Ng Yuet Mooi v Leong Yee Heim [2020] 1 MLJ 119

Court of Appeal (Putrajaya)

Matrimonial Property

1.    On 31 July 1997, the Respondent husband’s petition for divorce was allowed.  Then judicial commissioner Zainun Ali granted a decree nisi to be made absolute within three months from the date of the order.

2.    On that same date, the Court granted two further orders the terms of which were consensual; the first in relation to the custody and care of the two daughters from the marriage; the second in relation to the distribution of assets.

3.    In respect of the second order, it was agreed between the parties that the trial for the distribution of assets would be postponed to a date to be fixed.

4.    A week later, on 6 August 1997, the Respondent filed a notice of intention to proceed with the application for ancillary relief (Form 13), which relief was sought in the original petition for divorce.

5.    The relief, in substance, pertains to the distribution of two landed properties, a house at No 9 Jalan SS21/54, Damansara Utama, 47400, Petaling Jaya (‘the PJ house’), and another at No 76 Jalan Setiabakti 9, Bukit Damansara, 50490, Kuala Lumpur (‘the Damansara house’).

6.    On 22 November 1997, the decree nisi was made absolute. 18 years after the divorce decree had been made absolute, the Respondent filed the Form 13 notice indicating his intention to proceed with an application for ancillary relief that he had filed at the time of the petition for divorce.

7.    The application was with regards to the division of the PJ house and the Damansara house. On 17 April 2017, the order was granted by the Court.

1.  Whether court has no jurisdiction to grant the order on the distribution of matrimonial assets after the decree for divorce has been granted.

(a)   According to Section 76 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164), the Court shall have power to order the division of matrimonial assets.

(b)   Section 76 of Act 164 came under consideration by the Federal Court in Manokaram a/l Subramaniam v Ranjid Kaur a/p Nata Singh [2009] 1 MLJ 21.

(c)   In Manokaram case, no application for ancillary relief was sought in the petition, neither was there an application for leave under Rule 56(2) of Divorce and Matrimonial Proceedings Rules 1980.

(d)   The appellant’s notice of application for ancillary reliefs was filed before the decree nisi was made absolute.  However, the notice was struck out for non-attendance.

(e)   According to the Federal Court in this case, the single question for determination was can leave of the Court be granted to a party in a petition to proceed with a claim for property division under Section 76 and/or under any provision of Act 164 after decree nisi has been made absolute.

(f)     The High Court was of the view that it had jurisdiction and/or power to entertain the application and proceeded to grant the application.  Therefore, the Court of Appeal dismissed the appeal.

(g)   In contrast, the Federal Court answered the question in the negative, allowed the appeal and set aside the order of the High Court.

(h)   The Federal Court was of the view that the interpretation that is to be given to Section 76 of Act 164 is that ‘an order for division of matrimonial asset is limited to the time when granting a decree for divorce or judicial separation and not at a later stage.

(i)     The Federal Court was unequivocal in its conclusions that the power of the Court to order division of matrimonial assets under Section 76 of Act 164 requires any application for such order to be made either in the petition or answer itself in which case it would be dealt with by the Court when ordering the decree of dissolution of marriage.

(j)     The only latitude given by Section 76 of Act 164, without violating the clear and express terms of Section 76 of Act 164 is where there was no application for such order of division either in the petition or answer to the petition, but before the decree is made absolute, an application for such order is made and even then, it is with leave of the court.

(k)    Thus, given that the third notice was filed after the decree nisi had already been made absolute, the Court had no jurisdiction to allow the application.

(l)     As a result, the Federal Court in Manokaram case pronounced unequivocally as following:

“Reverting to the issue before us, I am of the view that under Section 76(1) and (3) of the Act, the court’s jurisdiction to order division of matrimonial assets is limited to the time when granting a decree of divorce or judicial separation and not at a later stage.  As the present application was made subsequent to the decree absolute, therefore, I hold that the court has no jurisdiction to grant such order.”

(m) The court found its reading of Section 76 of Act 164 consistent with the ‘clean break’ principle; and support for this conclusion from an earlier decision of the Court of Appeal in Chew Ling Hang v Aw Ngiong Hwa [1997] 3 MLJ 107 which had taken what the Federal Court saw as a ‘justified’ ‘narrow interpretation of the word ‘subsequently’ in Rule 56(1)’ in the face of Section 76(1) and (3)  of Act 164; and a decision from Singapore Court of Appeal in Tan Pau Soon v Lim Beng Choo [1997] 2 SLR 372.

(n)   It is, therefore, abundantly clear from Manokaram case that any application for an order for ancillary relief, whether with leave or otherwise, must be made before the decree nisi is made absolute.  This is because, once the decree is made absolute, the order is final and there is no power under Section 76 of Act 164 to grant any such order.

(o)   In the current case, the issue concerned was whether with the consensual term to defer the division of the matrimonial assets to a date to be fixed renders or preserves the matter of division of assets to be still available for consideration by the Court under Section 76(1) of Act 164, even after the decree has been made absolute.

(p)   Pursuant to the Court of Appeal, where the Court’s powers on the division of assets under Section 76(1) of Act 164 was invoked in the petition or response, or where it was not but leave had been sought and, in both instances, some interim direction or order on the matrimonial assets had been made at the time of grant of the decree nisi that the division of assets be postponed to some later date, the Court retains its jurisdiction under Section 76(1) of Act 164 to hear and make such appropriate and final order on the division of any matrimonial assets, even after the decree nisi has been made absolute.

(q)   From the terms of the decree nisi, the parties had, by consent agreed to defer the division of the assets to a later date and the Court had ordered those terms.  Consequently, the Court hearing the divorce petition retained jurisdiction on the matter of the division of assets.

(r)     In the instant appeal, although the application for ancillary relief was prayed for in the petition, and a notice of intention to proceed with the application for ancillary relief was filed (6 August 1997) post decree nisi (31 July 1997) but pre decree absolute, the application was never pursued or followed up.  In fact, only an unsealed copy of the notice was served on the Respondent at the material time.  A sealed copy of the notice was only served on 15 December 2015, about 18 years after it was first filed.

(s)    Even though the Court retains jurisdiction, the Court of Appeal was of the firm view that an application which has not been made within reasonable time, and 18 years is certainly far from being reasonable, cannot be entertained by the Court as of right.  Such protracted and unaccounted for delay engenders abuse of process and must never be encouraged.

(t)    Therefore, it is apparent that the Respondent’s application for ancillary relief was no longer available for consideration by the Court, that the ancillary reliefs sought were outside the scope and intent of Section 76(1) due to the prolonged and inordinate delay.

1.    Section 76 of Act 164 highlighted that the Malaysian Court has the power, when granting and pronouncing a decree of divorce or judicial separation, to order the division between the parties to a marriage (or the sale and division of the proceeds of sale) of any assets acquired by them during the marriage.

2.    Therefore, parties should include all the assets that they wish to divide in their joint petition to prevent potential future disputes in relation to matrimonial assets that are not mentioned or pleaded.

3.    However, it is vital to note that the High Court does not have jurisdiction under the Act 164 to make an additional order for such asset after the decree for divorce has been granted in accordance with the case of Manokaram a/l Subramaniam v Ranjid Kaur a/p Nata Singh [2009] 1 MLJ 21.