Hung Moy (P) v Ang Cha Hooi [2021] 5 MLJ 337

Court: Court of Appeal (Putrajaya)

Topic: Setting Aside the Decree Nisi

1.     The Appellant is a retired teacher who later worked as a private tuition teacher.

2.     The Respondent on the other hand is working as an estate agent and a security official in Penang.

3.     The Appellant and the Respondent were married in 1977 and were blessed with two (2) children who are now grown-up adults.

4.     The Appellant and the Respondent had lived together until 3 June 2008 when the Respondent left the house after a quarrel with the Appellant.

5.     On 2 July 2009, the Appellant filed a contested petition for divorce in Kuala Lumpur High Court.

6.     The petition was served to the Respondent by way of substituted service as ordered by the Court order.

7.     However, the Respondent did not attend or defend the hearing when the petition was heard.

8.     On 2 June 2010, the High Court granted the Appellant’s petition and issued a decree nisi, which became absolute on 3 September 2010.

9.     On 8 December 2017, the Respondent filed an application to overturn the decree nisi and the decree nisi absolute.

10.  The High Court allowed the Respondent’s application, leading to this appeal.

1.     Whether there was delay by the Respondent to set aside the decree nisi?

2.     Whether decree nisi could be set aside under the Law Reform (Marriage and Divorce) Act 1976 (“Act 164”)?

Whether there was delay by the Respondent to set aside the decree nisi?

1.     In deciding the issue, it was already in the knowledge of this Court of Appeal that the Respondent had filed the application after more than seven (7) years from the date of decree nisi was made absolute on 03.09.2010.

2.     The Respondent also had admitted through his affidavit in reply that he knew about the divorce from his son at the end year of 2015 and not in 2017 where the application was made.

3.     Despite knowing about the divorce in 2015, the Respondent only filed the application two years later, in 2017 purportedly after he was served with all the relevant documents.  His application was accepted by the previous learned High Court judge.

4.     The learned counsel for the Respondent argued that there was no delay because the Respondent was never served with the decree nisi and the decree nisi absolute until today.

5.     The Court of Appeal held in favour of the Appellant’s submissions that the Respondent who had constantly in contact with his son must have known about the divorce much earlier than in the year 2015 but he did nothing about the divorce.

6.     The Court of Appeal further decided that there was an inordinate delay of more than seven (7) years from the date the decree nisi was granted on 02.06.2010 to the date of the application on 08.12.2017.

Whether decree nisi could be set aside under Law Reform (Marriage and Divorce) Act 1976 (“Act 164”)?

7.     Section 61 of Act 164 reads as follows:

“Decree Nisi and proceedings thereafter

(1)  Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant unless the court by general or special order from time to time fixes a shorter period.

(2)  Where a decree nisi of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court and on that application, the court may—

(a)  notwithstanding the provisions of the last foregoing subsection, make the decree nisi absolute;

(b)  rescind the decree nisi;

(c)  require further inquiry; or

(d)  otherwise deal with the case as it thinks fit.”    [Emphasis Added]

8.     The Court of Appeal took the opportunity to refer to the case of Wong Cheng Ping v Chin Guan Seng @ Tan Guan Seng [2010] MLJU 226, wherein it was held that there is no provision in the Act 164 for rescinding or setting aside a decree nisi that already has been made absolute.

9.     The Court of Appeal also adopted the principle provided in the aforementioned case that it is the intention of Parliament to preserve the integrity and finality of a decree nisi that already has been made absolute after three (3) months.

10.  As such, it was agreed by the Court of Appeal that the parties are not allowed to freely apply to the Court at any time to rescind or set it aside unless for very good reasons or in exceptional circumstances.

11.  In the gripping debacles with the decision of the learned High Court judge for setting aside the decree nisi, the Court of Appeal considered the reasoning for such decision was because the Respondent has meritorious defence wherein the marriage was broken down due to the presence of third party.

12.  Contrary to the reasoning of that learned judge, the Court of Appeal was in the view that the marriage has irretrievably broken down and cannot be saved anymore and the Respondent has to accept that their marriage should be dissolved and that the Appellant has already remarried someone else.

13.  Both the Appellant and the Respondent have been living apart for more than ten (10) years and are now in their ripe old age.

14.  The delay of approaching the Court to set aside the decree nisi that has been made absolute seven (7) years ago is also the most gripping factor that the learned High Court judge should take into account before setting aside the decree nisi.

15.  The Court of Appeal held that the decree nisi cannot be set aside where there were no good reasons to set aside the same.

2.     The decree nisi could not be set aside under Law Reform Act 164.

3.     The decree nisi was absolute.

4.     The appeal was allowed.

1.     It is trite law that the court will not lend assistance to a litigant who slept on his right.  This legal principle emphasizes the importance of timely action and the need for litigants to be proactive in protecting their rights.

2.     When a party fails to assert their legal claims within the prescribed time limits or delays taking necessary legal steps such as setting aside the decree nisi within 3 months, they risk losing the Court’s support and remedies available to them.

3.     The application to set aside the decree nisi after 7 years it was made absolute has conveyed the idea of neglect or inaction, implying that the Respondent failed to promptly assert his rights.

4.     Therefore, it is crucial for litigants to understand the significance of timely action and to seek legal advice promptly to ensure the protection of their rights within the prescribed legal framework.