DIVORCE BY MUTUAL CONSENT – Section 52  Intro:  Originated from Sarawak – by virtue of section 6 and 7 of the Matrimonial Causes Ord. Of Sarawak.  Then the Royal Commission on Non-Muslim marriage and divorce recommended that it should be adopted and extended throughout Malaysia which Parliament did so in section 52 of the LRA.  Rationale:  i) To allow the spouse to end their marriage voluntarily without blaming each other  Ii) More or less it can solve the problems pertaining to divorce as the parties are not required to refer to the conciliatory body. 1

 SIM KIM ONG V GOH PHAIK SOOI  Lee Hun Hoe CJ:-  “Divorce by mutual consent is recognised in Sarawak as part of the Chinese Customary law…The Chinese custom of dissolution of marry by mutual consent has been extended to Civil marriage in Sarawak by Matrimonial Causes Ordinance”. 2

 Divorce under section 52 must satisfied certain requirements:-  i) Both mutually agreed to divorce  ii) After the expiration of two years  iii) Present a joint petition  iv) Proper provisions has been made for the wife and for the support care and custody of the children 3

 Other related section:-  i) Section 106  ii) Using form 3  iii) Petition must be supported with affidavit to support their petition which includes inter alia  -i) Whether they have consented to it voluntarily ii) Domicile ii) Domicile iii) Children rights and maintenance iii) Children rights and maintenance 4

 Whether mutual consent is an independent ground for divorce  RE DIVORCE PETITION NOS 18, 20 & 24 OF 1983 (1983) 2 MLJ 158  Held: IBM is still the sole ground for divorce under LRA. Mutual consent by the spouse to a decree of dissolution does not by itself entitled them to a divorce.  Shankar J in his judgement said that a mere mutual consent by the spouse to a decree of dissolution does not by itself entitle them to a decree. The court still has to see whether or not the marriage has irretrievable broken down. 5

 Overruled by the case of  SINANESAN V SHYMALA (1986) 1 MLJ 400  Lee Hun Hoe CJ. “With respect we are unable to agree with a view of the learned judge that in a mutual divorce, a petitioner must state that their marriage has irretrievably broken down.” 6

 RE GOH HOE LING & ANOR  Issue:-  Whether both parties had freely consented to the dissolution of their marriage within the meaning of section 52 of the LRA, and whether the petitioner wife could resile from the deed of separation and withdraw the consent?  Held: a) In a joint petition for divorce, both the petitioner must be physically present in Court so as to satisfy the court that the petitioner freely consent to the dissolution of the marriage. a) In a joint petition for divorce, both the petitioner must be physically present in Court so as to satisfy the court that the petitioner freely consent to the dissolution of the marriage.  7

b) The materials time to consider whether both parties freely consent to file the joint petition and to the terms and conditions of the deed of separation would be on the date of the hearing of the petition. c) Persuant to r.14(2) of the Divorce & Matrimonial Proceedings Rules 1980, a respondent to a petition may give notice to the court either that he does not consent to a decree being granted or he withdraws any consent which he has already given d) Therefore, when the petitioner wife filed a notice of withdrawal of consent to a joint petition on 15 / 9 / 1994, she must in law be deemed to have withdrawn her earlier consent and would be entitled to proceed on a separate basis. 8

 JEYASAKTHY KUMARANAYAGAM V KANDIAH CHANDRAKUMARAN [1996] 5 MLJ 612  Held: 1) A joint petition contain 2 aspects, namely : 1) A joint petition contain 2 aspects, namely : 1. The mutual consent of the parties to dissolve the marriage1. The mutual consent of the parties to dissolve the marriage 2. The ancillary provisions relating to maintenance, custody & distribution of properties2. The ancillary provisions relating to maintenance, custody & distribution of properties 2) It is imperative for the petitioners in a joint petition for divorce to be present in court at the hearing of the joint petition, unless their presence had already been dispensed with by the court prior to the hearing date 3) If the consent of both/ either of the parties no longer exist, the petition lapses & as such if the other party wishes to proceed with the divorce, a unilateral petition has to filed afresh 9