Dissolution of Marriage

Section 8 of the LRA 1976 clearly states that every marriage solemnized in Malaysia after the

appointed date (1 March 1982) shall continue until it is dissolved by the death of one of the

parties; by order of a court of competent jurisdiction; or by a decree made by a court of

competent jurisdiction that the marriage is null and void.

However, S. 4(1) of the LRA 1976 states that the LRA 1976 does not affect the validity of

marriages that have been solemnized under any law, religion or custom prior to 1 March 1982.

All marriages that have been validly solemnized under the law, religion and custom shall be

deemed to be registered under this Act by virtue of S. 4(2) of the LRA 1976. According to S.

4(3) of the LRA 1976, such marriages under the law, religion and custom shall continue until

dissolved by the death of one of the parties; by order of a court of competent jurisdiction; or

by a decree of nullity made by a court of competent jurisdiction.

Section 47 of the LRA 1976 provides that the court shall in all suits and proceedings hereunder

act and give relief on principles which in the opinion of the court are, as nearly as may be,

conformable to the principles on which the High Court of Justice in England acts and gives

relief in matrimonial proceedings. Hence, S. 47 of the LRA 1976 allows the application of

English principles in matters pertaining to matrimonial proceedings in Malaysia.

The court that hears the petition for divorce in Malaysia is the High Court. Section 48(1) of

the LRA 1976 authorizes the court to make any decree of divorce in the circumstances where

the marriage has been registered or deemed to be registered under the LRA 1976; or where the

marriage between the parties was contracted under a law providing that, or in contemplation of

which, marriage is monogamous; and where the domicile of the parties to the marriage at the

time when the petition is presented is in Malaysia.

In Sim Kim Ong v Goh Phaik Sooi [1976] 1 MLJ 232, the High Court owns a power to deal

with the divorce petitions of any marriage which is formed outside Malaysia, as long as the

petitioner’s domicile is in Malaysia or being an Asian, his habitual residence is in Malaysia for

at least two years. Hence, despite the marriage is not entered in Malaysia, the court is entitled

to order for dissolution of marriage by mutual consent of the joint petitioners.

Section 49(a) of the LRA 1976 provides that the court shall have jurisdiction to entertain

proceedings by a wife, although the husband is not domiciled in Malaysia if the wife has been

deserted by the husband, or the husband has been deported from Malaysia under any law for

the time being in force relating to the deportation of persons, and the husband was before the

desertion or deportation domiciled in Malaysia. On the other hand, Section 49(b) of the LRA

1976 provides that the court shall have jurisdiction to entertain proceedings by a wife, although

the husband is not domiciled in Malaysia if the wife is resident in Malaysia and has been

ordinarily resident in Malaysia for a period of two years immediately preceding the

commencement of the proceedings.

Section 50 of the LRA 1976 provides that a petition for dissolution of marriage cannot be

presented within the first two years of the marriage except on the ground of conversion to Islam

or unless there is exceptional circumstances or hardship suffered by the petitioner.

In Bowman v Bowman [1949] 2 All ER 127, a wife sought the leave of the court on the ground

of exceptional hardship suffered by her or exceptional depravity on the part of the husband as

the husband committed adultery, although three years had not passed since the date of the

marriage. The court held that if there is nothing more than adultery with one person within the

first three years of marriage, that may be considered ordinary depravity. The court commented

that if, however the husband committed adultery and his actions are coupled with other

matrimonial offences, for example, the husband not only commits adultery, but also deserts his
wife in favour of another woman, or if he is cruel to her, thus causing her not only distress by

his adultery but also injustice by his violence, it would then cause exceptional hardship suffered

by the wife. The judge further commented that if cruelty is coupled with aggravating

circumstances, as for instance, drunkenness and neglect, or if it is exceptionally brutal or

dangerous to health, then even if it does not evidence exceptional depravity on the part of the

respondent, it does, at least, cause exceptional hardship to the applicant. If it is coupled with

perverted lust, it shows exceptional depravity on the part of the proposed respondent. In this

case, the wife had not only alleged adultery on her husband’s part, but also his cruelty and

perverted lust. She had consulted a psychiatrist about her husband. There was also no chance

of reconciliation. The court in this case granted leave to the wife.

In another English case of V v V (1966) 3 All ER 493, within two to three weeks of the

marriage, the husband seriously assaulted the wife by striking her on the head with a bottle

with sufficient force to break it. She left the house subsequently, but upon reconciliation, she

returned to the matrimonial home. Within the next month upon returning home, she discovered

that the husband had committed adultery on a couch in the matrimonial home. Thereafter, she

slept in another room, but two or three weeks later, while she was pregnant, the husband hit

her and punched her with sufficient force to cause bruising. She left the house. She applied for

leave to present a petition for divorce within the three-year period on the grounds of her

husband’s exceptional depravity. However, the court dismissed her application for leave. She

appealed to the Court of Appeal and the Court granted her the leave to petition for divorce

within the three-year period on the grounds that the charges against the husband for cruelty and

of adultery were of an exceptionally grave nature and there was also no possibility of

reconciliation between both parties. In this case, the Judge explained that this was not a case in

which only one matrimonial offence was committed. This husband stands charged not only for

cruelty, but also for adultery. Moreover, the charges made were of an unusually serious nature.
The cruelty alleged, particularly the assault with the bottle, was of a peculiarly serious character;

and; as pointed out, could have involved the husband in criminal proceedings. Moreover, the

adultery complained of was committed in peculiarly revolting circumstances. In both aspects

the offences charged are of an exceptionally grave nature.

Impotency and homosexuality were held to be hardship suffered by a wife in the case of C v C

[1979] 1 All ER 556. In this case, the wife had petitioned for a divorce on the ground of

exceptional hardship and depravity to her by her husband. Just few weeks after the marriage,

the husband had become impotent and sexual intercourse ended between the couple. The wife

later found out that the husband was a homosexual. The trial court at first refused to allow the

petition for divorce. However, the wife appealed and the courts allowing her appeal held that

it was hardship suffered by the wife to wait for three years to end the marriage.

In Hillier v Hillier and Latham [1958] 2 All ER 261, the parties were married in March 1956.

The wife left the husband in November of that year, she vacillated in her intent to return, and

thereby caused the husband distress leading to a breakdown in health. In 1957, the wife met L

with whom she committed adultery and became pregnant. The birth of the child of the wife and

L was expected to take place at the beginning of May 1958. There was no probability of a

reconciliation of the spouses, because the wife was living with L and wanted to marry him. An

application by the husband for leave to present a petition of divorce within three years of the

marriage on the ground of exceptional hardship having been refused, fresh evidence was

admitted in the Court of Appeal, showing that the husband suffered to an unusual extent from

nervous anxiety about this domestic situation which, if continued, would lead to serious injury

to health. The court held that the approach to a determination of such an application should be

subjective and, as the fresh evidence showed that the particular individual who was the husband

in this case would suffer in health if he had to wait the full period of three year before able to
present a petition for divorce, a case of exceptional hardship was made out and leave to present

the petition should be granted.

In a Malaysian case of Kiranjit Kaur Kalwant Singh v Chandok Narinderpal Singh [2010]

3 CLJ 724, the plaintiff (wife) applied under Section 50(2) of the LRA seeking permission to

present a petition for divorce to the court before the expiration of the period of two years from

the date of the marriage to the defendant (husband). The plaintiff also applied to be exempted

from referring her matrimonial woes to a conciliatory body pursuant to Section 106 of the LRA.

The two main issues to be considered was whether there were exceptional circumstances or

hardship allowing the plaintiff to present the petition to the court before the expiration of the

two-year period and whether there were exceptional circumstances which made reference to a

conciliatory body impracticable, thus exempting the plaintiff from referring her matrimonial

issues to the said body. The court held in this case that the defendant’s conduct had caused

deep humiliation and untold embarrassment to the plaintiff since the blog posted by the

defendant on the internet operated in a borderless realm and would continue to exist until the

creator of the blog removed it. The defendant’s slanderous statement equating the plaintiff to a

prostitute and a swindler had damaged the plaintiff’s reputation as a woman and a human being,

and would continue to haunt and harass the plaintiff even after the blog is removed from the

internet. The experience extended over a period of time from the past into the future. Under

such circumstances, interpreting the said provisions in accordance with the modern

development of information and technology should be considered. Therefore, in the above case,

the court explained that the interpretation of “exceptional circumstances” should not be

restricted or limited to just physical or mental abuse or cruelty, but must also include any

circumstances or hardship caused by any slanderous statements made on the internet. Moreover,

reconciliation between both parties were not probable. The cases above illustrate that, the

cruelty, hardship, suffering and abuse between husband and wife are eminent factors that
determine exceptional circumstances to dissolve the marriage before the expiration of a two-

year period. This case has gone on further to include the modern development of information

and technology and accepted it as exceptional circumstances that can lead a dissolution of a

marriage within a two-year period.

In Tan Ai Hoon v Lim Wei Kiang [2016] 8 MLJ 528, the plaintiff/wife applied to present a

divorce petition before the expiration of two years from the date of her marriage to the

defendant/husband and to be exempted from having the matrimonial dispute referred to a

conciliatory body. The exceptional circumstances she relied upon to support the application

were that the defendant had forced her to be subject to unnatural sex and that the defendant

rarely provided maintenance to her. The defendant denied these allegations and averred that

the real reason for the plaintiff’s application was that she had a lover whom she intended to

marry. In respect of the allegation regarding the non-provision of maintenance, the defendant

submitted that the plaintiff was gainfully employed and that she had access to the defendant’s

bank account in which his salary was deposited into every month. The court dismissed the

application with costs, the allegations of unnatural sex were mere averments by the plaintiff

and were not substantiated by any medical or police report. Both the averments regarding

unnatural sex and maintenance had been credibly denied by the defendant. Under the

circumstances, the plaintiff had failed to prove that there were ‘exceptional circumstances or

hardship’ suffered by her. The legislative intent in imposing the two-year bar was to protect

the sanctity of marriage as an important institution in society. It was also to give the opportunity

to married persons to attempt a reconciliation, no matter how slim the chances.