Divorce - Family Law by Insyirah

1. INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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6. DIVORCE/PENCERAIAN
CHECKLIST
A. JURISDICTION OF THE COURT – S.48
B. CHECKLIST FOR DIVORCE – S.48(1)
C. THE SPECIFIED PERIOD – S.50
D. WAYS OF OBTAINING A DIVORCE
i. PRESUMPTION OF DEATH – S.63(1)
ii. DIVORCE BY CONVERSION – S.51
iii. DIVORCE BY MUTUAL CONSENT – S.52
iv. DIVORCE THROUGH BREAKDOWN OF MARRIAGE – S.53 & S.54 (PROOF)
(a) ADULTERY
(b) BEHAVIOUR
(c) DESERTION
(d) LIVING APART
E. JUDICIAL SEPARATION – S.64

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A. JURISDICTION OF THE COURT
Relevant provision to hear applications/petitions for divorce: S.48
Relevant court: the High Court1
B. CHECKLIST FOR DIVORCE
S.48(1):-
(a) The marriage must be registered/deemed to be registered under LRA – referring to
S.25, 31, 33 of the Act
(b) The marriage contracted between the parties was monogamous marriage – referring
to S.4(2)
(c) Both parties must be domiciled in Malaysia
Cases:-
i. James Sloan v Sarala Devi Sloan
ii. Melvin Lee Campbell v Amy anak Edward Sumek [1988]
iii. Jayasakhty Kumaranayagam v Kandiah Chandrakumaran [1996]
iv. Ang Geck Choo v Wong Tiew Yong [1997]
Q: How can a file for divorce if the husband isn’t Malaysian domiciled?
A: S.49(1) – The wife can file for divorce even when husband is not domiciled in Malaysia if:-
(a) She has been deserted/husband has been deported from Malaysia
*must prove that the husband was before the desertion/deportation domiciled in
Malaysia
OR
(b) The wife is a Malaysian resident for at least 2 years
*S.49 can only be used by the wife in a contested divorce
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S.48(1) LRA

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C. THE SPECIFIED PERIOD
S.50(1) – Prohibits any petition for divorce from being presented within 2 years
S.50(2) – Allows the presentation of a petition for divorce within 2 years
THE SPECIFIED PERIOD
>2 YEARS <2 YEARS
Normal circumstances cases
Rationales:
1. To encourage couples to attempt at
making a success of their marriages
2. To discourage trial marriages
A. Exceptional circumstances/hardship
cases – S.50(2)
B. Conversion to Islam cases – S.51(3)
Period of waiting: 3 moths (‘iddah)
A. EXCEPTIONAL CIRCUMSTANCES/HARDSHIP CASES – S.50(2)
What is ‘exceptional hardship/depravity’?
 Denning LJ in Bowman v Bowman [1949]
Ordinary depravity Not an exceptional
depravity but still caused an
exceptional hardship to the
wife
Exceptional depravity
If there is nothing more than
adultery with 1 person
within the 1st 3 years of
marriage
If the adultery is coupled
with other matrimonial
offences eg. if a husband not
only commits adultery but
also deserts his wife in
favour of another woman, or
he is cruel to her, thus
causing her not only distress
by his adultery but also
injury by is violence
 The husband commits
adultery within a few
weeks of marriage
 The husband commits
adultery promiscuously
with more than 1
woman
 The husband commits
adultery with his wife’s
sister
 The husband commits
adultery with a servant
in the house

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EXCEPTIONAL DEPRAVITY CASES:-
Bowman v Bowman [1949]
 A wife sought the leave of the court on the ground of exceptional hardship suffered by
her or exceptional depravity on the part of the husband to petition for divorce although 3
years hadn’t passed since the date of the marriage
EXCEPTIONAL DEPRAVITY – PAST & FUTURE HARDSHIP CASES:-
Hillier v Hillier [1958]
 The parties were married in March 1956
 The wife left her husband in Nov the same year & kept changing her mind about returning
to her husband  caused him distress & led to a breakdown in health
 The wife met another man with whom she committed adultery & became pregnant
 No probability of reconciliation because the wife was living with the other man & wished
to marry him
 Romer LJ: Although the words ‘that the case is 1 of exceptional hardship suffered by the
petitioner’ include hardship suffered in the past by the petitioner, they are directed to a
considerable extent, if not primarily, to the possibility or probability of exceptional
hardship being suffered in the future by the petitioner if he has to wait the full period of
3 years before he can present his petition
Brewer v Brewer [1964]
 The degree of hardship inflicted isn’t exceptional
C v C [1979]
 The learned judge was satisfied that the wife had made a case of exceptional hardship but
not of exceptional depravity
Fay v Fay [1982]
 His Lordship agreed that what is exceptional must be judged by prevailing standards of
acceptable behaviour between spouses
Kiranjit Kaur v Chandok Narinderpal Singh [2009]
 Husband called his wife ‘prostitute’ and ‘swindler’ in his blog  no chance of
reconciliation
 Suraya Othman J: Hardship that is cause by any slanderous statements made in any
blog/internet can be included as exceptional circumstance

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B. CONVERSION TO ISLAM CASES – S.51(3)
S.51 – Divorce on the ground of conversion to Islam
 S.51(1)(a) – Either party may file petition for a divorce under this section or S.53
 S.51(1)(b) – Both parties (Muslim/Non-Muslim) may file for divorce petition (under S.52)
 The parties must wait for 3 months from the date of the conversion before the petition
can be filed (don’t have to wait for 2 years)
CONVERSION TO ISLAM CASES:-
Subashini v Saravanan [2007]
Pedley v Majlis Ugama Islam Pulau Pinang & Anor
Tan Sung Mooi v Too Miew Kim [1994]
D. WAYS OF OBTAINING DIVORCE
i. PRESUMPTION OF DEATH
 S.63(1): For a period of 7 years upwards the other party of the marriage has been
continually absent from the petitioner and the petitioner has no reason to believe that
the other party has been living within that time  shall be evidence that he/she is dead
until the contrary is proved
 This section must be read together with S.108 Evidence Act: When the question is whether
a man is alive or dead, and it is proved that he hasn’t been heard for 7 years  the burden
of proving that he is alive is shifted to the person who affirms it
ii. DIVORCE BY CONVERSION
 S.51 – Divorce on the ground of conversion to Islam
 S.51(1)(a) – Either party may file petition for a divorce under this section or S.53
 S.51(1)(b) – Both parties (Muslim/Non-Muslim) may file for divorce petition (under S.52)
 The parties must wait for 3 months from the date of the conversion before the petition
can be filed (don’t have to wait for 2 years)
CONVERSION TO ISLAM CASES:-
Subashini v Saravanan [2007]
Pedley v Majlis Ugama Islam Pulau Pinang & Anor
Tan Sung Mooi v Too Miew Kim [1994]

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iii. DIVORCE BY MUTUAL CONSENT – JOINT DIVORCE
 S.52 – Dissolution by mutual consent
 Requirements:
a. Mutually agree – mere mutual consent is sufficient
b. After the expiration of 2 years from the date of their marriage
c. Proper provision is made for the wife and the support, care and custody of the children
d. The court may attach such conditions to the decree of divorce as it thinks fit
e. There’s no need for the parties to satisfy the court that they had gone before the
conciliatory body – exempted by S.106(1)
 CASES:-
Sivanesan v Shymala [1986]
Re Divorce Petitioners Nos 18, 20 and 24 of 1983
Re Goh Hoe Ling & Anor [1996]
iv. DIVORCE THROUGH BREAKDOWN OF MARRIAGE – CONTESTED DIVORCE
 S.53 – Breakdown of marriage to be sole ground for divorce
 Either party to a marriage may petition for a divorce on the ground that the marriage has
irretrievably broken down
 The court can inquire into the facts alleged as causing to the breakdown of the marriage
 If the court satisfies  make a decree for its dissolution
 Court will be required to consider all circumstances if the marriage is dissolved
 S.54 – Proof of breakdown
S.54 – Proof of breakdown
(a) ADULTERY
R has committed
adultery & P finds it
intolerable to live with R
 Adultery – voluntary sexual intercourse between a
married man and someone other than his wife & vice
versa
 Rape cases – Not adultery
 Must there be a connection between adultery &
intolerability?
a) Goodrich v Goodrich, Cleary v Cleary, Carr v Carr
 Not necessary to show that P finds it
intolerable to live with R in consequence of the
adultery
 It’s sufficient if P genuinely finds it intolerable
to do so for whatever reason
b) Roper v Roper

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 P must prove not only that R has committed
adultery but that, in consequence of that
adultery, P finds it intolerable to live with R
 P can seek damages against the co-R
Tan Wat Yan v Kong Chiew Meng & Anor [1994]
(b) BEHAVIOUR
R has behaved in such a
way that P can’t
reasonably be expected
to live with R
 Behaviour
 Katz v Katz [1972] – Something more than a mere
state of affairs or state of mind…(it) is an action or
conduct by one which affects the other
 Whether P can reasonably be expected to live with R
i. The Reasonable Man Test (objective test)
- The court will assess the personalities,
disposition of both parties
 Livingstone-Stallard v Livingstone-Stallard
 O’Neill v O’Neill
 Joseph Jeganathan v Roseline Joseph
ii. Behaviour Test
- The court will assess the behaviour of both
parties
- Bagnall J in Ash v Ash – If each equally bad, at
any rate in similar respect, each can be
reasonably be expected to live with the other
iii. Breach of marital obligations + must be sufficient
gravity
- Pheasant v Pheasant
- Hariram Jayaram v Saraswathy Rajahram
(c) DESERTION
R has deserted P for a
continuous period of at
least 2 years
immediately preceding
the presentation of the
petition
 Type of desertion:-
- Simple/Actual
- Constructive
 Definition of desertion  Desertion isn’t the
withdrawal from a place but from a state of things
Pulford v Pulford
 Elements of evidence in desertion
1. De facto separation/actual separation
- The parties must be separated for 2 years
- There must be a complete cessation of
cohabitation
- The parties live under the same roof but both
live as separate units
- Pulford v Pulford

8. INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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- Hopes v Hopes
- Naylor v Naylor
2. Animus deserendi/Intention
- The guilty party has the intention of
remaining permanently separated from the
other
- Miller v Miller
- Must prove the ‘separation’ and ‘the
intention to separate’
- Desertion can exist not withstanding a very
near degree of proximity between the parties
(Shilston v Shilston)
3. The absence of consent on the part of the party
deserted
- There is no desertion if the separation is with
the consent of the party left behind
- The consent must be given freely
- Goh Soo Toon v Yuen Yoke Chee
4. No reasonable cause for R to leave P
- If 1 party has a reasonable cause or excuse for
leaving the other, there’ll be no unjustifiable
separation  he won’t be in desertion
- The behaviour of 1 party need not amount to
a matrimonial offence before it constitutes
reasonable cause
- Chua Seok Choo v Ooi Chuan Lok
(d) LIVED APART
The parties to the
marriage have lived
apart for a continuous
period of at least 2
years immediately
preceding the
presentation of the
petition
 What is ‘living apart’?
Santos v Santos: Mere physical separation is
insufficient if both parties still recognize the marriage
as subsisting
- There must be some degree of separation as in
necessary to constitute desertion
- The consortium must have come to an end
- Mathias v Mathias