1. ) H E B (S4-33-604-2000)

This was an application by the Petitioner-Husband in Enclosure 17 seeking to backdate the Certificate of Decree Nisi made Absolute (“the Decree Absolute”) dated 16 January 2025 to 8 August 2000.

To protect the privacy of the parties, and due to the sensitive nature of the issues involved, the Petitioners have been anonymised in this judgment as HEB (Petitioner-Husband) and HEM (Petitioner-Wife), respectively. 27/07/2025 19:23:20 Kand. 25 S/N 1ouVvWp2d0yeoiQBFbcRg **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 2 The factual background

The Petitioners were granted a decree nisi for divorce on 19 June 2000 under the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”).

However, no steps were taken thereafter to make the decree nisi absolute within the time period prescribed by section 61 of the Law Reform (Marriage and Divorce) Act, nor was any special application made to truncate that timeline. Section 61 of the Law Reform (Marriage and Divorce) Act reads: Section 61 – Decree nisi and proceedings thereafter

Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant unless the court by general or special order from time to time fixes a shorter period.

Where a decree nisi of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court and on that application the court may-

notwithstanding the provisions of the last foregoing subsection, make the decree absolute;

rescind the decree nisi;

require further inquiry; or

otherwise deal with the case as it thinks fit. [Emphasis added] S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 3 [5] The decree nisi, therefore, remained dormant and was not made absolute for an extended period of over 24 years. It was only in January 2025 that the decree nisi was finally made absolute, bringing formal legal closure to the marriage. [6] During this prolonged interval, and more specifically in the year 2001, the Petitioner-Husband entered into a second marriage and later had children from that union. It bears emphasis that, at the time of contracting this subsequent marriage, the Petitioner-Husband remained legally married to his first wife, as the decree nisi had not been perfected into a decree absolute. [7] There was no suggestion that this fact was hidden or unknown; rather, it appeared that the requirement to finalise the divorce was overlooked. [8] In April 2025, the Petitioner-Husband filed an application in this Court (“this Application”) for an order to backdate the Decree Absolute to 8 August 2000, effectively seeking to retrospectively validate the second marriage and regularise the status of the children born thereafter. The issue [9] The sole issue for determination was whether this Court had the authority to backdate the Decree Absolute. [10] The sub-issues that arose were: (a) whether the failure to make the decree nisi absolute amounted to a procedural or technical lapse that could be rectified under the slip rule, thereby permitting a retrospective amendment to the date of the decree absolute; and (b) S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 4 the legal ramifications of not converting the decree nisi into a decree absolute. [11] This Application was dismissed for the following reasons. Contentions, evaluation and findings Whether failure to make the decree nisi absolute was merely a technical error [12] The Petitioner-Husband contended that the failure to make the decree nisi absolute earlier was a mere technical oversight, and that this Court has the inherent jurisdiction or discretionary powers to backdate the Decree Absolute to reflect the true intention of the Petitioners to have dissolved the marriage in 2000. [13] The Petitioner-Husband attempted to deflect responsibility for the failure to obtain the decree absolute by attributing the omission to the alleged negligence or inaction of his former solicitors. However, I found this line of argument both untenable and inappropriate. [14] It is a well-established principle that parties appearing before the Court must take ownership of their own procedural responsibilities, particularly in matters as significant as finalising a divorce. The burden of ensuring that necessary applications are properly filed and pursued lies ultimately with the litigant, who must remain vigilant and engaged in their own legal affairs. [15] Moreover, it was manifestly unfair for the Petitioner-Husband to seek to cast blame on solicitors who were not present in these proceedings and, therefore, unable to respond to or refute the allegations made against them. Natural justice requires that persons S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 5 against whom accusations are levelled be given an opportunity to be heard. In this instance, the former solicitors were neither parties to the action nor witnesses before the Court. Accordingly, I was not prepared to entertain or place weight on such assertions. [16] In any event, any grievance the Petitioner-Husband may have concerning the conduct or performance of his previous legal representatives was a matter to be pursued independently through the appropriate professional or civil channels. It did not, and should not, detract from the Petitioner-Husband’s responsibility to regularise his marital status through proper legal means. [17] The Petitioner-Husband further submitted that as a general rule, a judgment or order of the Court takes effect from the day of its date. In support of his contention, his Counsel first brought my attention to Order 42 rule 7 of the Rules of Court 2012 (“Rules of Court”), which reads: Order 42 – Judgment and orders Rule 7 – Date from which judgment or order takes effect

A judgment or order of the Court takes effect from the day of its date.

Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day. [Emphasis added.] [18] As such, Counsel submitted that backdating the Decree Absolute was merely a clerical issue, and that the Court had the power to S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 6 amend the Decree Absolute pursuant to Order 20 rule 11 of the Rules of Court based on the slip rule. The provision reads: Order 20 – Amendments Rule 11 - Amendment of judgment and orders Clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court by a notice of application without an appeal. [Emphasis added] [19] In my view, the Petitioner-Husband’s contention was untenable for the following reasons. Most importantly, Order 42 rule 7 of the Rules of Court was inapplicable in this context, as sections 61 and 62 of the Law Reform (Marriage and Divorce) Act specifically govern matters relating to a decree nisi and decree absolute. [20] In view of section 61 of the Law Reform (Marriage and Divorce) Act, Order 20 rule 11 of the Rules of Court had no application to the present case. The failure to make the decree nisi absolute was not a mere clerical or administrative oversight but a substantive omission. To backdate the order would, in effect, be an attempt to validate a marriage that would otherwise be null and void — an outcome clearly addressed under section 69 of the Law Reform (Marriage and Divorce) Act, which provides: Section 69 – Grounds on which a marriage is void A marriage which takes place after the appointed date shall be void if-

at the time of the marriage either party was already lawfully married and the former husband or wife of such party was living at the time of the marriage and such former marriage was then in force; S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 7

a male person marries under eighteen years of age or a female person who is above sixteen years but under eighteen years marries without a special licence granted by the Chief Minister under section 10;

the parties are within the prohibited degrees of relationship unless the Chief Minister grants a special licence under subsection 11(6); or

the parties are not respectively male and female. [Emphasis added] [21] Counsel had also argued that the lapse in formalising the divorce was inadvertent and technical in nature. It was submitted that both Petitioners had intended to sever the marriage permanently in 2000 and had proceeded accordingly in their respective lives. On this basis, Counsel urged the Court to invoke its inherent jurisdiction under Order 1A and Order 92 of the Rules of Court to allow this Application to prevent the injustice that would follow otherwise. Both provisions read: Order 1A – Court or judge shall have regard to justice Regard shall be to justice In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. ***** Order 92 – Miscellaneous Rule 4 – Inherent powers of the Court For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 8 [Emphasis added] [22] After hearing submissions of Counsel on this point, I found this argument unacceptable for the following reasons. [23] First, the failure to make the decree nisi absolute was not a mere technical error. Section 61(1) of the Law Reform (Marriage and Divorce) Act is not a mere formality. It is foundational to the structure of divorce proceedings in Malaysia. [24] The legislative intent is unequivocal. The law provides a deliberate two-stage process: the pronouncement of a decree nisi followed by making that decree nisi absolute. This process is to ensure that the decision to divorce is carefully considered and to allow time for possible reconciliation or to address any ancillary matters before the final dissolution. To disregard the requirement of making the decree absolute is to ignore the very mechanism by which the legal status of marriage is terminated. [25] Section 61(1) of the Law Reform (Marriage and Divorce) Act provides that the party in whose favour the decree nisi was granted may apply to make it absolute after a minimum waiting period of three months. If that party does not take action, the other party is then entitled to apply for the decree nisi to be made absolute. In the case of a joint petition for divorce, either party may make the application under section 61(1) of the Law Reform (Marriage and Divorce) Act, as there is no distinction between the petitioner and the respondent in such proceedings. S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 9 [26] However, section 61(1) of the Law Reform (Marriage and Divorce) Act does not address the situation where neither party makes the application. In my view, it cannot be assumed that the decree nisi automatically becomes absolute merely because three months have elapsed. The three-month period is not a deadline or trigger for automatic finality but rather the minimum waiting period prescribed before an application for the decree to be made absolute can be entertained by the Court. [27] The three-month waiting period between the granting of a decree nisi and the making of a decree absolute under section 61(1) of the Law Reform (Marriage and Divorce) Act serves several important functions. [28] First and foremost, it acts as a cooling-off period. This allows both parties time to reflect and reconsider their decision to dissolve the marriage. The law recognises that divorce is a significant and often emotionally charged step, and this period provides a window during which reconciliation might still be possible, especially in cases involving children. [29] Secondly, the three-month period serves as a safeguard against fraud, misrepresentation, or procedural errors. During this time, either party, or in some cases, a third party may raise objections or bring to the Court's attention any material non-disclosure or irregularity that may have affected the granting of the decree nisi. This ensures the integrity of the divorce process. [30] Finally, the three-month period provides an opportunity for appeal. If either party believes that the decree nisi was granted improperly S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 10 or under questionable circumstances, the three-month interval gives them sufficient time to take corrective legal action before the divorce becomes final. [31] In the final analysis, the three-month waiting period strikes a balance between allowing the parties to move on with their lives and ensuring that the divorce is entered into with due process, fairness, and finality. [32] The purpose and rationale behind the three-month waiting period before a decree nisi may be made absolute, make it clear that the law neither contemplates nor permits an automatic conversion of the decree into a decree absolute upon expiry of that period. To suggest otherwise would produce untenable and illogical outcomes. For example, if a party were to apply to make the decree absolute six months after the decree nisi was granted, it would be absurd to suggest that the Court must reject the application on ground that the decree nisi had already become absolute at the three-month mark. Such a position would be inconsistent with both the statutory framework and the underlying policy considerations. The three-month period is not intended to operate as a deadline, but rather as a minimum interval, which provides space for reflection, and the opportunity to raise any objection or appeal where necessary. [33] Many of the underlying objectives for this waiting period, such as reconciliation, finalisation of financial and custodial arrangements, or addressing concerns of fraud or non-disclosure, may reasonably require more than three months to be properly addressed. To impose an automatic conversion at the end of three months would S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 11 defeat the very protective and procedural purposes the period is designed to serve [34] Therefore, the law leaves it to the discretion of the parties to apply for the decree nisi to be made absolute when they are ready to proceed, rather than mandating it automatically. The decree nisi remains in force until such time as one of the parties takes the positive step of applying to make it absolute, thus respecting both the legal process and the complexities often involved in the breakdown of a marriage. [35] It follows, therefore, that once that minimum period has passed, either party may apply at any time thereafter, and there is no statutory limitation on how long they may wait before doing so. The Court, in turn, does not have the discretion to reject the application solely on the basis of delay beyond the three-month period, provided all other legal requirements are satisfied. Legal implications of failing to make a decree nisi absolute. [36] As such, in the absence of any application by either party, the decree nisi remains in force indefinitely and does not mature into a decree absolute on its own. The onus remains on either party to take the necessary procedural step to conclude the divorce formally by applying for the decree to be made absolute. [37] This is fortified by rule 55 of the Divorce and Matrimonial Proceedings Rules 1980 (“Divorce and Matrimonial Proceedings Rules”) and Form 9 (Certificate of Making Decree Nisi Absolute (Divorce)). Rule 55 of the Divorce and Matrimonial Proceedings Rules reads: S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 12 Rule 55 – Indorsement and certificate of decree absolute

Where a decree nisi is made absolute, the registrar shall make an indorsement to that effect on the decree stating the precise time at which it was made absolute.

On a decree nisi being made absolute, the registrar shall —

send to the applicant and the respondent a certificate in Form 9 or 10, whichever is appropriate, authenticated by the seal of the court or registry from which it is issued; and

send to the Registrar General in pursuance of section 107 of the Act an index card relating to the cause.

A central index of decree absolute shall be kept at the Registry of Marriages and Divorces and any person shall be entitled to require a search to be made therein, and to be furnished with a certificate of the result of the search, on payment of the prescribed fee.

A certificate in Form 9 or 10 that a decree nisi has been made absolute shall be issued to any person requiring it on payment of the prescribed fee. [38] The legal position is further illuminated by judicial authority. In Suci Mathews nee Suci Thomas v Thomas Mathews [1985] CLJ Rep 788, LC Vohrah J aptly clarified that a decree nisi, by its very nature, is merely a provisional order and does not, in itself, dissolve the marriage. [39] In that case, the Court had, on 26 April 1982, pronounced a decree nisi for the dissolution of the marriage between the parties. The wife then sought to finalise the divorce and the decree nisi was made absolute on 13 April 1984. However, it was later discovered that the husband had died on 25 February 1984 but this fact was not known to the then solicitors for the wife. S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 13 [40] The High Court, following English precedents in Stanhope v. Stanhope [1886] 11 PD 103 and Re Seaford (deceased) [1968] 1 All ER 482, held that because a decree nisi alone does not dissolve the marriage, and because death dissolves marriage before the absolute decree, the husband's death rendered the decree nisi moot, as the marriage was dissolved by death, and no court could decree a divorce after death. Thus, there was no need (and no power) to issue an absolute decree posthumously. [41] On the issue of invoking the inherent powers under Order 92 rule 4 of the Rules of Court, it has been said by the Federal Court in several cases including MPPL v CAS [2024] 8 CLJ 359, and Stone World Sdn Bhd v. Engareh (M) Sdn Bhd [2020] 9 CLJ 358 that Order 92 rule 4 of the Rules of Court cannot simply be used to facilitate a substantive right which is not provided for. [42] In MPPL v CAS, it was stated by Zabariah Mohd Yusof FCJ in the following passage: However, this provision is only to prevent procedural injustice (refer to the Federal Court case of Stone World Sdn Bhd v. Engareh (M) Sdn Bhd [2020] 9 CLJ 358). It cannot be utilised to invoke or facilitate a substantive right, which is not provided for, albeit unjustly denied. It is not a substantive law empowering the grant of substantive orders, as in DNA testing. The learned High Court Judge misdirected herself when Her Ladyship referred to the Indian Supreme Court decision in Sharda v. Dharmpal [2003] 4 SCC 493 to support the proposition that the court has inherent power under O 92 r 4 of the ROC (which is in pari materia to s. 151 of the Indian Civil Procedure Code 1908) to order DNA testing in paternity cases. [Emphasis added] S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 14 [43] Another compelling reason for dismissing this Application lay in the Petitioner Husband’s request for the decree nisi to be backdated to 8 August 2000. This request was inherently flawed, both in fact and in law. Even if I were prepared to accept the Petitioner-Husband’s interpretation of section 61 of the Law Reform (Marriage and Divorce) Act, that a decree nisi should be deemed absolute upon the expiry of three months from the date it was pronounced, the date he proposed was plainly premature. The decree nisi had been granted on 19 June 2000, which meant that the three-month period would only lapse on 18 September 2000. To suggest that the decree could be made absolute, or retrospectively treated as such, as early as 8 August 2000 was, therefore, indefensible. The miscalculation of time was not merely a technical oversight; it went to the heart of the lack of legal foundation of this Application. This further undermined its credibility and reinforced the conclusion that the Application was entirely without merit. [44] This Court was not unmindful of the human consequences of this finding. The Petitioner-Husband’s second family, including his children, are innocent parties whose lives may now be affected by the legal status of their parents’ union. However, this Court cannot compromise the integrity of the legal process in an effort to soften those consequences. [45] It is well-established that the best interests of children born out of such unions may be safeguarded through statutory means, such as section 75 of the Law Reform (Marriage and Divorce) Act, which reads: S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 15 Section 75 – Legitimacy where nullity decree made

Where a decree of nullity is granted in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled shall be deemed to be their legitimate child. [Emphasis added] [46] However, in this Application, the reliefs prayed for by the Petitioner Husband did not allude to the legitimacy of the children born as a result of the second union. [47] This episode should also serve as a cautionary tale to all parties, namely that one should not rush into a subsequent marriage without first ensuring that all documentation relating to the prior divorce is properly concluded and in legal order. Failure to do so may result in significant legal consequences, including the invalidity of the second marriage and potential personal or financial repercussions. [48] One only needs to refer to section 62 of the Law Reform (Marriage and Divorce) Act, which explains that a person is allowed to remarry only after the decree nisi is made absolute. Section 62 – Remarriage of divorced persons Where a decree of divorce has been made absolute and either-

there is no right of appeal against the decree absolute;

the time for appealing against the decree absolute has expired without an appeal having been brought; or

an appeal against the decree absolute has been dismissed, either party to the former marriage may marry again. S/N 1ouVvWp2d0yeoiQBFbcRg 27 July 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………… 16 [Emphasis added] Conclusion [49] In the upshot, following a thorough examination and judicious consideration of all the evidence adduced, this Application was dismissed. The Decree Absolute shall remain as dated January 2025, and all legal consequences shall flow accordingly from that date. The Court made no order as to costs. Dated: 27 July 2025 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner-Husband – Amelyn Wong; Messrs David Chau & Artika S/N 1ouVvWp2d0yeoiQBFbcRg