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2010 MarsdenLR 3612
HIGH COURT MALAYA, KUALA LUMPUR
WONG CHENG PING – Appellant
Versus
CHIN GUAN SENG – Respondent
[Divorce Petition No: S8-33-670-2008]
A decree nisi, once made absolute, cannot be easily set aside except in exceptional circumstances, reflecting the need for finality in divorce proceedings.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Section 61 - Granting of decree nisi in divorce - Respondent absent from court during the granting of decree nisi - Court's consideration of respondent's late application to set aside decree nisi and the determination that it should not be allowed due to a lack of sufficient grounds and significant delay (Paras 30, 33, 55).
(B) Application for variation of custody and maintenance orders - Analysis of res judicata - Distinction made between the application for varying orders in prior and current applications, allowing further consideration on merits in subsequent applications if circumstances merit it (Paras 46, 53).
Facts of the case:
The respondent challenged the decree nisi obtained in his absence claiming unawareness of the divorce proceedings and citing language barriers and illiteracy as justifications for not filing an answer. He sought to set aside the decree and proposed variations regarding custody and maintenance of the children (Paras 1-5, 7-12).
Findings of Court:
The court concluded the delay of nearly eight years in filing the application to set aside the decree was unreasonable and the decree nisi, made absolute in 1999, should remain in effect. No compelling reason to disturb the finality of the divorce was presented (Paras 34, 55).
Issues: The main issues included whether the decree nisi should be set aside and whether the custody and maintenance dispute was res judicata due to previous applications (Paras 22, 46).
Ratio Decidendi: The court ruled that the integrity of a decree nisi, once made absolute, should not be easily disturbed. The statutory framework does not provide for setting aside such a decree post-absolute, unless in exceptional circumstances, which were not present in this case (Paras 30, 33).
Result: Application dismissed.
| Table of Content |
|---|
| 1. setting aside a decree nisi requires strong justification. (Para 1 , 2 , 3) |
| 2. the procedural history of the divorce and appointment of counsel. (Para 6 , 7 , 8 , 10 , 11) |
| 3. assertions regarding the irregularity of the decree nisi. (Para 13 , 14) |
| 4. debate on compliance with procedural rules. (Para 16 , 18) |
| 5. the court's inherent powers and rules governing recovery of orders. (Para 22 , 23 , 24 , 25 , 32 , 35) |
| 6. importance of timely applications after receipt of a decree. (Para 30 , 31 , 34 , 36) |
| 7. distinction between prayers for custody and dissolution matters. (Para 45 , 46) |
Appeal
[1] This is an appeal filed by Chin Guan Seng @ Tan Guan Seng, the respondent husband ("the respondent") against my decision made in chambers after the hearing on 9 February 2010 regarding the summons in chambers ("SIC") filed by the respondent on 22 June 2007 in encl. 26.
Prayers In Enclosure 26
[2] The prayers of the respondent in encl. 26 are as follows:
1. (a) The decree nisi dated 22 July 1999 which was obtained by the petitioner wife ("the petitioner") be set aside and the certificate making the decree nisi absolute dated 21 October 1999 be also set aside; or
(b) The terms of the said decree nisi order regarding the issue of right of custody of the children and the issue regarding payment of maintenance of the children be set aside;
2. This divorce petition be fixed for further hearing and the respondent be given leave to file an answer to the divorce petition within the period of 21 days from the date of this order;
3. The costs of this application be costs in the cause.
4. Any other relief as the court deems fit.
Grounds Of Application For Encl. 26
[3] The grounds for the application for encl. 26 (see encl. 27) are as follows:
(a) The respondent only recently knew (through his family members) that there was a publication in the newspapers that the petitioner made a complaint against him to the "MCA Public Service and Complaints Department" that he is an irresponsible person because he did not comply with the court order and did not pay maintenance.
(b) Since the court proceedings in 1999, the respondent only remembers that he attended the court once together with his counsel.
(c) The respondent was not present in court on the date of hearing on 22 July 1999 and this absence is confirmed based on the record of the minutes of the court. However, the decree nisi order dated 22 July 1999 ("the decree nisi ") states that the respondent was present in court.
(d) The respondent has no knowledge at all regarding the completion of his divorce case because his previous counsel had withdrawn from acting for him and the respondent was no longer represented or given any further information regarding the case.
(e) The respondent has gone through a bitter and difficult life and his beloved father had also passed away. The respondent does not have a permanent job.
(f) The respondent is illiterate in the Malay language and the English language and was not aware or did not understand the matters that happened before this.
(g) The respondent should be given the opportunity to defend himself and also to state his reply to enable the court to give a just order.
Affidavits
[4] The petitioner filed an affidavit in reply on 24 November 2008 (encl. 40) stating, inter alia , that:
i. The respondent can spell and write.
ii. The respondent was present in court on 22 July 1999 together with the mother and their eldest child.
[5] The respondent filed an affidavit in reply on 8 January 2009 (encl. 41) stating, inter alia , that the respondent has no knowledge of the decree nisi dated 22 July 1999.
Background Of Case
[6] The divorce petition in this case was originally filed in the Muar High court on 30 November 1998 as DP 33-172-1998.
[7] The Muar High court dissolved the marriage on 22 July 1999 by granting a decree nisi together with ancillary reliefs. On that date of hearing the respondent was absent even though he was served with the complete cause papers o
