I V a v 1. ) R O M (WA-33-79-02/2023)

Spousal maintenance – In deciding whether spousal maintenance should be awarded to the Petitioner, the following broad issues were imperative to consider:

The cause of the irretrievable breakdown of the marriage, namely:

(A) Whether the Petitioner had proved the allegations of adultery between the Respondent and the Co-Respondent, so as to also justify an award of damages against the Co-Respondent;

(B) Whether the Respondent had established that it was the Petitioner’s unreasonable behaviour that had caused the irretrievable breakdown of the marriage. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 4

(ii) Whether the Petitioner had satisfied the ‘means and needs’ test to justify the amount of spousal maintenance sought.

Children – Whether the Petitioner and Respondent should be awarded joint guardianship and custody pertaining to the Children, and whether the Respondent was obligated to pay child maintenance.

Matrimonial assets – Whether the Petitioner and Respondent were entitled to the division of matrimonial assets as pleaded. [9] The Court granted the divorce, with the decree nisi made absolute forthwith. Both Parties were awarded joint guardianship of the younger child, as the older child had already attained the age of majority at the time of the trial. The Petitioner retained sole custody, care, and control of the younger child, whilst the Respondent was granted access. The Respondent was ordered to pay maintenance for the Children, and the matrimonial assets were apportioned according to each Party’s respective contributions. However, the Court declined to award the Petitioner damages against the Co-Respondent. [10] The following were my reasons. Contentions, evaluation, and findings Spousal maintenance 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 5 [11] In determining the issue of maintenance, reference was made to section 77(1) of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), which reads: Section 77 – Power of court to order maintenance of spouse

The court may order a man to pay maintenance to his wife or former wife:

during the course of any matrimonial proceedings;

when granting or subsequent to the grant of a decree of divorce or judicial separation;

if, after a decree declaring her presumed to be dead, she is found to be alive. [Emphasis added.] [12] In exercising its discretion to award spousal maintenance to the Petitioner, the Court was governed by both the fault principle and the 'means and needs' test, outlined by section 78 of the Law Reform (Marriage and Divorce) Act, which reads: Section 78 – Assessment of maintenance In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. [Emphasis added.] [13] In my evaluation of whether the Petitioner was deserving of maintenance that she claimed, I found guidance in established legal 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 6 precedents, specifically the cases of Dr Shameni Pillai PB Rajedran v Dr S Arulselvam Sanggilly & Anor [2011] 6 CLJ 782, and V Sandrasagaran Veerapan Raman v. Dettarassar Velentine Souvina Marie [1999] 5 CLJ 474. These cases underscore the importance of considering several key factors, such as the following:

the income, earning capacity, property, or financial resources that each party presently possesses or is likely to possess in the foreseeable future;

the financial needs, obligations, and responsibilities that each party currently or is likely to have in the foreseeable future;

the standard of living enjoyed by the family prior to the breakdown of the marriage;

the age of each party;

any existing health, physical, or mental disability of the parties;

the respective contributions made by each party to the welfare of the family; and

the duration of the marriage. [14] Furthermore, the rationale behind the law imposing a duty on a man to maintain his former wife is to even out any financial inequalities between the spouses, taking into account any economic prejudice suffered by the wife during marriage, as explained in the Singapore cases of Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] 3 SLR(R) 376, and Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan) [1995] SGHC 23. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 7 [15] In my analysis, I drew valuable insights from the Singaporean legal precedents set forth in the cases of Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506, ATE v ATD [2016] SGCA 2, and VPU v VPT [2021] SGCA. These cases, being of a more contemporary nature, provide a pragmatic perspective on the issue of spousal maintenance post-divorce, particularly concerning the wife's entitlement. [16] Accordingly, it was imperative for the Court to first ascertain which party was responsible for the irretrievable breakdown of the marriage. Adultery [17] The Petitioner asserted that the irretrievable breakdown of the marriage was primarily caused by the Respondent’s adulterous relationship with the Co-Respondent. This determination was to be made in accordance with sections 53 and 54(1)(a) of the Law Reform (Marriage and Divorce) Act, both of which read: Section 53 – Breakdown of marriage to be sole ground of divorce

Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.

The court hearing such petition shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution. … 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 8 Section 54 – Proof of breakdown

In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say-

that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; … [Emphasis added.] [18] Based on these allegations, the Petitioner had sought damages against the Co-Respondent pursuant to section 58(3) of the Law Reform (Marriage and Divorce) Act, which provides: Section 58 – Damages for adultery may be claimed against co-respondent …

Where damages have been claimed against a co-respondent-

if, after the close of the evidence for the petitioner, the court is of the opinion that there is not sufficient evidence against the co-respondent to justify requiring him or her to reply, the co-respondent shall be discharged from the proceedings; or

if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, the court may award the petitioner such damages as it may think fit, but so that the award shall not include any exemplary or punitive element. [Emphasis added.] Proving adultery [19] In assessing the Petitioner’s burden and standard of proof in establishing adultery, the Court first had to consider the legal definition of ‘adultery’. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 9 [20] The classic formulation is found in Clarkson v. Clarkson [1930] 143 LT 775, 46 TLR 623, where adultery was defined as voluntary sexual intercourse between a man and a woman who are not married to each other, with at least one of them being married to another person. This definition highlights the requirement for evidence of a physical sexual relationship, mere suggestive messages or compromising photographs are insufficient. [21] Further guidance was drawn from Indian jurisprudence, including Geeta Bai v. Fattu AIR [1966] Madhya Pradesh 130 and D Henderson v. D Henderson AIR [1970] Madras 104, where adultery was similarly described as consensual sexual intercourse between a married person and someone of the opposite sex who is not their lawful spouse, during the subsistence of the marriage. [22] Accordingly, the evidence must go beyond raising mere suspicion or establishing opportunity. It must be cogent enough to lead the Court to conclude that adultery must have taken place, having regard to the circumstances. Where the evidence is purely circumstantial, the Court will not infer adultery unless the facts presented are incapable of any other reasonable explanation. [23] There was no doubt that the Petitioner had the legal burden to prove adultery by virtue of section 103 of the Evidence Act, as it was she who had wanted the Court to believe in the existence of a particular fact. However, the issue that required consideration was the standard of proving adultery. [24] It was important to appreciate that the legal framework governing marriage and divorce in Malaysia underwent a substantial 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 10 transformation following the coming into force of the Law Reform (Marriage and Divorce) Act on 1 March 1982. Prior to that date, adultery was treated as a matrimonial offence, and the courts generally required proof of such misconduct to be established beyond a reasonable doubt in order to grant a decree of divorce. [25] With the enactment of the Law Reform (Marriage and Divorce) Act, however, the legal foundation for divorce has shifted from the traditional fault-based model to a more progressive principle, that of ‘irretrievable breakdown of the marriage’. As a result, the standard of proof likewise evolved, that is, from the stricter criminal standard of "beyond a reasonable doubt" to the civil standard of "balance of probabilities." [26] It must also be emphasised that, notwithstanding the seriousness of the allegation, be it adultery, fraud, or forgery, the Family Court remains a civil court. Accordingly, the applicable standard of proof in all such matters is uniformly that of the balance of probabilities. Reference on this point was made to GGC v. CCC [2016] 1 LNS 885, where in alluding to the Federal Court case of Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 7 CLJ 584; [2015] 5 MLJ 1, it was stated by Lee Swee Seng J (as he then was), in the following passages: [99] Based on the cogent arguments of the Federal Court in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 7 CLJ 584; [2015] 5 MLJ 1, which has held that fraud in civil cases should be proved on the standard of proof of the balance of probabilities, the time has come for standardisation of proof even in cases of adultery in a divorce petition which is essentially fraud on a spouse in a civil proceeding: it should be henceforth on a balance of probabilities as well. The anomaly has to be realigned. To perpetuate the dichotomy would be to create an artificial distinction devoid of merits. The Federal Court could not have made it 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 11 clearer when in declaring the standard of proof on a balance of probabilities in civil fraud as follows: [49] With respect, we are inclined to agree with learned counsel for the plaintiff that the correct principle to apply is as explained in In re B (Children). It is this: that at law there are only two standards of proof, namely, beyond reasonable doubt for criminal cases while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. And '(N)either the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. [Emphasis added.] [27] Be that as it may, it was pertinent to note that the balance of probabilities standard ranges from merely tipping the scales at more probable than not (or at 51 percent as prescribed by Abang Iskandar Abang Hashim JCA (as he then was) in Unsung Rasad v. PP [2019] 1 LNS 662, to a higher degree of probability, but one which has not reached beyond a reasonable doubt. [28] It is undeniable that the allegation of adultery is serious in nature. Therefore, although the standard of proof should be on a balance of probabilities, it was my view that a higher degree of such standard had to be considered in light of the seriousness of the allegation. [29] On this point, I was guided by the case of Bater v. Bater [1950] 2 All ER 458, wherein Lord Denning had, in the following passage, explained the relationship between the seriousness of the allegations made in a civil case and the varying degree of the standard of proof of balance of probabilities: ...So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 12 considering a charge of fraud, will naturally require a high degree of probability than that which it would require if considering whether negligence was established. [Emphasis added.] [30] Also on point is the Court of Appeal case of Teoh Meng Kee v. PP [2014] 7 CLJ 1034, where in applying the civil standard of proof, reference was made to the Briginshaw sliding scale in Briginshaw v. Briginshaw [1938] 60 CLR 336, where it was held by the High Court of Australia that although the scale is rooted in the civil standard of balance of probabilities, the degree of persuasion needed to convince the Court varies in accordance with the seriousness or gravity of the allegation. [31] I also found guidance from the Federal Court case of PP v Kuala Dimensi Sdn Bhd & Ors [2021] 2 MLJ 469, where reference was made to the explanation by Lord Nicholls of Birkenhead in Re H (Minors) [1996] 1 All ER 1 that the standard of proving on a balance of probabilities was a flexible test: ... on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities. [Emphasis added.] [32] Accordingly, while the standard of proof for establishing adultery remains the balance of probabilities, the seriousness of the allegation necessitated for the Petitioner reach a correspondingly 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 13 higher degree of scrutiny and weight in the evaluation of the evidence. Whether Petitioner’s allegations of adultery had been established [33] To substantiate the allegation of adultery between the Respondent and Co-Respondent, the Petitioner relied on the following evidence. [34] Police report – The Petitioner relied on police reports she had lodged against the Respondent alleging emotional and mental abuse. Two reports were made in February 2021. The Petitioner acknowledged that the second report was drafted in greater detail for the purpose of obtaining the IPO against the Respondent. In that report, the Petitioner had also included allegations of adultery between the Respondent and the Co-Respondent. [35] With regard to the police reports lodged by the Petitioner, reference was made to section 157 of the Evidence Act 1950 ("the Evidence Act"), which reads: Section 157 - Former statements of witness may be proved to corroborate later testimony as to same fact In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. [Emphasis added.] [36] Although the Evidence Act allows for the admissibility of a police report and for its maker to rely on it as corroborative evidence, the weight of a police report is generally low for the following reasons. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 14 [37] First and foremost, it was made unilaterally, that is, the Petitioner dictated her narrative to the police, stating her version of the events. There was no cross-examination or contemporaneous testing of truth when the police reports were lodged. [38] Secondly, the contents of the police report were self-serving and such statements are generally not corroborative of the maker’s statements as they are not independent. [39] Thirdly, a party may sometimes lodge police reports primarily to create a paper trail that could later support their litigation narrative. In this case, the Petitioner admitted that she had to beef up her police report so that she could obtain an IPO to ensure that the Respondent stayed away from her and the Children. That itself made her conduct questionable. [40] Accordingly, I accorded little weight to the police report. In any case, it was not disputed that the investigating officer who was called as a witnesses, had confirmed that he had found no evidence to substantiate its contents. [41] WhatsApp messages – The Petitioner alleged that she had personally seen WhatsApp messages exchanged between the Respondent and the Co-Respondent on the Respondent’s mobile phone, which she claimed demonstrated an adulterous relationship. [42] However, no such WhatsApp messages were adduced as evidence before the Court. The Petitioner’s case rested entirely on her own narration of what she purportedly saw, without producing the messages themselves, whether in the form of screenshots, printouts, or certified electronic records. She also did not provide 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 15 any forensic extraction report or other objective verification of the alleged communications. Moreover, the Petitioner was unable to state the precise wording of the messages, or even reliably recall their exact content, dates, or context. [43] In the absence of the primary documentary evidence, her testimony amounted to no more than an uncorroborated and subjective account. Such unsubstantiated oral assertions fell far short of the standard required to establish adultery, particularly given that allegations of such gravity demand clear, cogent, and convincing proof. [44] Purchase of a pleasure device – The Petitioner placed significant reliance on the fact that the Respondent had purchased a vibrator (“pleasure device”), asserting that this constituted proof of an adulterous relationship with the Co-Respondent. [45] It was an undisputed fact that the Respondent did indeed make such a purchase. The Petitioner’s contention was that the pleasure device was bought specifically for the Co-Respondent. While this allegation, if accepted, may raise suspicion as to the nature of the relationship between the Respondent and the Co-Respondent, it did not, in law, amount to proof of adultery. [46] Adultery, as recognised in matrimonial jurisprudence, requires proof of voluntary sexual intercourse between a married person and someone who is not their spouse. The act must involve physical intimacy of the kind that satisfies the legal definition; mere suggestive conduct, sexual innuendo, or the giving of intimate gifts falls short of this threshold. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 16 [47] Even if the Court were to accept, for the sake of argument, that the Respondent purchased the pleasure device for the Co-Respondent, the allegation still failed to establish that the Respondent had engaged in the physical act of sexual intercourse with her. [48] At this stage, it was pertinent to note that all Parties were in agreement that, should there be evidence of the Respondent using the pleasure device on the Co-Respondent, such conduct would constitute adultery. This position accords with the definition of sexual intercourse under section 377CA of the Penal Code, which provides: Section 377CA – Sexual connection by object, etc Any person who has sexual connection with another person by the introduction of any object or any part of the body, except the penis into the vagina or anus of the other person without the other person's consent shall be punished with imprisonment for a term of not less than five years and not more than thirty years and shall also be liable to whipping. Exception - This section does not extend to where the introduction of any object into the vagina or anus of any person is carried out for medical or law enforcement purposes. [Emphasis added.] [49] I am mindful that section 377CA of the Penal Code addresses the offence of sexual connection by object without consent. While the element of non-consent is central to the statutory offence in the Penal Code, setting aside that requirement for the purposes of this civil context, it remains evident that the introduction of any object into the vagina or anus of another person is capable of amounting to sexual intercourse. This statutory definition was, therefore, 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 17 relevant in determining whether the alleged conduct, if proved, would constitute adultery. [50] In the present case, however, a fundamental evidentiary gap arose. The Petitioner succeeded only in proving that the Respondent had purchased the pleasure device. She was unable to establish for whom the device was bought, let alone prove that it had been used on the Co-Respondent. [51] The Respondent’s explanation was that the device had been purchased for one of his patients, referred to in this judgment as “Mr S.” Although Mr S had been subpoenaed, he failed to attend Court. I had declined to adjourn the trial merely to accommodate his attendance, as doing so would have unnecessarily delayed the proceedings without any certainty of securing his testimony. [52] The Petitioner invited the Court to draw an adverse inference against the Respondent pursuant to illustration (g) to section 114 of the Evidence Act for failing to call Mr S as a witness. The relevant provision states: Section 114 - Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume: ...

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 18 [Emphasis added] [53] I refused to invoke section 114(g) of the Evidence Act for the following reasons. [54] As the Supreme Court explained in Munusamy Vengadasalam v. PP [1987] CLJ (Rep) 221; [1987] 1 CLJ 250; [1987] 1 MLJ 492, the type of evidence contemplated under illustration (g) to section 114 of the Evidence Act must not only be relevant to the issues in dispute but also material – in the sense that it would have a significant bearing on the outcome of the case. [55] In my assessment, the testimony of Mr S did not rise to the level of materiality required. His evidence would, at best, have gone only to confirm the Respondent’s claim that the pleasure device was purchased for him. Even if I were to accept the Petitioner’s position that the device had in fact been bought for the Co-Respondent, the Petitioner would still face an insurmountable evidential hurdle, that is, there remained no proof that the Respondent had actually used the device on the Co-Respondent. In other words, the mere fact of purchase, even if linked to the Co-Respondent, would fall short of establishing the act of sexual intercourse necessary to prove adultery. [56] Another essential requirement for invoking illustration (g) to section 114 of the Evidence Act is that the adverse inference is drawn only where it appears that relevant and material evidence has been deliberately withheld. Such deliberate withholding is generally inferred when there is no reasonable explanation for the party’s failure to adduce the evidence in question. Where an explanation 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 19 exists, whether or not it is ultimately persuasive, the Court must carefully assess whether the omission amounts to an intentional suppression of material evidence or is merely the result of circumstances beyond the party’s control: Adel Muhd El-Dabbah v. AG of Palestine [1944] AC 156, Murugan v. Lew Chu Cheong [1980] CLJU 49; [1980] 1 LNS 49; [1980] 2 MLJ 139, and Marappan Muthusamy v. R Sivam Ramasamy [2013] CLJU 1381; [2013] 1 LNS 1381; [2014] 4 MLJ 428. [57] In the present case, it was undisputed that Mr S had been subpoenaed but was away on work and required additional time to attend Court. As I was not inclined to allow any further delay, the trial proceeded in his absence. His non-attendance was, therefore, due to these circumstances and not the result of any deliberate withholding of a witness. As such, illustration (g) to section 114 of the Evidence Act was not invoked. [58] Previous adulterous relationship – The Petitioner had also drawn the Court’s attention to a prior incident in 2010, when the Respondent had been involved in a relationship with a woman (“JL”) he had met at the gym. According to the Petitioner, the circumstances surrounding that earlier relationship bore striking similarities to the present case. The Petitioner stated that at that time, she had experienced the same suspicions regarding the Respondent’s conduct, based on certain behavioural changes and patterns that she observed. Those suspicions, she claimed, were later confirmed when it became apparent that the Respondent and JL had, in fact, entered into a sexual relationship. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 20 [59] The Petitioner asserted that in the present case, the Respondent had behaved in a similar manner towards her, displaying the same patterns of conduct which had aroused her suspicions in 2010. The Petitioner maintained that, as in the past, her suspicions in this instance were ultimately confirmed when, with the assistance of a private investigator, she discovered that the Respondent and the Co-Respondent had engaged in a sexual relationship. [60] Although the fact of the adulterous relationship between the Respondent and JL was not in dispute, it nevertheless amounted to propensity evidence. Under the law, such evidence is generally inadmissible as it carries a significant risk of prejudice, leading the Court to draw conclusions about a person’s character or disposition rather than focusing on the specific facts in issue. The law is cautious in this regard because it seeks to prevent a party from being judged on the basis of past misconduct or general tendencies. The only circumstance in which such evidence may be admitted is where the alleged similarity has sufficient probative value that clearly outweighs its prejudicial effect. [61] At this juncture, reference was made to section 15 of the Evidence Act on the issue of whether similar fact evidence is relevant and admissible to show a series of similar occurrences. Section 15 of the Evidence Act reads: Section 15 - Facts bearing on question whether act was accidental or intentional When there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of series of similar occurrences, in each of which the person doing the act was concerned, is relevant. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 21 [62] In the present case, the central issue was whether the Respondent’s previous adulterous relationship with JL could provide sufficient probative value to support the inference that the Respondent’s adulterous relationship with the Co-Respondent had commenced as early as 2020. [63] For the similar fact evidence of the previous adulterous relationship between the Respondent and JL to be admissible, it must possess a degree of probative value strong enough to outweigh the potential prejudicial effect it may have on the opposing party. [64] It is trite law that this is an implied requirement in section 15 of the Evidence Act, as explained in the case of Azahan bin Mohd Aminallah v. PP [2005] 1 CLJ 374; [2005] 5 MLJ. [65] In view of the fact that this is a civil case, the probative value required is of a lower standard, and not as high as required in a criminal trial. At this juncture, I looked to the case of Mood Music v. De Wolf Publishing [1976] 1 All ER 763, CA, where it was explained by Lord Denning: The admissibility of evidence as to 'similar facts' has been much considered in criminal law. Some of them have reached the highest tribunal, the latest of then being Boardman v. Director of Public Prosecution. The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice; and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also, that the other side has fair notice of it and is able to deal with it. [Emphasis added.] 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 22 [66] Striking similarity has long been the measure of probative value in courts of the commonwealth countries, following the case of Director of Public Prosecutions v. Boardman [1975] AC 421. However, recently the requirement of striking similarity has been diluted by the Federal Court in PP v. Mohamad Roslan bin Desa [2009] 4 CLJ 824; [2011] 4 MLJ 826, which was followed subsequently in Mohammad bin Abdullah v. PP [2011] 2 CLJ 481; [2011] 4 MLJ 549, Wong Kok Chun lwn. PP [2012] CLJU 419; [2012] 1 LNS 419; [2012] 3 MLJ 593, and Al-Bakhtiar bin Samat v. PP [2012] 7 CLJ 458; [2012] 4 MLJ 713. [67] Although striking similarity is no longer a condition for the admissibility of similar fact evidence, other characteristics which are indicative of the probative value of the similar facts are still significant, such as nexus, an underlying link between the previous incidences and the current one, similarities establishing a system, facts forming part of the same activity, and similar surrounding circumstances. [68] On the facts, previous adulterous relationship between the Respondent and JL took place roughly a decade before the eventual breakdown of the marriage. The circumstances then were materially different from those now before the Court. Notably, no police report was lodged in relation to that earlier episode, nor was any legal action commenced to address or prove the alleged adultery at the time as in the present case. [69] The oft-quoted adage, “one swallow does not make a summer,” is apt in this context. The mere occurrence of an alleged act of adultery 10 years ago with JL did not, without more, permit the Court to draw 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 23 the conclusion that the Respondent had committed adultery with the Co-Respondent in the present case. To do so would be to engage in reasoning by propensity, assuming that because the Respondent may have erred once in the past, he must necessarily have erred again under the present circumstances. Such reasoning was impermissible in law. [70] To rely on the prior incident here would risk unfair prejudice against the Respondent, and would undermine the fundamental requirement that each case be decided strictly on its own facts and merits. In the present case, no such probative value was demonstrated. [71] Accordingly, I could not accept the Respondent’s prior adulterous relationship with JL as sufficiently probative to establish that adultery with the Co-Respondent had in fact begun as early as 2020. Whether Respondent had established unreasonable behaviour on part of the Petitioner [72] The Respondent levelled a series of accusations against the Petitioner, alleging that she was a controlling and insecure person, that she harboured expectations which were impossibly high, and that she habitually belittled him by unfavourably comparing him with the husbands of her friends. [73] In evaluating the evidence, I found that there was some truth in the Respondent’s averments regarding the Petitioner’s conduct. It was apparent that the Petitioner had displayed controlling tendencies and struggled with deep-seated insecurities. Her insecurity was so profound that she resorted to undergoing breast augmentation and 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 24 abdominoplasty in an effort to enhance her self-image. When the procedures did not yield the desired results, she directed the blame towards the Respondent. In her eyes, the Respondent could seemingly do no right, and he became the target of her frustrations, functioning as little more than an emotional “punching bag.” [74] However, it would be incorrect to attribute the entire breakdown of the marriage to the Petitioner alone. It could not be ignored that the Respondent, by reason of his conduct and past indiscretion, had substantially aggravated and entrenched the Petitioner’s insecurities, thereby contributing in no small measure to the deterioration of the marital relationship. Instead of offering reassurance or support in light of his previous transgression, the Respondent had frequently distanced himself from the Petitioner and preferred to spend his time with friends, including the Co-Respondent. Such behaviour only exacerbated the Petitioner’s feelings of inadequacy and mistrust. In this respect, the Respondent’s actions aggravated an already fragile marital relationship. [75] Viewed holistically, this was very much a “chicken and egg” scenario. The Petitioner’s insecurities and controlling behaviour fed into the Respondent’s aloofness, while the Respondent’s neglect and preference for the company of others deepened the Petitioner’s sense of insecurity. Each party, in turn, reacted to the other in a way that perpetuated the cycle of dissatisfaction and resentment. In the end, I was of the view that both Parties bore equal responsibility for the irretrievable breakdown of the marriage. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 25 Whether Petitioner had satisfied the ‘means and needs’ test [76] In assessing the quantum of spousal maintenance to which the Petitioner was entitled, the applicable standard was the ‘means and needs’ test as set out under section 78 of the Law Reform (Marriage and Divorce) Act. [77] At this juncture, it was important to reiterate that the determination of “means and needs” under the law does not rest merely on what the Petitioner currently possessed in hand, but extended to her actual and potential earning capacity, as well as her access to resources. In assessing “means,” the Court was entitled to consider income, both present and anticipated; assets; professional qualifications; business opportunities; and the general capacity of the party to secure financial independence. [78] It was not disputed that the Petitioner is an advocate and solicitor by profession and has successfully managed her own practice for a considerable period of time. Her qualification, professional standing, and years of experience collectively underscored her capacity to maintain herself without recourse to the Respondent. [79] In fact, throughout the proceedings, the Petitioner had repeatedly emphasised her position that she had contributed far more than the Respondent to the financial upkeep of the family during the subsistence of the marriage. By her own account, the household’s income was largely derived from her legal practice which she had incorporated and managed independently. [80] In light of this narrative, it was inherently contradictory for the Petitioner to now advance a claim for spousal maintenance from the 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 26 very person she alleged had made negligible contribution to the family’s financial wellbeing. [81] The statutory and jurisprudential basis for spousal maintenance rests on the premise that one party is in genuine need of financial support and that the other possesses the corresponding means and obligation to provide it. That foundation was absent in the present case. The Petitioner could not, on the one hand, assert her financial self-sufficiency and the Respondent’s lack of contribution, and, on the other, seek to impose on him a continuing obligation of support. Such a stance was legally untenable and factually incoherent. [82] The Petitioner’s attempt to justify a claim for spousal maintenance on the ground that the Respondent had “abandoned the family” was wholly unpersuasive. The evidence before me clearly demonstrated that it was, in fact, the Petitioner who had compelled the Respondent to leave the Matrimonial Home. In such circumstances, her argument collapsed both in logic and in law. [83] On the totality of the evidence, I was satisfied that the Petitioner had both the means and the capacity to provide for her own financial upkeep. The Petitioner’s claim for spousal maintenance was, therefore, dismissed. Whether Respondent was obligated to pay child maintenance [84] Although the Respondent had no obligation to provide spousal maintenance to the Petitioner, he was legally required to pay child maintenance. This duty is well-established under sections 92 and 93 of the Law Reform (Marriage & Divorce) Act, which 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 27 clearly outline a parent's responsibility to support their child. The provisions read: Section 92 - Duty to maintain children Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof. ….. Section 93 - Power for court to order maintenance for children

The court may at any time order a man to pay maintenance for the benefit of his child -

if he has refused or neglected reasonably to provide for the child;

if he has deserted his wife and the child is in her charge;

during the pendency of any matrimonial proceedings; or

when making or subsequent to the making of an order placing the child in the custody of any other person [Emphasis added.] [85] With regard to the issue of maintenance for the Children, the Petitioner’s position was that the Respondent ought to bear the entirety of their expenses. I was unable to agree with such a contention. The history of the Parties’ relationship revealed a consistent pattern of joint responsibility, whereby both had shared equally in meeting the Children’s needs throughout the marriage. It would, therefore, be neither just nor equitable to now impose the full financial burden solely upon the Respondent, particularly when the Petitioner herself is financially capable and had, by her own 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 28 admission, been a significant contributor to the household and the Children’s upbringing. [86] In arriving at my decision, I took into account not only the principle that both parents remain equally responsible for the maintenance of the Children, but also the standard of living to which the Children have been accustomed during the marriage. It was necessary to strike a balance which ensured that the Children’s welfare and sustenance are adequately secured, while at the same time apportioning responsibility fairly between both parents in accordance with their means. [87] Accordingly, I directed that the Respondent should contribute a monthly sum of MYR4,000 for the day-to-day sustenance and general maintenance of both Children. As for expenses relating to education and healthcare, it was only fair and reasonable that these be borne equally by both Parties. Such expenses, by their very nature, should also be subject to joint decision-making by both parents, in the best interest of the Children. This approach, in my view, would reflect both the legal principle of shared parental responsibility and the practical reality of the financial circumstances of the Parties. Whether Parties were entitled to joint guardianship and joint custody of the Children [88] The Petitioner sought sole guardianship and sole custody of the Children. As the elder child had already reached the age of majority at the time of the trial, matters concerning guardianship, custody, or access in relation to her fell outside the Court's jurisdiction. Both Parties had agreed to allow the elder child to interact with the 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 29 Respondent as she saw fit. As a result, the Court’s focus was solely on the younger child. [89] Having meticulously reviewed the evidence presented in this matter, I arrived at the determination that the principle of joint guardianship should be preserved, recognising the enduring and fundamental role both Parties play in the long-term welfare of their Child. [90] At this juncture, it was crucial to impress upon Parties that the Child has a right to have an ongoing and meaningful relationship with both parents. Although custody, care and control of the Child should remain with the Petitioner pursuant to section 88(3) of the Law Reform (Marriage & Divorce) Act, no one parent is superior to the other. The dynamics of the relationship between a child with his/ her father and that with his/ her mother is different. It does not mean that a father's rights with regard to his child is inferior to that of the mother. [91] Reference was made also to section 5 of the Guardianship of Infants Act 1961 ("Guardianship of Infants Act"), which reads: Section 5 – Equality of parental rights

In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.

The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father. [Emphasis added.] 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 30 [92] Pursuant to section 3 (Duties of guardian of person) of the Guardianship of Infants Act, both Parties have equal responsibilities for the Child’s support, health, and education. The correlation to the Parties' responsibilities is the right of the Child, in this case, the right to bond with both parents. [93] Furthermore, since the Respondent was obligated to contribute financially to the Child’s maintenance, covering all essential aspects of their upbringing, including education, healthcare, and daily expenses, it was only fair and reasonable that he also had a voice in decisions that would shape the Child's future. Parental responsibilities extend beyond financial support; they encompass active participation in key matters such as schooling, medical care, and overall well-being. [94] Although both Parties have been granted joint guardianship, it was clear that sole custody, care, and control of the Child must be vested in the Petitioner to provide a stable and consistent primary residence. [95] However, to maintain the Child's relationship with the other parent, the Respondent was granted access rights for one day each week, on Saturday from 11 am to 3 pm. Any additional access would be subject to the wishes of the Child. This decision regarding access was made with a profound acknowledgment of the deeply troubled state of the parent-child relationship, a situation I find was overwhelmingly exacerbated by the conduct of the Petitioner. [96] It was my firm view that the Petitioner had engaged in a systematic and damaging campaign of parental alienation, intentionally 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 31 poisoning the Children's affections for their father and weaponising them in the context of this marital dispute. This alienation was not a passive outcome of the separation but was actively engineered through several calculated actions. [97] The Petitioner had implanted a false narrative in the Children's minds, indoctrinating them with the malicious fiction that their father had callously abandoned the family for the Co-Respondent, a characterisation the evidence squarely contradicts. The Petitioner then operationalised this alienation by compelling the Children to write letters to the court, effectively coercing them into expressing a desire to reject their father, thus attempting to use their voices as a tool for her own litigation strategy. [98] Furthermore, the Petitioner extended this campaign beyond the home, visiting the Children's schools to deliberately and inappropriately disseminate this same false narrative to their teachers, thereby undermining the Respondent's character and parental role in the community. [99] The Petitioner’s decision to list her elder child as a witness for these proceedings stands out as the most egregious example of such conduct. This action demonstrated a willingness to subject the child to the adversarial pressures of litigation, a course she abandoned only upon the Court's explicit intervention and expression of grave concern that it would cause the child significant emotional harm. [100] In essence, the Petitioner's actions were not motivated by the best interests of the Children but were instead driven by a palpable anger towards the Respondent. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 32 [101] In my view, the Petitioner had intentionally used the Children as tools of retribution, causing serious and potentially lasting damage to their relationship with the Respondent. The estrangement between the elder child and the Respondent had become so profound that the Court urged the Petitioner to take active steps to repair the relationship despite her personal contempt for the Respondent, while also directing the Respondent to make greater efforts to rebuild his bond with the Children. [102] While the Petitioner’s conduct may, to some extent, be explained by the acrimony between the Parties, her persistent vilification of the Respondent cannot be condoned. Notably, even during the proceedings she alleged that the Respondent had forced her into sexual intercourse against her will, an allegation I found entirely baseless and vindictive. Such assertions only reinforced the impression of her vengeful disposition. [103] The Court, therefore, cautioned the Petitioner against further indoctrinating the Children with such narratives about the Respondent and directed her instead to support the restoration of their relationship with him. Matrimonial assets [104] The following assets were in contention: a) Matrimonial Home; b) Makati Property; c) Telok Gong Property; and d) Klinik Omega Sdn Bhd 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 33 [105] The task of dividing matrimonial assets is prescribed by section 76 of the Law Reform (Marriage and Divorce) Act, which reads: Section 76 – Power of court to order division of matrimonial assets

The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.

In exercising the power conferred by subsection (1) the court shall have regard to-

the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family; (aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;

any debts owing by either party which were contracted for their joint benefit;

the needs of the minor children, if any, of the marriage;

the duration of the marriage, and subject to those considerations, the court shall incline towards equality of division. …

For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. [Emphasis added] 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 34 [106] Section 76 of the Law Reform (Marriage and Divorce) Act requires the Court to assess both the financial and non-financial contributions of each party when determining the division of matrimonial assets. This assessment must be rooted in fairness, having regard to the actual contributions made by each spouse throughout the marriage. [107] At the outset, it was brought to the Court’s attention that the Petitioner had secretly purchased properties in Makati, Philippines (“the Makati Property”), and Telok Gong (“the Telok Gong Property”), from which she was purportedly collecting rental income. The concealment of these properties was uncovered only during the course of proceedings, and the Petitioner, when confronted, had no choice but to admit their existence. [108] However, the Petitioner maintained that the Makati and Telok Gong Properties were not matrimonial properties and insisted that she was under no obligation to declare it to the Court. The Petitioner’s contention, in essence, was that because these Properties were acquired solely in her name without any monetary contribution from the Respondent, it, therefore, fell outside the scope of matrimonial assets. [109] I found this contention to be wholly untenable. The classification of property as matrimonial or otherwise is not a matter to be decided unilaterally by a party to the proceedings. It is the prerogative of the Court to determine whether such property falls within the pool of matrimonial assets to be divided between the Parties. Section 76 of the Law Reform (Marriage and Divorce) Act specifically refers to ‘any asset acquired’ by any one of the Parties. Hence, to allow a 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 35 party to self-determine the classification and withhold disclosure would defeat the very purpose of matrimonial proceedings, which require full and frank disclosure of all assets, irrespective of their location or legal title. [110] At this juncture, it was crucial to bear in mind that the classification of assets as matrimonial cannot be determined solely by reference to registered ownership. What is determinative is the manner in which the property was acquired, the source of funds, and the intention of the parties during the subsistence of the marriage. Thus, the mere fact that the Makati and Telok Gong Properties were registered in the Petitioner’s sole name did not, without more, exclude it from being considered part of the matrimonial pool. [111] Drawing insight from the pertinent case of Ching Seng Woah v Lim Shook Lin [1997] 1 MLJ 109, Gopal Sri Ram JCA (as he then was) provided a definition of ‘matrimonial assets’. In that case, he outlined the concept beyond mere ownership, emphasising factors that contribute to the marital estate. The following passage from the case serves as a guiding principle in understanding the broader scope of matrimonial assets: The Act does not define what matrimonial assets are. We think that during the subsistence of a marriage the expression refers to the matrimonial home and everything which is put into it by either spouse with the intention that their home and chattels should be a continuing resource for the spouses and their children to be used jointly and severally for the benefit of the family as a whole. It matters not in this context whether the asset is acquired solely by the one party or the other or by their joint efforts. Whilst the marriage subsists these assets are matrimonial assets. Such assets could be capital assets. The earning power of each spouse is also an asset. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 36 [Emphasis added] [112] The Petitioner contended that the Respondent had made no monetary contribution whatsoever towards the acquisition of the Makati Property and Telok Gong Property and, therefore, ought not to be entitled to any portion of its value. The Petitioner’s argument was premised on the proposition that only direct financial input should carry weight in determining entitlement to matrimonial assets. [113] I had to remind the Petitioner that such a contention was inconsistent with the law. Monetary contribution is not the sole criterion to be considered by the Court in the division of matrimonial property. The statutory framework, as well as binding judicial authority, makes it clear that the Court is required to take into account the entire spectrum of contributions made by the parties — financial and non-financial alike. These include, for example, contributions to the welfare of the family, the care of the children, and the indirect support which enables the other spouse to generate income or acquire property. The Petitioner’s insistence on reducing the analysis to financial contribution alone was, therefore, futile. [114] In fact, I would go further to observe that the Petitioner’s conduct in failing to disclose the Makati Property and Telok Gong Property at the outset, and only admitting to its existence when confronted with evidence, amounted to what has been termed “financial infidelity” – conduct that arises when one spouse deliberately conceals or misrepresents the existence of matrimonial assets with the intent of shielding them from division in the event of divorce. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 37 [115] The Petitioner’s disingenuous conduct undermined the very foundation of matrimonial justice, which rests upon transparency, candour, and good faith in the disclosure of assets. Consequently, I approached the Petitioner’s evidence with caution, as she had, in my view, throughout the proceedings, been notably economical with the truth. [116] The Respondent, for his part, took a pragmatic stance. While he disputed the Petitioner’s contention, he indicated his willingness to forgo any claim to the Makati Property and Telok Gong Property, provided that he was compensated with a larger share in the Matrimonial Home. This reflected, in my view, a practical approach to resolving the dispute, and one that sought to balance equities rather than to litigate every asset to the last cent. [117] I, therefore, agreed with the Respondent to some extent. Although the Makati Property and Telok Gong Property must, in principle, be brought into the pool of matrimonial assets, it was open to the Court to achieve fairness by way of set-off. I was satisfied that the Respondent’s entitlement in respect of the Makati Property and Telok Gong Property could be balanced against the Petitioner’s claims to other assets, thereby ensuring that the overall division remained just and equitable. This approach, which I addressed in greater detail in the later part of this judgment, would prevent either party from being unfairly enriched, while at the same time recognising the reality of their respective contributions and the need for a practical resolution. [118] As such, it was my view that the Makati Property and Telok Gong Property, and whatever proceeds that the Petitioner had derived 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 38 from such properties, would remain in the sole ownership of the Petitioner and would not be divided. [119] With respect to the Matrimonial Home, which was also in dispute, it was registered in the joint names of the Parties. The Petitioner pressed for the Respondent’s share either to be transferred to her outright or to be held in trust for the benefit of the Children, while at the same time insisting on retaining her own half share. [120] I found such a proposal to be extremely inequitable. As noted earlier, the history of the relationship between the Parties demonstrated that they had, throughout the marriage, shared responsibilities and assets on an equal footing, both being gainfully employed and earning sufficient income. In the circumstances, it would not be just to deprive the Respondent of his equal entitlement. [121] It was, therefore, my considered view that the Matrimonial Home should be sold, and the net proceeds of sale, after the necessary deductions, divided equally between the Parties. Alternatively, either Party was to be given the liberty to purchase the other’s share at the prevailing market value, thereby ensuring a fair and practical resolution. [122] Klinik Omega Sdn Bhd (“Klinik Omega”), which the Petitioner claimed as part of the matrimonial assets, had been acquired, developed, and eventually sold by the Respondent to the Qualitas Group of Clinics for RM1 million. The Petitioner alleged that she had advanced a loan to assist the Respondent in acquiring the clinic, whereas the Respondent maintained that the loan had been fully repaid with interest. As for the Petitioner’s claim to half the proceeds 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 39 from the sale of Klinik Omega, I dismissed the claim in its entirety for several reasons. [123] First, Klinik Omega had already been sold in 2018. It was not an existing property, and that the Respondent had submitted that the proceeds of sale of Klinik Omega were utilised for other reasons such as investments, etc. [124] Since Klinik Omega did not exist any longer, it was generally not a matrimonial asset that should even be considered in the context of section 76 of the Law Reform (Marriage and Divorce) Act. I drew guidance from the Court of Appeal case of Sivanes Rajaratnam v Usha Rani Subramaniam [2002] 1 MLRA 178, where it was stated by Abdul Hamid Mohamad JCA (as he then was), in the following passage: From the authorities referred to us by both learned counsel and from my research, as far as I can ascertain, I am unable to find any decided case in Malaysia and Singapore to support an accounting of all the assets acquired or improved during the marriage and the income thereof and the determination of who had benefitted more or less and awarding a shortfall to the party who is found to have benefitted less. All the cases simply talk about the "division" of the matrimonial assets, which necessarily means the existing assets at the time of the divorce. Of course, the question of the size and nature of each spouse's contribution and who has enjoyed the property to the exclusion of the other (for example, as in this case, where only one party lived at the Crescent Court Apartment) and the reasons why, are relevant in determining the portion that each spouse should get, but not, in my view, for the purpose of calculating either spouse's share of past income. [Emphasis added] 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 40 [125] I acknowledged the fact that the Respondent had received the proceeds of the sale in tranches, about MYR516,000 before the breakdown of the marriage and the rest after the breakdown. [126] In any event, the Respondent had averred that the proceeds of sale of Klinik Omega was used to reinvest in another company and to bear the family expenses. [127] Furthermore, it was not disputed that the decision to sell Kinik Omega was a decision made jointly by the Parties, and that the monies had depleted although the Petitioner blamed the Respondent for the depletion of the funds. [128] At this stage, it was important to state that when moneys are given and received amongst family members, the lack of accounting of the same, which is the norm, becomes an issue that is most difficult to resolve. On this point, I drew guidance from the Court of Appeal case of Sivanes Rajaratnam v Usha Rani Subramaniam, where Abdul Hamid Mohamad JCA (as he then was) explained, in the following passages, the difficulty of keeping track in a marriage, an accounting of all the expenses pursuant to the household and family matters: From the authorities referred to us by both learned counsel and from my research, as far as I can ascertain, I am unable to find any decided case in Malaysia and Singapore to support an accounting of all the assets acquired or improved during the marriage and the income thereof and the determination of who had benefitted more or less and awarding a shortfall to the party who is found to have benefitted less. All the cases simply talk about the "division" of the matrimonial assets, which necessarily means the existing assets at the time of the divorce. Of course, the question of the size and nature of each spouse's contribution and who has enjoyed the property to the exclusion of the other (for example, as in this case, where only one party lived at the Crescent Court Apartment) and the reasons why, are relevant in determining the 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 41 portion that each spouse should get, but not, in my view, for the purpose of calculating either spouse's share of past income. This view, in my opinion, is consistent with the wording and spirit of s.

That section talks of "division" of assets acquired during the marriage and provides the factors that should be taken into account when making the division. Besides (I am speaking generally here) in a marriage, both spouses share everything, both contribute towards the home and family in one way or another, to a bigger or smaller extent. Where both spouses work and earn income, each of them inevitably spends his or her own income for the family. Similarly, where there is income from an asset purchased during the subsistence of the marriage, say rent, even though it may be paid into the account of one spouse, eventually it will go to the family, may be all and may be part of it. No one keeps an account, indeed no one should, as a marriage is not a business venture. So, if and when the marriage breaks up, it is unreasonable that the court should undertake an accounting of their income and expenditure during the period the marriage subsists. The function of the court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into account the factors provided by s. 76. [Emphasis added] [129] It must be emphasised that within the context of marriage, financial support given by one spouse to the other, absent a clear written agreement or unequivocal proof of repayment terms, cannot readily be categorised as a commercial loan which needs to be repaid. Spouses commonly assist one another financially in furtherance of the family unit, whether to acquire property, start a business, or meet household expenses. To later re-characterise such support as a loan repayable on demand would undermine the very spirit of marital partnership. [130] It was, therefore, inequitable for the Petitioner to demand that the proceeds of the sale of Klinik Omega should now be distributed. 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 42 [131] Thirdly, and more importantly, even if one were to accept the Petitioner’s version, her alleged contribution must be considered in the broader financial context of the marriage. As I have alluded to earlier, the Makati Property and Telok Gong Property was, in truth, matrimonial properties that the Petitioner had sought to conceal dishonestly, which was ultimately not divided. This already weighed heavily against her in terms of equitable distribution. [132] Furthermore, it was not disputed that, since April 2024, pursuant to an interim order, the Respondent had borne the entirety of the expenses for the Matrimonial Home, including mortgage repayments, utilities, and maintenance. The Respondent was also ordered to pay for household items which was within the use and control of the Petitioner. The Petitioner, despite residing in the Matrimonial Home, made no contribution towards it whatsoever. It was important to note that an interim order is exactly that—interim. It did not dictate the final determination of Parties’ rights and obligations after trial. [133] Upon the full ventilation of the evidence, and after the full trial, I found that the Petitioner was not entitled to be maintained in this manner, given that she was equally responsible for the breakdown of the marriage and that she possessed independent means of financial support. Notwithstanding this, the Respondent continued to shoulder these expenses for a considerable period, which cannot be ignored in assessing fairness between the Parties. [134] In fact, evidence showed that in addition to servicing the loan repayments, the Respondent paid all the utility bills and household expenses without limitation. These outgoings extended even to 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 43 costs incurred for the operation of the Petitioner’s law firm, which she conducted from the Matrimonial Home at the Respondent’s expense. [135] In considering the matter, I also took into account that the Respondent, having been required by the Petitioner to leave the Matrimonial Home, was consequently obliged to incur additional expenses by renting accommodation nearby in order to remain close to the Children. This financial burden arose directly from the Petitioner’s actions. [136] Having considered these inequities, whatever sums alleged to have been loaned by the Petitioner to the Respondent for the purchase of Klinik Omega, must be set off against the concealment of the properties by the Petitioner, and substantial financial contributions already made by the Respondent during the pendency of these proceedings. [137] In light of the overall balancing of equities, I was of the view that the Petitioner ought not to be entitled to any share of the proceeds received by the Respondent from the sale of Klinik Omega, notwithstanding the subsequent breakdown of the marriage. Conclusion [138] In the interest of justice, and upon a careful consideration of all the evidence together with the written and oral submissions of the Parties, the Court pronounced the divorce and made the decree nisi absolute forthwith. The Petitioner’s claim for damages against the Co-Respondent was dismissed. The Respondent was directed to pay child maintenance, while the division of matrimonial assets was 21 September 2025 …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… 44 ordered in such a manner that only the Matrimonial Home was to be divided equally between the Parties. As regards the younger child, although joint guardianship was granted to both the Petitioner and the Respondent, the Respondent was accorded structured access. Date: 21 September 2025 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: