L O B v H O B PIHAK YANG DINAMAKAN C O B

Case Significance

Illustrates the burden a spouse carries when alleging adultery and claiming damages against a party-cited, and the means-and-needs assessment for spousal maintenance under sections 77 and 78 of the Law Reform (Marriage and Divorce) Act 1976: such claims fail where the alleging spouse cannot prove the fault and financial case they depend on.

This High Court decision at Kuala Lumpur, in the Family Division, concerns a contested divorce in which the wife alleged adultery and sought spousal maintenance and damages against a third party. The husband petitioned for divorce and the division of matrimonial assets; the wife consented to the dissolution but, in her reply, claimed spousal and child maintenance, a share of the matrimonial assets, and damages from the party-cited for an alleged adultery with the husband which she said had caused the irretrievable breakdown of the marriage. To protect the parties' privacy the court anonymised them. Several issues fell for decision under the Law Reform (Marriage and Divorce) Act 1976: whether the wife had established that the husband caused the irretrievable breakdown of the marriage; whether her allegation of adultery between the husband and the party-cited was made out; and whether, applying the means-and-needs test in sections 77 and 78, spousal maintenance should be awarded and in what amount. Having comprehensively evaluated the evidence and submissions, the court pronounced the divorce and made the decree nisi absolute forthwith. It dismissed the wife's claim for spousal maintenance and dismissed her claim for damages against the party-cited, the allegation of adultery not being established to the required standard. The parties were granted joint guardianship of their son, matrimonial assets were divided by reference to the years the parties had cohabited, and the husband was ordered to pay costs. Delivered by Evrol Mariette Peters J, the judgment is a useful illustration of the burden a spouse carries when alleging adultery and claiming damages against a party-cited, and of the means-and-needs assessment under sections 77 and 78: a claim for spousal maintenance and adultery damages will fail where the alleging spouse cannot prove the fault and financial case on which those claims depend. The decision also shows the court keeping the uncontested dissolution separate from the contested ancillary claims, dividing the matrimonial assets by reference to the length of the parties' cohabitation while declining to award maintenance or damages that were not made out on the evidence.