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2020 MarsdenLR 2424
HIGH COURT SABAH & SARAWAK KUCHING
ONG CHAI HOON – Appellant
Versus
TAN AH NEK @ FANNY TAN & ORS – Respondent
[Originating Summons No: KCH-24-86-9-2019]
A marriage remains valid until formally dissolved, affecting subsequent marital claims, including derivative pension eligibility.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 – Sections 4(3)(b), 61, and 62 – Plaintiff seeks recognition as lawful wife and entitlement to derivative pension of deceased, claiming valid marriage under Adat Iban; however, previous unregistered divorce remains unresolved, obstructing legal validation of a subsequent marriage and denying widowhood status. (Paras [1]-[47])
Facts of the case: The deceased had a previous marriage which allegedly ended in an unregistered divorce. The plaintiff married the deceased in accordance with Adat Iban but faced denial of marital status and derivative pension. (Paras [2]-[4])
Findings of Court: The court cannot recognize the plaintiff as the lawful widow without a formal declaration dissolving the previous marriage, leaving no legal basis for the pension claim. (Paras [30]-[31])
Issues: The core issue was whether evidence existed to support the claim of lawful widow status in the absence of a formal dissolution of the previous marriage. (Paras [3], [30])
Ratio Decidendi: The court stated that the marriage remains valid unless formally dissolved and highlighted the requirement for an applicant's locus standi in seeking marriage dissolution. (Paras [42]-[44])
Result: Application by the plaintiff is dismissed with no order for costs.
JUDGMENT
The Application To Be Decided
[1] The plaintiff filed her Originating Summons (encl 1) dated 24 September 2019 seeking:
1. A declaration that the plaintiff is the lawful wife, widow and/or dependant of the deceased, Simon Dublin (WN KP 380202-13-5075);
2. An Order that the 3rd defendant do recognise the marriage between the plaintiff and the deceased, Simon Dublin solemnised before a Penghulu on 5 July 1992 under Adat Iban as monogamy and thus a valid marriage under Adat Iban 1993;
3. An Order that the 2nd defendant do approve the plaintiff's application for derivative pension;
4. An Order that the 4th defendant do rectify the marital status of the deceased, Simon Dublin;
5. Costs; and
6. Such further and/or other orders, directions and/or reliefs as this Honourable Court deems fit and proper in the circumstances.
Factual Matrix
[2] The tragic facts of this case again remind us of the prophetic genius of William Shakespeare when he gushed, "the course of true love never did run smooth ..." (A Midsummer's Night's Dream). The key facts are as averred by the plaintiff in her Affidavit in Support (encl 2) which were substantially unchallenged in terms of the various matrimonial or family events.
(A) Simon Dublin ("the Deceased") married TAN AH NEK @ FANNY TAN ("Fanny") on 26 December 1964 and this marriage was duly registered;
(B) The Deceased and Fanny were alleged to have divorced on 19 December 1980. Such alleged dissolution was not registered with the Registrar General/the 4th defendant and the manner of such dissolution is not known;
(C) The Deceased and Fanny separated and lost contact with each other since about 7 October 1987;
(D) The Deceased then married the plaintiff on the 5 July 1992 in accordance with Adat Iban before Penghulu Kalong Ak OK Jemat and lived as husband and wife for 26 years until the demise of the Deceased in 2018;
(E) The Deceased and the plaintiff brought up the three children, presumably, from the marriage between the Deceased and Fanny. They are Danny Ak Simon Dublin (born 1981), Sophia Anak Simon Dublin (born May 1985) and Venus Dublin Anak Simon Dublin (born March 1985) [there is no explanation how the last two issue were registered as being born barely two months apart];
(F) Fanny "married" another man named "Sippo Antti Sippola" of Abbotsford, British Columbia, Canada which marriage was registered in Las Vegas, Nevada, USA on 5 May 1997;
(G) The Deceased, a pensioner, passed away on 20 May 2018 of heart failure;
(H) After the demise of the Deceased, the plaintiff on the 20 May 2018 sought to claim his derivative pension (of RM1,877.06 per month) and this was initially approved;
(I) On 26 July 2018, one Arthur Dublin applied to the 2nd defendant for the derivative pension of the Deceased on behalf of his mother, Fanny, and disclosing to the 2nd defendant that the Deceased was married to his mother, Fanny and that this union was never dissolved; and
(J) The 2nd defendant then retracted the approval to the plaintiff to the pension of the Deceased.
The Problem Faced By The Plaintiff
[3] The problem faced by the plaintiff is that the alleged divorce between the Deceased and Fanny was never registered or recorded as dissolved. Hence the records or register of the 2nd and 4th defendants disclose that the Deceased and Fanny were and are still registered as married. With that, the plaintiff is not entitled, as she is not the widow to the derivative pension of the Deceased.
[4] This inability by the plaintiff to be recognised as the lawful widow of the Deceased and hence to claim his derivative pension is the root cause of this action.
The Stand Of The 2nd Defendant
[5] The stand taken by the 2nd defendant is predictable.
[6] In essence it said that the plaintiff is not a widow of the Deceased because the Deceased's marriage with Fanny was never dissolved or annulled. It quoted s 62 of the Law Reform (Marriage and Divorce) Act 1976 which expressly provides that a party to a former marriage can
