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1988 MarsdenLR 1108
HIGH COURT SABAH & SARAWAK KUCHING
MELVIN LEE CAMPBELL – Appellant
Versus
AMY ANAK EDWARD SUMEK – Respondent
[Divorce Petition No: Kg 19 Of 1987]
Tan Thiaw Chong J:
The matter which calls for determination by this court at this hearing relates to the domicile of the husband petitioner at the time when the joint petition for divorce by mutual consent was presented under section 52 of the Law Reform (Marriage and Divorce) Act 1976.
Section 48(1) of the 1976 Act provides, inter alia, that nothing in that Act shall authorize the court to make any decree of divorce except "(c) where the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia". There is no question about the wife petitioner at the material time being domiciled in Malaysia. The provision of section 48(1)(c) in my view requires that the court must be satisfied that at the time when the petition in the instant case was presented, the domicile of both the petitioners was in Malaysia. It is true that in the instant petition itself, the husband petitioner asserts that at the time of the presentation of the petition he was domiciled in Malaysia, and this is supported and reiterated in his affidavit sworn on 13 July 1987. In this instance, I would observe that the evidence of the husband petitioner states that he was, and is, an agnostic, but his affidavit was sworn and not affirmed. However that may be, this is of no consequence, in my view, as regards the domicile of the husband petitioner. I do not take this factor in any way as operating against the husband petitioner.
As rightly pointed out by learned counsel who appeared for the State Attorney-General as amicus curiae - and this is not a matter at issue - the onus of proving that the husband petitioner at the material time had abandoned his domicile of origin in favour of a domicile of choice in Malaysia rests squarely on the husband petitioner.
There are two essential elements involved in determining the domicile of choice, and these are the factors of residence and the requisite intention to reside permanently for an indeterminate period in the country where it is alleged that the petitioner has adopted the domicile of choice. In this instance, it is to be noted that paragraph 434 of Halsbury's Laws of England (4th Ed.) states as follows:
"434. Direct and secondary evidence of intention. Direct evidence of intention is often not available, but a person whose domicile is in question may himself give evidence of his intentions, present or past. Evidence of this nature is to be accepted with considerable reserve, even though no suspicion may be entertained of the truthfulness of the witness.
Expressions of intention, written or oral, may be given in evidence, but such evidence must be carefully weighed in connection with the circumstances in which it occurred, and even if the expressions are clear and consistent they cannot prevail against a course of conduct leading to an opposite inference."
And in the next paragraph, under the heading "Residence as Evidence", the following passage occurs:
"Residence in a country, especially if it is continued for a long period, is evidence of an intention to remain there; in the absence of other evidence, residence alone may support the inference that a domicile has been acquired. Such cases will be rare, and, while residence is always material evidence, it is seldom decisive, for slight circumstances may serve to show the absence of a settled intention."
The next paragraph in my view is also relevant, and it states:
"436. Residence as a matter of duty. A person may reside in a country as a result of his being under some duty, public or private. Examples include diplomats and other overseas servants of the Crown, members of the armed forces, employees of international organizations or of commercial undertakings with interests in several countries, and domestic servants attached to such persons. Such residence is likely to be temporary and may be in some measure involuntary. If it is not accompanied by any intention to make a permanent home in the country of residence, the propositus w
