Jonathan Peter Davies v Tan Chew Yinn (WA-33-556-11/2024)

This was the Petitioner’s application in enclosure 6 for interim reliefs pertaining to assets and the child of the marriage.

However, before the hearing of this application, the Respondent raised a preliminary objection that the Court had no jurisdiction on ground that the Petitioner had failed to meet the requirement of ‘residence’, and as such, both enclosure 6 and the petition for judicial separation filed by the Petitioner should be struck out. 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 3 The factual background [3] The Petitioner, a United Kingdom (“UK”) citizen, and the Respondent, a Malaysian national (collectively referred to as "the Parties"), were 58 and 38 years old respectively at the time of the hearing of this application. The Parties were married in Singapore in August 2016 and subsequently registered their marriage in Malaysia in September 2017. It was the Petitioner’s second marriage and the Respondent’s first. In January 2022, the Parties welcomed a daughter (“the Child”).

After the marriage, the Parties resided at various locations before the Respondent finally settled in an apartment in Kuala Lumpur known as “the Millerz Home”. The Petitioner runs a start-up company and is a director at a company, CQS Sdn Bhd (“CQS”).

The marriage was unable to withstand the test of time and after allegations of violence, unreasonable behaviour and adultery, in November 2024, the Petitioner filed a judicial separation petition (“the Judicial Separation Petition”). On the same day he filed an application for interim reliefs (“this Application”) pertaining to the Child and assets.

Prior to the hearing of this Application, a preliminary objection was raised on the ground that this Court lacked jurisdiction to hear either this Application or the Judicial Separation Petition. The objection was based on the Petitioner’s alleged failure to satisfy the requirement of ‘residence’ under section 48 of the Law Reform (Marriage and Divorce) Act 1976 (“the Law Reform (Marriage and Divorce) Act”), which is a prerequisite for filing the Judicial Separation Petition as well as this Application. 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 4 The issue [7] The issue, therefore, was whether the Petitioner was a resident of Malaysia at the time of filing the Judicial Separation Petition and this Application. [8] I found that the Petitioner was not a resident of Malaysia, and, therefore, allowed the preliminary objection, for the following reasons. Contentions, evaluation, and findings [9] The starting point in addressing the preliminary objection was section 48 of the Law Reform (Marriage and Divorce) Act, which reads: Section 48 – Extent of power to grant relief …

Nothing in this Act shall authorise the court to make any decree of judicial separation except-

where the marriage has been registered or deemed to be registered under this Act; or

where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and

where both the parties to the marriage reside in Malaysia at the time of the commencement of proceedings. [Emphasis added.] [10] The word “reside” in section 48(2) of the Law Reform (Marriage and Divorce) Act is not defined, but my attention was brought to the meaning of it provided for in LexisNexis Malaysia's Words, Phrases and Maxims: 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 5 Residence is a word used in law to denote the fact that a person dwells in a given place or in the case of a corporation that the management is carried on there. … The place where a man established his abode and makes the seat of his property and exercises his civil and political rights; the place where one habitually sleeps; where one sleeps and lives: the place where a man is chiefly to be found. Of a corporation, its chief office or place of business, the place where the real trade or business is carried on; in another sense, its citizenship. [Emphasis added.] [11] In my view, the Petitioner had not met the threshold of ‘residence’ or ‘reside’ as prescribed by section 48 of the Law Reform (Marriage and Divorce) Act, for the following reasons. [12] Tourist visa status - At the time of filing this Application and the Judicial Separation Petition, the Petitioner was in Malaysia on a tourist visa. This immigration status was inherently temporary and did not support any claim of lawful or established residence. It underscored the absence of any permanent or genuine connection between the Petitioner and Malaysia at the material time. [13] Living arrangements – The Petitioner’s living arrangements further demonstrated that he was not genuinely residing in Malaysia. While the Respondent and Child were residing in what was referred to as the Millerz Home, it was undeniable that this property was never the matrimonial home. [14] The Petitioner had no real or continuous connection to the Millerz Home, as the Respondent and Child had only moved into that property in June 2024, nearly two years after the Parties had separated in 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 6 September 2022. The Parties’ true matrimonial home, was in Hong Kong, as that was where the Parties had last cohabited as husband and wife, and had also maintained their belongings. [15] Significantly, the Petitioner himself admitted that the Millerz Home had been purchased merely as a contingency in the event of unemployment. It was never intended to serve as the family’s home. Thus, the Petitioner’s current portrayal of the Millerz Home as the matrimonial home was self-serving and unsubstantiated. [16] Further evidence of the Petitioner’s lack of intention to resume family life at the Millerz Home was reflected in his communications with the Respondent. While the Respondent was in the process of relocating from her rented unit at the E & O Residence to the Millerz Home, the Petitioner’s sole concern was the relocation of his own belongings. [17] Transient presence in Malaysia after separation – In gist, the Petitioner had resided outside of Malaysia except from January 2022 to September 2022, in conjunction with the birth of the Child; and from September 2024 to date, after he had resigned from BNP Paribas Hong Kong around June 2023. [18] Following his resignation from BNP Paribas, the Petitioner continued to reside in Hong Kong. Records show that he had consulted his present solicitors as early as December 2023. However, it was only in September 2024 that he had travelled to Malaysia, initially staying at various Airbnb accommodations. It appears that he only commenced renting his current condominium unit in November 2024, around the time the Judicial Separation Petition and this Application were filed. 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 7 [19] In my view, the Petitioner’s nomadic lifestyle before November 2024 was indicative of his lack of settled presence in Malaysia. These patterns did not reflect the conduct of someone who was a resident of Malaysia at the time the Judicial Separation Petition and this Application were filed. [20] Continued job search abroad – The Petitioner’s conduct after filing the Judicial Separation Petition and this Application further reinforced the conclusion that he was not a resident of Malaysia at the material time. Significantly, even after 22 November 2024, he actively sought employment in Singapore and the Philippines, demonstrating a clear absence of any genuine intention to make Malaysia his place of residence. [21] Inconclusive business establishment efforts – The Petitioner’s claim that he was establishing a business in Malaysia was equally unconvincing. While he alleged that steps were taken to launch a business under CQS Sdn Bhd, no substantive progress had been made. The company remained a shell entity, and the digital licence application filed in its name has lapsed due to inaction. [22] The Petitioner relied on several English authorities to support his claim of residence, namely Sinclair v Sinclair [1967] 3 All ER 882, Armytage v Armytage [1898] P 178, and Matalon v Matalon [1952] 1 All ER 1025. However, a close examination of the factual circumstances in those cases revealed that the cases cited were materially distinguishable from the present case, and, therefore, offer limited assistance to the Petitioner. 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 8 [23] In all three authorities cited, it was the wives who were resident or domiciled in the UK, and who had instituted proceedings against their husbands who were either absent or not permanently residing in the UK. The courts in those cases were concerned with whether the absent husbands maintained sufficient connection to the jurisdiction to establish residence or justify the court’s exercise of jurisdiction. [24] In contrast, the present case involved a reversed dynamic, namely that it was the Petitioner who came to Malaysia and filed the Judicial Separation Petition against the Respondent who had long been resident in Malaysia with the Child. This factual reversal was significant and undermined the applicability of the authorities relied upon by the Petitioner. [25] Further, in Sinclair v Sinclair, the husband, though not physically present in the UK at all times, was found to have maintained the matrimonial home and, had all along, supported the wife and children in the UK. That continuous financial and familial connection to the forum was central to the court’s finding that the UK remained the centre of the matrimonial life. [26] In contrast, the Millerz Home in Malaysia was never the matrimonial home. The true matrimonial home was in Hong Kong, where the Parties last lived together and conducted their lives as husband and wife. The Petitioner had no substantial or sustained presence at the Millerz Home, and Malaysia was never the focal point of their matrimonial life. 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 9 [27] In Matalon v Matalon, the court had considered that although the husband had been absent, he had previously participated in proceedings before the UK courts, including a custody application, thereby establishing a substantive and ongoing relationship with the jurisdiction. His actions amounted to a quality of residence sufficient to ground jurisdiction. In stark contrast, in the present case, the Petitioner had not initiated or participated in any prior proceedings in Malaysia before filing the Judicial Separation Petition and this Application. His connection to Malaysia was limited, recent, and clearly orchestrated for the purpose of commencing litigation. [28] Likewise, in Armytage, the husband, although living in Australia, had returned to the UK to pursue reconciliation with his wife and had made an application for custody, care and control of the children, who were residing in the UK. That return demonstrated a continuing familial connection with the UK and a desire to re-engage with the matrimonial relationship. In the present case, however, the evidence suggested that the Petitioner had not returned to Malaysia to re-establish any connection with the Respondent or the Child. Rather, his return appeared solely for the purpose of filing the Judicial Separation Petition and this Application. [29] In summary, the authorities cited by the Petitioner involved genuine and continuous connections to the jurisdiction, either by way of maintaining the matrimonial home, supporting dependents, or engaging the courts on substantive family matters. These critical features are wholly absent in the present case. The Petitioner’s reliance on these cases was, therefore, misplaced. 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 10 [30] I also have to add that the Petitioner had emphasised his physical presence in Malaysia prior to and during the filing of this Application, However, in my view, ‘residence’, particularly in the context of family law, requires more than temporary or strategic presence at a location. It involves a degree of permanence or continuity, and an intention to treat the place as a settled or habitual home. A person may be physically present in a country, for example, staying in a rented property or with relatives, but if that presence is fleeting, for convenience, or with no real intention to establish a life there, it cannot be said that the person is truly resident in that place. [31] On this point, reference was made to the case of Anthony v. Anthony (Nee Pragasam) [1959] 1 MLJ, which was relied upon by the Petitioner himself. In that case, the concept of ‘residence’ was described by Sutherland J in the following passages: Counsel emphasised that petitioner's address is in Singapore. Counsel cited Flowers v. Flowers [1910] ILR 22 All 203 where, at p. 205 appears this passage; Mere casual residence in a place for a temporary purpose with no intention of remaining is not ‘dwelling’ and where a party has a fixed residence out of jurisdiction, an occasional visit within jurisdiction will not suffice to confer jurisdiction by reason of residence. [Emphasis added.] [32] The Petitioner also drew my attention to the term ‘ordinarily resident’ employed in section 49 of the Law Reform (Marriage and Divorce) Act, arguing that it should be distinguished from the term ‘residing’ in section 48 of the same Act. He contended that the concept of ‘resident’ need not imply the same degree of permanence as ‘ordinarily resident.’ 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 11 [33] In my view, the concept of ‘resident’ in law, though broader and more inclusive than ‘ordinarily resident’, is not without its own requirements. It still connotes a degree of permanence, continuity, and connection to a particular place. A person cannot be said to be ‘resident’ in a location if their presence is merely transient, sporadic, or incidental. There must be some element of settled purpose, that is, a conscious decision to make that place a base, even if for a limited time. ‘Resident’ implies more than a stopgap or a temporary visit; it involves a degree of stability and an intention to remain for a meaningful duration. [34] In contrast, the term ‘ordinarily resident’ entails a more stringent threshold. It denotes a place where an individual regularly and voluntarily resides as part of the normal course of their life. The defining features of being ‘ordinarily resident’ are habit and continuity, reflecting a settled, predictable existence marked by routine and a degree of permanence. Courts have consistently interpreted this concept to mean a residence where a person lives in an established and regular manner, even if not permanently or indefinitely. [35] The key distinction lies in the nature and quality of the connection to the place. ‘Resident’ may be sufficient for certain legal thresholds, even if temporary, so long as it is not casual or accidental. But ‘ordinarily resident’ requires something more: it must be a place to which a person returns consistently and voluntarily, forming part of the fabric of daily life. In sum, while ‘resident’ allows for some fluidity, it cannot be sporadic or incidental; and ‘ordinarily resident’ demands a deeper, more enduring connection grounded in routine and purpose. 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 12 [36] My attention was also drawn to the case of Datuk Syed Kechik bin Syed Mohamed v Government of Malaysia & Anor [1979] 2 MLJ 101, where it was stated by Suffian LP: The Oxford English Dictionary defines the word "reside" to mean "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place." The word "residence" implies some decree of permanence and continuity. [Emphasis added.] [37] In the same manner, ‘residence’ was described in Halsbury's Laws of Malaysia - Conflict of Laws, as follows: Generally, 'residence means physical presence other than casually or as a traveller. ln considering whether residence is established the court considers a man's whole environment, especially in relation to his wife and family. and not merely his physical situation. [Emphasis added.] [38] In my view, the Petitioner’s presence in Malaysia was casual at best, resembling that of a transient visitor. His claim of ‘residence’ appeared contrived and devoid of genuine substance. It was, in essence, a manufactured residence. [39] Manufactured residence is characterised by its artificiality. It is often timed strategically, for example, just weeks or days before filing a petition for divorce, judicial separation, or child custody, so as to satisfy jurisdictional requirements. However, courts are not bound by the superficial form of such arrangements. They will examine the 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 13 substance: whether there is any permanence, stability, or integration into the community. Factors such as employment, long-term accommodation, ties to family or education, and the individual’s intention are critical to distinguishing genuine residence from one that is merely contrived. [40] In the present case, the Petitioner’s residence was a manufactured one as it was deliberately constructed to create the superficial impression of living in Malaysia, solely for the purpose of initiating legal proceedings, without any real intention of making it his true or habitual home. [41] At this juncture it was timely to remind litigants that they should refrain from manipulating jurisdictional rules by deliberately relocating to, or claiming residence in, a particular country solely for the purpose of initiating divorce or separation proceedings. Jurisdiction in family law matters is intended to reflect a genuine connection between the parties and the forum, grounded in substantive ties such as habitual residence or domicile. When a party establishes residence merely to secure a more favourable legal position or to take advantage of perceived procedural or substantive advantages, it not only undermines the fairness of the proceedings but also risks an abuse of the court’s process. Courts are increasingly vigilant in scrutinising such claims to ensure that jurisdiction is not invoked through artificial or temporary arrangements. [42] That said, it is important to note that the Petitioner was not without recourse, as he could still file a judicial separation or divorce petition in 12 July 2025 ------------------------------------------------------------------------------------------------------------------ _______________________________________________________________________ 14 the jurisdiction where he is resident or domiciled, namely, Hong Kong or Singapore. Conclusion [43] In conclusion, in the interest of justice and following a careful and comprehensive assessment of all the evidence presented, including both written and oral submissions by Counsel, the preliminary objection was allowed with costs. Accordingly, the Judicial Separation Petition was struck out, and this Application dismissed. Dated: 12 July 2025 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner – Tay Kit Hoo, Cassandra Lee and Seen Rui Yong; Messrs Low and Partners For the Respondent – Goh Siu Lin and Denise Lim; Messrs Kee Sern,