FAMILY LAW TAKE HOME TEST Question 1 The parties relevant to this case are: Savitra She was

a female partner of Gan. Lived together for 4 years and gave birth to their two years old daughter, Geena out of wedlock. Gan frequently come and stayed with her and Geena despite hes married with Sally. His action is not into her likened. Gan He was a male partner of Savitra. Father to Geena. Met Sally before marry her few months afterwards. Despite the marriage, he frequently comes to Savitra and stays with her and Geena. Geena A two years old illegitimate daughter to Savitra and Gan. Sally Wife of Gan. Gans behavior of frequently coming and staying with Savitra and Geena is not into her likened as well. Answer: a) The first issue in question is whether Savitra can claim maintenance for herself from Gan? In regards of this, reference must be made to Section 2 of Married Women Act 1957 (Act 450) which define married woman as including any woman married in accordance with the rites and ceremonies required by her religion, manners and customs. According to the case Mui Siu Hing v Lee Hong Kee [1940] MLJ xvi., wife includes secondary wife, which is lawful and recognized by law as much as principal wives do. Applying the law to the instant case, despite cohabited for 4 years with Gan, Savitra has never married to Gan either according to the religion, manners or customs. Despite the cohabitation has led to the birth of Geena, the relationship between them was merely a partner out of wedlock which later on leads to the birth of a daughter out of wedlock. As the marriage never taken place, Savitra could not obtain the status of married woman which is lawful and recognized by law. Section 3(1) of Married Women and Children (Maintenance) Act 1950 (Act 263) provides if any person who neglects or refuses to maintain his wife or legitimate child which is unable to maintain itself, a court, upon due proof thereof, may order such person to make a monthly allowance for the maintenance of such wife and child, in proportion to the

means of such person, as to the court seems reasonable. Applying to the instant case, married woman by virtue of Section 2 of Act 450 fulfills the characteristics of a wife provided under Section 3(1) of Act 263. Reconciling the fact that Savitra is not woman married to Gan according to rites and ceremonies required by her religion, manners and customs, she is not a wife to Gan hence she is not entitled to claim for maintenance for herself. Besides, it is nowhere stated in Section 3(1) of Act 263 which provides for maintenance of unmarried partner. In conclusion, Savitra cannot claim for maintenance from Gan. Secondly, the issue is whether Savitra can claim maintenance for Geena from Gan? According to Section 112 of Evidence Act 1950, the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Applying to the instant case, the birth of Geena did not fall in either situation as she was not born in a valid marriage nor she born within 280 days after her parents divorce. This means that Geena is not a legitimate child of Gan. In the case of Kulasingam v Rasammah [1981] 2 MLJ 36, it was held that since Act 263 is silent on the meaning of child, Age of Majority Act 1971 (Act 21) should apply. Section 2 of Act 21 provides that a child is a male or female below the age of eighteen years old. Applying to the instant case, as Geena is of age of two years old only, it is undisputed that she falls under the category of child by virtue of the stated law. Reconciling the fact the she is illegitimate and she is a child, Geena therefore is an illegitimate child. Section 3(2) of Married Women and Children (Maintenance) Act 1950 (Act 263) provides that if any person neglects or refuses to maintain his illegitimate child which unable to maintain itself, a court, upon due proof thereof, may order such person to make such monthly allowance, as to the court seems reasonable. Applying the law to the instant case, Geena is an illegitimate child of Gan. Therefore, the Court can make an order for Gan to pay reasonable monthly allowances to Geena. In that regards, Savitra can claim maintenance for Geena from Gan and her claim will be successful.

b) The issue arising here is whether Sally can claim maintenance from Gan? As stated, Section 2 of Act 450 provides that married woman includes any woman married in accordance with the rites and ceremonies required by her religion, manners or customs. The case Mui Siu Hing v Lee Hong Kee as discussed, provides that wife includes secondary wife which is lawful and recognized by law as much as the principal wives. Applying to the instant case, Sally is a married woman as she is lawfully married according to her religion, manners and customs. This means that she is legally recognized as the wife of Gan. According to Section 3(1) of Act 263, Court may make an order for a person to pay reasonable monthly allowance to his wife as maintenance upon due proof that such person has neglected or refused to maintain his wife or legitimate child which is unable to maintain itself. Applying the law to instant case, as Sally is the lawful and legally recognized wife of Gan, she can claim maintenance from him. In case of neglect or refusal on part of Gan, the Court will come into assistance by making an order to Gan enforcing him to pay reasonable monthly allowance as maintenance to Sally.

c) The issue at this point is whether LRA 1976 apply to Sally and Gan? In order for this issue to be duly determined, it would be better to refer to Section 3 of Law Reform (Marriage and Divorce) Act 1976 (Act 164) to know the applicability of the Act to Sally and Gan. The provision provides that Act 164 shall apply to all persons in Malaysia and to all persons domiciled in Malaysia but resident outside Malaysia. Section 3(3) and 3(4) of Act 164 respectively provides that the Act is not applicable to Muslims and the native of Sabah and Sarawak and any aborigine of West Malaysia. Applying to the instant case, it is clear that Act 164 is applicable upon them due to their presence in the country. Besides, it is nowhere stated that they fall under any category which excluded from the application of Act 164 i.e. Muslims or natives/aborigines. As Act 164 is applicable upon them, the next issue is whether the Court has any jurisdiction to dissolve the marriage? According to Section 48(1) of Act 164, the Court will have jurisdiction to entertain the dissolution of marriage only if the marriage is registered or deemed to be registered under this Act (Section 48(1)(a)) and where the domicile of the parties to the marriage at the time of the petition is presented is in Malaysia (Section 48(1)(c)). Applying to the instant case, as Sally and Gan are non Muslim, their marriage was solemnized and will be dissolved according to this Act. Both Sally and Gan are also currently of same domicile i.e. Malaysia as Sally will follow domicile of Gan and retains it until the marriage is dissolved (Ang Geck Choo v Wong Tiew Yong). This means that the Court has competent jurisdiction to entertain the dissolution of marriage should Sally prefer.

Subsequently, the issue is whether Sally can dissolve her marriage to Gan? As a general rule, the marriage made under Act 164 can only be dissolved after the expiration to period of two years of marriage (prescribed time). This is stated under Section 50 of Act 164 which restricts the petition for divorce before the period of two years is over. Applying to the instant case, the period of two years from the date of marriage still not ceased. This is proven on the fact that Gans behavior in frequently coming and staying with Savitra and Geena happened subsequent to the marriage, which logically renders that period of two years are yet to be completed. Therefore, Sally is basically restrained from make petition for divorce at this point of time. However, it must also be noted that Section 50(2) of Act 164 provides exception in which leave to present the petition for divorce can be granted before the expiry of the two years period on ground of exceptional circumstances and hardship such as in the case Bowman v Bowman. In this case, a wife sought the leave of the court on ground of exceptional hardship suffered by her or exceptional depravity on part of the husband, to present a petition for divorce even though the period of three years has not lapsed since the date of marriage. The wife had not only alleged adultery on her husbands part, but also his cruelty and perverted lust. She also contended that there was no chance of reconciliation. In allowing the appeal to grant the leave, the Court however made a point that cruelty alone is not exceptional as it must be coupled with aggravating circumstances such as drunkenness, neglect and other bad behavior. In the case of Brewer v Brewer, the wife petitioned for leave before the lapsed of prescribed time on ground of husbands cruelty, namely a course of druken violence and occasioning injury to her health. No allegations of grievous bodily injury. Despite the trial court granted leave, the Court of Appeal ruled that leave should not be granted because assuming that the wifes allegation were true, the degree of hardship inflicted on her was not exceptional in nature. The leave was set aside. Applying the law to instant case, despite Section 50(2) provides for exception in which leave could be granted on ground of exceptional circumstances and hardship suffered by petitioner, it must be appreciated that the quest for Sally to use that ground is difficult. This is considering the facts that Gans behavior in coming and staying with Savitra and Geena is not adequate to connotes exceptional depravity on part of Gan. Despite the marriage with Sally, Gan is still the father of Geena and he might do so in good faith. Moreover, Savitra herself is not happy with the circumstance which will negate argument that Gans behavior is for bad purposes. Reconciling Brewer v Brewer to instant case, in order for Sally to obtain leave before specified period, she must prove that she suffers consequences such as towards her health and safety in order to strengthen her allegation of exceptional circumstances and hardship. However, based on the facts of this case, the likelihood for the petition under Section 50(2) to succeed is minimal. Therefore, Sally cannot dissolve the

marriage as she has no strong ground of exceptional circumstances or hardship to be raised as exception to general rule under Section 50(1). Should the matter prolonged over the period of two years, Sally can dissolve their marriage if she manage to obtain the mutual consent of Gan to dissolve the marriage as provided under Section 52 of Act 164. This section provides that joint petition for divorce can be presented by husband and wife. If the court found that the consent was freely given and proper provision in regards of wife and childrens welfare has been made, the divorce based on mutual consent can be granted. In the case of Sivanesan v Shymala, decree nisi has been granted after joint petitioner supported with affidavit which provided settlement of matrimonial property was filed. Applying to instant case, Sally could dissolve the marriage if she and Gan have mutually consented to divorce besides properly decide with him on the provision for her and the support, care and custody of the children.