Professional Documents
Culture Documents
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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INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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
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S.48(1) LRA
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INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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
If there is nothing more than If the adultery is coupled The husband commits
adultery with 1 person with other matrimonial adultery within a few
within the 1st 3 years of offences eg. if a husband not weeks of marriage
marriage only commits adultery but The husband commits
also deserts his wife in adultery promiscuously
favour of another woman, or with more than 1
he is cruel to her, thus woman
causing her not only distress The husband commits
by his adultery but also adultery with his wife’s
injury by is violence sister
The husband commits
adultery with a servant
in the house
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INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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
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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INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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]
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
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INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
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INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ‘18
- 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 What is ‘living apart’?
The parties to the Santos v Santos: Mere physical separation is
marriage have lived insufficient if both parties still recognize the marriage
apart for a continuous as subsisting
period of at least 2 - There must be some degree of separation as in
years immediately necessary to constitute desertion
preceding the - The consortium must have come to an end
presentation of the - Mathias v Mathias
petition