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2010 MarsdenLR 1506
HIGH COURT KUALA LUMPUR
GURCHARAN SINGH KARNAL SINGH – Appellant
Versus
MNINDER KAUR PIARA SINGH – Respondent
[Declaration Petition No: S8-33-108-2009]
A foreign divorce decree is not recognized unless it complies with the domicile requirements stipulated by local law, reaffirming Malaysian jurisdiction over marriages registered in Malaysia.
Headnote:(A) Law Reform (Marriage & Divorce) Act 1976 - Sections 107, 48, and 49 - Petition for recognition of foreign divorce decree - The court held that the Malaysian court has jurisdiction to dissolve marriages if both parties are domiciled in Malaysia, or if the wife has been deserted and resides in Malaysia. The petitioner failed to establish the abandonment of his Malaysian domicile in favor of the USA, where his divorce was obtained. The court also emphasized the significant injustice that could occur if the foreign decree were recognized, as it would prevent the respondent from claiming rights to property and other reliefs. (Paras 48, 49, 107)
(B) Domicile & Jurisdiction - The petitioner could not demonstrate a change of domicile from Malaysia to the USA, and mere residence of 90 days in the USA was insufficient to claim domicile necessary for valid foreign divorce. (Paras 48-50, 60-70)
Facts of the case:
The petitioner, married in Malaysia, sought recognition of a divorce granted in the USA, claiming he had become domiciled there. The respondent contended the Malaysian court should retain jurisdiction.
Findings of Court:
The court found that as both parties were Malaysian citizens and domiciled, it maintained jurisdiction to dissolve the marriage.
Issues: Whether the decree of dissolution from the USA should be recognized under Malaysian law.
Ratio Decidendi: The court ruled that foreign divorces are recognized only if they adhere to the domicile principles of Malaysian law, which the USA decree did not fulfill.
Result: Petition dismissed with costs.
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| 1. factual background of the marriage and proceedings. (Para 3) |
a) that this COURT may declare that the decree of dissolution of marriage obtained by the petitioner husband on 3rd of November 2008 in the Superior COURT of Arizona at Phoenix in the United States Of America ("USA") is valid;
b) that the respondent wife may be condemned in the costs of this suit; and
c) any other relief deemed suitable by the honorable COURT.
FACTS AND BACKGROUND
The petitioner husband and respondent wife were married on 1st of October 1988 at the Registry of Civil Marriages in Seremban, Negeri Sembilan Malaysia. After the marriage, the parties had cohabited in Malaysia and last cohabited at No. 11, Jalan PJU 3/26, Sunway Damansara, 47810 Petaling Jaya Selangor.
There are 2 children of the marriage; Gurpreet Singh Khera born on 17th of April 1991 and Harpreet Kaur Khera born on 28th of December 1992.
The petitioner claims that the respondent and the children had deserted him on 5th December 2007 and as a result he suffered emotional and psychological distress. Thereafter he had to resign from his job as a consultant clinical oncologist at the Damansara Speacialist Hospital on or around 28th of January 2008 since he could not cope with his job due to his marital problems.
The petitioner then claims that his family members including siblings, nephews and nieces in United States of America (USA) realized his distress and offered to help him and they invited him to come to stay in the USA. He claims that he had originally planned to relocate to the USA for the children's education and he had made preparations for this plan as far back as 1988. He then claims he decided to go to the USA to join his family members as he desperately needed their emotional and mental support to survive as well as to get treatment from a psychiatrist there.
The petitioner has Malaysian citizenship and says that he has been ordinarily resident in the USA since 29th January 2008. There is one proceeding in Malaysia previous to the proceeding herein between the parties. The proceeding is under Originating Summons No.S8-24-30-2008 filed by the respondent on 28th March 2008 for guardianship, custody, care and control of the children and also for the respondent's and the children's maintenance. The COURT in this suit has granted an ad-interim injunction on 23rd April 2008 restraining the petitioner from disposing of the matrimonial properties. This suit is still pending.
There is one proceeding in the USA previous to the proceeding herein between the parties, ie, in the Superior COURT of the State of Arizona, Petition for Dissolution of Marriage No. FC2008-003478. This suit is filed by the petitioner in Phoenix in the State of Arizona, USA on 15th May 2008 for dissolution of the said marriage. (Exhibit GUR-5 of the Petition).
The petitioner claims that the said COURT in the State of Arizona took jurisdiction on the basis that the petitioner is a permanent resident of the USA having resided in the State of Arizona for at least 90 days prior to the filing of the said petition for dissolution of marriage. (Exhibit GUR-6, GUR-7 and GUR-8 of the Petition).
On 3rd November 2008 the Superior COURT of Arizona in the State of Arizona in the USA at Phoenix granted a decree of dissolution of the said marriage solemnized in Malaysia on 10th of October 1988. (Exhibit GUR-11 of the petition).
Subsequently, the petitioner filed this application before this COURT for a declaration under section 107 LRA 1976 that the decree of dissolution of marriage obtained by him on 3rd of November 2008 in the Superior COURT of Arizona at Phoenix in USA is valid.
SUBMISSION OF COUNSELS
Ms. S. Y Chew, counsel for the petitioner, argued that the petitioner left Malaysia to settle down in the USA a
