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2023 MarsdenLR 2242
HIGH COURT MALAYA KUALA LUMPUR
YAY – Appellant
Versus
WHO & ANOR – Respondent
[Divorce Petition No: WA-33-178-04/2019]
Adultery is proven on a balance of probabilities; both parents have equal rights regarding child custody.
Headnote:In a divorce petition, the court considered claims for sole guardianship, division of assets, and maintenance under the Law Reform (Marriage and Divorce) Act 1976. The court found adultery, a critical factor in the marriage's breakdown, was proven based on the balance of probabilities. The court emphasized the need for both parents' involvement in the child's life. The final ruling awarded child maintenance, damages for adultery, and partial monetary claims, reflecting the short marriage duration and the nature of allegations.
| Table of Content |
|---|
| 1. divorce initiated by wife on grounds including adultery. (Para 1 , 3 , 4 , 6) |
| 2. standard of proof for adultery is on balance of probabilities. (Para 8 , 10) |
| 3. adultery proven through circumstantial evidence, not requiring direct proof. (Para 18 , 19 , 20 , 21 , 23 , 24) |
| 4. adultery declared significant factor in marriage's breakdown. (Para 30 , 32 , 34 , 35) |
| 5. court permits damages for adultery and partial asset claims. (Para 36 , 37 , 86) |
| 6. child's surname must reflect paternal heritage. (Para 55 , 56 , 58 , 60) |
| 7. child's welfare dictates joint guardianship and necessary paternal involvement. (Para 65 , 68 , 80) |
| 8. father ordered to pay child maintenance despite the brief marriage. (Para 81 , 82) |
Introduction
[1] This was a divorce petition filed by the Petitioner Wife, seeking, inter alia, sole guardianship and custody of the child of the marriage, division of matrimonial assets, spousal and child maintenance from the Respondent Husband, and damages against the Co-Respondent for adultery allegedly committed between the Co-Respondent and the Respondent.
[2] In the interest of privacy and considering the sensitivity of the issues in these proceedings, the Petitioner, Respondent, and Co-Respondent have been anonymised in this judgment respectively as YAY, WHO and NAN.
The Factual Background
[3] On 11 November 2016, the Petitioner and Respondent (collectively, "the parties"), registered their marriage and resided in Kuala Lumpur at a property known as Concerto North Kiara ("the Matrimonial Home").
[4] The marriage, which was fraught with difficulties from the start, had broken down by June 2017. The Respondent had then left the Matrimonial Home and filed a judicial separation in August 2017 ("the Judicial Separation").
[5] In October 2017, the Petitioner delivered their only child, a son ("the Child"), the birth of whom the Respondent was unaware of.
[6] At the end of 2018, the Respondent had withdrawn the Judicial Separation, and in April 2019, the Petitioner filed a divorce petition ("this Petition") on the basis of adultery and claiming, inter alia, damages against the Co-Respondent as the person who had committed adultery with the Respondent.
[7] The Petition was allowed partially (only with regard to child maintenance, damages for adultery, and one third of the Petitioner's monetary claim), for the following reasons.
Contentions, Evaluation, And Findings
Whether Adultery Had Been Proved
[8] Although the parties had agreed to the divorce, the issue in the forefront was whether the cause of the breakdown of the marriage was due to adultery between the Respondent and Co-Respondent, pursuant to ss 53 and 54(1)(a) of the Law Reform (Marriage and Divorce) Act 1976 ("Law Reform (Marriage and Divorce) Act"), which read:
Section 53 - Breakdown of marriage to be sole ground of 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;
...
[Emphasis Added]
[9] There is no doubt that the Petitioner had the legal burden to prove adultery by virtue of s 103 of the Evidence Act 1950 ("the Evidence Act"), as it was she who wanted the court to believe in the existence of a particular fact. However, the issue that first required consideration was the standard of proving adultery.
[10] The Respondents contended that the standard of proof o
