ISSUES RELATED TO DIVORCE PROCEDURE OF DIVORCE Requirements - 2 yrs of marriage s. 50(1)– except for grounds - s. 50(2) & s Malaysian domicile – s.48(1) & s. 49(1) - Ct will consider all circumstances – s. 54(2) - Effort of reconciliation ss. 55,57(2) & 106

Procedure Lawyer will draw up the divorce petition under s. 57 If court satisfied – will grant decree nisi under s months After 3 months, decree absolute will be made – marriage legally terminated

RECONCILIATION SS. 55, 57(2) &106 BOWMAN V BOWMAN L. Denning MR : “The really important consideration in all these cases is to see whether there is any chance of reconciliation…..” Case: C V A [1998] 4 CLJ 38 The parties had lived apart for more than 20 yrs. Attempts at reconciliation were made by the P’s relatives but without success. P applied for divorce. R alleged that there was non-compliance of s.106 as the matrimonial problem was not first referred to a conciliatory body. Held: - If a petition for divorce is filed, it is necessary for the P to comply with the 106. P must give evidence to satisfy the court that there are exceptional circumstances. - The fact that the marriage had broken down through 20 yrs of separation & neither party had shown any desire towards the continuance of the marriage are exceptional circumstances falling within s.106

Agreement made between the parties before/after divorce petition must be referred to court- s. 56 BEALES V BEALES W petition for divorce H agreed not to contest if the W agreed to pay the cost Forwarded the agreement to the Court Held: Court accepted the agreement as it is reasonable DEAN V DEAN Held: It is the duty of the court to determine whether the agreement had been entered voluntarily/not

DECREE NISI & ABSOLUTE – S.61 - Decree nisi is only a provisional order & does not dissolved the marriage. - After decree nisi, neither party can do anything in the suit until the court ordered decree absolute Cases: SUCI MATHEWS V THOMAS MATHEW [1985] 2 MLJ 228 Vohrah J quoted Bowen CJ in Stanhope v Stanhope : “….If a decree nisi is made, & the H dies before it is made absolute, he dies while he is still at law a H, & his W becomes his widow…..”

LLOYD DAVIES V LLOYD DAVIES The court must consider the decree nisi before making it absolute. If there is an appeal, the court cannot made it absolute. The appeal must first be heard.

PESUMPTION OF DEATH – S. 63 -P believed his/her spouse to be dead based on reasonable grounds -Continuously absent for 7 years & upwards -If satisfied, the court may make a decree nisi of presumption of death & of divorce Cases: THOMPSON V THOMPSON Whether a reasonable man in such a situation will conclude that the other spouse had died / not BULLOCK V BULLOCK L. Merriman : “the presumption of man who is completely unheard of for 7 years may be presumed dead does depend to some extent to the question whether all due enquiries had been made?...”

JUDICIAL SEPARATION – S. 64, 65 & 66 - Parties to the marriage may legally separate without terminating the marriage -Not allowed to marry any other person unless & until obtain decree absolute -H’s duty to give maintenance does not ceased -Jurisdiction – s. 48(2) Cases: - JAYAKUMARI V SURIYA NARAYANAN [1996] 4 MLJ 421 -SOO LINA V NGU CHU CHIONG [1992] 2 MLJ 870