The High Court has granted a woman’s request that they refuse recognition of a divorce granted in Malaysia.
The case concerned a couple who married in the Asian city state of Singapore in 2001 before later moving to London. A daughter was born in 2005 but they eventually separated in 2010. The wife filed for divorce in Clerkenwell and Shoreditch County Court citing the husband’s behaviour.
Sitting in the High Court in London, Mr Justice Mostyn explained:
“In accordance with the usual practice the [husband’s] behaviour was very lightly pleaded. The wife merely referred to frequent lengthy arguments.”
The petition was served on the husband and he later signed a statement of arrangements for the couple’s child and a subsequent amended one as well. Therefore, said Mr Justice Mostyn “it is thus apparent that he was fully aware of and engaged in the divorce proceedings.”
In April 2011, the family court told the wife that her petition had been “insufficiently pleaded” – ie that she had not provided sufficient reasons for wanting a divorce. However, she did not submit a revised petition until January of last year.
This new petition cited alleged desertion by the husband for a period of two years. However, she was unaware that he had already started divorce proceedings of his own in Malaysia.
In December he had applied to the High Court of Malaya at Shah Alam in the centre of the country for permission to be exempted from normally mandatory pre-divorce meditation and this was granted. His petition sought a divorce based on two years’ separation leading to an ‘irretrievable breakdown’ in the marriage. It reportedly also stated that there were no other legal proceedings ongoing outside Malaysia concerning the marriage.
Shortly afterwards the husband was also requested permission to skip serving notice of his petition on the wife. This was also granted.
Notice of the wife’s amended petition was sent to the husband in Malaysia, but, the judgement states, he “did not amend his divorce petition in Malaysia or otherwise inform the High Court of Malaya at Shah Alam of this development.”
In April last year, the husband’s petition for divorce was granted by a Malaysian court. Unusually the Judge stated that the normal waiting period between decree nisi and decree absolute could be “abridged to nothing” in Mr Justice Mostyn’s words. The divorce was therefore finalised the same day.
This meant, said the Judge, that the wife had been “deprived of the hiatus during which she could have applied to set aside the decree nisi and to defend the proceedings, or alternatively to seek that they be stayed in favour of this jurisdiction as the one where proceedings were already pending…”
The husband did not inform his by now ex-wife of these developments until August last year, when he emailed her a copy of the decree absolute. By that point, her own proceedings were approaching trial and she had applied for maintenance.
Mr Justice Mostyn noted that granting the wife’s subsequent application to refuse recognition of the Malaysian divorce would lead to an undesirable situation in which there were two inconsistent decrees absolute in existence relating to the same marriage. But not to grant it would, he declared, be “grossly unjust”.
“I have no hesitation in concluding that the wife was not given reasonable notice of the Malaysian proceedings or a reasonable opportunity to participate in them. She was given no notice or opportunity at all.”
Mr Justice Mostyn concluded:
“It is highly regrettable that the consequence of the conduct of the husband and his solicitor is that there are now inconsistent decisions about the status of these parties in the two jurisdictions.”
Liaw v Lee is available here.