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DOMICILE AND DIVORCE

Goh Siu Lin


Shook Lin & Bok,
Kuala Lumpur Domicile and divorce
siulin@shooklin.com.my

M
alaysia has a dual legal system, based has to express his/her intention and take
on both English common law and active steps to acquire a domicile of choice.
Islamic Sharia law. This article will
focus on family law governing non-Muslims
Domicile of dependence/matrimonial
as regulated by the Law Reform (Marriage &
domicile
Divorce) Act 1976 (the ‘Act’).
The general power of the Malaysian High Applying English common law, in West
Court to entertain divorce petitions is stated Malaysia, a married woman acquires her
in section 48 of the Act, which reads: husband’s domicile during the subsistence of
‘Nothing in this Act shall authorise the the marriage. This common law position has
court to make any decree of divorce except: been given statutory recognition in section
a) Where the marriage has been 48(1)(c) of the Act, before the Court can
registered or deemed to be registered entertain proceedings for a decree of divorce.
under this Act; This position that upon marriage, a wife
b) Where the marriage between the acquires a domicile of dependence was
parties was contracted under a law affirmed in the case of Charnley v Charnley and
providing that, or in contemplation of Betty (1960) MLJ 29, where it was held ‘The
which, marriage is monogamous; and domicile of a married woman is that of her
c) Where the domicile of the parties to husband while the marriage subsists, even
the marriage at the time when the though the parties may be living apart.’
petition is presented is in Malaysia.’ In contrast with Malaysia, other
Hence, the power of our courts is limited Commonwealth jurisdictions have legislated
by section 48 of the Act to grant a Decree of for laws more reflective of gender equality,
Divorce in cases where the domicile of the repealing the applicability of this common
parties to the marriage at the time when the law rule. For example, England, by section 4
petition is presented is in Malaysia. of the Domicile and Matrimonial Proceedings
Act of 1973, and Singapore, by section 45A of
the Women’s Charter (1980), have given wives
Domicile
an independent domicile.
Section 3(2) of the Act provides that, for
the purposes of the Act, a citizen in Malaysia
Some local cases
deemed to be domiciled in Malaysia unless
the contrary is proved. This presumption As to the material time of proof of domicile
is rebuttable upon proof to the contrary. in the context of divorce proceedings, this
Unfortunately, neither the Act nor the was held by the Supreme Court in Tan Hock
Interpretation Act 1976 provides any v Khor Chai Heah (1990) 1 MLJ 422, to be at
definition of the word ‘domicile’. the time of the presentation of the petition.
Therefore, section 3 of the Civil Law Act The relevant passage from the pronouncing
1956 operates to apply English common law, judgment:
prevailing as at 7 April 1956. Section 3 states: ‘... The Petitioner would still have to
‘(1) Save so far as other provision has prove and satisfy the court that both he
been made or may hereafter be made by and the respondent were domiciled in
any written law in force in Malaysia, the Malaysia at the time when the petition was
Court shall: presented before the court could exercise
a) In West Malaysia or any part thereof, its powers under s 48 of the Act to grant
apply the common law of England and any relief to the parties.’
the rules of equity as administered or On the issue of the burden of proof to be
in force in England on the 1st day of discharged, in Joseph Wong Phui Lun v Yeah
April 1956…’ Loon Gait (1978) 1 MLJ 236, the court held
There are three categories of domicile, that the burden is one beyond a mere balance
namely of origin, of choice and matrimonial. of probabilities:
For one to change his/her domicile from the ‘... clear evidence is required to establish
one of origin to that of choice, that individual a change of domicile. In particular, to

FAMILY LAW NEWSLETTER  JULY 2014 29 


DOMICILE AND DIVORCE

displace a domicile of origin in favour In Gurcharan Singh a/l Karnal Singh v Mninder
of the domicile of choice, the standard Kaur a/p Piara Singh (2010) 6 MLJ 405, the
of proof goes beyond a mere balance of High Court was presented with a petition
probabilities.’ for registration of a foreign divorce order,
The distinction in the concepts of domicile which the Malaysian husband had obtained in
and nationality was re-emphasised in Ang Arizona after a short residence of three weeks.
Geck Choo v Wong Tiew Yong (1997) 3 MLJ 467; The court refused the husband’s application
(1997) 3 CLJ 201: for a declaration to recognise the foreign
‘It is accepted law that the concept of divorce decree, holding:
nationality and the issue of domicile ‘As the marriage was solemnised in
are two totally different concepts which Malaysia, the foreign decree obtained by
deserve different and separate treatments. the petitioner in this case required a court
A person may change his place of order declaring it to be valid. Malaysia
domicile but yet not be divested of his does not have any specific provision in the
nationality. It would be fallacious to think LRA 1976 or any other legislation for the
that the terms “domicile” and “residence” recognition of a foreign divorce, so the
as being synonymous…’ Malaysian court would need to refer to the
The court in Melvin Lee Campbell v Amy Anak UK common law position pursuant to s 3
Edward Sumek (1988) 2 MLJ 338 had occasion of the Civil Law Act 1956 and also s 47 of
to consider whether parties were of Malaysian the LRA 1976. According to English case
domicile on a divorce petition presented by law, the true test of jurisdiction to dissolve
an American husband and a Sarawak native a marriage was the domicile of the married
(Malaysian). The husband asserted that he pair. Thus a divorce granted by a court of
had abandoned his domicile of origin and another country would not be recognised
acquired a Malaysian domicile of choice, as valid in England unless the parties were
having lived in Malaysia for more than ten domiciled in that country.
years prior to the presentation of the joint Similarly, by applying the relevant common
petition. Apart from his residence, the court law principle, a Malaysian court should
considered the fact that the husband had only recognise a foreign decree of divorce
neither bought any property nor made any to dissolve a Malaysian marriage if it was
actual investments in Malaysia, and that his granted by the court of the parties’ domicile.’
previous business enquiries were exploratory
in nature. The court viewed the evidence with
Exceptions to the domicile requirement
care and caution and was not satisfied that his
domicile of origin had been abandoned: Section 49 of the Act provides exceptions to
‘... the provision of Section 48(1) in my the general rule that only parties domiciled in
view requires that the court must be Malaysia may file a petition for divorce (joint
satisfied that at the time is presented, or contested).
the domicile of both the petitioners was This section mitigates the harshness of
in Malaysia… Taking into consideration section 48 of the Act caused to a wife (not a
all factors both in favour and against the husband). Strict application of section 48 may
husband petitioner in the light of all the result in injustice caused to the wife who has
relevant circumstances, and giving due been deserted or whose husband has been
consideration to his assertion that he deported from Malaysia, and whose husband
intended to make Malaysia his permanent was, before the desertion or deportation,
home, and also bearing in mind that the domiciled in Malaysia.
burden of proving the abandonment of The wife would be able to commence
his domicile of origin and the acquisition proceedings although the husband is no
of a domicile of choice in Malaysia falls longer domiciled or resident in Malaysia at the
squarely on the husband petitioner, I time when the petition is presented. This is
have, with regret, come to the conclusion subject to the pre-condition that the wife must
that the husband petitioner has not have been resident in Malaysia for two years
succeeded in showing to my satisfaction immediately preceding the commencement
that at the time of the presentation of the of the proceedings and that her husband must
joint petition his domicile was in Malaysia. have been domiciled in Malaysia before the act
Accordingly, I rule that in relation to the of desertion or deportation.
instant joint petition, the court has no This protects a wife who, by virtue of
jurisdiction to entertain it.’ her marriage, had acquired a domicile of

30  INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION


DOMICILE AND DIVORCE

dependence in Malaysia or had her domicile race, descent, gender or place of birth in
of origin in Malaysia by her husband any law…’
transformed into a domicile of dependence
b) that Malaysia has allegedly breached its
because of her marriage.
international obligations under Article
This section also applies equally to such a
16 of the Convention on the Elimination
wife who has not undergone any change in
of All Forms of Discrimination Against
her Malaysian domicile because the parties to
Women (CEDAW) on the issue of the
the marriage were domiciled in Malaysia at
acquisition of domicile of choice by a wife.
the time of marriage but now faces a possible
change in her domicile of dependence as her By way of background, in 1995, Malaysia
husband has acquired a domicile of choice in had acceded to CEDAW with a number of
another country. reservations by the Malaysian government
specifically in areas that conflicted with
domestic laws (ie, Federal Constitution/
Domicile, CEDAW and the Federal
Sharia laws). The government’s reservation
Constitution
in the context of this case, included Article
The issue of domicile in the context of 16(1)(c) and the relevant passage is
section 48 is presently being revisited by the reproduced below:
Malaysian Court of Appeal in Pauline Chai
‘On 19 July 2010, the Government of
Siew Phin v Tan Sri Khoo Kay Peng.
Malaysia, notified the following:
“... , the Government of Malaysia, [...]
English proceedings
withdraws its reservations in respect of
The wife had filed a divorce petition in articles 5 (a), 7 (b) and 16 (2) of the
London in February 2013, alleging that she Convention; ... .”
had acquired English domicile. The husband The previous reservation reads as follows:
applied to strike out the petition and the issue
of the English court’s jurisdiction to hear ‘The Government of Malaysia declares
the petition has been fixed for hearing in that Malaysia’s accession is subject to
October 2014. the understanding that the provisions of
the Convention do not conflict with the
provisions of the Islamic Sharia’ law and
Malaysian proceedings the Federal Constitution of Malaysia. With
On 11 December 2013, the husband regards thereto, further, the Government
obtained an order from the Malaysian High of Malaysia does not consider itself bound
Court where the judge had allowed the by the provisions of articles [5(a), 7(b),
husband to dispense with the requirement 9(2), 16(1)(a), (c), (f), (g), (h), and
of referring the matrimonial difficulty to the 16(2)] of the aforesaid Convention.’
Reconciliatory Tribunal, with leave issue a Article 16(1)(c) of CEDAW:
divorce petition. The wife applied to stay said
exemption but this was dismissed. The High “1. States Parties shall take all appropriate
Court judge had held that the husband could measures to eliminate discrimination
file his divorce petition in Malaysia as the against women in all matters relating
wife’s domicile was dependent on his. to marriage and family relations and
Legal arguments advanced by the wife’s in particular shall ensure, on a basis of
counsel on appeal have, inter alia, approached equality of men and women: ….;
the issue from two angles. These are: (c) The same rights and responsibilities
a) that section 48 of the Act and the during marriage and at its dissolution;”1
application of the English common law
position on domicile, is discriminatory The husband’s counsel submitted that, due
of women and unconstitutional, to the Malaysian government’s reservation to
by contravening Article 8(2) of the Article 16(1)(c) of CEDAW:
Malaysian Federal Constitution: a) CEDAW does not apply to the Act which
governs marriage and divorce laws of
Article 8(2): ‘Except as expressly non-Muslims. The current law presumes
authorised by this Constitution, there that a wife’s domicile is dependent on
shall be no discrimination against her husband’s, ie, Malaysia;
citizens on the ground only of religion, b) The application of the landmark High

FAMILY LAW NEWSLETTER  JULY 2014 31 


INTERNATIONAL SURROGACY AND SAME-SEX PARTNERS: THE ISRAELI APPROACH

Court case of Noorfadilla bt Ahmad Saikin In the meantime, family practitioners


v Chayed bin Basirun & Ors [2012] 1 MLJ eagerly await the Court of Appeal’s
832, which recognised that ‘… CEDAW judgment in Pauline Chai Siew Phin v Tan Sri
had the force of law and was binding Khoo Kay Peng on this issue which were fixed
on member states, including Malaysia’ for 24 April 2014.
was distinguished and restricted to areas
where the Malaysian government has not Note
expressed any reservations. 1 See https://treaties.un.org/Pages/ViewDetails.
c) In any event, any discriminatory effect of aspx?src=TREATY&mtdsg_no=IV-
sections 48–49 of the Act on the domicile 8&chapter=4&lang=en#71.

of a wife/spouse would be the role of


legislature to address and not be on a piece-
meal basis by way of judicial intervention.

Philip Marcus

International surrogacy Jerusalem


philipmarcusjurist@

and same-sex partners:


gmail.com

the Israeli approach


Introduction After the pregnancy had been confirmed, they
also made and signed a parenting agreement,
In my article in the September 2013 edition
which included provisions that the child or
of Family Law Newsletter, ‘The Israeli family
children to be born would have both of the
court: judicial powers and therapeutic
plaintiffs as parents for all purposes, irrespective
interventions’, I briefly described the
of the identity of the genetic father, and detailed
jurisdiction, principles and practices of the
arrangements about custody, visitation and
Israeli family courts.
child support in the event that the relationship
In this article I show how these principles
between them should come to an end. One
and practices are applied by reporting on a
daughter was born and, in accordance with the
case decided in March 2014 by the Family
law of California, both the donor of the ova and
Court in Tel-Aviv.1 The court was able to deal
the surrogate waived any legal relationship with
with a novel situation involving a same-sex
the child, and the plaintiffs were recognised and
couple and international surrogacy, even in
registered jointly as the parents of the child.
the absence of specific legislation.2

The case before the court


The facts
After returning to Israel, the plaintiffs
The plaintiffs, A and G, are two males who have
requested registration and recognition as
lived together since 2006, and married (outside
parents under Israeli law.
Israel; Israel has not yet passed legislation for
After DNA testing proved that G was the
same-sex marriages) in 2009. In 2010, they
genetic father of the child, and he was duly
wished to expand their family, and entered
registered as father, the plaintiffs jointly
into an agreement whereby they would obtain
applied to the Family Court under section
ova from an anonymous donor, fertilise the
1(4) of the Family Courts Law for a paternity
ova with sperm from each of them, and have
declaration, namely that A was also the father
the fertilised ova implanted in a surrogate’s
of the child.3
womb, in the hope that two children would
The Attorney-General, representing the
be born. They made a surrogacy agreement in
state, was the defendant to the action. The
California, US, with a woman whom they chose.
response given was in essence that the State

32  INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION

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