DIVORCE

Groups: LWB06D&E

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

JURISDICTION
 Section 48(1) of LRA: Court will have the
jurisdiction to make decree of divorce only if:-
• the marriage has been registered or deemed to be registered
under LRA; or
• The marriage between the parties was contracted under a
law providing that, or the marriage is monogamous; and
• The domicile of the parties to the marriage at the time
when the petition is presented is in Malaysia.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 However section 49 of LRA provides that
notwithstanding anything to the contrary in
section 48(1)(c), the court shall have
jurisdiction to entertain proceedings by the
wife although the husband not domiciled in
Malaysia.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Section 49 (1):-
• “….(a) the wife has been deserted by the husband, or the
husband has been deported from Malaysia under any law
for the time being in force relating to the deportation of
persons and the husband was before the desertion or
deportation domiciled in Malaysia; or
• (b) 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.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SPECIFIED PERIOD
 General Rule: Parties cannot petition within the
period of 2 years from the date of the marriage.
 Section 50(1) LRA : “subject to ss (2), no petition
for divorce shall be presented to the court before
the expiration of the period of 2 years from the
date of the marriage…”
 Rationale:
• The need to provide for a restriction and a useful safeguard
against irresponsible or trial marriages
• To discourage an attitude that divorce is not the last resort
but obvious way out when things goes wrong.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Exceptional circumstances: parties should be
allowed to divorce within the period of 2 years of
marriage on ground that “the case is one of
exceptional circumstances or hardship suffered by
the petitioner
 Section 50(2) of LRA: “ A Judge of the court may,
on an application made to him, allow the
presentation of a petition for divorce within the
specified period on the ground that the case is one
of exceptional circumstances or hardship suffered
by the petitioner….”

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CASES
 Bowman v Bowman [1949] 2 All ER 127
• Facts: the wife alleged adultery, cruelty and perverted lust on her husband’s part. She
has consulted a psychiatrist about her husband. There was also no chance of
reconciliation. The 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 present
a petition for divorce although 3 years had not passed since the date of the marriage
(under the English law a petition for divorce could only be made after the expiry of 3
years of marriage)
• Court: granted leave to the wife.

• “…if however, 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 if he is cruel to
her, thus causing her not only distress by his adultery but also injury by his violence, then, even
if his offence cannot stigmatized as exceptional depravity on his part, nevertheless, it does
involve hardship suffered by the wife……..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…”

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Hillier v Hillier and Latham [1958] 2 All ER 261
• Facts: the parties were married in March 1956. the wife left her husband in
November the same year and kept changing her mind about returning to her
husband. This caused him distress and led to a breakdown in health. In 1957,
his wife met another man with whom she committed adultery and became
pregnant. There was no probability of a reconciliation because the wife was
living with the other man and wished to marry him. The husband filed an
application for leave to present a petition for divorce on the ground of
exceptional hardship. The application was refused. He appealed to the COA
and brought fresh evidence.
• COA: allowed his appeal.
• “…the words ‘that the case is one 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.”

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Brewer v Brewer [1964] 1 All ER 539
• Facts: the wife had petitioned for leave alleging cruelty,
namely a course of drunken violence on the part of the
husband, occasioning injury to her health. The parties had
separated and exceptional hardship was not alleged. Trial
court granted leave.
• COA: ruled that leave should not have been granted because
assuming that the allegations in the wife’s petition were
true, the degree of hardship inflicted on her was not
exceptional. There was also no allegation of continuing or
present exceptional hardship.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 W v W [1966] 2 All ER 889
• Facts: the wife had applied for leave to present a petition for
divorce within 3 years of marriage on the ground that the
case was one of exceptional hardship suffered by her of
exceptional depravity on the husband’s part. The parties
were married in December 1963 and the wife left the
husband in August 1964. the ground of her proposed
petition for divorce was cruelty, that the husband shouted at
her, followed her in silence and stared, his excessive sexual
demands, his refusal to give her a housekeeping allowance,
his living on credit and spending on drink etc.
• The court dismissed her application.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

GROUNDS FOR DIVORCE
 Divorce by Conversion to Islam (section 51
LRA)
 Divorce by Mutual Consent (section 52
LRA)
 Divorce through Breakdown of Marriage
(section 53 & 54 LRA)

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONVERSION TO ISLAM
 Section 51 of LRA provides that where one
party to a marriage has converted to Islam,
the non-convert spouse may apply for
divorce after 3 months of conversion.
 If the non-convert spouse does not petition
for divorce, the marriage will remain as the
convert spouse could not petition under any
ground by virtue of section 3(3) of the LRA.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Section 3 (3) LRA: “This Act shall not apply to a
Muslim or to any person who is married under Islamic
Law and no marriage of one of the parties which
profess the religion of Islam shall be solemnised or
registered under this Act; but nothing herein shall be
construed to prevent a court before which a petition for
divorce has been made under section 51 from granting
a decree of divorce on the petition of one party to a
marriage where the other party has converted to Islam,
and such decree shall, notwithstanding any other
written law to the contrary, be valid against the party
to the marriage who has so converted to Islam.’

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CASES
 Pedley v Majlis Agama Islam Pulau Pinang [1990]
2 MLJ 307
• Principle: Under the 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.
• Facts: P and his wife were Roman Catholics. P’s wife
converted to Islam on 12.1.1987 without her husband’s
knowledge. He applied for a declaration that his wife’s
conversion had not determined his marriage to her
according to Catholics rites on 12.2.1966
• Court held that the marriage is not being dissolved.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Lecthumy v Ramadasan[1984] 1 MLJ 143
• Principle: in order for the non-convert spouse to apply for ancillary claims
under LRA, petition for divorce must be brought under section 51 of LRA by
virtue of section 3(3) of LRA. Ancillary claims could only be made under the
ground of conversion to Islam.
• Facts: the petitioner had obtained her divorce on the ground of desertion and
the decree nisi was granted on 1.12.1981. upon it being made absolute, the
High Court granted the maintenance order. The order was not complied with.
The R converted into Islam. R applied to set aside the maintenance order.
• Court held: Since the wife had obtained the divorce not on the ground of
conversion under section 51(1), the court had no power to order maintenance
under section 51(2). Section 77 of LRA not apply to R since R is a Muslim.
Therefore, R application to set aside the maintenance order was allowed.
• (later case i.e Tan Sun Mooi’s ruled that this case was wrongly decided)

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Tan Sung Mooi v Too Miew Kim [1994] 3
MLJ 117
• Facts: the Appellant wife had petitioned for a divorce on the
ground that the marriage had irretrievably broken down and
was granted the decree. Pending the decree nisi being made
absolute, she filed an application against R section 76 and
77 of LRA (for an order of division of matrimonial property
and for maintenance). R opposed the application because
according to him the High Court had no jurisdiction over
him with respect to ancillary relief as he had converted to
Islam. The ancillary relief sought was not as mentioned in
section 51(2) because the divorce was not granted under
section 51(1).

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 The Court held (Supreme Court): that High Court has jurisdiction to hear the
application for ancillary relief on 2 reasons:
• The legislative intention of s 3 must be construed within the framework and the general
purpose of LRA.
• ‘….it is common ground that both parties were non-Muslim who contracted a non-Muslim
marriage. The High Court dissolved the said marriages and thereafter the petitioner filed an
ancillary application under s76 and 77 of the Act. From the above facts, it is without doubt that
the Act applies to them since they were non-Muslim. It follows that as the petitioner’s
application under s 76 and 77 concerned matter affecting both parties’ legal obligations as non-
Muslim and incidental to the granting of divorce, the High Court would have jurisdiction to hear
and determine the ancillary proceeding despite the fact that the R had converted to Islam after
the divorce but before the hearing of the ancillary application….”
• S 51(2) provides protection to non-Muslim spouses and children of the marriage against
a Muslim convert.
• “…from the wording of s 51(2), the legislature clearly intended to provide ancillary reliefs for
non-Muslim spouses and the children of the marriage as a result of one party’s conversion to
Islam. In our opinion, by implication from s 51(2) above, the High Court, has jurisdiction to
hear and determine the ancillary issues…it would result in grave injustice to non-Muslim
spouses and children whose only remedy would be in the civil courts if the High Court no
longer has jurisdiction, since the Syariah courts do not have jurisdiction over non-Muslim…the
R’s legal obligations under a non-Muslim marriage cannot surely be extinguished or avoided by
his conversion to Islam.”

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Nur Aisyah Tey bt Abdullah v Teo Eng Hua [1999]
3 AMR 2779
• Principle: Interpretation of section 3(3) of the LRA. LRA applies
to non-Muslims and non-Muslim marriage. 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 convert
spouse should be governed by the LRA.
• Facts: the party who converted to Islam, applied for divorce under
section 54(1)(d) of LRA on the ground of irretrievable breakdown
of marriage and not due to conversion to Islam as stated in section
51of the LRA.
• Court: granted the petition for divorce and further held that the
petition can be made under the LRA as the petitioner was a non-
Muslim at the time the marriage was contracted.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Subashini a/p Rajasingam v Saravanan a/l Thangathorav and other
Appeals (2008) 2 MLJ 147

• Facts: The parties were married on 26.7.2001. the marriage being

solemnised and registered under LRA. Being Hindu, they went through a
Hindu wedding ceremony on 9.2.2002. there were 2 children of the
marriage i.e. Dharvin Joshua aged 4 and Sharvin aged 2. on 18.5.2006,
PERKIM certified that the husband and Dharvin had embraced Islam.
The husband filed an application in the Syariah High Court for the
dissolution of the marriage and custody of the elder son. An interim
custody order in respect of the converted son was issued to the husband.
• On 4.8.2006, the wife filed a petition for the dissolution of the marriage
pursuant to section 51 of the LRA coupled with an application for
custody and ancillary reliefs in the High Court. the wife applied for an
ex-parte injunction against the husband and the husband then filed an
application to set aside the said injunction.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Federal Court:
• Section 51(1) LRA imposed a caveat on the wife not to file the
petition for divorce until lapse of 3 months from the date of the
husband’s conversion to Islam. Thus, the High Court would not have
the jurisdiction to entertain the wife’s petition.
• The wife was entitled to proceed with the rest of the application but it
would be most appropriate if she filed her petition for divorce afresh
under section 51 coupled with an application for ancillary reliefs as
the court would grant the reliefs under section 51(2) upon dissolution
of the marriage.
• The High Court would have the jurisdiction to hear and determine the
petition for divorce and the application for ancillary reliefs under
section 51 of LRA even though the husband had converted to Islam
before the petition for divorce had been filed in the High Court and
that he has already commenced the proceedings in the Syariah Court.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 The status of the parties at the time of the marriage was the
material consideration for the purpose of determining the
question of jurisdiction. The husband could not shield himself
behind the freedom of religion clause under article 11(1) of the
FC to avoid his antecedent obligations under the LRA on the
ground that the civil court had no jurisdiction over him. A non-
Muslim marriage did not automatically dissolve upon one of
the parties conversion to Islam. Thus, by contracting the civil
marriage, the husband and wife were bound by LRA in respect
to divorce and custody of the children of the marriage, thus the
civil court continued to have jurisdiction over him,
notwithstanding his conversion to Islam.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 The civil court could not moved to injunct a validly obtained order of
a Syariah Court of competent jurisdiction. The injunction obtained by
the wife, although addressed to the husband, was in effect a stay of
proceedings of the husband applications in the Syariah High Court
and this amounted to an interference by the High Court of the
husband’s exercise of his right as a Muslim to pursue his remedies in
the Syariah High Court. (both civil and Syariah Courts are creature of
statutes such as FC, the Acts of Parliament and the State Enactments.
These 2 courts are administered separately and they are independent
of each other. Although Syariah Court are state court they are not
lower in status than the civil courts)
 Either husband or wife had the right to convert a child of the marriage
to Islam. The word ’parent’ in art 12(4) of the FC, which stated that
the religion of a person under the age of 18 years shall be decided by
his parent or guardian, means a single parent.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

DISSOLUTION BY MUTUAL
CONSENT
 Section 52 of LRA provides that if the husband and
wife mutually agree that their marriage should be
dissolved they may after expiration of 2 years from
the date of their marriage present a joint petition
accordingly.
 Rationale: where the couple mutually agrees that it
is in the best interests that their marriage should be
dissolved, they should be allowed to do so quietly
without recrimination and unnecessary publicity
and quarrel.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Re Divorce Petition Nos. 18, 20 and 24 of
1983 [1984] 2 MLJ 158
• Principle: 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.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Sivanesan v Shymala [1986] 1 MLJ 400
• Principle: the Chief Judge had made some comments and
corrections on the decision of Shanker J in Re Divorce Petition.
CJ disagreed that LRA only provides for one ground for divorce
and that is the irretrievable breakdown of marriage (joint
petitioners do not have to prove the breakdown of marriage).

• Facts: the parties had filled a joint petition for dissolution of

marriage under section 52, supported by affidavit which provided
the settlement of the matrimonial property and a waiver by the
wife of all future claims for maintenance. They had no children.
The learned trial judge granted a decree nisi. Before the decree
became absolute, the husband died. The wife then applied to set
aside the decree nisi.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
• His Lordship held that section 51 and 52 of the LRA clearly
provide for other grounds for divorce. In a mutual divorce
there is no contest, it belongs to the class of undefended
divorce. Therefore the joint petitioners do not have to prove
breakdown of marriage.
• In allowing the appeal, the learned judge held that since the
husband had died before the decree could be made absolute,
there would in effect be no divorce and the wife being a
widow was entitled to claim for the properties.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Re Goh Hoe Ling & Anor [1996] 1 MLJ 137
• Principle; Petitioners must be physically present in court so as to satisfy the
court that they freely consent to the dissolution of their marriage.
• Facts: the parties had entered into a deed of separation whereby their marriage
was to be dissolved and that they freely consented to the dissolution. A joint
petition for divorce was filed but subsequently the petitioner wife filed a
notice of discontinuance for that joint petition. She further filed a notice of
withdrawal of consent to the joint petitioner. The petitioner husband raised an
objection.
• Court held: that the material time 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 the joint petition is to be
deemed in law to have withdrawn the earlier consent. The petitioner wife
therefore could withdraw her consent and proceed on a separate basis.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

Azhani Binti Arshad Law 581 (Jul-Nov 2009)