Mahadev Shankar JCA:

Can a spouse who has not applied for ancillary relief before a divorce decree is made absolute, make such an application at an indefinite time thereafter? If so, can she do it without obtaining the leave of the court? If leave is required under what circumstances should it be granted?

In a very lucid judgment YA Datuk Abdul Aziz bin Mohamed held that such an application cannot be made without leave, and refused it.

In a nutshell the situation here was that the respondent (the husband) filed his Divorce Petition on 22 June 1987. The appellant (the ex-wife) who was duly served, and was legally represented at all material times, did NOT file an answer to the petition which contained prayers for orders by way of an ancillary relief to the effect that the wife pay him half the proceeds of two properties and half the market value of all shares and securities acquired by the wife during the marriage. When the decree nisi was granted on 10 February 1988 the judge adjourned the husband's prayers for ancillary relief into chambers.

The notes of evidence in the court below shows that the husband did not pursue his application on ancillary relief after the decree nisi was granted. On 14 June 1988 the decree nisi was made absolute.

The husband had purchased a house in Petaling Jaya in 1983. Both parties had lived in the house till 1985. Thereafter the husband stayed on in the said house, and paid the mortgage. In 1989 the husband remarried and continued to live in the said house with his new wife, her mother and an orphaned cousin. Before the petition was filed the husband had also bought a car.

More than three years after the decree absolute the ex-wife filed an application on 19 July 1991 for ancillary relief claiming a half share in the said house and in the car. This application was subsequently amended without objection. The application itself was vehemently opposed and the husband took the position that if leave was granted he should be allowed to revive his own application for ancillary relief which he did not pursue earlier. This aspect of the matter is now of academic interest.

Before us appellant's counsel asserted that since the ex-wife had not filed any answer at all, she did not require any leave from the court to apply for ancillary relief, and that the passage of any length of time after the decree of dissolution was irrelevant. He supported this bold submission by referring to various English authorities.

With the greatest respect we do not think they are of any assistance.

As is clear from Chaterjee v. Chaterjee [1976] 1 All ER 719 at 722 the power to grant ancillary relief in England was contained in ss. 19 and 20 of the Matrimonial Causes Act 1950. The words "on any decree" in these sections were construed in England to mean "within a reasonable time after the decree"; The dispute as to what this meant required Parliamentary intervention by the Matrimonial Causes (Property and Maintenance) Act 1958, which by s. 1 provides that:

(1) Any power of the court, under (ss. 19 and 20 of the 1950 Act and others sections) shall ... be exercisable either on pronouncing such a decree or at any time thereafter.

The fundamental rule governing applications in England by a petitioner or a respondent for ancillary relief were contained in r. 68 of the Matrimonial Causes Rules 1973, which reads as follows:

(1) Any application by a petitioner or by a respondent who files an answer claiming relief, for ...

(b) financial provision order,

(c) a property adjustment order,

shall be made in the petition or answer, as the case may be.

(2) Notwithstanding anything in para. (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently:

(a) by leave of the court.

This was replaced by The Matrimonial Causes Rules 1977, (r. 68) which in turn was replaced by r. 2.53 of the Family Proceedings Rules 1991, which reads:

2.53 Application by petitioner o