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2023 MarsdenLR 425
HIGH COURT MALAYA SHAH ALAM
CHOOK FOOK PENG – Appellant
Versus
LIONG YOOK KEOW – Respondent
[Originating Summons No: BA-24F-102-04/2023]
The court ruled that exceptional circumstances exist under s 106(1)(vi) of the LRA 1976, allowing the Plaintiff to bypass mandatory referral to a conciliatory body for divorce proceedings.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Section 106(1)(vi) - Application for exemption from referring matrimonial dispute to a Marriage Tribunal - Plaintiff alleges irretrievable breakdown of marriage and impossibility of reconciliation due to Defendant's residence abroad - The court finds that compelling referral to a conciliatory body would be futile given the parties' lack of intention to reconcile. (Paras 22, 24, 36)
(B) Exceptional Circumstances - The court outlines that exceptional circumstances under s 106(1)(vi) include situations where reconciliation is impractical or futile, supported by past judgments. (Paras 27, 28, 39)
Facts of the case:
The parties married in Malaysia in 2018, have a son, and lived in Australia until the Plaintiff returned to Malaysia in 2022. The Plaintiff seeks exemption from conciliation due to the Defendant's refusal to change her behavior and ongoing marital strife.
Findings of Court:
The court finds that the Plaintiff has satisfied the requirement for exemption under s 106(1)(vi) LRA 1976.
Issues: Whether exceptional circumstances exist that warrant exemption from referral to a conciliatory body.
Ratio Decidendi: The court concludes that the Plaintiff's arguments demonstrate that reconciliation is impractical, as both parties have expressed a desire to end the marriage, supported by the Defendant's actions in filing for divorce in Australia.
Result: Application allowed.
| Table of Content |
|---|
| 1. application for exemption from marriage tribunal (Para 1 , 2 , 3 , 4 , 5) |
| 2. plaintiff's claims about marriage breakdown (Para 6 , 7 , 8 , 9) |
| 3. defendant's counterclaims and allegations (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 4. legal requirements under s 106 lra 1976 (Para 22 , 23 , 24 , 25 , 26) |
| 5. interpretation of 'exceptional circumstances' (Para 27 , 28 , 29) |
| 6. court's analysis of impracticality in reconciliation (Para 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38) |
| 7. court's conclusion and order (Para 39) |
Introduction
[1] This is an application in Enel 4 filed by the Plaintiff (husband) for an exemption from referring the matrimonial dispute to a Marriage Tribunal premised upon s 106(1)(vi) of the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976).
Background Facts
[2] The parties were married in Malaysia on 15 April 2018 and have a son who is 13 years old. He is currently studying in Kingswood College, Melbourne Australia.
[3] The family lived together in Australia after the marriage. In October 2022 the Plaintiff returned to Malaysia. The Defendant (wife) and the son remained in Australia as he was still schooling there.
[4] On 12 April 2023 the Plaintiff filed the present application to dispense with the requirement in s 106 LRA 1976 on the ground that their marriage had broken down irretrievably and that the Plaintiff found it impossible to live with the Defendant.
[5] The Defendant opposed the application. For the purposes of this proceedings the Plaintiff has filed 2 Affidavits and the Defendant one.?
[6] In his affidavit in support the Plaintiff has averred that prior to the solemnization of the marriage his relationship with the Defendant was cordial but all that changed after their marriage. The Plaintiff found the Defendant to be argumentative and always ready to pick a fight. In every fight the Defendant would consume alcohol and demand for money and his property. The Plaintiff believed that the Defendant merely married him for his money and property and was not interested in the welfare of the family or of saving the marriage. The Plaintiff averred that he had tried his best and made many attempts to discuss and resolve the matter amicably with the Defendant but the Defendant stubbornly refused to change her ways.
[7] The Plaintiff believed that their son was negatively affected by their constant raucous quarrels. The Plaintiff was of the view that the marriage could not be salvaged and that he could not tolerate anymore the fights and quarrels that were instigated by the Defendant. Faced with the unbearable strain of the stress, the Plaintiff had to leave Australia and come back to Malaysia. He states that he has no desire to continue with the marriage.
[8] The Plaintiff averred that upon his return to Malaysia he had gone to the Marriage and Divorce department of the National Registration Office to register for counselling and reconciliation but had been turned away due to the fact that the Defendant resided in Australia.
[9] The Plaintiff averred that he had been advised by his solicitors that he had a good arguable case to be exempted from referring the matrimonial difficulty pursuant to s 106(1)(ii) and (iii) as the Defendant is living in Australia and is not expected to return to Malaysia during the period of 6 months from the date of the registration of the divorce petition.
[10] Hence the Plaintiff averred that there existed exception circumstances which made a referral to the Conciliatory Body to be impractical if not impossible.
[11] In her affidavit in reply the Defendant denies the Plaintiff's allegations and counters with her own allegations. She has averred that she is not domiciled in Malaysia as averred by the Plaintiff. She has insisted that she is domiciled in Australia, having lived in Australia since 2015. Both she and their son are permanent residents of Australia.
[12] The Defendant has further averred that she is aware that the Plaintiff had returned
