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2022 MarsdenLR 1267
HIGH COURT MALAYA GEORGETOWN
KHOR CHIN MIAW – Appellant
Versus
FRANK THEODORUS VAN DE VEN – Respondent
[Petition No: PA-33-334-09/2018]
The jurisdiction to grant a divorce under the Law Reform (Marriage and Divorce) Act 1976 requires both parties to be domiciled in Malaysia at the time of filing, with ex-parte orders being subject to set aside for irregularities.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 – Sections 48 and 49 – Jurisdiction of court to issue Decree Nisi requires parties to be domiciled in Malaysia – The court established that the Petitioner's domicile was with the husband in Belgium, thus lacking jurisdiction to grant the divorce. (Paras 12, 18, 19)
(B) Ex-parte Orders – The court emphasized that ex-parte orders are not final orders and can be set aside if obtained irregularly. (Para 47)
Facts of the case: The Petitioner, a Malaysian citizen married to a Dutch citizen, sought a divorce in Malaysia without satisfying the domicile requirement. Despite having lived abroad, she attempted to file for divorce shortly after returning to Malaysia. (Paras 4-10)
Findings of Court: The court concluded that the Decree Nisi and Decree Absolute were rendered null and void due to jurisdictional issues and procedural noncompliance. (Para 50)
Issues: Primary issues included jurisdiction based on domicile and whether an ex-parte Decree Nisi can be overturned. (Paras 11, 32)
Ratio Decidendi: The court held that proper jurisdiction must be established under the LRA, and if not met, the decree is void. Additionally, it recognized exceptional circumstances for setting aside ex-parte orders. (Paras 18, 49)
Result: The Respondent's application to set aside the ex-parte orders was granted. (Para 50)
JUDGMENT
[Enclosure 33]
[1] This court on 26 August 2022, allowed encl 33 with no order to costs. The Petitioner had appealed to the court of Appeal. These are my grounds of judgment. The Appellant and the Respondent are to be referred to as they were in the High court.
[2] The Defendant filed a Notice of Application dated 11 February 2022 [Enclosure 33] for the following orders:
(a) To strike out the Divorce Petition dated 4 September 2018;
(b) To set aside the court Order & Decree Nisi dated 21 February 2019 and Certificate to make Decree Absolute dated 1 April 2019;
(c) That the entry in the register of marriage at the National Registration Department (Marriage and Divorce Department) of Malaysia relating to the marriage of the Petitioner and Respondent be marked with the word "married";
(d) That the Registrar-General be directed with the power to cause the entry in the register of marriage at the National Registration Department (Marriage and Divorce Department) of Malaysia relating to the marriage of the Petitioner and Respondent to be marked with the word "married";
(e) Costs of application to be borne by the Petitioner; and
(f) Any other relief that this Honourable court deemed fair and Reasonable.
Cause Papers
[3] The Petitioner and the Respondent refer to the following cause paper:
(a) Petition for Divorce dated 5 September 2018 ("Enclosure T');
(b) Decree Nisi dated 21 February 2019 ("Enclosure 14");
(c) Decree Absolute dated 1 April 2019 ("Enclosure 17");
(d) Respondent's Notice of Application to Set Aside dated 11 February 2022 ("Enclosure 33");
(e) Respondent's Affidavit in Support affirmed by Frank Theodorus Van de Ven on 20 January 2022 ("Enclosure 34");
(f) Petitioner's Affidavit in Reply affirmed by Khor Chin Miaw on 21 April 2022 ("Enclosure 36");
(g) Respondent's Affidavit in Reply affirmed by Frank Theodorus Van de Ven on 16 May 2022 ("Enclosure 37").
Background Facts
[4] At all material times, the Respondent Husband ("RH") is a citizen of the Kingdom of Netherlands having a service address at St.Luciestraat 14, 3631 Maasmechelen, Belgium. Petitioner Wife ("PW") is a Malaysian Citizen.
[5] On 4 July 2017, the PW had married the RH in the Netherlands and the marriage registered at the Malaysian Embassy at The Hague on 29 August 2017. At all material times of the marriage up until February 2018, the both of them had resided in Belgium. They were blessed with a son by the name of Felix Khor Van de Ven on 23 May 2017 ("Felix").
[6] The PW, RH, and Felix had relocated to the Caribbean Island of Aruba ("Aruba") in February 2018 and planned to stay for the RH's new employment contract. Unfortunately, while in Aruba, the relationship between PW and RH had a problem and broken down.
[7] PW filed a petition in the court of First Instance of Aruba ("the Aruban Petition") seeking, amongst others, an order to bring Felix to Malaysia. On 16 May 2018, the Aruban court allowed the PW to bring Felix to Malaysia. ("Aruban court Ruling"). Even though there is a pending appeal against the Aruban court ruling, the PW brought Felix back to Malaysia.
[8] In Malaysia, the PW, had filed a single petition for a divorce on 5 September 2018 which is merely 4 months after leaving Aruba. Decree Nisi was granted on 21 February 2019 and became a Decree Nisi Absolute on 1 April 2019.
[9] In this case the PW has obtained an-ex parte application to be exempted from ss 48(i)(c) and 106 Law Reform (Marriage and Divorce) Act 1976 ("LRA"). The Order of Decree Nisi of 21 February 2019 and the Certificate to make Decree Absolute of 1 April 2019 were both granted.?
[10] This application [Enclosure 33] is filed to vacate all ex-parte orders based on non-compliance and the court's jurisdiction under ss 48, 49, and 106 of the LRA 1976.
Issues
(i) Does This court Have Jurisdiction To Issue A Decree Nisi Under Section 48 Of The LRA 1976?
Domicile
[11] The PW submits that RH's made this application pursuant to ss 48 and 49 of LRA 1976 based on the argument that t
