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2025 MarsdenLR 4531
HIGH COURT MALAYA JOHOR BAHRU
TAN KIT YUEN – Appellant
Versus
CHRISTIAAN COUJIN – Respondent
[Divorce Petition No: JA-33-349-07/2022]
The specific rules concerning divorce proceedings take precedence over general civil procedural rules, and once a Decree Nisi is absolute, it cannot be set aside without exceptional circumstances.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 53, 54, and 61 - Application to set aside Decree Nisi and Decree Absolute - Respondent's claims of improper service and lack of knowledge of proceedings rejected - Court affirmed valid service of Divorce Petition per substituted service law and Washington state law - Decree Nisi rendered absolute immediately without compelling grounds to rescind. (Paras 1-63)
(B) Divorce Procedure - The specific rules governing matrimonial proceedings outlined in the Divorce and Matrimonial Proceedings Rules prevail over general civil procedural rules. (Paras 9-10)
(C) Exceptional Circumstances - No evidence presented by Respondent to warrant rescinding the Decree Nisi once made absolute. (Paras 41-62)
Facts of the case:
The Petitioner Wife filed for divorce, and after failing to appear in court, the Decree Nisi was granted and made absolute on the same day. The Respondent later applied to set aside these decrees, claiming ignorance of the proceedings.
Findings of Court:
The Court confirmed the validity of the service of the Divorce Petition and substantiated the Respondent's knowledge of the proceedings through various evidences.
Issues: The main questions were whether proper service was effected and if there were good grounds to rescind the decree made absolute.
Ratio Decidendi: The specific rules for matrimonial proceedings take precedence, and once a Decree Nisi is made absolute, it cannot be rescinded unless compelling reasons are established, which were absent in this case.
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. application for rescind of divorce decree. (Para 1 , 2 , 5) |
| 2. disputes on service irregularity and awareness. (Para 4 , 6 , 7) |
| 3. relevant law governing divorce. (Para 8 , 9 , 10 , 12 , 14) |
| 4. service of documents procedures. (Para 19 , 20 , 21) |
| 5. evidence and rebuttal on service of papers. (Para 22 , 25 , 28 , 29) |
| 6. judicial opinion on reception and awareness of divorce. (Para 30 , 31 , 32 , 33) |
| 7. legal grounds for setting aside decree absolute. (Para 41 , 43 , 46) |
| 8. delay and evidential requirements for setting aside. (Para 50 , 56 , 58) |
| 9. final ruling and dismissal of application. (Para 61) |
Introduction
[1] This is an application by the Respondent Husband ("RH") via Notice of Application (encl 35) mainly to rescind and set aside the Decree Nisi dated 30 May 2025 ("Decree Nisi"), Certificate Making the Decree Nisi Absolute dated 30 May 2025 ("Decree Nisi Absolute") and Court Order dated 30 May 2025 ("Court Order") and that the Divorce Petition via Case No: JA-33-349-07/2022 to be reheard under r 44 and O 93 r 4 of Rules of Court 2012 (" ROC 2012") or under the inherent jurisdiction of the Court.
[2] After having read the Affidavits, written submissions by both the RH and the Petitioner Wife ("PW"), and after having heard the oral submissions of the parties, I dismissed the RH's application with costs of RM5,000.00 subject to allocator costs, to be paid by the RH to the PW within thirty (30) days from the date of judgment.
[3] Below are my grounds of the decision.
Background
[4] The background facts in this application are gathered from the cause papers and submissions filed by the parties in chronological order.
[5] The brief facts which are relevant to the present application are as follows:
(a) on 8 July 2022, PW filed a Divorce Petition under ss 53 and 54 of Law Reform (Marriage and Divorce) Act 1976 [Act 164] seeking a dissolution of her marriage to RH, and other prayers;
(b) the service of the cause papers was effected via substituted service to the RH where no appearance was entered by the RH and no cause papers were filed by the RH as at 30 May 2023 and subsequently, the divorce and other reliefs were granted on the same date; and
(c) subsequently, on 10 August 2023, RH filed encl 35.
[6] In brief, the RH submitted the followings:
(a) service of the Divorce Petition and Notice of Trial is irregular;
(b) the RH did not receive the cause papers and was not aware of the divorce proceedings in Malaysia; and
(c) the Divorce Petition be reheard under r 44 and O 92 r 4 ROC 2012 or under the inherent jurisdiction of the Court.
[7] On the contrary, the PH contended that:
(a) the filing of the Notice of Application is fundamentally defective of which preliminary objection was raised;
(b) the RH's explanations were untruthful and that the RH was fully aware of the divorce proceedings in Malaysia but chose not to participate;
(c) the RH's allegations that he could not enter Malaysia by reasons of police reports lodged by the PW against him is a "red herring" and an "afterthought"; and
(d) the assertions that the RH did not receive the Divorce Petition were bare assertions without proof.
Court Analysis And Findings
[8] I have identified two (2) issues below for the determination of this Court:
(a) whether the Divorce Petition had been regularly and properly served to the RH; and
(b) whether there were exceptional circumstances or good or compelling reasons to rescind and set aside the Decree Nisi already made absolute.
Principles Of Law Applicable To Matrimonial Proceedings
[9] The relevant provisions governing and concerning divorce proceedings should be the ones as set out in the Divorce and Matrimonial Proceedings Rules 1980 ("DMPR 1980") and not the ROC 2012 being a statute of general application.
[10] The Applicant via encl 35, has inter alia, sought the Court order to rehear the Divorce Petition under r 44 and O 92 r 4 of ROC 2012.
[11] The PW contended that the ROC 2012 is not applicable to the divorce proceedings.
