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2023 MarsdenLR 1487
HIGH COURT MALAYA KUALA LUMPUR
CWY – Appellant
Versus
CSH & ANOR – Respondent
[Divorce Petition No: WA-33-656-11/2018]
The court emphasized that a marriage is deemed irretrievably broken when one party's adultery creates intolerable living conditions, affecting custody and asset division.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 53, 54, and 76 - Petition for divorce - Parties agree marriage irretrievably broken down but disagree on cause; court finds husband at fault for adultery - Sole custody awarded to wife for minor child; maintenance set for children and wife - Division of matrimonial assets ordered. (Paras 6, 23, 28, 61)
(B) Divorce - Grounds - Court emphasizes that marriage irretrievably broken down must be supported by evidence of intolerable living conditions due to adultery. (Paras 20, 40)
(C) Custody and Maintenance - Best interest of the child is paramount - Court orders maintenance for children and spousal maintenance considering parties' financial means and needs. (Paras 31, 42)
(D) Division of Assets - Court has authority to divide assets acquired during marriage up to the decree nisi; emphasizes equality in division. (Paras 45, 61)
Facts of the case:
The wife petitioned for divorce, citing adultery by the husband as the cause for irretrievable breakdown of the marriage. The couple has two children, and disputes arise over custody, maintenance, and division of matrimonial assets. (Paras 1-4)
Findings of Court:
The court finds the husband solely responsible for the marriage breakdown due to multiple adulterous relationships, awards custody of the minor child to the wife, and orders maintenance for both children and the wife. The matrimonial assets are to be divided equitably. (Paras 23, 28, 61)
Issues: The main issues include the cause of the marriage breakdown, custody of the children, maintenance obligations, and division of matrimonial assets. (Paras 12, 24)
Ratio Decidendi: The court concluded that the husband’s conduct constituted grounds for divorce under the LRA, and the best interests of the children dictated custody and maintenance decisions. The court reaffirmed its authority to divide matrimonial assets acquired during the marriage. (Paras 20, 61)
Result: The marriage is dissolved, with specific orders for custody, maintenance, and division of assets. (Paras 65(a)-(o))
| Table of Content |
|---|
| 1. marriage background and children details. (Para 1 , 2 , 3 , 4 , 5) |
| 2. claims of adultery and breakdown causes. (Para 6 , 7 , 11) |
| 3. reliefs sought by pw and rh. (Para 8 , 9) |
| 4. issues to be determined. (Para 12) |
| 5. adultery admissions and marriage breakdown analysis. (Para 13 , 14 , 15 , 16 , 18 , 19 , 20 , 22 , 23) |
| 6. custody determination for claire. (Para 25 , 26 , 27 , 28) |
| 7. access rights for rh. (Para 29 , 30) |
| 8. maintenance considerations for children. (Para 31 , 32 , 33 , 34) |
| 9. spousal maintenance analysis. (Para 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44) |
| 10. division of matrimonial assets. (Para 45 , 46 , 48 , 49 , 50 , 51 , 52 , 53 , 54) |
| 11. co-r's role in marriage breakdown. (Para 62 , 63) |
| 12. final orders and conclusions. (Para 65) |
Introduction
[1] This is a petition for divorce by the wife ("PW"). PW and her husband ("RH") were married on 10 November 2001. Their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 ("LRA").
[2] There are 2 children of the marriage, KCKM (born on 9 September 2003) ("Keith") and CCWS (born on 23 March 2006) ("Claire").
[3] During their marriage PW and RH acquired two immovable properties in their joint names: (i) a leasehold condominium in Pantai Hillpark ("Pantai Hillpark Property"); and (ii) a freehold double-storey terrace house in Taman Tun Ismail ("TTDI Property").
[4] The Pantai Hillpark Property is the matrimonial home. The parties lived in the matrimonial home with their children until RH left the home after Christmas in December 2014. PW and the children continue to live in the matrimonial home to date.
[5] Both PW and RH agree that the marriage has irretrievably broken down. However, they disagree on the cause of the breakdown and the time when the marriage broke down irretrievably.
[6] PW claims that the marriage broke down irretrievably because RH had committed adultery thrice; RH had behaved in such a way that PW could not reasonably be expected to live with him. PW's case is that the marriage broke down in December 2014 when RH left the matrimonial home to live with the Co-Respondent. Learned Counsel for PW submits by virtue of the fault principle and ss 53 and 54 of the LRA, RH should be fully responsible for the breakdown of the marriage.
[7] RH admits to having committed adultery with three different women for the duration of his marriage to PW. These women are TJN, GKPH, and CHD. CHD is named as a co-respondent in this petition ("the Co-R)". However, RH contends that the marriage broke down in 2010.
[8] In her petition for divorce, PW seeks the following:
a) The dissolution of the marriage;
b) PW be given sole guardianship and sole custody, care and control of both children;
c) RH be given overnight access to the children fortnightly from 8.00pm on Friday to 4.00pm on Sunday;
d) RH shall bear all the fees, costs and expenses in relation to and incidental to the children's education up to college/university and their music lessons;
e) RH shall transfer his half-share in the Pantai Hillpark Property to PW;
f) PW shall hold the TTDI Property solely and absolutely on trust for the children;
g) RH shall be responsible for servicing and paying the housing loan and all associated costs with the TTDI Property until the loan on the property is fully paid off.
h) RH shall transfer to PW his share in the Toyota Vios vehicle;
i) RH shall pay PW a sum equivalent to half (1/2) of the total amount in RH's account at the Employees' Provident Fund ("EPF") as at the date of the petition;
j) RH shall pay a sum equivalent to half (1/2) of the value of all investments, fixed deposits and bank accounts, unit trusts, shares in companies, businesses and/or firms owned by RH;
k) RH to pay PW the sum of RM20,000.00 monthly as maintenance for the children;
l) RH to pay PW the sum of RM7,750.00 monthly as maintenance for herself;
m) RH and/or his servants/agents be restrained from taking the children out of Malaysia without PW's prior consent; and
n) The Co-R be l
