DIVORCE

Groups: LWB06D&E

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

DIVORCE THRU BREAKDOWN
OF MARRIAGE
 section 53 & 54 LRA
 Section 53(1): either party may petition for
divorce on the ground that marriage has
irretrievably broken down.
 Section 53(2): duty of the court to inquire the
facts alleged-the circumstances must be just
and reasonable in order for the marriage to be
dissolved
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
PROOF OF BREAKDOWN
 (1)(a) that Respondent has committed adultery and the
petitioner finds it intolerable to live with Respondent
 Adultery: sexual intercourse between 2 persons of whom one or both
are married but who are not married to each other.
 A person must have had sexual intercourse voluntarily before
adultery may be proved.
 Subjective test
 There are 2 views:-
 The petitioner alleged that Respondent has committed adultery and
finds it intolerable to live with the Respondent (there can be other
causes);
 As a consequences of adultery, the petitioner finds it intolerable to live
with the Respondent (adultery is the only cause).

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

1ST VIEW
 Goodrich v Goodrich[1971] 2 All ER 1340
 Principle: the petitioner must satisfy that the
respondent has committed adultery and that the
petitioner finds it intolerable to live with the
Respondent. It is not necessary to show that he
finds it intolerable to live with the Respondent in
consequence of the adultery; it is sufficient if the
petitioner genuinely finds it intolerable to do so
for whatever reason.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
2ND VIEW
 Roper v Roper [1972] 1 WLR 73
 Principle: as a consequence of the adultery, the petitioner finds it intolerable to live
with R.
 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.

 Clearly v Clearly [1974] 1 WLR 73

 Principle: a petitioner cannot rely on his own adultery as leading him to find it
intolerable to live with R.
 Facts: the wife had lived with another man and committed adultery with him. After a
few weeks, she returned to her husband and they lived together for 5 or 6 weeks.
Subsequently, she left her husband. She went to live with her mother and the 2 children
of the marriage. The husband had claimed that the marriage had not worked out
because the wife had corresponded with the other man, had gone out at night and had
then gone to live with her mother. The husband petitioned for divorce on the ground
that the marriage had broken down irretrievably and sought to prove that his wife had
committed adultery and that he found it intolerable to live with her.
 The petition was allowed by the Court.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Malaysia applies 2nd view

Tan Wat Yan v Kong Chiew Meng [1994] 3 CLJ 676

 The wife had alleged adultery on the part of her husband and was
seeking for a divorce. She also sought damages against the co-
Respondent. That there was adultery was not challenged by R as he
had 3 children by the co-R
 Court granted the divorce. Judge (Mokhtar Sidin J) was of the view:
‘From the authorities it is clear to me that 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…’
 Further, damages of the sum of RM 70,000 were awarded against the
co-R.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CLAIM OF DAMAGES
 section 58 of LRA allows a claim of damages for adultery against the co-
respondent.
 Section 58(1): on a petition for divorce in which adultery is alleged, the
party shall make the alleged adulterer or adulteress a co-respondent,
unless excused by the court on special grounds from doing so
 Section 58(2): a petition under ss (1) may include a prayer that the co-
respondent be condemned in damages in respect of the alleged adultery.
 Section 58(3): where damages have been claimed against co-R-
 If, after the close of the evidence for the petitioner, the court is of the opinion
that there is not sufficient evidence against the co-R to justify requiring him
or her to reply, the co-R shall be discharges from the proceedings; or
 If, at the conclusion of the hearing, the court is satisfied that adultery
between the R and co-R has been proved, the court may award the petitioner
such damages as it may think fit, but so that the award shall not include any
exemplary or punitive element.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Section 59(1): provides power to the court to award damages against a
co-R notwithstanding that the petitioner against the R is dismissed or
adjourned.
 Section 59(2): the court shall have power, when awarding damages, to
direct that such damages, or any part thereof, be vested in trustees upon
trust to pay the income or capital thereof for the benefit of the minor
children, if any, of the marriage or, where the petitioner is required to pay
maintenance to the R, in or towards the payment of such maintenance,
and subject thereto in trust for the petitioner.
 Section 59(3):whenever in any petition presented by husband the alleged
adultery has been established against the co-R, the court may order the
co-R to pay the whole or any part of the costs of the proceedings;
provided that no such order for costs shall be made if the R was at the
time of the adultery living apart from the husband and living the life of a
prostitute or if the co-R had not at the time of the adultery reason to
believe the R to be a married woman.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995] 1
MLJ 852
 Facts: the petitioner (wife) claimed damages from the co-R on ground
of adultery.
 The Court held : that 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
spouse’s feelings vary from case to case.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Kong Ka Heng v Ng Mooi Tee & Anor [2001] 3 MLJ 331
 Facts: the petitioner (husband) filed a petition for divorce against the
Respondent (wife) on the ground that the marriage had permanently
broken down. The petitioner established that it was impossible for
him to live with the Respondent. The Respondent filed an answer to
the petition and made an application for the dismissal of the divorce
petition as the ground alleged by the petitioner was untrue. During
the hearing, the petitioner admitted to commit the adulterous
relationship with Y and a child was born while his marriage with the
Respondent was still subsisting. The Respondent claimed for
damages against Y.
 The Court: allowed the Respondent’s claim and held that an
allegation of adultery must be proved to the satisfaction of the court
and must be proved beyond reasonable doubt.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Karen Cheong Yuen Yee v Phua Cheng
Chuen [2004] 291 MLJU 1
 In this case, the court decided that for allegation
of adultery, the standard of proof should be
beyond reasonable doubt.
 Based on the facts of the case, the court held that
the petitioner had failed to prove that the husband
has committed the act of adultery.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 54 (1)(b)
 1(b) Respondent has behaved in such a way
that the petitioner cannot reasonably be
expected to live with the Respondent
 Meaning of behaviour in Katz v Katz[1972] 3 All
ER 219
 “Behaviour is something more than a mere state of
affairs or a state of mind….it is action or conduct by
one which affects the other.”
 Examples: a repugnance to an intercourse, or a feeling
that the wife is not reciprocating his love etc.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 There are 2 views:-
 The sole test to be prescribed as the nature of the
behaviour is that it must be such as to justify a
finding that the petitioner can’t reasonably be
expected to live with Respondent. (look at
behaviour of Respondent)
 Court must take into account the character,
personality, disposition and behaviour of the
petitioner and Respondent as alleged and
established in evidence.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
1ST VIEW
 Thurlow v Thurlow [1975] 2 All ER 979
 Facts: the husband knew at the time of marriage that his wife suffered from epileptic
fits but believed that her condition might improve. They lived with the husband’s
mother. The wife could not find a job and lazed at home the whole day. She slept a
great deal and made no effort to help with the housework. Her condition was due to her
epilepsy and a severe neurological disorder. She was admitted to hospital but upon
release, her condition became worse. She became incontinent and her husband had to
nurse her and prepare her meals. Meanwhile, she became bad-tempered and threw
objects at her mother-in-law as well as causing damage by burning household items.
She deteriorated until a hospital stay became necessary. He visited her regularly. Later
the husband found that he could not cope with the situation and petitioned for a
divorce.
 The petition was allowed. The Court held that in order to establish that the Respondent
has behaved in such a way that the petitioner could not reasonably be expected to live
with the Respondent, it is not sufficient merely to establish that the marriage was dead
and that it was impossible for the petitioner to cohabit with the Respondent. It has to be
shown that it was the Respondent’s behaviour which justified a conclusion by the court
that the petitioner could not reasonably be expected to endure cohabitation. For that
purpose, behaviour included negative conduct.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

2ND VIEW
 Several tests must be applied:-
 Reasonable man’s test
 Regard to the personalities of the parties, the impact and effect of the
R’s conduct or behaviour on the petitioner and their relationship.
 Livingstone Stallard v Livingstone Stallard
 “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 world of circumstances and the
characters and personalities of the parties?”
 Behavior test
 Behaviour of both parties must be taken into account
 Ash v Ash [1972] 1 All ER 582
 Bagnall J held: that the court must not consider only the behaviour of the
Respondent but also the character, personality disposition as well as the
behaviour of the petitioner.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Whether there is a breach of the obligation
between both parties.
 Pheasant v Pheasant [1972] 1 All ER 587
 Facts: the petitioner husband alleged that the wife had not
given him the spontaneous demonstrative affection, which
his nature demanded and for which he claimed that it caused
the marriage to be irretrievably broken down.
 It was held: that there was nothing in the wife’s behaviour
which could be regarded as a breach on her part of any of
the obligations of the marriage or effectively contributing to
breakdown of the marriage. (the husband’s petition for
divorce was dismissed)
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT…
 Joseph Jeganathan v Rosaline Joseph [1989] 3 MLJ 106
 Facts: the matrimonial home was filled with bitterness, strive,
suspicion, and tension, generated by frequent violent quarrels.
They were virtually daily absences of several hours by the R from
the matrimonial home and at times for periods up to 70 to 80 days.
 The court allowed the petition. 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 CLJ 285
 The court held: that it must be decided that on the facts of the case,
the R has not shown herself to be of such a character and
personality and her behaviour has not been such that the judge can
conclude that the petitioner can reasonably be expected to live with
her.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 54 (1)(c)
 1(c) Respondent has deserted the petitioner
for a continuous period of at least 2 years
immediately preceding the presentation of
petition.
 Meaning:
 Someone has left or abandoned from responsibilities
 Desertion is wilful absenting of the husband from the
society of his wife in spite of her wishes. (Reg v
Lershe)
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
TYPES OF DESERTION
 Simple desertion: where one party leaves the other
without reasonable cause, then the party who leaves,
is in desertion.
 Constructive desertion: where one spouse causes
another to leave the matrimonial home or where due
to the conduct or behaviour of R, that the petitioner
has to leave the matrimonial home with a good
cause, the R may be in law the deserter and is said to
be in constructive desertion. (the test is the same as
that used to determine simple desertion)
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
SIMPLE DESERTION
 4 Elements:
 De facto separation
 the parties must be separated for 2 years. There must be a complete
cessation of cohabitation.
 Usually occurs when 1 party leaves the matrimonial home
 Pulford v Pulford
 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?
 Naylor v Naylor
 Where the wife after quarrelling with the husband, cast off her wedding
ring, the couple continued living in the matrimonial home although in
separate rooms, led separate lives, and there was a complete absence of any
family life.
 It was held that the wife was in desertion

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Hopes v Hopes [1948] 2 All ER 920
 Facts: a couple had lived at all material times under the same roof until a date
within 1 month before the husband filed a petition for divorce on his wife’s
desertion. He claimed that that desertion began more than 3 years before the
presentation of the petition by reasons:-
 Wife’s withdrawing to a separate bedroom;
 No marital intercourse taking place;
 The frequent quarrels between them;
 No mending or washing of his clothes; and
 No separate cooking for him.
 However, he always had his meals which were cooked by his wife in the
common dining room with the other members of the family and when he was
not in his bedroom, he shared the rest of the house with his wife and
daughters.
 COA dismissed the petition and held that there was no de facto separation as
there were no 2 separate households.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Intention @ animus deserendi
 The guilty party must has the intention of remaining permanently separated from
the other
 Miller v Miller
 Facts: the husband had petitioned for dissolution of his marriage on the ground of
desertion. The parties who were domiciled in Singapore, had lived and cohabitated
there until the Japanese invasion when the R wife was evacuated to India. The
petitioner had remained in Singapore and was imprisoned. On release from
imprisonment, he proceeded to India and joined his wife in New Delhi. He was almost
penniless and had for some time shared the bed-sitting room which R occupied. He
soon realised that he was unwanted and the R refused to have marital relations. She
proposed a separation. He found out that she had formed an attachment with someone
else. He left and the parties remained separated.
 Court held that “for the act of desertion both the factum of separation and the animus
deserendi are required. A de facto separation may take place without there being an
animus deserendi, but, if that animus supervenes, desertion will begin from the
moment, unless of course, there is consent by the other spouse….all that is required to
establish desertion in such a case is the presence of a supervening animus deserendi (a
matter to be inferred from the words and conduct of the deserting spouse), a
continuation of the de facto separation and the absence of consent by the other
spouse.”

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Consent
 Q of facts
 No desertion if the separation is with the consent of the party left
behind.
 The consent must also have been given freely.
 Goh Soo Toon v Yuen Yoke Chee [1950] MLJ 96
 Facts: the husband petition for divorce based on alleged desertion
by R. there was a separation deed entered into by both parties
 Court dismissed the petition. The judge opined that while such an
agreement was in force , it was an absolute answer to a charge of
desertion as the person charged had merely done what the
agreement permitted him to do.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Reasonable Cause
 The party has a reasonable cause or excuse for leaving
the other.
 The reasonable excuse must stem either from the
party’s misconduct or the circumstances related to the
party who would otherwise be in desertion.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Desertion for 2 years
 Mummery v Mummery
 Facts: the petitioner wife sought a divorce on the ground that her
husband had deserted her for a period of at least 3 years
immediately preceding the presentation of the petition/ During the
period, the husband returned and the couple had sexual intercourse;
the wife agreed to it as she had hoped her husband would repent.
The husband obviously had no intention of settling down with her
again.
 The court allowed the petition. It was held ‘…and that one of the
parties never intended that there should be…’ . In this case there
was neither condonation nor a resumption of cohabitation which
could interrupt the necessary period of desertion.
 (a single occasion of sexual intercourse did not constitute a
resumption of cohabitation so as to condone the previous
desertion and bring the state of desertion to an end)

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONSTRUCTIVE DESERTION
 The test to determine whether the offender is a constructive desertion is
the same as that used to determine simple desertion.
 Lang v Lang [1954] 3 WLR 762
 Principle: the party who stays behind is in desertion
 Facts: the parties were married in 1924. in 1951, the wife presented a petition
to the Supreme Court of Victoria praying for a divorce on the ground that her
husband had without just cause or excuse wilfully deserted her and had
continued in desertion for 3 years and upwards.
 The wife petition was allowed by the court. It was held that the husband’s
conduct towards his wife was such that a reasonable man would know that in
all probability it would result in the departure of his wife from the
matrimonial home, that, in the absence of rebutting evidence was sufficient
proof on his part to disrupt the home and the fact that he nevertheless desired
or requested her to stay did not rebut the intention to be inferred from his acts
and he was guilty of constructive desertion.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Lee Kah Wah v Cheah Paik Yean [1964] MLJ 125
 The criteria for assessing whether a spouse was justified in leaving the
matrimonial home was that the conduct of the spouse remaining must exceed
such behaviour, vexatious and trying though it might be, as every spouse
bargained to endure when accepting the other for better or worse.
 Chua Seok Choo v Ooi Chuan Lok [1968] 1 MLJ 282
 Facts; the petitioner was the party who had left the matrimonial home and
she needed to show that the husband by his conduct had compelled her to
leave the matrimonial home. The petitioner had alleged that there was an
assault by her husband when she was seven months’ pregnant. Her husband
had not paid anything towards the maternity fees or toward support or
maintenance of his wife or child all the while.
 The Court dismissed her petition and held that 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 to expulsion in fact.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Thambyah v Thambyah [1966] 1 MLJ 13
 That the onus of proof was on the petitioner and
the court had to satisfied that the grounds had
been proved beyond reasonable doubt. As the
petitioner had failed to satisfy the court, the
petition was dismissed.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 54 (1)(d)
 1(d) the parties to the marriage have lived apart for a
continuous period of at least 2 years immediately
preceding the presentation of the 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)
 If the spouses are living under the same roof, they can be regarded as
living apart only if they are living in 2 households.
 However, if they share their meals and living accommodation, even
though they sleep in separate rooms and no longer have sexual
intercourse, they will not be living apart.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Santos v Santos [1972] 2 All ER 246
 It was held that in order 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.
 Mouncer v Mouncer [1972] 1 WLR 321
 The petition was dismissed. It was held that although the
husband left the house, the spouses continued to live as a
single household from the wholly admirable motive of
caring properly for their children.
Azhani Binti Arshad Law 581 (Jul-Nov 2009)
CONT…
 Bhanu Sekaramani v Nagamma [1991] 3 MLJ 34
 A divorce petition was instituted by the husband to dissolve the
marriage solely on the ground that the husband and the wife had been
living apart continuously for more than 2 years before the
presentation of the petition.
 Court dismissed the petition and held that in pursuant to section 53(1)
of LRA, the court should have regard to the fact that the parties to a
divorce petition have been separated for at least 2 years prior to the
filing of the divorce petition. But the 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.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

CONT…
 Soo Lina v Ngu Chu Chiong [1994] 2 MLJ 145
 The R (husband) pleaded that his marriage with the petitioner had
irretrievably broken down as they had lived apart for a continuous
period of at least 2 years immediately preceding the presentation of
the petition of the wife.
 In dismissing the petition, the Court held that even if it is proved that
the parties had lived apart for a continuous period of at least 2 years
immediately preceding the presentation of the petition, it does not
follow that the court as a matter of course will make a decree in his
favour unless the court is satisfied that the circumstances make it just
and reasonable to do so. The court will consider other factors as
required by LRA to satisfy itself before granting the decree.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 54 (2)
 The court should decide whether it would be just and
reasonable for it to make a decree of divorce
 Mathias v Mathias [1972] 3 All ER 1
 Facts: 2 years after marriage (1964), the husband (a soldier) left the wife
for another woman and there was no resumption of cohabitation
between the couple thereafter. The husband went to live in army
barracks. The wife and their child received some maintenance from him.
The wife had done very little work of any kind since her husband left in
1964. in 1971, the husband petitioned for divorce as he wished to marry
the other woman. The wife opposed the petition (she feared that if the
husband were granted a decree, there would be a substantial reduction in
payment of the maintenance and she would lose her right to a state
widow’s pension and her right to any army pension). The trial court
granted a decree nisi to him. The wife appealed.
 The appeal was dismissed. It was held that the wife failed to show that
what she has suffered or would suffer could properly be called ‘grave
financial hardship’.

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

SECTION 54 (2)
 Tan Keok Yin v Cheah Saw Hong [1991] 2 MLJ 266
 There are 2 striking features which need to be considered
(by the judge) before deciding whether the marriage
should be dissolved:-
 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).

Azhani Binti Arshad Law 581 (Jul-Nov 2009)

Azhani Binti Arshad Law 581 (Jul-Nov 2009)