Exceptional circumstances can justify exemption from mandatory referral to a conciliatory body in divorce proceedings, particularly in cases of irretrievable breakdown of marriage.

JUDGMENT

Evrol Mariette Peters J:

Introduction

[1] This was an application ("this Application") by the Applicant Wife for exemption from referral of the marital dispute to the conciliatory body pursuant to s 106(1)(vi) of the Law Reform (Marriage and Divorce) Act 1976 ("Law Reform (Marriage and Divorce) Act").

[2] In the interest of privacy of the parties concerned, and sensitivity of the issues in these proceedings, the Applicant, and Respondent Husband have been anonymised in this judgment as ART and GAN respectively.

The Factual Background

[3] The involved parties, the Applicant, a citizen of Vietnam, and Respondent, a Malaysian (collectively, "the Parties"), aged 34 and 47 respectively at the time of the hearing of this Application, were married in May 2017, and were blessed with a son, born in August 2017 ("the Child") whose birth was documented in a Vietnamese birth certificate.

[4] The marriage began to unravel in 2019, prompting the Parties to live separately. The Applicant and Child resided in Vietnam, while the Respondent remained in Malaysia.

[5] In January 2020, the Respondent had unilaterally relocated the Child from Vietnam to Malaysia without the Applicant's consent. Despite the Applicant's persistent requests for the Child's return, the Respondent adamantly refused. The Applicant encountered difficulties returning to Malaysia but managed to do so in April 2022, only to find that the Respondent had vacated his residence.

[6] Faced with these circumstances, the Applicant urgently filed an application for guardianship, custody, care, and control of the Child on an urgent, ex parte basis. Although the Applicant obtained a court order in April 2022, challenges arose in serving the cause papers to the Respondent. Meanwhile, the Applicant diligently sought the Child, who had been taken to Kuala Terengganu by the Respondent, a development that was brought to the court's attention during case management in May 2022.

[7] Following the court's directive, the Respondent complied by appearing in court and producing the Child on 13 May 2022. Subsequently, constructive discussions between the Parties, facilitated by their respective solicitors — Messrs Ras & Co representing the Applicant and Messrs Yoon & Partners representing the Respondent — led to the formulation of an agreement. This agreement was formalised and recorded in a consent order dated 20 May 2022 ("the Consent Order"). According to the terms of the Consent Order, joint guardianship and joint custody were granted to the Parties, with primary care and control to the Applicant. Parties had also agreed that the Applicant would reside with the Child in Vietnam.

[8] However, implementing the Consent Order presented challenges, leaving the Applicant to file, in June 2023, an application to vary the terms of the Consent Order vide encl 26 in Originating Summons No: WA-24F-120-04/2022 ("Enclosure 26").

[9] In the same month, the Applicant filed this Application, seeking exemption from referring the marriage to a conciliatory body, pursuant to s 106(1)(vi) of the Law Reform (Marriage and Divorce) Act which reads:

Section 106 - Requirement of reference to conciliatory body before petition for divorce

(1) No person shall petition for divorce, except under ss 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties:

Provided that this requirement shall not apply in any case:

(i) where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse;

(ii) where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition;

(iii) where the respondent has been required to appear before a conciliatory body and has wilfully failed to attend;

(iv) where the respondent is imprisoned for a term of five years or more;

(v) where the petitioner alle