1. Dissolution of marriage — dispute over maintenance and division of matrimonial assets — validity of a post-nuptial agreement under the Law Reform (Marriage and Divorce) Act 1976. (Para 1 , 2 , 3 , 4 , 7 , 8 , 9 )
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2026 MarsdenLR 2844
COURT OF APPEAL, PUTRAJAYA
LIM CHONG FONG, J
HCL – Appellant
Versus
PTL & ANOR – Respondent
[CIVIL APPEAL NO: W-02(W)-470-03-2024]
Pre-nuptial and post-nuptial agreements are unenforceable in matrimonial proceedings if the procedural rules contemplated by Section 56 of the Law Reform (Marriage and Divorce) Act 1976 have not been promulgated. Assets acquired before marriage are only matrimonial assets if substantially improved during the marriage.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Section 56 - Validity and enforceability of pre-nuptial and post-nuptial agreements - Legislative intention to facilitate a procedural framework through subsidiary legislation - In the absence of rules promulgated under the Act, such agreements cannot be regarded as valid, admissible, or enforceable in matrimonial proceedings (Paras 24, 26, 30).
(B) Statutory Interpretation - Use of the word "may" - Depending on the statutory context and legislative purpose, "may" can carry a mandatory rather than a merely permissive effect, particularly regarding the procedure to be followed once an option is exercised (Paras 27, 29).
(C) Law Reform (Marriage and Divorce) Act 1976 - Section 76(5) - Division of matrimonial assets - Assets owned before marriage are only included in the distribution if they have been substantially improved during the marriage by the other party or by joint efforts (Para 33).
Facts of the case:
The parties entered into a post-nuptial agreement addressing maintenance and adultery. Following the breakdown of the marriage, the validity of the agreement was challenged. Additionally, a dispute arose regarding the division of shares in companies, some of which were acquired by one party prior to the marriage.
Findings of Court:
The court found that the post-nuptial agreement was unenforceable because the procedural rules contemplated by Section 56 of the Act had not been enacted. Regarding the assets, the court held that shares acquired before the marriage were not subject to distribution as they did not meet the criteria for substantial improvement during the marriage.
Issues: Whether pre-nuptial or post-nuptial agreements are enforceable in the absence of rules of court under Section 56 of the Law Reform (Marriage and Divorce) Act 1976, and whether assets acquired before marriage are considered matrimonial assets under Section 76(5).
Ratio Decidendi: The court reasoned that Section 56 is a deliberate legislative provision intended to create a procedural mechanism for the court to scrutinize marital agreements. Without such rules, the statutory mechanism is incomplete and incapable of operation. Furthermore, the court affirmed that assets acquired prior to marriage are excluded from the pool of matrimonial assets unless the statutory requirement of substantial improvement is met.
Result: Appeal and cross-appeal partly allowed.
Legal Category Hierarchy
- family law
- practice and procedure
Table of Contents
2. Whether a post-nuptial agreement is valid and enforceable in the absence of rules promulgated under Section 56 of the Law Reform (Marriage and Divorce) Act 1976. (Para 16 , 18 , 19 )
3. Analysis of Section 56 regarding the necessity of subsidiary legislation for recognizing marital agreements and the interpretation of the word may as denoting mandatory procedure. (Para 20 , 21 , 22 , 23 , 24 , 25 , 27 , 28 , 29 )
4. Pre-nuptial and post-nuptial agreements are invalid, inadmissible, and unenforceable in matrimonial proceedings until the requisite rules are promulgated pursuant to Section 56 of the Law Reform (Marriage and Divorce) Act 1976. (Para 26 )
5. Appeal and cross-appeal partly allowed — post-nuptial agreement held invalid — share entitlements rectified — pre-marital assets excluded pursuant to Section 76(5) of the Act. (Para 32 , 33 , 34 )
6. Are pre-nuptial or post-nuptial agreements enforceable in Malaysian matrimonial proceedings?
Such agreements are not valid, admissible, or enforceable until the rules of court contemplated under Section 56 of the Law Reform (Marriage and Divorce) Act 1976 are promulgated to provide a procedural framework for their scrutiny and evaluation. (Para 24 , 26 )
7. Does the word may in a statutory provision always denote a permissive or optional power?
No, depending on the statutory context and legislative purpose, the word may can carry a mandatory effect, particularly when it prescribes a mandatory procedure that must be followed if a party elects to exercise a specific option. (Para 27 , 28 , 29 )
8. Can assets owned before marriage be included in the distribution of matrimonial assets?
Under Section 76(5) of the Law Reform (Marriage and Divorce) Act 1976, assets owned before marriage are included only if they were substantially improved during the marriage by the other party or by joint efforts. (Para 33 )
JUDGMENT
Lim Chong Fong JCA:
Introduction
[1] This appeal concerns the dissolution of marriage and the consequential issues of maintenance and the division of matrimonial assets.
[2] The appellant, who was the petitioner in the High Court proceedings, is the wife.
[3] The first respondent, who was the respondent in the High Court proceedings, is the husband.
[4] The second respondent, who was the co-respondent in the High Court proceedings, is the third party.
[5] We heard the appeal on 10 July 2025. Upon hearing the parties, we allowed the appeal in part and also allowed the cross-appeal, with each party bearing his or her own costs.
[6] We now set out the grounds of our decision, in particular on a salient point of law in respect of which we respectfully differed from the learned High Court Judge.
Background
[7] The appellant and respondent were married and had their marriage registered on 12 July 1997. At the time, the appellant was already a mother of a two-year-old daughter from a previous marriage. They later have five children of their own, all of whom have now attained the age of majority.
[8] Shortly after their marriage, the appellant and the respondent on 9 August 1997 entered into a post-nuptial agreement ("agreement") which addressed provisions for spousal and child maintenance as well as adultery wherein, amongst others, it is provided that the respondent is permitted to maintain at least a mistress during the course of the marriage.
[9] The marriage between the appellant and the respondent eventually broke down irretrievably and the appellant on 15 January 2021 initiated divorce proceedings in the High Court including against the second respondent for adultery.
In The High Court
[10] After trial, the learned High Court Judge ordered the marriage to be forthwith dissolved and made consequential orders therefrom.
[11] However, both the appellant and the respondents were dissatisfied with the decision and hence brought their respective appeal and cross appeal to the Court of Appeal.
Findings Of This Court
[12] Although this appeal emanates from a matrimonial dispute trial, our function here is nonetheless that of review only, just like in a civil dispute trial. Thus, we will not ordinarily intervene unless the learned High Court Judge is plainly wrong; see Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Administrator Of The Estates Of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1 and Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] CLJU 1416; [2012] 1 LNS 1416.
[13] Before us, the parties basically re-hashed their respective arguments advanced in the High Court.
[14] Upon our review, we find that the learned High Court Judge's decision is not plainly wrong as reasoned in Her Ladyship's comprehensive grounds of judgment ("GOJ") reported as HLC v. PTL & Anor [2024] 5 CLJ 117; [2024] 4 MLRH 289 save for three matters.
[15] We will delve on the three matters here only.
[16] The first matter pertains to whether the agreement is valid and binding as the matter of law.
[17] In this regard, the learned High Court Judge held as follows in the GOJ:
[14] It was essential to acknowledge that marital agreements hold statutory recognition under the Law Reform (Marriage and Divorce) Act 1976 ("Law Reform (Marriage and Divorce) Act"), specifically in s. 56, which states:
Section 56 - Rules to provide for agreements to be referred to Court
Provisions maybe made by rules of court for enabling the parties to a marriage, or either of them, on application made either before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such direc
