DIVORCE THROUGH BREAKDOWN OF MARRIAGE

In Law Reform (Marriage & Divorce) Act 1976 (LRA 1976), section 53 provides for divorce through the breakdown of marriage. Subsection (1) of section 53 provides that either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down. In order to grant the decree of divorce, the court must first satisfy both limbs in subsection (2) of section 53 namely: (i) the facts alleged as causing or leading to the breakdown of marriage; and (ii) the circumstances make it just and reasonable to grant the decree of divorce. If both limbs are not satisfied, it will not be sufficient for the court to act.

Section 54 (1) of LRA 1976 is relevant to justify the facts alleged as causing or leading to the breakdown of marriage. It reads:

"In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say:-

(a)  That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)  That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)  That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)  That the parties to the marriage has lived apart for a continuous period of at least two years immediately preceding the presentation of the petition."

In determining whether the circumstances make it just and reasonable to order a decree of divorce, the court will refer to subsection (2) of section 54 where it requires the court to consider all the circumstances, including the conduct of the parties and how the interests of any children of the marriage or of either party may be affected if the marriage is dissolved.

The court when granting a decree of divorce may subject it to such terms and conditions as it may think fit to attach. If the court considers that in all the circumstances it would be wrong to dissolve the marriage, it would dismiss the petition.

In this article, we will discuss in depth on paragraph (b) of section 54 of LRA 1976. This paragraph requires the petitioner to prove that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. Here, the court will decide whether the petitioner can reasonably be expected to live with the respondent.

In the case of Katz v Katz, the Court defined behaviour as something more than a mere state of affairs or a state of mind. It is action or conduct by one which affects the others.

There are two views in this aspect. The first view is that the sole test to be prescribed as the nature of the behaviour is that it must be such as to justify a finding that the petitioner cannot reasonably be expected to live with the respondent.

As stated in the case of Thurlow v Thurlow, in order to establish that the respondent has behaved in such a way that the petitioner could not reasonably be expected to live with the respondent, it is not sufficient merely to establish that the marriage was dead and that it was impossible for the petitioner to cohabit with the respondent. It has to be shown that it was the respondent’s behaviour which justified a conclusion by the court that the petitioner could not reasonably be expected to endure cohabitation. For that purpose, behaviour included negative conduct.

Secondly, in determining whether the petitioner can or cannot reasonably be expected to live with the respondent, the court must take into account the character, personality, disposition, and behaviour of the petitioner and the respondent as alleged and established in evidence. Under the second view, there are three tests that can be applied:-

a)            Reasonable man’s test

It was derived from the case of Livingstone-Stallard v Livingstone-Stallard that “would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole world of circumstances and the characters and personalities of the parties?”

In Malaysia, the case that has followed the decision of the case above is Joseph Jeganathan v Rosaline Joseph. The husband filed a petition seeking the dissolution of the marriage alleging that the marriage had broken down irretrievably in that the respondent had behave in such a way that he cannot reasonably be expected to live with her. The evidence adduced showed that the matrimonial home was filled with bitterness, strive, and tension, generated by frequent violent quarrels. There were virtually daily absences of several hours by the respondent from the matrimonial home and at times for periods up to 70 – 80 days. Efforts of reconciliation had been a failure. The court held that the test which can be applied is the reasonable man’s test. The court had to consider the whole circumstances and the characters as well as the personalities of the parties. The court granted the decree nisi to the petitioner and held that the marriage had irretrievably broken down.

b)            Behaviour test, whereby the behaviour of both parties must be considered.

In the case of Ash v Ash, it was held that the court must not consider only the behaviour of the respondent, but also the character, personality, disposition as well as the behaviour of the petitioner.

c)            Where there is a breach of obligation between both parties.

In Pheasant v Pheasant, the petitioner husband alleged that the wife had not given him the spontaneous demonstrative affection, which his nature demanded and for which he claimed that it caused the marriage to be irretrievably broken down. It was held that there was nothing in the wife’s behaviour which could be regarded as a breach on her part of any of the obligations of the marriage or effectively contributing to breakdown of the marriage. Therefore, the husband’s petition for divorce was dismissed.

We can see the example of cases which falls under paragraph (b) of section 54 (1) of LRA 1976 as in the case of Shudesh Kumar a/l Moti Ram V Kamlesh a/p Mangal Sain Kapoor [2005] 5 MLJ 82, the petitioner/husband contends that the marriage broke down because of the unreasonable behaviour of the respondent/wife. The petitioner contends that the respondent is a suspicious person, and had even physically attacked him. He says she was abusive and rude, even to his father. She wanted the petitioner to move out of his family's residence, which he refused to do so, and this led to frequent quarrels between the parties, eventually leading to their separation. It is therefore open to this court to grant the decree nisi on that ground alone.

In contrast, in the case of Bhanu Serakami v Nagamma [1991] 2 MLJ 266, the husband instituted the divorce proceedings solely on the ground that he and his wife had been living apart continuously for more than two years and that reconciliation attempts made between them at the Marriage Tribunal in Petaling Jaya had been unsuccessful. Hence, he claimed that the marriage had irretrievably broken down. The wife denied that they had been living apart continuously for two years before the presentation of the petition by the husband. She averred that they got married in 1984, later she had conceived a child of the husband on or about March 1985 but suffered a miscarriage at the end of July 1985. In 1985, the wife found the photograph of a lady in the husband's diary. The husband quickly grabbed the photograph off the hand of the wife. She believed that the husband had been committing adultery with the unknown woman. In 1988, they had a sexual relationship.

The court was satisfied that the husband’s complaints about the wife were trivialities. The husband wanted a divorce not because he was tired of misbehaviour of his wife, but because he was tired and bored of his wife and desired his freedom. The husband's petition for divorce was dismissed as he failed to prove that the marriage had irretrievably broken down.