Zaki Tun Azmi PCA:

[1] More often than not, a divorce is acrimonious. Each party will try to extract from the divorce the most to his or her benefit. They will fight over every little issue. Their respective lawyers will advise to take full advantage of every little technicality of the law. One party will claim and the other will strenuously resist. Each must also be aware of their rights and comply strictly with the law. This case is one example where such situation had arisen.

[2] From the facts that have been cited in much detail in the grounds of judgment of my learned brother Arifin Zakaria FCJ, it is clear that the respondent or her counsel had overlooked, not just once, but a number of times during the proceedings to file the correct documents within the permitted time.

[3] Reading from the chronological order of events in the record of appeal I notice that an application for ancillary reliefs was first fixed on 28 October 1999 but because the judge did not have time to hear, it was postponed to a date almost one year later ie, 14 September 2000. On this date, the application for ancillary reliefs by the respondent was struck out because neither the respondent nor her counsel was present. According to the respondent, the date was wrongly recorded in her diary. To me, recording the date wrongly in the diary is not an excuse. On 21 September, one week later, the draft decree was sent to the respondent's solicitors for approval. However since the respondent's solicitors did not respond, the draft decree nisi was returned to the court for approval. A copy of the letter addressed to the court was sent to the respondent's solicitors.

[4] On 9 October 2000 the appellant's solicitors filed in an application for an order that the decree nisi be made absolute. On 15 February 2001 four months later a sealed copy of the notice of application for ancillary reliefs together with supporting affidavit was sent to the appellant's solicitors by the respondent. On 27 March 2001 the appellant's solicitors filed in court the decree nisi together with a certificate to make the decree nisi absolute. On 5 April 2001, the certificate making the decree nisi absolute was issued by the court. Even though respondent discovered that her application for ancillary reliefs had been struck out by the court on 14 September 2000 no application was made to reinstate the application. That is another mistake.

[5] The third mistake that the respondent did was in not seeking leave to file an application for ancillary reliefs since this application for ancillary reliefs was not made in the petition or in the answer thereto. This requirement to obtain leave is quite well established by the Court of Appeal judgment in Chew Ling Hang v. Aw Ngiong Hwa [1997] 4 CLJ 448 and the Singapore case of Tan Pau Soon v. Ling Beng Choo [1997] 2 SLR 372, both cited by my learned brother in his judgment.

[6] If effort had been made by the respondent to check the law, it would be clear from these two cases and the textbook that leave is required. Had application for leave been filed and a stay of the decree nisi from being made absolute sought, immediately thereafter, I am sure the court will not hesitate to grant such application for stay. From these events, it can be clearly seen that the respondent had committed several errors or omissions on her part. The appellant of course is under no duty to point out to the respondent her errors. It is up to the respondent's solicitors or counsel to advise the respondent accordingly.

[7] I feel obliged to make these comments because the courts had been repeatedly accused of being unfair to parties when in fact parties themselves have failed to file in proper documents, make proper applications, and to do so within the time provided by law. It is not as if the lawyer concerned had interpreted the law differently. If there are authorities that support the respondent's actions perhaps the court could be sympathetic with her. The res