The issue in this case concerns the ground(s) (if any) available for Manesh to obtain a divorce. Under the Law Reform (marriage and divorce act) 1976, there is only one ground available for divorce as enumerated under section 53. The most suitable fact of law is unreasonable behaviour as provided in section 54(1)(b).
The issue in this case concerns the ground(s) (if any) available for Manesh to obtain a divorce. Under the Law Reform (marriage and divorce act) 1976, there is only one ground available for divorce as enumerated under section 53. The most suitable fact of law is unreasonable behaviour as provided in section 54(1)(b).
The issue in this case concerns the ground(s) (if any) available for Manesh to obtain a divorce. Under the Law Reform (marriage and divorce act) 1976, there is only one ground available for divorce as enumerated under section 53. The most suitable fact of law is unreasonable behaviour as provided in section 54(1)(b).
a) ADVISE MANESH WHETHER THERE IS ANY GROUND OR GROUNDS FOR
HIM TO DIVORCE HER.
The issue in this case concerns the ground(s) (if any) available for Manesh to rely on to obtain a divorce. Under the Law Reform (Marriage and Divorce Act) 1976 (hereinafter referred to as LRA), there is only one ground available for divorce as enumerated under Section 53. This section provides that breakdown of marriage is to be the sole ground for divorce. Further under subsection (1), it provides that either party may petition for divorce on the ground that the marriage has irretrievably broken down. Section 47 of the Act specifies that the principle of English Law is to be applied by Malaysian court in all suits and proceedings to be decided under the Act. Thus, under the English Law, it is well established that there are four sets of law to be proven in order to establish that the marriage has been irretrievably broken down as seen in the case of Richards v Richards whereby the judge must be satisfied that at least one of the set exist. The four sets of law are : i. Adultery and intolerability ii. Unreasonable behaviour iii. 2 year desertion iv. 2 year living apart Those four sets of law have been incorporated into the Act particularly under Section 54. With regard to the given facts, the most suitable fact of law is unreasonable behaviour as provided in Section 54(1)(b). This is because it appears that Suri has behaved in such a way that Manesh cannot reasonably be expected to live with her. Under unreasonable behaviour cause, there are three issues to be determined. i. Whether it is a behaviour Firstly, can the act of respondent could be regarded as behaviour. Under this test, the respondent behaviour must be blameworthy or has led to any physical or mental injuries. As unreasonable behaviour is a fault based cause, it will also requires proof of intentional wrongdoings. However, in the case of Smith v Smith, senility was not to be regarded as behaviour by court. In application, Suris behaviour of continuously nagging on Manesh to ask him to send his mother to a welfare home and her indifferent attitude will amount to be a behaviour. This is because it is a wilful act on her part as compared to senility in Smiths case and is therefore blameworthy. In addition, asking a son to send her mother to welfare home is emotionally damaging to Manesh as Suri is his wife which should jointly take care of the mother. Hence, the behaviour test if fulfilled.
ii. Objective test Secondly, the objective test. Based on the case King v King (1981), it appears that behavior should amount to more than both ordinary wear and tear of conjugal life. In application, Suris act of nagging Manesh will amount more to ordinary wear and tear of conjugal life as essential in King v King case. This is because, the nagging involves indifferent attitude towards Maneshs mother which involves nagging him to send her to welfare home. Although it may be said that act of nagging is normal in a marriage but Suri was nagging him about his mother which should amount to be more than a normal wear and tear of conjugal life. Hence, the objective test is satisfied. iii. Subjective test The third test is a subjective test on which is to be considered in light of a reasonable man test as formulated by Dunn J in the case of Livingstone Stallard v. Livingstone Stallard. For this subjective test, it will depend on whether this particular petitioner can reasonably be expected to live with this particular respondent and vice versa. Based on the case of Ash v Ash (1972) court decided that if both behavior is as bad then they can live with each other. In the case of Atkins v Atkins (1942), wife persistent nagging was construed to be an unreasonable behaviour by the court. In application, by applying reasonable man test as formulated by Dunn J in Livingstone Stallard case, it is reasonable to say that Manesh is not reasonably be expected to live with Suri because Suri has acted indifferently towards his mother. Furthermore, by virtue of Ash v Ash, Manesh will be able to satisfy this test as he has not acted in a bad behaviour. In addition, his refusal to the request made by Suri to send his mother to welfare home is because he considered that it is his duty as a son to take care of the mother which can be considered a good behaviour. More importantly, by quoting the case of Atkins v Atkins, it is safe to say that Suris act of continuously nagging her husband, Manesh will amount to be an unreasonable behaviour. Hence, the third test is also satisfied. All in all, Manesh can petition for divorce under the sole ground of irretrievable break down of a marriage as provided in Section 53(1), but as court will enquire into the fact as stated in Section 53(2), Manesh can attempt to raise the fact that Suri has acted in an unreasonable behaviour towards him under Section 54(1)(b) as all the three tests to be proven under the English Law as applicable by virtue of Section 49 can be satisfied. Meanwhile, alternatively, he can also petition for divorce by proving the fact that there has been 2 years that he and Suri have lived apart that is from the year 2012 under Section 54(d). Manesh must also note that it is up to court whether divorce is to be granted as embodied under Section 54(2) by considering inter alia, interest of the children of the marriage and that the conciliation has been attended by them as necessitated by Section 55.
b) (i) LEGAL POSITION OF JEYA AND NINI
The issue in this case is on the legal position of Jeya and Nini following the effect of marriage between Manesh and Jeya since Manesh is already a married man when he marries Jeya. This issue concerns the effect of polygamous marriage under the LRA. This is because with the coming into force of LRA, it abolishes all forms of polygamous marriage unless those that have been contracted before the appointed date. Prohibition of polygamous marriage is provided under Section 5 in which any marriage contracted in contravention of the section shall be held void as affected by Section 6(1). Moreover, Section 69(a) provides that one of the grounds for a marriage to be declared void is when it is a polygamous marriage. In addition, the Malaysian Married Woman Act 1957 has provided for effect of a marriage towards personal status and property of married woman. In application, it is obvious by virtue of Section 5 and 6 that the marriage contracted by Manesh and Jeya shall be declared null and void as it is a polygamous marriage. This is because Manesh is still lawfully married to Suri when he marries Jeya. Besides, Jeya will also not to be subjected to the Married Woman Act as the marriage is of no existence at the first place. Therefore, her personal status and property will not change. Legally, she will be considered as single. Under Section 75(2), it provides for the position of a child of a void marriage including polygamous marriage. This section provides that the child of a void marriage shall be treated as the legitimate child of his parent, provided that at the time of solemnization, both or either of the parties reasonably believed that the marriage was valid. Section 75(3)(a) provides for additional requirement for applicability of Section 75(2) whereby the father of the child must be of Malaysian domicile at the time of the marriage. It must also be noted that in light of Section 75(3)(b), the devolution of property will only covers child born after the appointed date. It is further provided under subsection (7) of Section 75 that void marriage under this section refers to void marriage inter alia, under Section 6. On the other hand, Nini will be entitled to be treated as a legitimate child despite the marriage between Manesh and Jeya is void ab initio, by virtue of Section 75(2) if it can be proven that at the time of solemnization, both Manesh and Jeya, or one of them has reasonably believed that the marriage was valid. In this case, it can be assumed that Jeya has reasonable believed that the marriage was valid because she did not know about the fact that Manesh was a married man when she married him. Jeya only knew about it at Maneshs funeral. Therefore, by considering this fact in light of Section 75(2), the requirement of reasonable knowledge has been satisfied. Thus, Nini is a legitimate child. Besides, legitimacy of Nini will be covered by the section as she was born after the appointed date, as required under Section 75(3). Next, as Nini is a legitimate child, Nini will be entitled to any legal rights arising as a child of Manesh. b)(ii) Explain who will be entitled to the division of the property of the deceased. The issue concerns the entitlement of the property of the deceased, Manesh. This issue arises following the effect void marriage entered into by him with Jeya while the earlier marriage with Suri is still subsisting. There are also children from both marriage. First and foremost, as for Jeya, the following law seems applicable. By virtue of Section 6(2), the woman that entered into such void marriage will not be entitled to succession or inheritance right if the man died intestate. However, Jeya can rely on the case of Shaw v Shaw to claim damages against the estate of the deceased as she has no knowledge that Manesh was a married man when she married him. Secondly, with regard to Nini, a legitimate child born out of the marriage between Manesh and Jeya, the following seems applicable. By applying Section 75, as she will be deemed as legitimate, she will be entitled to division of property as such. The distribution of property will done in accordance with the Distribution Act. Thidly, the same position appears to be applicable as for children from Maneshs marriage with Suri. Similarly, the provision of Distribution Act is deemed applicable. Fourthly, as for Suri,
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