I must preface this by saying that I am not a family law practitioner. Mudokon tears are about all that I can bear.
I was however, recently asked for a view by a dear friend. The procedural-law aspect piqued my interest.
The quandary was, would reference to a conciliatory body before presentation of a petition be a mandatory requirement? If so, what was the procedure?
Section 106 of the Law Reform (Marriage and Divorce Act) 1976
Section 106 LRA 1976 outlines that a petition cannot be presented unless reference of the matrimonial difficulties to a conciliatory body has been made.
There are 6 exceptions. They are outlined in Section 106. They range from desertion to incurable mental illness [which many wives (mine excepted, that absolutely goes without saying!) may claim of their husbands].
If an exception arose, how would one go about presenting the petition for divorce?
Originating Summons (OS) before the Petition
A little digging produced a dearth of cases. There were 4 that discussed this issue.
The starting point was C v A [1998] 6 MLJ 222. Here, the High Court set-out the background to Section 106. The Court held that given the “exceptional circumstances” of that particular case, reference to the conciliatory body could be done-away with. These circumstances included the fact that they had lived separately for 20 years, and had no children together.
I then came across Chin Pei Lee v Yap Kin Choong [2009] MLJU 1068. Here, an OS was filed where the wife claimed that her husband was mentally unsound (ahem). The Court dismissed the OS and stated that the parties had not satisfied the exceptions to Section 106.
There was also P v S [2015] 9 MLJ 400. Here, Noorin JC (as Her Ladyship then was) stated that:
[16] This court is mindful that the purpose of s 160 of the Act is to promote reconciliation so as to control impetuous and hasty resort by spouses to end their marriage.
The Court concluded that the refusal of one party to attend reconciliation would not prevent the operations of Section 106:
[25] After taking into account the objective of s 106 and the cases above that illustrate the ‘exceptional circumstances’. including analysing the affidavits of both parties, this court is of the considered view that the petitioner has failed to establish the special circumstances arising from his marital difficulties that warrant this court to grant the divorce. This court is of the view that even though the petitioner claimed that any effort to refer their marital difficulties to a conciliatory body would be a futile effort and a waste of time, this court is of the opposite view. Reference to a conciliatory body would not be impracticable as the respondent still wants an opportunity to be given to her to reconcile. True that the petitioner is no longer interested with the marriage but, that stand taken by the petitioner should not be a reason to deprive the respondent from the opportunity to be heard as to how she wants to reconcile before the conciliatory body.
A final consideration would be Robert Stevenson Kay v Stephanie Tan Min Chiu [2020] MLJU 1123 Here, the Petitioner filed without reference to a conciliatory body. The Respondent applied to strike-out the petition for non-compliance with Section 106. Her Ladyship Faizah Jamaludin dismissed the application to strike. The learned Judge noted that:
The dispute between the parties was longstanding;
There were numerous suits as against each other;
The dispute had even bled into the solicitors;
There was a long history of acrimony; and
There were exceptional circumstances militating against reference. To refer would be an act of futility.
Conclusion
From the cases above, it is clear that if parties intend to do-away with the mandatory reference to a conciliatory body, they must have exceptional grounds to do so.
The safest route would be to file an OS and seek the leave of the Court. If that is dismissed, then parties would have to be referred to the conciliatory body.
To file a petition and to hope that the reference is excused would be dicing with danger.
There is a very real possibility that a presiding Judge, looking at the purport of the Act, would strike-out the petition. This would be a waste of costs, time and effort.
P.S. As an aside, the divorce rates in Malaysia are phenomenal. A respectful suggestion would be for parties to think long and hard before marriage. Both must go into it with the view that come hell or high water, the marriage is sacrosanct (but for infidelity). At the end of the day, you will still have to deal with each other. It'd be best to sort it out and to leave one's ego at the door.
Love is a decision, not a feeling.
Also, do remember the evergreen words of Judge Judy Sheindlin:
Beauty fades. Dumb is forever.
GAVIN JAYAPAL
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