The court ruled that insufficient evidence existed to prove adultery prior to separation, leading to the granting of a divorce decree and addressing custody and maintenance issues based on children's best interests.

JUDGMENT

Celestina Stuel Galid J:

Introduction

[1] After fifteen years of marriage, the Petitioner filed the present divorce petition against her husband, the Respondent and sought for the custody, care and control of their two children, maintenance for the said children, a lumpsum maintenance sum for herself and other reliefs. The Petitioner also sued the Co-Respondent who was the woman whom the Respondent has allegedly committed adultery with.

[2] All the names of those involved are anonymised herein to protect their privacy.

Background Facts

[3] The Petitioner and Respondent were married on 9 December 2007 and co-habited after their marriage at the house of the Respondent's parents at Taman Pertama, Sandakan ("Pertama House").

[4] On 11 March 2009, the Petitioner and the Respondent jointly purchased an apartment known as 1st Floor, S18, Block A6, LPPB Low Cost Apartment, Mile 3½, North Road, Sandakan ("LPPB apartment").

[5] In 2013, the vehicle, a Chevrolet with the registration number SS6745T was purchased in the name of the Petitioner ("the Chevrolet").

[6] There are two children, both sons, of the marriage, GA and BA who were born in 2008 and 2011 respectively.

[7] They were all staying at the Pertama House until November 2016 when the Petitioner brought the children with her to stay at Beaufort. The Petitioner and the children later moved back to Sandakan in November 2018 but while she stayed with her mother at Mile 3, North Road, Sandakan, the children stayed with the Respondent at the Pertama House.

[8] Subsequently, the Respondent and the children went to stay with the Co-Respondent at her house in Taman Harbour View, Sandakan in 2021.

[9] In September 2020, a daughter was born to the Respondent and Co-Respondent referred to herein as "YA".

[10] Attempts for reconciliation by the Petitioner at the Marriage Conciliatory Tribunal of Sandakan on 19 August 2021, 5 October 2021 and 21 October 2021 were unsuccessful.

Evaluation And Findings Of The Parties' Contentions

[11] The Petitioner has cited ss 53 and 54(1)(a) & (d) of the Law Reform (Marriage & Divorce) Act 1976 ("the Act") in her amended petition. She claimed that the marriage has irretrievably broken down due to the Respondent having committed adultery and she found it intolerable to live with him and or that they have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.

Whether The Marriage Has Broken Down And If So, What Caused The Breakdown Of The Marriage?

[12] Sections 53 and 54 of the Act are reproduced below:

" Sections 53 - Breakdown of marriage to be sole ground for divorce

(1) Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.

(2) The court hearing such petition shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution.

Section 54 - Proof of breakdown

(1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say-

(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition."

[13] In determining the issue of whether the alleged adultery was the cause of the breakdown in the marriage, it was imperative that the court first have in its mind the standard of proof to b