Divorce

 In United Kingdom, definition of marriage was stated in Hyde v Hyde, where it is a voluntary union
between a man and wife to the exclusion of all others.
 Marriage is meant for ‘life’. Therefore, no divorce is mention in that definition.
 But England allows a valid marriage to be terminated by way of;
(a) death of one of the parties,
(b) decree of dissolution and
(c) divorce pronounced by court

 In Malaysia, the law relating to divorce and matrimonial causes in relation to monogamous marriage
was previously contained in the Divorce Ordinance 1952, which dealt with nullity of marriage,
dissolution of marriage, judicial separation and restitution of conjugal rights.
 Section 4(3) LRA : Marriages solemnized before 1 March 1982 can be dissolved by the death of one of
the parties, decree of divorce by a court of competent jurisdiction and decree of nullity by a court of
competent jurisdiction, provided that such marriages are valid according to the custom and religion
which it was solemnized
 Section 8 LRA : Marriages solemnized after 1 March 1982 can be dissolved by the death of one of the
parties, decree of divorce by a court of competent jurisdiction and decree of nullity by a court of
competent jurisdiction
 Part IV of LRA : regulates non-Muslim divorce including where one of the party converted to Islam.
 Section 47 of LRA : Court can, in the proceedings under Part IV, apply principles which in the opinion
of the court, would be consistent with what the High Court of Justice of England will acts in giving
matrimonial relief. Can apply the principles held by the High Court of England

Re Divorce Petitions Nos

 Principle of the case: The parties who petition for divorce on the ground of mutual consent must prove
the breakdown of marriage.
 The court should refer to the corresponding position in England today in considering divorce
proceedings (referring to S47 LRA)
 S47 must be read in a contemporaneous context and must refer to the corresponding position in England
today
 Unlike Civil Law Act which specifies date for importation of English principle, s47 does not

Sivanesan v Shymala
 The court rejected the joint petitions under s52 because the concept of divorce through mutual consent
is not a part of English law whereby it is enough to apply for a divorce
Jurisdiction of court
 S48 LRA (1) (a) +(c) or (b) + (c): Extent of power to grant relief.
Melvin Lee Campbell v Amy Anak Edward Sumek
 Joint petition to divorce by mutual consent. However, the husband failed to prove that he had
abandoned his domicile of origin and make Malaysia his domicile of choice. Therefore, the court have
no jurisdiction to hear the petition.

 S 49(1) LRA
 Notwithstanding anything to the contrary in paragraph 48(1)(c), the court shall have jurisdiction to
entertain proceedings by a wife under this Part, although the husband is not domiciled in Malaysia if –
 (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 two
years immediately preceding the commencement of the proceedings.
Case: Mahon v Mahon
 The wife petitioned for divorce under s49(1)(b) of the repealed Divorce Ordinance 1952 which have the
same effect as s49(1)(b) of LRA
 HC dismissed her petition – she was in Ireland for 15 months before the filing
 Held : The objective of s49(1)(b) was to give convenience to the wife to file divorce against the
husband who was domiciling elsewhere

 The prescribed period of 3 years in only to prevent transient visitors with some degree of permanence in
M’sia from misusing this section.
 Not necessary must be 3 years immediately preceding the petition – as long as she has been ordinarily
resident for 3 years in M’sia, it is ok – Petitioner had been staying in M’sia for 15 years, only when later
she moved to Ireland
 To give another interpretation would be causing her hardship to file her divorce either in M’sia or
Ireland

Prohibition to Divorce (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.
 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: Procedure to Divorce

 Section 50(2): a judge may allow the presentation of a petition for divorce within 2 years on the ground
that the case is one of exceptional circumstances or hardship suffered by the petitioner.

Case: Fay v Fay

 “’Exceptional hardship’ is not limited to past hardship but includes present and future hardship and
therefore the court may properly take into account the hardship suffered by a young wife in having to
wait for the elapse of three years from the date of marriage before petitioning for divorce.”

Procedure
1. Application has to be filed to the court to propose the presentation of petition together with an affidavit
2. Affidavit must contain:
(a) Grounds of application
(b) Particulars of the exceptional hardship/circumstance
(c) Whether there is any attempts of reconciliation
(d) Particulars of the circumstances which may assist the court in determining whether there is a
reasonable probability of reconciliation
(e) 18 years old

3. A copy of application and supporting affidavit for service on R would then be filed

Bowman v Bowman
 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)
 Held: The 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…”

Hillier v Hillier and Latham

 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.
 Held : Court of Appeal 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.”

Brewer v Brewer
 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.
 Held: Court of Appeal 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.

WvW
 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.
VvV
 Husband hit the wife at head with bottle – wife left but then return upon reconciliation – saw her
husband committing adultery on the couch of their matrimonial house – exceptional depravity on the
part of the husband
 Held : Adultery was committed in a peculiarly revolting circumstances - The qualification as to what
is exceptional in Bowman has been fulfilled
Kiranjit Singh

GROUND FOR DIVORCE

1. Dissolution on ground of conversion to Islam
 Section 51(1) LRA- one of the party had converted
 Section 50 (2) LRA
 The Court upon dissolving the marriage or at any time, may make provision for the wife or husband,
and for the support, care and custody of the children of the marriage, if any, under Part VII and Part VIII
and may attach any conditions to the decree of the dissolution as it thinks fit.
 Give the autonomy for the parties to make the decisions
 Section 50(3) of LRA : Section 50 shall not apply to any petition for divorce where one party has
converted to Islam.
 Section 51A of LRA : Property of spouse after conversion.

Before amendment, cases such as Pedley v Majlis Agama Islam Pulau Pinang & Anor
 In this case, the parties who were Roman Catholics has married according to Catholic rights. The wife
subsequently embraced Islam without the knowledge of the husband and assumed a Muslim name. The
question for the court to determine was whether the marriage had dissolved pursuant to Section 51(1) of
the LRA. The plaintiff husband had also applied, inter alia, for a declaration that the conversion of his
wife did not determine his marriage to her.
 Wan Adnan J dismissed the plaintiff’s application for the declaration and held that the question raised
was purely an academic one.

2. Dissolution by mutual consent

 Section 52 LRA: Husband and wife present a joint petition to dissolve their marriage after the
expiration of 2 years from the date of their marriage.
 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.

Re Goh Hoe Ling & Anor

 Principle: Petitioners must be physically present in court so as to satisfy the court that they are freely
consented 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.

Re Divorce Petition Nos.

 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.
 Once spouses had mutually agreed to divorce, the court have no power to inquire into the adequacy of
reasons for their divorce – the only concern of the court will be whether free mutual consent had been
given and whether proper provision has been made by both parties
 Mere mutual consent does not entitle a spouse to divorce – cannot oust the jurisdiction of the court to
enquire into and decide whether it is just and reasonable for the decree to be made

Sivanesan v Shymala
 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 filed 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.
 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.
3. Divorce Through 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

PROOF OF BREAKDOWN
1. S 54 (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.
 There are 2 views for subject test:
(a) The petitioner alleged that Respondent has committed adultery and finds it intolerable to live
with the Respondent (there can be other causes);
(b) As a consequences of adultery, the petitioner finds it intolerable to live with the Respondent
(adultery is the only cause).

1ST VIEW
- As long as there is adultery is proven, can instantly divorce
Goodrich v Goodrich
 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.

2ND VIEW

Clearly v Clearly
 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.

Roper v Roper
 Principle : 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.

 Malaysia applies 2nd view

Tan Wat Yan v Kong Chiew Meng
 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 (co-R). 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.

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-
(a) 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
(b) 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.

 Section 59 of LRA
 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. (it is a separate claim from the the co-respondent
whether or not the respondent is dismissed)
 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.

Leow Kooi Wah v Ng Kok Seng Philip & Anor

 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.

Kong Ka Heng v Ng Mooi Tee & Anor

 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 committing 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.

Karen Cheong Yuen Yee v Phua Cheng Chuen

 Principle : For allegation of adultery, the standard of proof should be beyond reasonable doubt.
 The petitioner and the respondent allege different facts to establish that their marriage has broken down
irretrievably. The respondent denied all the facts alleged by the petitioner. Therefore, if the petitioner
wanted the court to make a decree for the dissolution of their marriage based on those facts present in
her petition, it was for her to satisfy the court, at the trial, that the circumstances made it just and
reasonable to make such a decree having regard to her alleged facts. 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.
2. Section 54 (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 : “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 others.”

Unreasonable behaviour.
 There are 2 views:-
1. 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 behavior of
Respondent)
2. Court must take into account the character, personality, disposition and behaviour of the petitioner
and respondent as alleged and established in evidence.

1ST VIEW
Thurlow v Thurlow
 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.

2ND VIEW
 Several tests must be applied:-
1. Reasonable man’s test
 Regard to the personalities of the parties, the impact and effect of the R’s conduct or behavior 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?”

2. Behavior test
 Behavior of both parties must be taken into account
Ash v Ash
 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.

3. Whether there is a breach of the obligation between both parties.

Pheasant v Pheasant
 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)
 Malaysian Court applied 2nd view.
Joseph Jeganathan v Rosaline Joseph
 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 and held that the marriage had, in this matter, irretrievably broken down.
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 and consider the whole circumstances and
the characters as well as personalities of the parties.
Hariram Jayaram v Saraswathy Rajahram
 The court has adopted the decision in Katz v Katz and Pheasant v Pheasant on the question of standard
behaviour in Section 54(1)(b).
 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.

Other conducts that would amount to unreasonable behaviour

1. Violent Spouse
Ash v Ash
 The court must not consider only on the behaviour of the respondent but also the character, personality,
disposition as well as the behaviour of the personalities.
 The husband took to drink and become violent to the wife after he had taken a more highly paid job and
failed to adapt "to the modern phenomenon of the almost unlimited expense account". His tendency to
alcoholism and violence was exacerbated when he lost his job after several years.
 Bagnall J ruled that the wife could not reasonably be expected to live with her husband, taking into
account the character and personality of both the parties.
Bergin v Bergin
 The husband assaulted the wife causing her a black eye and cuts. She did not report the assaults to the
police or to her doctor. The court considered that she had accepted and tolerated the violence as part of
normal married life and had not been put in fear because she had not done anything about the assaults.
Her application was dismissed, and she appealed.
 On appeal it was held that the fact that the wife had put up with the violence was no reason to dismiss
her application. On the facts any right thinking person would find that the husband had behaved in such
a way that the wife could not reasonably be expected to live with him taking into account all the
circumstances and in particular the characteristics and personalities of the parties. (reasonable man’s test
was applied)
 One serious violent incident may entitle the petitioner to a decree. If the violence used is relatively
minor, more than one incident will be required, or it will be necessary for the petitioner to show that
there was other behaviour as well as the violence.
2. Lots of little incidents
 There may be a course of conduct rather than a series of dramatic incidents which taken with the
character of the other spouse is none the less serious in the long run even though the petitioner cannot
point to specific incidents in their own right.

Livingstone Stallard v Livingstone Stallard

 The lady married a man twice her age. The court had to consider an accumulation of grievances
alleged by the wife, including the husband's boorishness and constant criticism of her, the fact that
the husband always referred to her as " the girl" or by her maiden name, his frequent attempts to kick
her out of bed, and his continual complaints about her keeping underclothes in the sink all night when
being washed.
 Dunn J held, in totality, these complaints amounted to behaviour entitling the wife to a decree.
 "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 of the
circumstances and the personalities of the parties?"
 The question was answered in the affirmative which means yes.

O'Neill v O’ Neill
 The husband, with no building experience, embarked on major repair work on the home. He removed
the floorboards, and deposited rubble in the garden. He mixed cement in the living room and removed
the lavatory door, which was not put back for eight months. Two years after the husband embarked
upon this work, the wife and children left home. He also wrote to the wife’s solicitor casting doubt on
the paternity of the two children. The Court of Appeal held that it is unreasonable to expect the wife to
continue living with the husband.

3. Emotional or sexual dissatisfaction

Pheasant v Pheasant
 The wife was unable to give the husband the spontaneous and demonstrative affection for which his
nature craved. It was held on the facts that the behaviour test was not satisfied. There was no breach of
the obligations of marriage on the wife’s part. She did not effectively contribute to the break-up of the
marriage and would have welcomed the husband back.

Dowden v Dowden
 The wife alleged that the respondent husband was uninterested in sexual intercourse. Her sex life was
therefore unsatisfactory causing her physical frustration and tension. Her decree was refused, and her
petition was dismissed because the petitioner wife had failed to establish the ground upon which the
petition was based.
 The wife appealed to the Court of Appeal which dismissed her appeal and affirmed the lower court’s
decision.
4. Illness
Katz v Katz
 The husband became mentally ill and indulged in a variety of disturbing practices, including writing
letters to public figures seeking to put right the troubles of the world. He constantly criticized the wife
called her names in front of the children and drove her to make a suicide attempt. Did the husband’s
mental illness amount to behaviour?
 Sir George Baker, in granting a decree to the wife, asserted that behaviour must be "something more
than a mere state of affairs". It had to be "action or conduct by the one which affects the other.” On
the facts the husband pursued a course of conduct sufficient to the amount to behaviour.

3. Section 54 (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 of being husband or a wife.

Reg v Lershe
 Desertion is willful absenting of the husband from the society of his wife in spite of her wishes, is
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 behavior 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)

(A) SIMPLE DESERTION

 4 Elements:
1. The fact of separation (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

Hopes v Hopes
 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.

2. Intention to separate @ 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.”
BvP
 ‘..Whilst there is no definition of the word desertion, strictly speaking, it means the separation of one
spouse from the other with the intention of permanently bringing the state of marriage to an end without
reasonable and proper course and without the permission of the deserted spouse…..

3. Lack of Consent to the separation on the part of the petitioner

 Question 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

 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.

4. Lack of any justification for withdrawing from co-habitation on the part of the deserting party.
(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.
 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)
(B) 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
 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.

Lee Kah Wah v Cheah Paik Yean

 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

 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.

Thambyah v Thambyah
 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.
4. Section 54 (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.
 Physically separated and both parties recognised that the marriage had deserted
 But not blaming anyone because both mutually agreed hat marriage is over
Santos v Santos
 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
 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.

Bhanu Sekaramani v Nagamma

 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.

Soo Lina v Ngu Chu Chiong

 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.

SECTION 54 (2)
 The court should decide whether it would be just and reasonable for it to make a decree of divorce
 The court shall consider all the circumstances, including the conduct of the parties and how the interests
of any child or children of marriage or of either party may be affected if the marriages is dissolved.
 The court may make a decree nisi subject to such terms and conditions as the court may think fit to
attach, but if it should appear to the court that in all circumstances it would be wrong to dissolve the
marriage it shall dismiss the petition.

Mathias v Mathias
 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’.

Tan Keok Yin v Cheah Saw Hong

 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).

Reconciliation and Conciliation

 S 55. Provisions designed to encourage reconciliation.
 (1) Provision may be made by rules of court for requiring that before the presentation of a petition for
divorce the petitioner shall have recourse to the assistance and advice of such persons or bodies as may
be made available for the purpose of effecting reconciliation between parties to a marriage who have
become estranged.
 (2) If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility
of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such
period as it thinks fit to enable attempts to be made to effect such a reconciliation. The power conferred
by the foregoing provision is additional to any other power of the court to adjourn proceedings

Divorce Petition
 S 57. Contents of divorce petition.
 Section 57 (1) Every petition for divorce shall contain -
(a) particulars of the marriage between the parties and the names, ages and sex of the children, if any, of
the marriage;
(b) particulars of the facts giving the court jurisdiction;
(c) particulars of any previous matrimonial proceedings between the parties;
(d) a statement of the principal allegations which it will be sought to prove as evidence of the
breakdown of the marriage;
(e) the terms of any agreement regarding maintenance of the wife or dependent party and the children,
if any, of the marriage, or the division of any assets acquired through the joint efforts of the parties
or the sole effort of one party, or where no such agreement has been reached, the petitioner's
proposals; and
(f) particulars of the relief sought.
 Section 57 (2) Every petition for a divorce shall state what steps had been taken to effect a
reconciliation.

Decree and remarriage

 Section 61. Decree nisi and proceedings thereafter.
 Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before
the expiration of three months from its grant unless the court by general or special order from time to
time fixes a shorter period.
 Where a decree nisi of divorce has been granted and no application for it to be made absolute has been
made by the party to whom it was granted, then, at any time after the expiration of three months from
the earliest date on which that party could have made such an application, the party against whom it was
granted may make an application to the court and on that application the court may -
(a) notwithstanding the provisions of the last foregoing subsection, make the decree absolute;
(b) rescind the decree nisi;
(c) require further inquiry; or
(d) otherwise deal with the case as it thinks fit.

 Section 62: Remarriage of divorced persons.

 Where a decree of divorce has been made absolute and either -
 (a) there is no right of appeal against the decree absolute;
 (b) the time for appealing against the decree absolute has expired without an appeal having been
brought; or
 (c) an appeal against the decree absolute has been dismissed, either party to the former marriage may
marry again.