance,
drunkenness and neglect, or if it is exceptionally brutal
or dangerous to health, then, even if it does not
evidence exceptional depravity on the part of the
respondent, it does, at least, cause exceptional hardship
to the applicant…”
 C v C [1979] 1 All ER 556
 Brewer v Brewer [1964] 1 All ER 539
 Fay v Fay [1982] 2 All ER 922 - “’Exceptional hardship’
is not limited to past hardship but includes present and
future hardship and therefore the court may properly
take into account the hardship suffered by a young wife
in having to wait for the elapse of three years from the
date of marriage before petitioning for divorce.”
 Kiranjit Kaur Kalwant Singh v Chandok Narinderpal

7. Grounds
 Presumption of death: section 63
 Conversion to Islam: section 51
 Mutual consent: section 52
 Irretrievable breakdown: section 53

8. PRESUMPTION OF DEATH
Section 63
- alleges that reasonable grounds exist for
supposing that the other party to the marriage is
dead, court may make a decree nisi of
presumption of death and of divorce.
Note: Section 108 Evidence Act 1950 - a person
can be presume to be dead if he has not been
heard of for 7 years by those who would have
naturally heard of him if he had been alive.
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9. CONVERSION TO ISLAM
• Amendment under the Law Reform (Marriage &
Divorce) (Amendment) Act 2017
• Section 51 ‘either party or both parties may
petition…’
• Section 51A
• Time frame : three months after the date of
conversion
• [Note: section 106 is not applicable to this
ground]
Tan Sung Mooi v Too Miew Kim [1994] 3 MLJ 117
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10. MUTUAL CONSENT
Section 52
• Re Divorce Petitions Nos 18, 20 & 24 of 1983 [1984]
2 MLJ 158 - 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 - No
requirement to prove breakdown of marriage in S52
LRA.
• Re Goh Hoe Ling & Anor [1996] 1 MLJ 137
[Note: section 106 is not applicable to this ground]
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11. RRETRIEVABLE BREAKDOWN OF MARRIAGE
Provisions
Section 53
Section 53(1)
Section 53(2)
Section 54
Section 54(1)
Section 54(1)(a)
Section 54(1)(b)
Section 54(1)(c)
Section 54(1)(d)
Section 54(2)
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12. Requirements
• Definition Respondent has committed adultery and the
petitioner finds it intolerable to live with Respondent
• Matrimonial offence: section 58 - The shall make the
alleged adulterer or adulteress a co-respondent, unless
excused by the court on special grounds from doing so.
Test
Standard of proof – beyond reasonable doubt
How to prove
- As a consequences of adultery, the petitioner finds it
intolerable to live with the Respondent (adultery is the
only cause).
- Co-respondent
IRRETRIEVABLE BREAKDOWN
OF MARRIAGE – 54(1)(A)

13. Cases
• Shanmugam v Pitchamany and Anor [1976] 2 MLJ 222
• Karen Cheong Yuen Yee v Phua Cheng Chuen [2004] 291 MLJU 1 - For
allegation of adultery, the standard of proof should be beyond
reasonable doubt.
• Wales v Wales and Cullen [1900] P 63
• Preston-Jones v Preston-Jones [1951] AC 391
• Jackson v Jackson and Pavan [1964] P 25
• Roper v Roper [1972] 3 All ER 668 - The petitioner must prove that not
only the R has committed adultery but in consequences of the adultery,
the petitioner finds it intolerable to live with R.
• Cleary v Cleary [1974] 1 All ER 498
• Tan Wat Yan v Kong Chiew Meng & Anor [1994] 3 CLJ 676 - once
adultery is proved, then it is a ground for divorce. if the court is
satisfied that the petitioner did not condone the act of adultery by the
R and it is impossible for the petitioner to continue living with the R
•Kang Ka Heng v Ng Mooi Tee & Anor [2001] 3 MLJ 331

14. Examples on proof of section 54(1)(a):
• Mohan Raj St Pathmanathan v Prema Rani a/p
Kandiah Ponnapalam & Anor [2005] 4 MLJ 444
• Lim Siaw Ying v Wong Seng & Anor [2009] 4 MLJ
409
• Shireen a/p Chelliah Thiruchelvam v Kanasingam
a/l Kandiah [2012] 7 MLJ 315
• Yew Yin Lai v Teo Meng Hai & Anor [2013] 8 MLJ
787
• Dr. Gurmail a/p Sadhu Singh v Dr. Teh Seong
Peng & Anor [2014] 11 MLJ 843 - for an allegation of
adultery to be established, the evidence should be beyond
establishing suspicion and opportunity to commit adultery
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IRRETRIEVABLE BREAKDOWN
OF MARRIAGE – 54(1)(A)

15. CLAIM OF DAMAGES
Section 58 LRA – allows claim of damages for adultery
against co-respondent
Section 59(1) LRA – power of court to award damages
against co-respondent notwithstanding that the petition
against R is dismissed or adjourned.
Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995] 1 MLJ
852
Since the co-R admitted the adultery, the petitioner was
eligible to damages against the co-R. 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-R knew that the petitioner
and R were married when she committed adultery with R,
that was an aggravating factor to be taken into account.
The value of the spouse and the injury to the aggrieved

16. Requirement
Behaviour Test
English Cases
• Livingston-Stallard v Livingston-Stallard [1974] 2 All ER 766 -
“would any right-thinking person come to the conclusion that
this husband has behaved in such a way that his 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?”
• Ash v Ash [1972] 1 All ER 582 - Behavior of both parties must
be taken into account
• Pheasant v Pheasant [1972] 1 All ER 587 if there is nothing in
the wife’s behaviour which could be regarded as breach of
obligation of the marriage / contributed to breakdown, the
husband’s petition may be dismissed
• Thurlow v Thurlow [1975] 2 All ER 979
• O’Neill v O’Neill [1975] 3 All ER 289
• Birch v Birch [1992] 1 FLR 564
IRRETRIEVABLE BREAKDOWN OF
MARRIAGE – 54(1)(B)

17. OTHER CONDUCT THAT CAN
AMOUNT TO UNREASONABLE
BEHAVIOUR
1. Ash v Ash (1972) – Violent Spouse
2. Livingstone Stallard v Livingstone Stallard (1974)
– Lots of little incidents
3. Peasant v Peasant – emotional or sexual
dissatisfaction
4. Katz v Katz – Illness

18. MY Cases
• Wong Siew Fong v Wong Siew Fong [1964] MLJ 37
• Vethaguru v Sivagnanachelvi [1981] 2 MLJ 204
• Theresa Tek v Luke Lim [1981] 2 MLJ 205
• Savinder Kaur v Tharma Singh [1985] 1 MLJ 273
• 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 LRA
• Hariram Jayaram v Saraswathy Rajahram [1990] 1 MLJ 114 -
adopted the decision in Katz v Katz and Pheasant v Pheasant
• Bhanu Sekaramani v Nagamma [1991] 3 MLJ 34
• Tan Keok Yin v Cheah Saw Hong [1991] 2 MLJ 266
• Lee Hock Teong v Ching Suet Yeen [2019] MLJU 1576 Khoo
Boon Chin v Alice Tan Ling Mei [2019] MLJU 1451

19. Definition
Time period – 2 years before presentation of petition
Simple and Constructive desertion
Requirement
• De facto separation (cessation of cohabitation)
• Animus deserendi (intention to separate)
• No consent (lack of consent from the petitioner)
• No reasonable cause/excuse (Lack of justification for
withdrawing from cohabitation by the deserting
party)
IRRETRIEVABLE BREAKDOWN
OF MARRIAGE – 54(1)(C)

20. Cases
 Pulford v Pulford [1923] P 18 - The desertion is not withdrawal
from a place, but from a state of things. The test is whether the
parties live as two separate units or two separate households or as
One?
 Hopes v Hopes [1948] 2 All ER 920
 Naylor v Naylor [1961] 2 All ER 129
 Miller v Miller [1948] MLJ 183
 Saigal v Saigal [1964] MLJ 429
 Pardy v Pardy [1939] P 302
 Mummery v Mummery [1942] P 107
 B v P [1998] 5 MLJ 787
 Goh Soo Toon v Yuen Yoke Chee [1950] MLJ 96
 Lang v Lang [1954] 3 WLR 762 – the party who stays behind is in
desertion
 Chua Seok Choo v Ooi Chuan Lok [1968] 1 MLJ 282 - a mere wish
or intention that the other spouse should leave was insufficient by
itself to constitute desertion. The wish or intention must be
accompanied by conduct which was of a grave and weighty
character and which the court could properly regard as equivalent

21. Definition
Time period – 2 years before presentation of petition
Lived apart, means that there must be physical separation and a
recognition that the marriage is at an end (physical and mental point
of view)
Cases
• Mouncer v Mouncer [1972] 1 All ER 289
• Pheasant v Pheasant [1972] 1 All ER 587
• Santos v Santos [1972] 2 All ER 246 - to establish that a husband
and wife have lived apart mere physical separation is insufficient if
both the parties still recognise the marriage as subsisting.
• Hoe Gan Tai v Fong Chee Yan [ [1970] 1 MLJ 75
• Bhanu Sekaramani v Nagamma [1991] 3 MLJ 34 - 2 years of
separation is only prima facie proof of the breakdown of the
marriage. It is rebuttable when the R can show that the 2 years’
separation per se does not cause or lead to the breakdown of the
marriage.
• Soo Lina v Ngu Chu Chiong [1994] 2 MLJ 145 - 2 years of separation
is only prima facie proof of the breakdown of the marriage. It is
IRRETRIEVABLE BREAKDOWN
OF MARRIAGE – 54(1)(D)

22. IRRETRIEVABLE BREAKDOWN OF
MARRIAGE
Requirements under sections 53(2) and 54(2)
- The court should decide whether it would be just and
reasonable for it to make a decree of divorce
Cases:
 Blunt v Blunt [1943] AC 517 – interest of children &
petitioner, prospect of reconciliation, interest of
community
 Kathi Rasen v Kathi Rasen [1960] MLJ 57
 Wong Siew Fong [1964] MLJ 37
 Mathias v Mathias [1972] 3 All ER 1
 Tan Keok Yin v Cheah Saw Hong [1991] 2 MLJ 266 - The
petitioner would have only proved prima facie that the
marriage had irretrievably broken down (if R not
contesting); The court further need to consider all the
circumstances including the conduct of the parties and
the interests of the children of the marriage (in pursuant
to sec 54(2)-if R contesting the petition and alleged that
the marriage had not irretrievably broken down).
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23. Section 55 – encourage reconciliation
Section 57 – content of divorce petition
Section 61 – decree nisi
Section 62 – remarriage of a divorced person

24. READINGS
Daleleer Kaur Randawar, Nur Ezan Rahmat and
Akbar Kamarudin @ Abdul Shukor, Family Law
in Malaysia (Lexis Nexis 2018) Chapter 8
Kamala M.G. Pillai, Family Law in Malaysia,
(LexisNexis 2009), Chapter 6
Mimi Kamariah Majid, Family Law in Malaysia
(Malayan Law Journal 1999), Chapter 9
Dr. Zaleha Kamaruddin, Divorce Laws in
Malaysia (Civil and Shariah) (Malayan Law
Journal, 2005) Chapter 2