MAHON V MAHON [1971]

2 MLJ 266

AMIERA SYAKINAH BT ZULKIFLI 2008401836

FATINA AMYRA BT ABDUL JALIL 2008401834
NOR DIANA BT NOR AZWA 2008401838
NUR SURIATI BT MOHAMAD 2008401806
SYARIAH BT HASSIM 2008409012
WAN HAFSAH BT WAN MUHAMAD SARIDAN 2008409018
 Facts of the case:
The petitioner applied for dissolution of her
marriage with the respondent. The parties were
domiciled in Ireland but the petitioner claimed that
she was ordinarily resident in Malaysia for the last
three years immediately preceding the
commencement of the proceedings. On the facts
although the petitioner had resided in Penang she
was absent in Ireland for about 15 months out of
the preceding 36 months. The petitioner owned a
furnished dwelling in Dublin and had a half share in
another house in Dublin. The children of the
marriage were living in Ireland and the petitioner
said that she intended to return and settle down in
Ireland with her children after the conclusion of the
proceeding.
 The law in issue:

S. 49 (1)(b) Divorce Ordinance 1952

S.49(1) Without prejudice to any jurisdiction exercisable by

the court apart from this section, and notwithstanding the
provisions of paragraph (b) of sub-section (1) of section 4,
the court shall by virtue of this section have jurisdiction to
entertain proceedings by a wife in any of the following cases,
notwithstanding that the husband is not domiciled in the
Federation, that is to say:--
 (b) in the case of proceedings for divorce or nullity of
marriage and any proceedings consequent thereupon, if the
wife is resident in the Federation and has been ordinarily
resident there for a period of three years immediately
preceding the commencement of the proceedings.
Principle:
1. High Court
 The main issue in the proceeding was whether the

court has jurisdiction to entertain the petitioner

application for divorce.
 The basis for invoking the jurisdiction of the court

came from section 49(1)(b) where the petitioner had

been ordinarily resident in this country for the 3
years immediately preceding the commencement of
this proceedings.
 The court held that the petitioner was ‘ordinarily

resident ‘ in the Federation because they have no

house of their own in this country and they have clear
intention to return to their country of origin. So, the
petition must be dismissed for lack of jurisdiction.
2. Federal Court

 The issue is whether the wife was "ordinarily resident" in

Malaysia even if she was away in Ireland during 15 months
of the 3 years immediately preceding the filing of the
petition.

 The court used the case of Levene v Commissioners of

Inland Revenue [1928] to define the word ‘reside’ as 'to
dwell permanently or for considerable time, to have one's
settled or usual abode, to live in or at a particular place’.
 Fox v Stirk [1970] – 3 principles highlighted in this case
a) that a man can have two residences. He can have a flat in London
and a house in the country. He is resident in both.
b) temporary presence at an address does not make a man a resident
there. A guest who comes for the weekend is not resident. A short-
stay visitor is not resident.
c) that temporary absence does not deprive a person of his residence.
If he happens to be away for a holiday or away for the weekend or in
hospital, he does not lose his residence on that ccount.

 The court highlighted that section 49(1)(b) is meant intended to

prevent transient visitors, who are not bona fide resident, with some
degree of permanence, in the Federation from availing themselves of
the court's assistance.

 The court held that the court allowed the appeal because there can be
no doubt that the petitioner had been "ordinarily resident" in the
Federation since 1955 as she has a considerable (sufficient) degree of
permanence where the greater must include the lesser.