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2025 MarsdenLR 6172
HIGH COURT MALAYA KUALA LUMPUR
LEN – Appellant
Versus
PEN & ANOR; MEN (PROPOSED INTERVENER) – Respondent
[Judicial Separation Petition No: WA-33-419-08/2023]
The court emphasized the necessity of including a Proposed Intervener to protect a child's legal rights in matrimonial proceedings, affirming that a party must demonstrate a sufficient interest directly affected by the case.
Headnote:(A) Divorce and Matrimonial Proceedings Rules 1980 - Rule 83(1) and (2) - Application to intervene - Proposed Intervener, as next friend of the Child, allowed to join proceedings to assert Child's interest in TR Property and seek maintenance - Court emphasized the need for the Child's voice in decisions affecting his welfare. (Paras 20, 21, 46)
(B) Legal interest - To intervene, a party must demonstrate a sufficient interest directly affected by the proceedings - The Proposed Intervener's claim to the Child's maintenance and property rights established a valid interest. (Paras 22, 26)
(C) Paternity determination - The Respondent's refusal to undergo a DNA test raised adverse inferences regarding credibility, supporting the Child's claim of paternity. (Paras 42, 44, 50)
(D) Judicial separation - Respondent's failure to respond to allegations of adultery amounted to an implicit admission, reinforcing the Child's claim. (Paras 36, 40)
Findings of Court:
The Application to Intervene was allowed, recognizing the child's legal and equitable rights in the matrimonial proceedings.
Issues: Whether the Proposed Intervener had sufficient interest in the matrimonial proceedings affecting the Child's rights.
Ratio Decidendi: The Court affirmed the necessity of including the Proposed Intervener to protect the Child's interests, highlighting the duty to ensure that vulnerable parties are heard in legal matters.
Result: Application to Intervene allowed.
Introduction
[1] This was an application by the Proposed Intervener in encl 18, for an order that she be made a party in the proceedings herein.
[2] To protect the privacy of all parties, and due to the sensitive nature of the issues involved, the Petitioner-Wife, Respondent-Husband, Co-Respondent and Proposed Intervener have been anonymised in this judgment respectively as LEN, PEN, YEN and MEN.
The Factual Background
[3] The Petitioner and Respondent aged 46 and 53 respectively at the time of the hearing of this Application, were married in 2000, and were blessed with two children, born respectively in 201 and 2003.
[4] In 2015, the Respondent began an adulterous relationship ("the Adultery") with the Co-Respondent. The Petitioner claimed that she had learned about the Adultery only in 2023, and upon discovering it, she filed a judicial separation petition ("the Judicial Separation Petition") in August 2023, and included the Co-Respondent in it.
[5] The Respondent did not file a reply to the Judicial Separation Petition. The Co-Respondent, however, responded and admitted to the Adultery. She claimed that the Petitioner had known about the Adultery for years and had tolerated it. The Co-Respondent further asserted that the Adultery resulted in the birth of a child in June 2023 ("the Child").
[6] In March 2024, the Petitioner and Respondent attempted to record a consent order ("the Draft Consent Order") before this Court, to settle their matrimonial dispute.
[7] Although the Co-Respondent's Counsel was unable to be physically present in Court, he had nonetheless communicated his client's resistance to the Draft Consent Order. This resistance created an impediment to recording the Draft Consent Order. Given this unresolved dispute, the Court adjourned the matter to April 2024 to allow further deliberation, potentially providing all parties with additional time to negotiate or present their respective positions.
[8] When the matter resumed before the Court, both the Petitioner and Respondent maintained their position that the Draft Consent Order should be recorded. The Co-Respondent, however, vigorously objected to the proposed agreement, particularly cl 10 of the Draft Consent Order. That clause, in essence, required the Respondent to transfer his half share in a property known as the TR Property to the Petitioner, within three months from the date of the Draft Consent Order. It further required the Respondent to take all necessary steps, within five months from the date of the Draft Consent Order, to effect the transfer of the remaining half share in the TR Property, currently registered in the name of the Co-Respondent, to the Petitioner, so that the Petitioner would become the sole registered owner of the TR Property, free of any encumbrance.
[9] Clause 10 of the Draft Consent Order reads:
Responden hendaklah atas kos dan perbelanjaan sendiri memindahmilik kepada Pempetisyen separuh (1A) bahagian Responden yang tidak dibahagikan dalam hartanah beralamat pos Unit ***, Jalan Ampang, 50450 Kuala Lumpur ("TR Property") dalam tempoh masa 3 bulan dari tarikh Perintah ini dan Responden juga hendaklah mengambil semua langkah- langkah yang diperlukan dalam tempoh masa 5 bulan dari tarikh Perintah ini untuk memperolehi baki separuh (½)bahagian yang kini dipegangkan di bawah nama Responden Bersama dan memindahmilik baki separuh (½) bahagian tersebut kepada Pempetisyen supaya Pempetisyen menjadi pemilik tunggal TR Property yang berdaftar dan bebas daripada sebarang bebanan ("encumbrances").
[Emphasis Added]
[10] The Co-Respondent asserted that the Respondent had pledged to provide financial support for both her and the Child. She further claimed that the Respondent had promised to secure a family home and ensure financial stability. In line with this commitment, in January 2023, the Respondent allegedly purchased the TR Property in the names of both the Respondent and Co-Respondent as a gift for her and the Child.
[11]
