Tutorial 6 of MARRIAGE DIVORCE PDF

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TUTORIAL 6DIVORCE 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 in...

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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 2019. 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 2020, 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. Advise Cecilia whether she can petition for divorce. Main issue: Whether the court will grant the decree of divorce to Cecilia? 1st issue: Whether the court has jurisdiction to grant the decree of the divorce? Law:

S.48(1) of the LRA provides that the court will have jurisdiction to make a decree of divorce only if (a) the marriage has been registered or deemed to be registered under

the Act and (c) the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia. In Melvin Lee Campbell v Amy Anak Edward Sumek, since the husband failed to prove that he had acquired a domicile of choice in Malaysia, the court therefore had no jurisdiction to hear his petition for divorce. Application: In this situation, since both Cecilia and White are living in Malaysia and the fact does not state about where did they carry out their marriage, so it will best to assume that they solemnise in Malaysia and had registered their wedding under Law Reform Act. However, White’s domiciled of origin is not in Malaysia because he is an English man. The situation did not tell about whether he already obtained his domiciled of choice, considering that he has lived in Malaysia for 16 years (udny v udny) after he came here in 2005 and married a Malaysian women he would most likely have acquired a domicile of choice in Malaysia. If he had obtained his domiciled of choice, then the court will have the jurisdiction and if he did not obtain it yet, his domicile of origin is applicable, and the court will not have the jurisdiction to hear the petition. For Cecilia, even though her domicile of origin is in Malaysia but because of a married woman’s domicile will follow her husband’s domicile, her domicile will follow White’s domicile. So, if White already obtained his domicile of choice in Malaysia, then both of them are domiciled in Malaysia but if he is not, then both of them are domiciled in England, following White’s domicile of origin. Thus, the issue is depending on White’s domicile. 2nd issue: Whether exception to s.48 of LRA is applicable for Cecilia (no need) Law: S.49(b) of LRA, notwithstanding anything to the contrary in paragraph 48(1)(c), the court shall have jurisdiction to entertain proceedings by a wife under this Part, although the husband is not domiciled or resident in Malaysia if the wife is resident in Malaysia and has been ordinarily resident in Malaysia for a period of at least two years before commencement of the proceedings. Application: In this situation, if White’s domicile of choice is not in Malaysia, then Cecilia can raise this section to make the court has the jurisdiction to hear the petition. She has been resident in Malaysia for more than 2 years because her domicile of origin is in Malaysia. From the fact, there is no any evidence that said she had gone to another country to reside there but only the fact that she had been in Malaysia since 2014 until 2020. Thus, she can apply for this exception to s.48 of LRA if White failed to acquire a domicile of choice in Malaysia. 3rd issue: Whether Cecilia has to wait for 2 years to petition for a divorce? Law: s.50(1) no petition for divorce can be presented before 2 years of the expiration date of the marriage Application: White and Cecilia got married in the 2014. She is presenting her divorce now in 2020. 7 years has already passed from the date of marriage. Thus, she does not need to wait for another 2 years. 4th issue: Whether Cecilia can petition for a divorce proceeding on the ground of breakdown of marriage Law: S.53(1) of LRA, either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down. S.54(1)(b) of LRA, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

In the case of Ash v Ash which applied subjective test, the court held that the meaning of petitioner is someone who involved in the case and not a reasonable husband or wife. The judge has to consider not only the behaviour of the respondent but also the character, personality, disposition and behaviour of the petitioner. Contrary to the case of LivingstoneStallard, the court had applied the objective test, which is 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 of the circumstances and the characters and personalities of the parties. Between these two tests, subjective test is the most suitable test to apply when assessing whether the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. All the behaviours of the parties in the case are taking into consideration and not the behaviours of the reasonable husband and wife because everyone has different behavioursso it will be unfair to the respondent if he or her behaviour is being compared to others who isnot as the same as him or her. In Malaysia, the case of Tan Keok Yin v Cheah Saw Hong, the court had applied subjective test and dismissed the petition because his Lordship was not satisfied that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with the respondent wife. Application: In this present situation, the main reason why Cecilia wants to divorce White is because his workaholic behaviour where he always spends his time by working. She was fed up and bored with her husband’s behaviour and wants to get divorce because she was tired of waiting. The subjective test should be used and both of Cecilia and White’s behaviours should be considered. White’s behaviour of spending too much time working is not something that could make Cecilia not reasonably be expected to live with him. Cecilia should try to understand his work more and be patient to him because after all he is working for their family. From the fact it can be seen that Cecilia was bored with her life in Kedah so she went to the club and window shopping in Petaling Jaya, that shows Cecilia just want her freedom and enjoy her time. 5th issue: Whether these is any bars to prevent divorce to be granted Law: S.53(2) of LRA, the court hearing such petition shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution. S.54(2) of LRA, in considering whether it would be just and reasonable to make a decree the court shall consider the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved and it would be wrong to dissolve the marriage it shall dismiss the petition. In the case of Mathias v Mathias, court also considered whether a marriage which had broken down for so long should be preserved or whether it was not right in the public interest to put an end to it. The cohabitation had lasted for under three years whereas the parties had been living apart for nearly eight years. All the three parties have many years more to live. Since the husband desired to marry the other woman, public interest required that the marriage be dissolved.

Application: In this situation, White as the respondent needs to prove that there are bars that the court need to be considered before granting the decree for dissolution of marriage. He can raise the bar on the interests of any child or children because they have a son and a daughter from their marriage. By raising this bar, the court need to look upon their children’s interests to see whether it is just and reasonable to dissolve the marriage when they already have their children. From the fact, their children had pleas to “go back to Daddy” because they felt insecure in their surrounding and wanted to go home when Cecilia brought them to Petaling Jaya. It can be assumed that their children are feeling more secure when they are with their father, White. 6th issue: Whether Cecilia and White had taken steps for reconciliation. Law: S.55(1) provision may be made by rules of court for requiring that before the presentation of a petition for divorce the petitioner shall have recourse to the assistance and advice of such persons or bodies as may be made available for the purpose of effecting a reconciliation between parties to a marriage who have become estranged and s.55(2) if at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation. The power conferred by the foregoing provision is additional to any other power of the court to adjourn proceedings. S.57(2) every petition for a divorce shall state what steps had been taken to effect a reconciliation. S.106(1) no person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties: provided that this requirement shall not apply in any case (iii) where the respondent has been required to appear before a conciliatory body and has willfully failed to attend. S.106(3) a “conciliatory body” means (b) a marriage tribunal. S.106(5) (a) a conciliatory body to which a matrimonial difficulty has been referred shall resolve it within the period of six months from the date of reference; and shall require the attendance of the parties and shall give each of them an opportunity of being heard and may hear such other persons and make such inquiries as it may think fit and may, if it considers it necessary, adjourn its proceedings from time to time and (b) If the conciliatory body is unable to resolve the matrimonial difficulty to the satisfaction of the parties and to persuade them to resume married life together, it shall issue a certificate to that effect and may append to its certificate such recommendations as it thinks fit regarding maintenance, division of matrimonial property and the custody of the minor children, if any, of the marriage. Application: Before the decree of divorce can be granted Cecilia and White must meet a conciliatory body because the aim of the law is to save the marriage. In this situation, Cecilia had appeared before the Marriage Tribunal in Kedah but White failed to attend all the sessions saying that he could not take time off from his work. White had wilfully failed to attend the session. After six months the marriage tribunal certified that the parties could not be reconciled. Because the marriage tribunal had issued the certificate, Cecilia can bring the proceeding to the court. decree nisi 7th issue: Whether the parties need to follow the miscellaneous matters

Law:

The Decree s.61(1)

s.61(2)

Sivanesan v Shymala

S.62

Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant unless the court by general or special order from time to time fixes a shorter period. Where a decree nisi of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted (pet) , then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted (resp) may make an application to the court and on that application the court may— a) notwithstanding the provisions of the last foregoing subsection, make the decree absolute; -if pet never cancel decree nisi b) rescind the decree nisi; c) require further inquiry; or d) otherwise deal with the case as it thinks fit.  H & W had jointly presented a petition for divorce on mutual consent  H passed away before decree could be made absolute  FC: No divorce & the wife being a widow was entitled to claim for the properties concerned in the case. Where a decree of divorce has been made absolute and either— a) there is no right of appeal against the decree absolute; b) the time for appealing against the decree absolute has expired without an appeal having been brought; or c) an appeal against the decree absolute has been dismissed, either party to the former marriage may marry again.

Registration of Divorce s.107 Registrar General – has to send the decree copy to the RG for registration. If marriage is solemnized in Malaysia but dissolved outside Malaysia, the court can register that decree if the court is satisfied. Shall write the word “dissolved’ as a reference that the decree was granted. Application: In this situation, if the court has granted Cecilia the decree of divorce, it should be a decree nisi first for 3 months and after the expiration of three months, she needs to make an application to the court to make the decree become absolute. If, Cecilia does not make an application to the court, then White can make an application to the court to rescind the decree nisi if he still wants the marriage to run. After the decree become absolute, then Cecilia and White are already divorce and can marry anyone they want. When the decree nisi become absolute and they have already divorce, they need to register their divorce at the Registrar General. Conclusion: Cecilia’s petition for a divorce will be dismissed as she had failed to prove that the marriage had irretrievably broken down

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 2020. 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 April 2022 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. Main issue: Whether Anna can file for a petition of divorce? 1st issue: Whether the court has jurisdiction to entertain Anna’s petition Law: S.48(1) of the LRA provides that the court will have jurisdiction to make a decree of divorce only if (a) the marriage has been registered or deemed to be registered under the Act and (c) the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia. In Melvin Lee Campbell v Amy Anak Edward Sumek , since the husband failed to prove that he had acquired a domicile of choice in Malaysia, the court therefore had no jurisdiction to hear his petition for divorce. Application: In this situation, (a) is fulfilled as their marriage is registered under the LRA. Inferring from the fact that Eric’s contract will end soon in April 2022 and he has to leave Malaysia, it is fair to say that Eric has not acquired a domicile of choice in Malaysia as he only came here for work purposes. Therefore, (c) would not be fulfilled. 2nd issue: Whether exception to s.48 of LRA is applicable to dispense Eric’s domicile in Malaysia Law: S.49(b) of LRA, notwithstanding anything to the contrary in paragraph 48(1)(c), the court shall have jurisdiction to entertain proceedings by a wife under this Part, although the husband is not domiciled or resident in Malaysia if the wife is resident in Malaysia and has been ordinarily resident in Malaysia for a period of at least two years before commencement of the proceedings. Application: Anna, a Malaysian who would have been ordinarily resident in Malaysia for2 years immediately preceding the commencement of the proceeding would be able to file for divorce even though Eric was not domicile in Malaysia.

3rd issue: Whether there’s any restriction on Anna’s petition for divorce Law: S 50(1) No petition for divorce to be presented to court before the expiration of 2years from marriage Application: The parties were married in March 2019 and thus apparently the marriage had not been existed for 2 years. Prima facie, such petition was prohibited. However, the exception in subsection 2 may be applicable to justify petition within 2 years of marriage sub-issue 1: Whether Anna had suffered exceptional hardship or was within the exceptional circumstances Law: S 50(2) -A judge may allow the presentation of a petition for divorce within the specified period if the case is one of the exceptional circumstances or hardship suffered by the petitioner; but regards to the interests of the child of the marriage and reasonable probability of marriage Bowman v Bowman- mere adultery did not constitute exceptional hardship. It will only become exceptional when it was coupled with other matrimonial offences. Cruelty on its own is not hardship unless it was coupled with aggravating circumstances or perverted lust. Hillier v Hillier- Subjective te...