T I N v H I N

Case Significance

Illustrates that a Malaysian matrimonial court will decline to divide foreign-situated properties where the applicable foreign law is not proved by expert evidence, deferring the question to the foreign courts, while granting joint custody with primary care to one parent and fixing child maintenance.

This High Court decision in Kuala Lumpur concerns a contested divorce in which the parties were anonymised, being referred to only as the Petitioner-Husband and the Respondent-Wife, to protect their privacy and that of the child of the marriage. The husband, a French citizen, and the wife, a Malaysian, had married in France and later registered the marriage in Malaysia. The husband's petition sought joint guardianship and custody of the child and a division of matrimonial assets, including properties situated in France; the wife cross-petitioned for sole guardianship and custody and for child and spousal maintenance. A central legal issue was whether the Court could adjudicate on the division of the French properties — engaging questions of jurisdiction, whether the Court could take judicial notice of French property law, and whether expert opinion on foreign law under sections 45 and 57 of the Evidence Act 1950 was required. The Court held that the husband's failure to adduce evidence of the applicable foreign law, whether by expert opinion or otherwise, meant there was no basis on which to adjudicate the division of the French properties — a conclusion the Court was careful to attribute not to any jurisdictional limitation but to the absence of the necessary documentary and legal framework, so that any dispute over those properties should be deferred to the French courts. On the family issues the Court pronounced the divorce and ordered the decree nisi to be made absolute immediately; it granted both parties joint guardianship and joint custody of the child while awarding primary care and control to the wife; it ordered the husband to pay MYR1,500 in monthly child maintenance with all other child-related expenses shared equally; and it allowed the wife's request for the order to be recognised in France as a mirror order. The judgment illustrates the evidential burden of proving foreign law in matrimonial asset disputes.