Prabakaren A/L Mukunan v Amritakumari A/P Savandarajan (BA-24F-78-03/2025)

This is an application filed by the Applicant (the husband) to set aside part of a consent order dated 5.7.2023, specifically to set aside the agreement transferring 50% of his EPF savings to the Respondent (the wife) pursuant to Section 53A of the Employees Provident Fund Act 1991.

On 14.10.2025 this Court dismissed the Applicant’s application. The reasons for the decision are set out below.

The Applicant and the Respondent solemnised and registered their marriage on 1 February 2017 at the Jabatan Pendaftaran Negara, Negeri Selangor. Two children were born of the marriage, both sons, in 2018 and 2021 respectively.

The marriage gradually deteriorated due to irreconcilable differences and the parties eventually reached a mutual decision to bring the marriage to an end. In furtherance of that decision they jointly filed a divorce petition before the High Court at Shah Alam under Joint Petition No: BA33JP-707-06/2023. S/N g5lyp03FhEyb7OgxmayNyw

On 5.7.2023 the High Court duly recorded a consent order dissolving the marriage and setting out the agreed terms between the parties in respect of custody, maintenance and the division of matrimonial assets. One of the express and unequivocal terms of that consent order provided for the transfer of 50% of the Applicant’s EPF savings to the Respondent pursuant to section 53A of the EPF Act 1991. The transfer of funds was duly effected in October 2023.

Almost two years later the Applicant has filed the present Originating Summons seeking, inter alia, a declaration that the EPF monies transferred to the Respondent be returned. The basis for this application rests on the Applicant’s assertion that the consent order was entered erroneously and in breach of the principals of natural justice. Issues for Determination 7. The principle issues that arise for determination are :

whether this Court has jurisdiction to revisit and vary the division of matrimonial assets after the divorce has been finalised by a consent order;

(ii) whether the consent order dated 5.7.2023 can be set aside on the grounds advanced by the Applicant;

(iii) whether the Applicant has established any legal basis to undo the transfer of EPF monies already effected. S/N g5lyp03FhEyb7OgxmayNyw Decision of the Court 8. At the outset, this Court finds it necessary to reaffirm the principle that is now firmly entrenched in Malaysian family law, namely that the division of matrimonial assets under section 76 of the Law Reform (Marriage and Divorce) Act 1976 is intended to achieve finality at the point when the divorce is granted.

The Federal Court in Manokaram Subramaniam v Ranjid Kaur Nata Singh [2009] 1 MLJ 21 made it abundantly clear that the power conferred by section 76 is to be exercised when the decree is granted and that such orders are intended to bring about a “clean break” between parties so that they may move forward with their lives without fear of fresh claims hanging over them long after the marriage has been dissolved.

This principle was reiterated in Satiavathi Kayambu v Tamby Raja Perumal [2023] 1 LNS 231 where the Federal Court once again emphasized that once a division of matrimonial assets is made at the time of divorce, the matter is final and not open to subsequent re-litigation. The Federal Court has explained as follows : “[10] Section 76 of the Law Reform (Marriage & Divorce) Act clearly empowers the Court to decide on the division of matrimonial assets at the time when the divorce is granted. This also provides finality to the issues concerning matrimonial assets, as explained by the Federal Court in Manokaram Subramaniam v. Ranjid Kaur Nata Singh [2009] 1 MLJ 21, where it was stated by Arifin Zakaria FCJ in S/N g5lyp03FhEyb7OgxmayNyw the following passage: [23] The power of the court to order division of matrimonial assets is governed by s. 76 of the Act. Subsection (1) of s. 76 relates to assets acquired during the marriage by their joint effort, while sub-s (3) relates to assets acquired during the marriage by the sole effort of one party to the marriage. In both instances it is provided that the court shall have power to make such order ‘when granting a decree of divorce’, that is, on the date when the decree nisi is made absolute.”

As explained above, section 76 clearly empowers the court to determine the division of matrimonial assets “when granting a decree of divorce”. Parliament has expressly confined the exercise of that power to the point in time when the decree nisi is made absolute.

Accordingly and in line with the authoritative pronouncement in Manokaram Subramiam, this Court is of the view that the consent order dated 5.7.2023 constitutes a final and conclusive order in respect of the division of matrimonial assets between the parties.

In the present case, it has to be emphasized that the parties were not subject to a court imposed order following a contested proceeding. Instead, they voluntarily and consciously entered into a consent order that comprehensively and exhaustively settled their respective rights and obligations, including the division of the EPF funds. S/N g5lyp03FhEyb7OgxmayNyw

Significantly, the consent order was recorded contemporaneously with the making of the decree nisi. As such the agreed division of matrimonial assets formed an integral part of the dissolution of the marriage itself.

In these circumstances this Court is bound to hold, as a matter of law, that the division of matrimonial assets in the present case became final on 5.7.2023. There is no statutory or jurisprudential basis to reopen that division now. EPF as a Matrimonial Asset 16. It is no longer in dispute that EPF savings constitute a matrimonial asset capable of division under section 76 LRA

This position was affirmed in the case of Teo Chee Cheong v Chiam Siew Moi [2024] CLJU 4 where the Court of Appeal held in clear terms that EPF funds accumulated after the marriage form part of the matrimonial assets and are amenable to division under section 76(1) of the LRA 1976. The Court of Appeal expressly stated that a spouse’s EPF funds accumulated during the subsistence of the marriage fall squarely within the phrase “any assets acquired by them during the marriage” as envisaged by section 76(1) LRA 1976.

The Applicant sought to draw a distinction between post-martial and pre-marital EPF savings contending that the EPF funds accrued prior to the marriage do not form part of the matrimonial property and that, consequently the Respondent is not entitled to any share thereof. Reliance was placed on section 76(3) of the LRA, which confers upon the court the power, when granting a decree of divorce or judicial separation, to order the division of S/N g5lyp03FhEyb7OgxmayNyw assets acquired during the marriage by the sole effort of one party. The Applicant further relied on subsection (4) of section 76, which sets out the considerations to be taken into account by the court in exercising that power, including the contributions of the non-acquiring spouse to the welfare of the family and the needs of any minor children, subject always to the principle that the party by whose effort the assets were acquired shall receive a greater proportion.

The relevant portions of section 76(3) and (4) LRA 1976 are reproduced below for ease of reference :

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 during the marriage by the sole effort of one party to 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

the court shall have regard to —

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 the family;

the needs of the minor children, if any, of the marriage; and subject to those considerations, the court may divide the S/N g5lyp03FhEyb7OgxmayNyw assets or the proceeds of sale in such proportions as the court thinks reasonable; but in any case the party by whose effort the assets were acquired shall receive a greater proportion.”

On the basis of these provisions, the Applicant contended that “matrimonial property” within the meaning of section 76 must necessarily be confined to property acquired during the subsistence of the marriage. Applying that construction to the facts of the present case, the Applicant argues that only the EPF contributions made between 1 February 2017, the date of the marriage, and 5 July 2023, the date of the consent order and decree nisi, may properly be regarded as matrimonial assets. According to the Applicant, this post-marital accumulation amounts to an aggregate sum of RM682,248.

The Applicant further submitted that EPF funds accumulated prior to the marriage fall instead within the ambit of section 76(5) of the LRA 1976 which is as follows : “(5) 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.”

The above provision deems certain pre-marital assets to be “assets acquired during the marriage” only where such assets S/N g5lyp03FhEyb7OgxmayNyw have been substantially improved during the marriage by the other party or by the joint efforts of both parties. The Applicant’s case is that the Respondent did not contribute in any manner to the improvement of the Applicant’s pre-marital EPF savings, which were acquired solely through his own employment and contributions before the marriage and therefore she is not entitled to the same.

In advancing this contention, the Applicant argues that EPF savings are, by their very nature, incapable of being “substantially improved” by the other spouse during the subsistence of the marriage, unlike tangible assets such as land or property. Reliance was again placed on Teo Chee Cheong, where the Court of Appeal observed as follows : “(3) the Pre-Marriage EPF Funds can only be a part of the Assets (s76 LRA) if either one of the 2 Alternative Conditions [S76(5) LRA] is fulfilled. It is difficult for us to envisage how the 2 Alternative Conditions [S76(5) LRA] can be satisfied with regard to the Pre-Marriage EPF Funds. This is because we cannot foresee how Pre-Marriage EPF Funds can be substantially improved during a marriage within the meaning of s76(5) LRA by any one spouse or by both of them; If the 2 Alternative Conditions [S76(5) LRA] cannot be fulfilled in respect of the Pre-Marriage EPF Funds, the Pre-Marriage EPF Funds cannot fall within the meaning of the Assets (s76 LRA) and cannot therefore be divided by the court pursuant to s 76(1) LRA.” S/N g5lyp03FhEyb7OgxmayNyw

It was further contended by the Applicant that, at the time the Joint Petition was drafted, he had erroneously agreed to its terms as a result of what he now characterises as a gross misrepresentation by the Respondent’s then solicitors, namely that the Respondent was entitled to fifty per cent (50%) of the entirety of the EPF funds standing to the Applicant’s credit as at the date of the divorce, amounting to RM1,058,713.50. According to the Applicant, this alleged misrepresentation rendered the consent fundamentally wrong in law, contrary to principles of natural justice, and therefore liable to be set aside as of right.

However, it is pivotal to note that the treatment and status of the EPF funds in the present case did not arise from any unilateral assertion, judicial imposition or determination by the Court. Rather, they were matters of express, conscious, and unequivocal agreement between the parties at the time the Joint Petition for divorce was negotiated, finalised, and recorded before the Court. The Applicant was neither compelled by any court order nor misled by any finding or pronouncement of the Court as to his legal entitlements. On the contrary, he voluntarily elected to include his EPF savings within the pool of assets to be divided and further agreed, in clear and unambiguous terms, to the precise proportion of that division, namely that fifty per cent (50%) of his EPF savings be transferred to the Respondent. Having freely entered into such an agreement and having permitted it to be embodied in a consent order of the Court, the Applicant cannot now seek to resile from it by advancing belated claims of error or misrepresentation, in the absence of clear, cogent, and compelling evidence of any vitiating factor recognised by law. S/N g5lyp03FhEyb7OgxmayNyw

This Court agrees with the Respondent’s contention that section 76 of the Law Reform (Marriage and Divorce) Act 1976 does not prohibit parties from agreeing to divide their assets in such manner as they see fit, including assets acquired prior to the marriage, so long as the agreement is lawful and is duly recorded by the Court. In the present case, the Court did no more than give effect to, and record, what the parties themselves had freely and voluntarily agreed to in their joint petition.

26.

It is important to underscore that the legal position would have been materially different had the order in question not been a consent order, but one made following a full trial after the Court had heard and evaluated evidence from the parties. In such circumstances, the Court would indeed have been constrained by the statutory limits of section 76 of the Law Reform (Marriage and Divorce) Act 1976, including the principle that assets acquired prior to the marriage may only be brought within the pool of matrimonial assets if they had been substantially improved during the marriage by the other party or by the joint efforts of both parties. S/N g5lyp03FhEyb7OgxmayNyw

That, in this Court’s view, is the proper and correct lens through which the decision in Teo Chee Cheong ought to be understood, and it is the context in which the Court of Appeal’s observations were made. The decision was concerned with delineating the extent of the Court’s powers when exercising its discretion to divide matrimonial assets in a contested setting, and not with circumscribing the autonomy of parties who, with the benefit of legal advice, voluntarily agree to a broader or different distribution of assets and invite the Court to record their agreement.

Where parties have entered into a consent order after due negotiations and deliberation, the Court will not lightly interfere with that agreement. The law is settled that a consent order carries the same force and effect as any other judgment of the Court, and its sanctity will be upheld save in strictly limited circumstances. This principle was clearly articulated by the Court of Appeal in Zainuddin Muhammad v Atsco Ltd & Anor [2003] 1 CLJ 446, where it was held that : “Now it is trite law that a consent order cannot be varied unless with the agreement of the other party or parties affected by it. Neither can it be set aside unless the conditions are met. (see Tio Chee Hing v

The rationale underpinning this principle is plain. A consent order represents a bargain struck between parties who have chosen, often with the benefit of legal advice, to resolve their disputes on mutually agreed terms rather than to submit the matter to S/N g5lyp03FhEyb7OgxmayNyw adjudication. To permit such agreements to be easily unravelled would undermine the finality of litigation and erode confidence in the efficacy of negotiated settlements.

Reference is hereby made to the High Court case of Lau Hui Sing v Wong Chuo Yong [2008] CLJU 232 where the Learned Judge held as follows : “As a general rule, consent order cannot be set aside varied or discharged. Though, there are statutory exceptions to this rule in matrimonial matters, it is incumbent on the court as a matter of public policy to ensure that the issues are not re-litigated again; and again and in this case within less than two years after the consented divorce petition was allowed. This is in line with the concept of ‘clean break’ principles advocated in a number of cases (see Minton v Minton [1979] 1 All ER 79). ….”As a general rule, consent order even in a divorce matter must be rarely disturbed unless there are exceptional circumstances…”

It is therefore the considered view of this Court that the courts ought not to encourage parties who have freely and knowingly consented to a judgment to later resile from it merely because of a change of heart, subsequent regret, or belated dissatisfaction with the bargain struck. This salutary principle was correctly underscored in Satiavathi Kayambu, where the learned judge observed : S/N g5lyp03FhEyb7OgxmayNyw “…it was crucial to bear in mind that ‘the court should not entertain or encourage any party in an action in court where the parties had agreed and instructed their counsel to record the consent judgment containing the agreed terms and after obtaining legal advice, to subsequently, upon an afterthought attempt to challenge or dispute the consent judgment’: per VT Singham J in Teng Chee Wai & Ors v Hock Soon Seng Sdn Bhd [2008] CLJU 659.”

Applied to the present case, these authorities reinforce the principle that a consent order solemnly entered into and recorded by the Court cannot be set aside merely because one party has had second thoughts. In the absence fraud, misrepresentation, mistake, or some other recognised vitiating factor, the agreement must be held to its terms, and the Court will not lend its aid to reopen what the parties themselves had chosen to finally resolve.

The Applicant’s central contention is that he agreed to the transfer of the EPF monies under a misapprehension of the law, that he was unrepresented at the material time, and that the resulting consent order is therefore fundamentally unjust. This Court is unable to accept such a submission.

First, it is to be emphasized that the Applicant is not a person of vulnerability or limited understanding. The evidence before this Court establishes that he is a professional pilot, financially stable and well educated. He was at all material times fully capable of S/N g5lyp03FhEyb7OgxmayNyw appreciating the nature and consequences of the agreement he entered into. He had every opportunity to seek independent legal advice prior to consenting to the terms of the joint petition. By his own admission he had made a conscious and deliberate decision not to engage legal representation in order to save costs. With respect, such a voluntary choice cannot now be recharacterized as a legal infirmity so as to impugn the validity of a consent order recorded by the Court. To permit a party to challenge a consent judgment on the sole basis that he elected to remain unrepresented would set a dangerous precedent and undermine the finality of consensual settlements.

To now assert that the agreement was contrary to natural justice or fundamentally wrong in law merely because the Applicant chose not to be legally represented is wholly untenable. The principles of natural justice are concerned with fairness of process, not with protecting a litigant from the consequences of his own informed and voluntary decisions.

Further the evidence clearly demonstrates that the Applicant actively participated in the negotiation of the divorce terms. He proposed and requested amendments to the joint petition, including changes to the quantum of maintenance. Such conduct is wholly inconsistent with any suggestion that he was coerced, misled or unaware of the nature and effect of the terms to which he agreed. On the contrary it points to a deliberate and engaged negotiation culminating in a consent order that accurately reflected the parties’ agreed settlement at the time it was recorded in court. S/N g5lyp03FhEyb7OgxmayNyw

Moreover and most importantly there is complete absence of evidence to support any allegation of “gross misrepresentation” or any undue influence on the part of the Respondent or her solicitors. The assertions by the Applicant amount, at their highest to bare allegations unsupported by any credible or cogent material.

The law is trite as explained in L’Estrange v F. Graucob Ltd [1934] 2 KB 394, a decision which was referred to and adopted in the Malaysian case of Ooi Yoke In (F) & Anor v Public Finance Berhad [1993] 2 CLJ 464 as follows : “The law is quite clear that when a party signs a contract knowing it to be a contract which governs the relations between them, binding them (so to speak), then, to borrow the words of Denning J in the case of Curtis v Chemical Cleaning & Dyeing Co. Ltd [1951] 1 All ER 631 : his signature is irrefragable evidence of his assent to the whole contract, including the exempting clauses, unless the signature is shown to be obtained by fraud and misrepresentation. A pertinent point made by Scrutton LJ in L’Estrange v F. Graucob Ltd [1934] 2 KB 394 needs mention and that is : When a document containing contractual terms is signed then, in the absence of fraud or, I will add, misrepresentation, the party signing it is S/N g5lyp03FhEyb7OgxmayNyw bound, and it is wholly immaterial whether he has read the document or not.”

In the present case, the Applicant claims that the Respondent’s solicitor grossly misrepresented to him that the Respondent was entitled to fifty per cent (50%) of the entirety of the EPF funds standing to his credit. However, no proof whatsoever of any such gross misrepresentation has been placed before this Court. There is no affidavit evidence, contemporaneous correspondence, or objective material capable of substantiating this serious allegation. In the absence of such evidence, this Court is not prepared to accept the Applicant’s bare assertions.

In my view, the Applicant’s contention is untenable. The presumption in law is that a party who enters into and consents to a court order understands its contents and legal effect. The Applicant was at all material times free to obtain legal representation but consciously chose not to do so, of his own volition and for reasons of cost. He cannot now complain of unfairness arising from a choice he freely made. In any event, dissatisfaction with the outcome of a bargain or a subsequent change of mind can never constitute a basis to set aside a consent order solemnly recorded by the Court.

The Applicant’s attempt to rely on authorities such as Eu Finance Bhd v Lim Yoke Foo and Badiaddin bin Mohd Mahidin v Arab Malaysian Finance Bhd is misconceived. Those cases concerned situations of nullity arising from a lack of jurisdiction or illegality. They are plainly distinguishable from the present case. Here, this Court unquestionably had jurisdiction to S/N g5lyp03FhEyb7OgxmayNyw record a consent order in matrimonial proceedings, and the order made is entirely lawful under section 53A of the Employees Provident Fund Act 1991 and section 76 of the Law Reform (Marriage and Divorce) Act 1976. There is therefore no legal foundation whatsoever for treating the consent order as a nullity.

In any event, this Court is of the considered view that there is no basis to nullify or set aside the consent order dated 5 July 2023. Parties to matrimonial proceedings are at liberty to agree on any proportion for the division of assets and to treat any asset as part of the matrimonial pool, whether acquired during the marriage or even prior to it, provided such agreement is lawful and made with the consent of both parties. To reiterate, where, as in the present case, the parties have freely negotiated and agreed upon the terms of division and invited the Court to record their agreement, the Court will uphold the sanctity and finality of that consent. Inordinate and unexplained Delay 44. Another feature that weighs heavily against the Applicant is the inordinate and wholly unexplained delay in the filing of the present application. The consent order was recorded on 5 July

The Applicant did not file any appeal against the consent order. Yet, the application now before this Court was only instituted in March 2025, almost two years later. This lapse of time is not insignificant. During this prolonged interval, the Respondent was entitled to, and did, proceed on the basis that the financial settlement reached between the parties was final, conclusive, and binding. She has since reorganised her financial affairs and personal life in reliance on the certainty and finality S/N g5lyp03FhEyb7OgxmayNyw that the law promises to divorced parties, particularly where a consent order has been solemnly recorded before the Court.

The courts have consistently emphasised that delay is a critical factor in the exercise of judicial discretion. The Federal Court in Satiavathi Kayambu, and the Court of Appeal in Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223, have made it abundantly clear that a litigant who seeks the court’s intervention must do so promptly and without undue delay. In Khor Cheng Wah, the following observations of Gopal Sri Ram JCA are particularly apposite : “It is a cardinal principle of law that when a litigant seeks the intervention of the court in a manner that affects his rights, he must do so timeously. The maxim vigilantibus, non dormientibus, jura subveniunt, though having its origins in the Court of Chancery, is of universal application. Even in cases where a right is exercisable ex debito justitiae, a court may refuse relief to an indolent litigant. In all cases in which delay in approaching the court is in issue, the burden is upon the litigant who has delayed to render a satisfactory explanation for it.”

In the present case, the Applicant has provided no excuse, justification, or explanation whatsoever for the delay. There is a complete silence in the affidavits as to why the application could not have been brought earlier, or what circumstances, if any, prevented a timely application. This failure is fatal. Having neglected to advance any reasonable or cogent explanation for S/N g5lyp03FhEyb7OgxmayNyw the prolonged delay, the Applicant has not discharged the burden squarely resting upon him. In these circumstances, the delay is not only inordinate but also inexcusable, and it would be manifestly unjust to permit the Applicant, after sleeping on his rights, to disturb a settlement that the Respondent has long treated as final, settled, and beyond further challenge, particularly where no satisfactory explanation has been offered to justify the reopening of matters that ought, in the interests of finality and certainty, to be laid to rest.

This Court agrees with the Respondent that the present application bears all the hallmarks of an afterthought driven by a change of heart rather than any genuine legal grievance. To allow such an application would undermine the finality of consent orders in family law, discourage amicable settlements and open the floodgates to endless post-divorce litigation.

Ultimately the Applicant’s case flounders on a fundamental point in that this Court has no jurisdiction to revisit the division of matrimonial assets once the divorce has been finalized. Section 76 of the LRA 1976 contemplates that the division of assets is to be dealt with when granting a decree of divorce”. That stage passed conclusively on 5.7.2023. What the Applicant seeks is not clarification or enforcement of the consent order but a substantive re-writing of it. That cannot be permitted.

In the absence of fraud, coercion or jurisdictional defect, none of which was proven by the Applicant, this Court is functus officio in respect of the division of matrimonial assets. S/N g5lyp03FhEyb7OgxmayNyw Conclusion 50. In the result, for the reasons set out above, and having carefully and judiciously considered the totality of the evidence before this Court together with the submissions advanced by both parties, this Court finds no merit in the application.

Accordingly, the application is dismissed with costs. Dated 13 January 2026. (JULIE LACK) Judge High Court of Malaya Shah Alam Selangor Darul Ehsan S/N g5lyp03FhEyb7OgxmayNyw (SELANGOR) Counsel for the Applicant : Vijaya Gopal (Messrs Vijaya Gopal & Associates) Counsel for the Respondent : Amirtha Valli Sinniah (Messrs Amirtha VS & Co.) S/N g5lyp03FhEyb7OgxmayNyw