LIEW ANN LEE v YAP KEAN CHONG

Case Significance

Reinforces the substantive importance of the section 106 pre-divorce conciliation requirement under the Law Reform (Marriage and Divorce) Act 1976: exemption is confined to the recognised exceptions, and conciliation is not a mere formality but a genuine opportunity for reconciliation.

This decision of the High Court of Malaya at Temerloh (Family Division) concerns an application by a spouse for the court's exemption from the statutory requirement, under section 106 of the Law Reform (Marriage and Divorce) Act 1976, to refer a matrimonial difficulty to a conciliatory body before presenting a petition for divorce. Section 106(1) provides that, save in the excepted cases, no person may petition for divorce unless he or she has first referred the difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties. The applicant sought to be excused from that precondition so as to proceed directly to a divorce petition.

The court examined the scheme and purpose of section 106 and the exceptions to it, and held that the applicant's circumstances did not bring the case within any of the recognised exemptions. Matters that the applicant relied on were, in the court's view, allegations that would have to be proved at the hearing of the divorce petition itself and could not be used as a shortcut to dispense with attendance before the conciliatory body. The court emphasised that reference to a conciliatory body is not an empty formality to be discharged merely because the statute requires it; its purpose is to give reconciliation a genuine opportunity, and the parties who appear before such a body must take a positive stance and make sincere efforts to reconcile and to avoid the breakdown of the marriage. Treating conciliation as a mere procedural box to be ticked would defeat the very object of section 106. Finding no proper basis to exempt the applicant, the court dismissed the application, so that the parties remained obliged to submit their difficulty to the conciliatory body before any divorce petition could properly be presented. The court added that the effectiveness of conciliatory bodies is itself a challenge those bodies must rise to, but that this did not excuse the parties from participating in good faith. The judgment reinforces the substantive importance of the pre-divorce conciliation requirement and the limited scope of the statutory exemptions from it.