MMG v RA [2023] SLRHU 8

Syariah High Court of Seremban, Negeri Sembilan

Interlocutory Application for Preliminary Objection to the Enforcement Application of Property Settlement Order Exceeding 6 Years

1.    The Applicant and the Respondent were married for the first time on 01 February 1995.

2.    The Applicant and the Respondent were divorced for the first time via telephone conversation on 11 July 2011. This divorce confirmation case was validated and adjudicated in the Syariah Subordinate Court of Seremban.

3.    The Applicant affirmed that he entered into a second marriage with the Respondent on 29 December 2011 at the Islamic Council of Narathiwat in Thailand. The Confirmation of Marriage (Pengesahan Perkahwinan) was officially validated on 30 September 2012 through an application submitted to the Syariah Subordinate Court of the Kota Bahru District in Kelantan.

4.    The Applicant asserted that the Respondent filed for divorce at the Syariah Lower Court of Kuala Langat District, which led to their second divorce on 29 December 2014.

5.    The Applicant further stated that a Consent Judgment concerning the property settlement had been officially recorded and issued on 12 January 2012 in the Syariah High Court of Seremban, Negeri Sembilan.

6.    The Respondent submitted an Application for Enforcement of the Property Settlement Order exceeding 6 years on 09 February 2023, which was filed in the Syariah High Court of Seremban, Negeri Sembilan.

7.    The Applicant submitted a preliminary objection in the Syariah High Court of Seremban, based on the following grounds:

(a)    The Respondent lacks Locus Standi to submit the Application for Enforcement of the Order exceeding 6 years in court, as the Consent Judgment is void ab initio based on legal and hukum syarak.

(b)    The Respondent’s action of submitting the Application for Enforcement of the Order exceeding six (6) years in court nearly 12 years after the order was issued constitutes an afterthought.

(c)     There have been alterations to the property specified in the Consent Judgment concerning the property settlement, including the rental of the house at XXXXXXXXXXXXXXXXXXXXXX, Selangor Darul Ehsan to a third party from XX December XXXXXX to XX December XXXXX, as well as the sale of the apartment at XXXXXXXXXXXXXXXXXXXXXXXXX, Selangor Darul Ehsan to another third party since 20XX. These actions occurred without any objections or restrictions from the Respondent, suggesting the Respondent’s acceptance of the decision not to enforce the Consent Judgment related to the property settlement.

2.    Whether the application for enforcement of the property settlement order after exceeding 6 years is reasonable?

1.    Whether the parties are bound by the mutual agreement that has been endorsed as an order?

(a) The Court in this case referred to the Practice Direction No. 4 of 2011 from the Department of Syariah Judiciary Malaysia and emphasized that a consent order was difficult to challenge, as it is provided that the order could not be revoked or appealed. This was supported by decisions in several cases, including SKS v. MZA, [2008] SLRHU 2; JH (2010) 30/1, 131, where the judge ruled that a consent agreement made voluntarily between both parties could not be revoked, and both parties were responsible and bound by the consent order.

(b)  In the case of MDN v. AAB [2006] SLRAU 1; 23 [2006] 1 JH 35 (Selangor Syariah Appeal Court) and the case of DAKA v. NRWA [2009] SLRAU 15; 31 [2010] 1 JH 61, the appeal panel determined that no appeal could be made against the decision of a consent order. However, even though the consent order could not be appealed, the parties could still modify the order, particularly regarding child custody rights based on legal provisions, as demonstrated in the case of MKK v. SS [2016] SLRAU 7; JH (2017) 44 Vol. 1.

(c)  Consequently, the Court determined that while the consent order is not subject to appeal, the parties retain the right to amend the order, especially regarding child custody rights per relevant legal regulations.

(d) Another notable effect is the ability to review consent agreements, as determined in several cases. For instance, in the case of SJ v. PTDAG & 2 Others [2017] SLRAU 34; JH (2018) 47 Vol. 2, the appeal panel accepted the review by the Syariah High Court Judge and ruled that the consent judgment was invalid, due to its inconsistency with the provisions of the Syariah Court Procedure Enactment (State of Melaka) 2002, leading to the annulment of the consent order regarding the property settlement.

(e)  leading to the annulment of the consent order regarding the property settlement. This was The Judge further held that the Applicant seeks to raise the issue of the existence of a second marriage at the time the property settlement consent judgment was rendered. The judgment did not arise from a death that would permit a property settlement order to be made under applicable law and hukum syarak. Consequently, the Applicant asserts that the property settlement judgment is void ab initio and therefore invalid.

(f)   Upon thorough examination of the chronology of events between Applicant and the Respondent, the Judge observed that after the issuance of the main property settlement order on 12 January 2012, the Applicant had not filed any application to review or amend said order, notwithstanding assertions that it was void ab initio. Given that the property settlement order had not been annulled or altered by any court of competent jurisdiction, the Judge concluded that the order retained its validity unless explicitly overturned. Accordingly, both parties were legally bound to comply with the terms of the property settlement judgment.

2.    Whether the application for enforcement of the property settlement order after exceeding 6 years is reasonable?

(g)   The Applicant, in their submission, contended that the Respondent’s filing of the enforcement application (exceeding six (6) years) nearly twelve (12) years after the issuance of the property settlement order constituted an unreasonable action and an afterthought. The delay of over twelve (12) years following the consent judgment amounted to an abuse of the Court process. Furthermore, there have been alterations to the assets adjudicated in the property settlement case, including the rental of the house located at XXXXX to a third party.

(h)   The Judge in this case concurred with the Applicant’s argument that the application to enforce the property settlement order is unreasonable due to the Respondent’s excessive delay of 12 years. The Respondent’s actions amounted to having “slept on its rights” for 12 years without taking enforcement action and without reasonable justification for the delay in enforcing the judgment.

(i)     Nonetheless, the Judge also took into account the Applicant’s failure to contest the validity of the consent judgment from the issuance of the order until the present enforcement application was filed. This inaction on the part of the Applicant can likewise be characterized as having “slept on its rights.” The Applicant’s failure, negligence, or refusal to seek a review or modification of the order earlier suggests a lack of interest in asserting their rights, resulting in the belated raising of issues concerning the validity of the property settlement judgment.

(j)     The conduct of both the Applicant and the Respondent reflects a mutual lack of diligence and interest in pursuing claims against one another. In this matter, the Court held that the Applicant was negligent, having either failed or intentionally refrained from submitting a timely application to amend or review the order. This failure to exercise available legal rights has resulted in prejudice to the Respondent, who is endeavouring to enforce their rights under the property settlement order, which remains valid and has not been annulled by any other order from a court of competent jurisdiction.

(k)    Regarding the changes in circumstances raised by the Applicant to challenge the Respondent’s rights concerning the validity of the property settlement order, the Court believed that as long as no other orders have been issued concerning the property settlement, it remains valid and binding.

2.    The Court rejected the Applicant’s preliminary objection.

3.    The Court ordered that the application proceedings were to continue; and

4.    The Applicant was ordered to pay the Respondent RM1000 for this preliminary objection, within 15 days from the date of the order.

Key Take Aways

2.    The court emphasized the importance of timely action in enforcement applications. The Respondent’s nearly 12-year delay in filing for enforcement was deemed unreasonable, constituting an “afterthought,” which reflects poorly on the party seeking enforcement.

3.    Both parties were found to have “slept on their rights,” indicating that inaction from either side can undermine their positions in court. The Applicant’s failure to contest the consent judgment’s validity for an extended period further weakened their argument.