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2022 MarsdenLR 2861
HIGH COURT (PULAU PINANG)
AZIZAN MD ARSHAD, JC
Khor Chin Miaw – Plaintiff
Versus
v Frank Theodorus Van De Ven – Defendant
NO PETISYEN PA-33-334-09/2018
WB Chuah (Ng Kee Way & Co) for the petitioner.
Lam TH (Kevin & Co) for the respondent.
A married woman acquires her husband's domicile, affecting her ability to initiate divorce proceedings in Malaysia, as jurisdiction requires both parties to be domiciled there at the time of filing.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Section 48(1)(c) - Jurisdictional requirements for divorce petitions - A married woman retains her husband's domicile, affecting her ability to file for divorce in Malaysia if not domiciled there - Court ruled decrees were improperly obtained, rendering them null and void - The respondent’s domicile status was determined to be Belgium, impacting petition eligibility. (Paras 12, 20, 49)
(B) Jurisdiction of High Court - High Court lacks power to grant a decree unless both parties were domiciled in Malaysia at the time of filing - Decree Nisi and Decree Absolute were subject to jurisdictional scrutiny under LRA provisions. (Paras 24, 30)
Facts of the case:
The petitioner, a Malaysian citizen, married a Dutch citizen in the Netherlands and registered the marriage in Malaysia. Post-relocation to Aruba, their relationship deteriorated, leading the petitioner to file for divorce in Malaysia shortly after returning from Aruba, raising domicile questions. (Paras 4, 5, 6, 8)
Findings of Court:
The decrees issued to the petitioner were deemed irregularly obtained due to non-compliance with statutory jurisdictional requirements laid out in the Law Reform Act. The court ruled the respondent’s status as not domiciled in Malaysia at the time of petition filing. (Paras 49, 50)
Issues: Whether the High Court had jurisdiction to issue a Decree Nisi and if ex-parte orders could be overturned. (Paras 11, 32)
Ratio Decidendi: A married woman assumes her husband's domicile; thus, a divorce petition requires evidence of shared domicile in Malaysia to exercise jurisdiction under LRA. The court stressed the importance of compliance with domicile provisions for valid divorce filings and highlighted that decrees obtained without proper jurisdiction are null and void. (Paras 20, 48)
Result: Application to set aside the decrees granted without costs.
| Table of Content |
|---|
| 1. marriage registration and relocation details. (Para 4 , 5 , 6) |
| 2. jurisdiction under the law reform act. (Para 11 , 12 , 16 , 18) |
| 3. requirements for a divorce decree. (Para 13 , 14 , 15 , 23) |
| 4. domicile of married individuals. (Para 19 , 20 , 21 , 22) |
| 5. lack of jurisdiction and decree set aside principles. (Para 32 , 34 , 42 , 46) |
| 6. decrees obtained improperly deemed null. (Para 48 , 49 , 50) |
Azizan MD Arshad JC:
JUDGMENT
[ENCLOSURE 33]
[1]This court on 26.08. 2022, allowed Enclosure 33 with no order to costs. The Petitioner had appealed to the Court of Appeal. These are my grounds of judgment. The Appellant and the Respondent are to be referred to as they were in the High Court.
[2]The Defendant filed a Notice of Application dated 11.02.2022 [Enclosure 33] for the following orders:
(a)To strike out the Divorce Petition dated 04.09.2018;
(b)To set aside the Court Order & Decree Nisi dated 21.02.2019 and Certificate to make Decree Absolute dated 01.04.2019;
(c)That the entry in the register of marriage at the National Registration Department (Marriage and Divorce Department) of Malaysia relating to the marriage of the Petitioner and Respondent be marked with the word “married”;
(d)That the Registrar-General be directed with the power to cause the entry in the register of marriage at the National Registration Department (Marriage and Divorce Department) of Malaysia relating to the marriage of the Petitioner and Respondent to be marked with the word “married”;
(e)Costs of application to be borne by the Petitioner; and
(f)Any other relief that this Honourable Court deemed fair and Reasonable.
CAUSE PAPERS
[3]The Petitioner and the Respondent refer to the following cause paper: -
(a)Petition for Divorce dated 05.09.2018 (“Enclosure 1”);
(b)Decree Nisi dated 21.02.2019 (“Enclosure 14”);
(c)Decree Absolute dated 01.04.2019 (“Enclosure 17”);
(d)Respondent’s Notice of Application to Set Aside dated 11.02.2022 (“Enclosure 33”);
(e)Respondent’s Affidavit in Support affirmed by Frank Theodorus Van de Ven on 20.01.2022 (“Enclosure 34”);
(f)Petitioner’s Affidavit in Reply affirmed by Khor Chin Miaw on 21.04.2022 (“Enclosure 36”);
(g)Respondent’s Affidavit in Reply affirmed by Frank Theodorus Van de Ven on 16.05.2022 (“Enclosure 37”).
BACKGROUND FACTS
[4]At all material times, the Respondent Husband (“RH”) is a citizen of the Kingdom of Netherlands having a service address at St.Luciestraat 14, 3631 Maasmechelen, Belgium. Petitioner Wife (“PW”) is a Malaysian Citizen.
[5]On 04.07.2017, the PW had married the RH in the Netherlands and the marriage registered at the Malaysian Embassy at The Hague on 29.08.2017. At all material times of the marriage up until February 2018, the both of them had resided in Belgium. They were blessed with a son by the name of Felix Khor Van de Ven on 23.05.2017 (“Felix”).
[6]The PW, RH, and Felix had relocated to the Caribbean Island of Aruba (“Aruba”) in February 2018 and planned to stay for the RH’s new employment contract. Unfortunately, while in Aruba, the relationship between PW and RH had a problem and broken down.
[7]PW filed a petition in the Court of First Instance of Aruba (“the Aruban Petition”) seeking, amongst others, an order to bring Felix to Malaysia. On 16.05.2018, the Aruban Court allowed the PW to bring Felix to Malaysia. (“Aruban Court Ruling”). Even though there is a pending appeal against the Aruban Court ruling, the PW brought Felix back to Malaysia.
[8]In Malaysia, the PW, had filed a single petition for a divorce on 05.09.2018 which is merely 4 months after leaving Aruba. Decree Nisi was granted on 21.02.2019 and became a Decree Nisi Absolute on 01.04.2019.
[9]In this case the PW has obtained an-ex parte application to be exempted from Sections 48 (i) (c)106 Law Reform (Marriage and Divorce) Act 1976
[10]This application [Enclosure 33] is filed to vacate all ex-parte orders based on non-compliance and the court’s jurisdiction under Sections 4849106LRA 1976
ISSUES(i) Does this court have jurisdicti
