Divorce (Law Reform (Marriage & Divorce) Act 1976)

Sec. 48(1): In order for the court to have the jurisdiction to make a decree for divorce, the
marriage must fulfil three requirements:
- It has been registered or deemed to be registered under the LRA
- It was contracted under a law providing that marriage is monogamous
- The parties are domiciled in Malaysia at the time of the petition
Sec. 49(1): Where a petition is presented by a wife, and the husband is not domiciled in
Malaysia at the time of the petition, the court still has the jurisdiction to make a decree for
divorce if:
- The wife was deserted by the husband, or the husband was deported from Malaysia,
prior to which he was domiciled in Malaysia
- The wife has been ordinarily resident in Malaysia for two years before the start of the
proceedings

General rule, Sec. 50(1): No petition for divorce can be presented within two years of
marriage (the specified period)
- Sec. 50(2): A judge can only allow the petition to be presented if the situation falls
within the exceptional circumstances or hardship suffered by the petitioner.
- What is meant by ‘exceptional circumstances or hardship’ is a question of fact
- Fay v Fay: It must be shown to be something out of the ordinary.
- Bowman v Bowman: The wife filed for divorce within the specified period (as under
English Law) on the ground of exceptional hardship suffered by her, or exceptional
depravity on the part of her husband as he had committed adultery, and also exercised
cruelty and perverted lust. Held: Mere adultery does not constitute ‘exceptional
depravity’. ‘Exceptional hardship’ suffered by the wife would only be justified if the
husband, on top of committing adultery, had also committed other matrimonial
offences, like cruelty, abuse or neglect. Thus, the court in this instance, granted leave
to the wife to present her petition.
Grounds for divorce:
Dissolution on the ground of conversion to Islam (Sec. 51)
Sec. 51(1): A non-convert spouse may petition for divorce provided that it is presented after
the lapse of three months from the date of conversion.
- Under Syariah Law, a person’s marriage would automatically dissolve upon conversion
to Islam. However, under the LRA, a non-Muslim marriage is not dissolved upon the
conversion of one of the parties to Islam. It merely provides a ground upon which the
non-convert spouse may petition for divorce. Thus, where a non-convert spouse does
not petition for divorce, the marriage will still subsist under the Act (Re Goh Hoe
Ling)
- There must be a judicial pronouncement ending the marriage.
- Koh Yian Geok v Zulkifli Tan Abdullah: The court declared that the marriage was
dissolved upon the petition of the wife for a divorce to their marriage in 1980 on the
ground that the husband had converted to Islam in 1993, thus fulfilling the
requirement of a lapse of three months.

- Prior to 1994, if a non-convert spouse does not petition for divorce, the marriage will
be treated as still subsisting as the convert spouse cannot petition under any other
ground of divorce, in line with the fact that the LRA does not apply to Muslims by
virtue of Sec. 3(3) (Pedley v Majlis Agama Islam Pulau Pinang)
- However, this approach changed due to the decision in Tan Sung Mooi v Too Miew
Kim, which provided that, in interpreting Sec. 3(3), where the LRA applies to non-
Muslims and non-Muslim marriages, the word “Muslim” under the provision must be
construed as a Muslim “at the time of the marriage,” as a convert spouse had yet to
become a Muslim when the marriage was contracted.

- Yong Fuat Meng v Chin Yoon Kew: In cases where the petitioner was not born a
Muslim, but had later converted to Islam, he should not be prohibited from appearing
before the Civil Court to settle his obligations or liabilities that had arisen as a result
of his civil marriage contracted under the LRA 1976.

- Nur Aisyah Tey Abdullah v Teo Eng Hua: A petition was made by the convert spouse
(the wife) under Secs. 53 & 54(1)(d) on the ground that the marriage had irretrievably
broken down by virtue of her conversion to Islam. Held: As the petitioner was a non-
Muslim at the time the marriage was contracted, the court granted her application
upon deciding that it would be just and reasonable to do so where the marriage had
been proven to have irretrievably broken down.
- By virtue of Sec. 3(3), the LRA is applicable to the convert spouse as the parties
were married under the Act, and not Syariah Law.
- Denying the right of the convert spouse to petition for divorce where the
marriage is irreconcilable would be unreasonable, and may cause the convert
spouse to be charged for bigamy for contracting a subsequent marriage before
the dissolution of the previous marriage.
- The Parliament could not have intended for a spouse of a non-Muslim
marriage who had converted to Islam to be denied the same legal rights
enjoyed by a non-convert spouse. Thus, the petitioner’s status as a Muslim at
the time the petition is presented is irrelevant, and that there exists
absolutely no legal impediment against the convert spouse filing the petition.

- However, where Sec. 51(1) explicitly provides that only a non-convert spouse may
petition for divorce under the provision, a convert spouse seeking to petition for
divorce may only do so under the other available grounds (Sec. 52 & 53).
Dissolution by mutual consent (Sec. 52)
Sec. 52: Where parties to a marriage mutually agree that their marriage should be dissolved
they may present a joint petition after two years from the date of the marriage:
- Where both parties freely consent to the dissolution
- Where proper provision is made for the wife, and the support, care and custody of the
children (if any)

- 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 (Sivanesan v Shymala)
- Mere mutual consent is sufficient for divorce to be granted under the provision.
However, in order to satisfy the court that both parties had freely consent to the
dissolution, both petitioners must be physically present in court at the time of the
hearing.
- Re Goh Hoe Ling: A joint petition was filed in which both parties had freely consented
to the dissolution. Subsequently, the wife filed a notice of discontinuance for that joint
petition, and filed a notice of withdrawal of consent. Held: The material time to
consider 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 deemed to have withdrawn her “free consent”.
- The material time to consider whether or not both parties freely consent
would be on the date of the hearings and not at the time of filing the petition.

- Their physical presence is also required in determining whether the provision for the
wife and for the support, care and custody of the children are fair and reasonable.
- Sivanesan v Shymala: 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 (a court order for divorce that has yet to become absolute) 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.
Dissolution on the ground of the breakdown of marriage (Sec. 53 & 54)
Sec. 53(1): Either party to a marriage may petition for a divorce on the ground that the
marriage has irretrievably broken down.
- Sec. 53(2): It is the duty of the court to inquire into the facts surrounding the marriage,
and to determine whether the circumstances make it just and reasonable to grant
the divorce.
 - Sec. 54(1): In inquiring into the facts surrounding the marriage, the breakdown must
be proven by the petitioner through any one of the grounds under the provision.
Sec. 54(1)(a): The respondent has committed adultery and the petitioner finds it intolerable
to live with the respondent.
- In interpreting the provision, English Law provides two differing views (whether it
should be read disjunctively or conjunctively)
- First view: The petitioner must satisfy that the respondent has committed adultery
and that the petitioner finds it intolerable to live with the respondent. As the two
phrases are independent of one another, the petitioner need not show that the
intolerability was a consequence of the adultery committed (Goodrich v Goodrich)
- Cleary v Cleary: 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.

- Second view: Where the finding that has to be made is that the respondent has
committed adultery, and the petitioner finds it intolerable to live with the respondent,
the provision means ‘in consequence of the adultery, the petitioner finds it
intolerable to live with the respondent’ (Roper v Roper)

- 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 the part of
her husband and was seeking for a divorce, the court held: Once adultery is proven,
then it is a ground for divorce if the court is satisfied that the petitioner did not
condone the act of 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/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 that she had
condoned the act of adultery by the 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 Chuen)
- 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.
 - A petitioner may seek damages for adultery against a co-respondent (the third party
involved in the affair)
- Damages for adultery under Sec. 58 only applies in divorce proceedings (Shudesh
Kumar v Kamlesh)
- Sec. 58(1) & (2): Where adultery is alleged, the petitioner shall make the alleged
adulterer a co-respondent, and include a prayer in the petition for the co-respondent
to be condemned in damages for the adultery.
- Sec. 58(3)(b): If the court is satisfied that adultery involving the respondent and co-
respondent had taken place, the petitioner may be awarded damages, which shall not
include any exemplary or punitive element (not to punish the co-respondent)
- Leow Kooi Wah v Ng Kok Seng Philip & Anor: The amount of damages awarded
is dependent on the circumstances of the case and are not restricted to
pecuniary loss. Where in this case the co-respondent was aware that the
petitioner and respondent were married, that factor had to be taken into
account in calculating the damages. Thus, the value of the injury to the
aggrieved spouse’s feelings would vary on a case-to-case basis.
Sec. 54(1)(b): The respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent.
- Katz v Katz: Behaviour is something more than a mere state of affairs or a state of
mind, it is an action or conduct by one person, which affects the others.
- English Law has provided two views under which are tests to be applied.
- First view: The sole test to be applied as to the nature of the respondent’s behaviour
is that it must be such as to justify the finding that the petitioner cannot reasonably
be expected to live with the respondent.
- Thurlow v Thurlow: It is not sufficient for the petitioner to merely establish that
the marriage was dead and that it was impossible for to cohabit with the
respondent. It must be shown that the respondent’s behaviour (negative
conduct) justified the conclusion that the petitioner could not reasonable be
expected endure cohabitation.

- Second view: In determining whether or not the petitioner can reasonably be

expected to live with the respondent, the court must take into account the character,
personality, disposition and behaviour of both, the petitioner and respondent.
- In doing so, there are three tests for the court to apply:
- Reasonable man test as formulated in Livingstone Stallard v Livingstone Stallard:
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 circumstances as a whole, and the characters and personalities
of the parties?
- 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.
- 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)
- Whether there has been a breach of marital obligations by both parties:
- Pheasant v Pheasant: The husband alleged that the wife had not given him the
spontaneous demonstrative affection, which his nature demanded, and which
he claimed had caused the marriage to be irretrievably broken down. The
court in dismissing the claim, held: There was nothing in the wife’s behaviour
which could be regarded as a breach of her marital obligations, or which
effectively contributed to the breakdown of the marriage.

- In Malaysia, the tests which follow the second view have been applied by the courts.
- Joseph Jeganathan v Rosaline Joseph: The husband sought divorce on the ground that
it had irretrievably broken down in that the wife had behaved in such a way that he
cannot reasonably be expected to live with her. Evidence showed that there was a lot
of bitterness, suspicion and tension, triggered by constant violent quarrels. There
were also periods of absences by the wife from several hours in a day, up to 70 to 80
days at a time. Efforts of reconciliation had failed. Held: In applying the tests, the court
considered the circumstances as a whole, and the characters and personalities of the
parties, and ruled that the marriage had irretrievably broken down.
- Wong Seng v Lee Yo Len: The wife had behaved in a manner not expected of her by
allowing her gambling habit to get the best of her to such an extent that she stayed
away from home, and left the children to find their own food. Her gambling also led
to frequent quarrels with the petitioner. Held: The court was satisfied that the
marriage had irretrievably broken down, and granted the divorce.
Sec. 54(1)(c): The respondent has deserted the petitioner for a continuous period of at least
two years before the presentation of the petition.
- Reg v Lershe, ‘desertion’: Wilful absenting of the husband from the society of his wife
in spite of her wishes.
- B v P, ‘desertion’: 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.
- Pulford v Pulford: Desertion is not the withdrawal from a place, but a state of things.
There are two types of desertion:
Simple desertion: Where one party leaves (spouse in desertion) the other (deserted
spouse/petitioner) without reasonable cause.

Constructive desertion: Where one spouse virtually causes another to leave the matrimonial
home, or where the conduct or behaviour of one spouse has forced the other to have to leave
the matrimonial home.
 - The spouse who causes the departure of another is the spouse in desertion.
- Lang v Lang: The husband continuously mistreated the wife who eventually left the
house and petitioned for divorce. Privy Council held: 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 in
all probability 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 married life would not suffice; the
conduct of the spouse in desertion 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 constructive desertion.
In determining whether there exists desertion (simple or constructive), there are four
elements that must be fulfilled:
- Factual (de facto) separation: A rejection of all marital obligations; a complete
termination of cohabitation. It must be proven that the parties are living 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: The wife indicated that she no longer had the intention to live
with the husband. The couple continued to live in the matrimonial home, but
stayed in separate rooms, led separate lives, the wife stopped performing her
wifely duties, and there was a complete absence of family life. The court found
the wife to be in desertion.

- Animus deserendi (intention on the part of the spouse in desertion 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 period, he returned and the couple had sexual
intercourse. However, the husband had no intention of settling down with her
again. Held: Resumption of cohabitation does not interrupt the period of
desertion if the spouse in desertion has no intention of returning to the other
spouse.

- 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. Held: Where the separation deed is still in force, the wife is
entitled to use it as a defence against the allegation of desertion.

- 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.
- 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 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 guilty, and alleged constructive
desertion by the husband as a defence. However, where the court found that
the wife had failed to establish constructive desertion, it was held: 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 an end if any of the four elements ceases to exist
- Thambyah v Thambyah: The burden of proof is upon the petitioner to prove that
desertion existed beyond reasonable doubt.
Sec. 54(1)(d): The parties to the marriage have lived apart for a continuous period of at least
two years immediately preceding the presentation of the petition.
- Sullivan v Sullivan, ‘lived apart’: More than mere physical separation between the
spouses; there must be a recognition (mentally and physically) that the marriage is at
an end.
There are two elements that must be proven in a petition for divorce under this ground:
- Factual/Physical separation:
- Mouncer v Mouncer: Where the husband and wife were still living in the same
household, a rejection of a 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.

- Mental attitude:
- Separation must be accompanied by a conclusive intention to terminate the
consortium (companionship between spouses, which is an essential
characteristic of marriage)
- Santos v Santos: A mere physical separation for two years was not sufficient
to constitute ‘living apart’ if both parties still recognise the marriage as
subsisting. The petitioner must not only prove factual separation, but also that
 the petitioner had ceased to recognise 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. Held:
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 the circumstances. Thus, there was inconclusive evidence of intention
to terminate the marriage.
Sec. 54(2): In considering whether it would be just and reasonable to grant a divorce under
Sec. 53, the court shall take into account the parties’ conduct, and how the children’s
interests, or either party, may be affected by the dissolution of the marriage.
Judicial Separation

Judicial separation occurs when both parties in a marriage legally separate upon an
application made by either party for the decree, without having committed any matrimonial
offence. The parties are then not allowed to marry anyone else, unless they obtain a divorce.
Sec. 48(2): In order for the court to have the jurisdiction to make a decree of judicial
separation, the marriage must fulfil three requirements:
- It has been registered or deemed to be registered under the LRA
- It was contracted under a law providing that marriage is monogamous
- The parties are residing in Malaysia at the time of the commencement of proceedings
Sec. 49(1): Where a petition is presented by a wife, and the husband is not resident in
Malaysia at the time of the petition, the court still has the jurisdiction to make a decree for
judicial separation if:
- The wife was deserted by the husband, or the husband was deported from Malaysia,
prior to which he was domiciled in Malaysia
- The wife has been ordinarily resident in Malaysia for two years before the start of the
proceedings
Sec. 64(1): A petition for judicial separation can be brought by either party to the marriage,
the grounds of which are the same as under Sec. 54.
- No restriction of time is provided under the LRA, hence the petition can be made at
any time during the subsistence of a valid marriage.
Sec. 64(2): Once the court grants a decree, the petitioner is under no obligation to cohabit
with the respondent.
Sec. 64(3): 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.
Sec. 65: The fact that the petitioner had been granted a decree of judicial separation will not
bar the petitioner from presenting a petition for divorce.