T I N v H I N (WA-33-158-03/2022)

The Petitioner-Husband filed a divorce petition, seeking joint guardianship and custody of the child of the marriage, along with the division of matrimonial assets. In response, the Respondent-Wife cross-petitioned for sole guardianship and custody of the child, as well as child and spousal maintenance.

To protect the privacy of the parties, and due to the sensitive nature of the issues involved, the Petitioner-Husband and Respondent-Wife have been anonymised in this judgment as TIN and HIN, respectively.

The Petitioner, a French citizen and the Respondent, a Malaysian (collectively "the Parties"), were married in France in September 2012, and subsequently registered the marriage in Malaysia in March 2013. Their marriage resulted in the birth of their son ("the Child") in November 2016.

After their marriage, the Parties lived in France before moving to Sabah in 2013 and later relocating to Kuala Lumpur.

Despite the increasing strain in their marriage, the Parties mutually agreed for the Respondent to undergo in-vitro fertilisation (“IVF”) to conceive the Child. However, their relationship continued to deteriorate. Undeterred, the Respondent pursued additional IVF 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 3 treatments in an attempt to have another child, though these efforts were unsuccessful.

The marriage ultimately broke down when the Petitioner moved out of their shared bedroom in June 2020. In July 2020, he left the matrimonial home, and in March 2022, he filed for divorce (“the Divorce Petition”). The Respondent subsequently filed a cross-petition (“the Cross-Petition”) and reply to the Divorce Petition in May 2022. The issues [7] The issues for consideration by this Court were as follows:

Spousal Maintenance – In the deliberation of whether spousal maintenance should be awarded to the Respondent, the following issues were imperative to consider, namely,

Whether the irretrievable breakdown of the marriage was caused by the Petitioner or Respondent; and

(ii) Whether the Respondent had satisfied the 'means and needs' assessment to justify her claim for monthly maintenance.

The Child – The key issues concerning the Child were:

Whether the Petitioner was obligated to pay child maintenance; and

(ii) Whether the Parties should have joint guardianship and custody or if sole guardianship and custody should be granted to the Respondent. 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 4

Matrimonial Assets – The key issue regarding the matrimonial assets was whether this Court had jurisdiction over their division in France and, if so, whether the Petitioner had provided sufficient evidence to justify such a division. [8] The Divorce Petition and Cross-Petition were granted in part, allowing the divorce, joint guardianship and joint custody of the Child, and spousal and child maintenance. While the Petitioner was not required to pay spousal maintenance, he was obligated to provide monthly child maintenance of MYR1,500 and to equally share all additional expenses related to the Child. [9] However, no division of matrimonial assets was ordered, as the Petitioner failed to adduce any evidence or to provide sufficient details of such matrimonial assets for the Court to decide on the matter. [10] The following were my reasons. Contentions, evaluation, and findings Spousal Maintenance [11] In determining if spousal maintenance should be granted to the Respondent, 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: 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 5

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 my assessment of whether the Respondent was deserving of maintenance, I found guidance in established legal 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 These cases underscore the importance of considering several key factors, such as the following:

Current and anticipated income, earning potential, assets, and financial resources of each party;

Present and foreseeable financial needs, obligations, and responsibilities of each party;

Standard of living maintained by the family before the marriage dissolution;

Age of each party;

Length of the marriage;

Physical, mental, or health-related disabilities of either party; and 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 6

Contributions of each party to the overall well-being of the family. [13] Two key factors in assessing the Respondent’s entitlement to spousal maintenance were the financial means and needs of both Parties, as well as the extent of responsibility for the marriage's breakdown, as stipulated in section 78 of the Law Reform (Marriage & Divorce) Act, which states: 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.] Whether irretrievable breakdown of marriage was caused by the Petitioner or Respondent [14] Although both Parties had mutually agreed to proceed with the divorce, acknowledging that their marriage had irretrievably broken down, they were in sharp disagreement over who bore the greater responsibility for its breakdown. [15] The Petitioner alleged that the Respondent was a quarrelsome, argumentative, and difficult woman whose confrontational nature created an unhealthy and hostile marital environment. He further contended that she failed to provide him with the emotional and 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 7 practical support expected of a spouse, leaving him feeling isolated and unappreciated in the relationship. [16] Conversely, the Respondent rejected these claims and argued that the Petitioner was largely to blame for the breakdown of their marriage. She described him as lethargic and unmotivated, asserting that he lacked the ambition and drive necessary to contribute meaningfully to their household. [17] According to the Respondent, his passive attitude toward their relationship created a disconnect between them, ultimately leading him to seek external validation and companionship elsewhere. She alleged that, rather than working on their marital issues, he began engaging with other women on online dating platforms such as Tinder, further deepening the divide between them and making reconciliation impossible. [18] After carefully reviewing all the evidence adduced by both Parties, I was of the view that both Parties played an equal role in the irretrievable breakdown of the marriage. [19] The Petitioner, disillusioned by his persistent lack of employment, gradually withdrew, which likely led to emotional and financial strain within the relationship. Meanwhile, the Respondent, burdened by growing frustration over the Petitioner’s inability or unwillingness to secure stable work, became increasingly resentful. This mutual dissatisfaction created a cycle of tension and discord, ultimately leading to the demise of their union. 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 8 [20] To make matters worse, the Respondent had undergone the stress of the IVF procedures, which further compounded her emotional and physical strain. The demanding nature of these treatments, coupled with the existing marital struggles, exacerbated tensions between the Parties, making reconciliation even more challenging. [21] The combination of financial insecurity, emotional detachment, and the additional burden of fertility treatments ultimately led to the breakdown of the marriage. Whether Respondent had satisfied “means and needs” test [22] The Respondent requested MYR3,000 in spousal maintenance. However, I decided that the Respondent was not entitled to any maintenance for the following reasons. [23] First and foremost, section 77(1) of the Law Reform (Marriage & Divorce) Act refers to the word "may," which indicates that the Court has discretion in determining whether, or to what extent, the Respondent is entitled to spousal maintenance. [24] I found it necessary to clarify at this stage that there is no absolute rule requiring a man to provide maintenance for his wife or former wife. It was important to recognise that the provisions of the Law Reform (Marriage & Divorce) Act were drafted and enacted at a time when the roles of husbands and wives were distinctly defined. During that period, most women were homemakers who relied financially on their husbands, who served as the primary earners for the family. 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 9 [25] However, since the enactment of the Law Reform (Marriage & Divorce) Act, an entire generation has passed, bringing about significant shifts in societal norms and gender roles. The traditional expectations of husbands as sole providers and wives as homemakers have evolved, with women increasingly participating in the workforce and achieving financial independence. The outdated notion that a woman's place is solely in the home no longer holds, and, as a result, there is no automatic entitlement for a woman to receive maintenance from her former husband. Instead, the Court must carefully evaluate all relevant factors, including financial capacity, earning potential, and individual circumstances, to determine whether spousal maintenance is justified in each case. [26] Furthermore, in exercising its discretion, the Court must be guided by the "means and needs" test prescribed by section 78 of the Law Reform (Marriage & Divorce) Act. [27] On this point, I found instructive the case of Choong Yee Fong v. Ooi Seng Keat; Chua Chong Hong (Joint Respondent) [2006] 5 CLJ 144, where it was stated by Faiza Thamby Chik J, in the following passage: It may be summed up that s. 78 of the Act requires this court to assess the means and the needs of both the petitioner and the respondent and also their respective conduct which contributed to the irretrievable breakdown of the marriage, in coming to a decision if the petitioner is entitle to a maintenance at all and if so, the amount to be awarded. In first assessing the means of the petitioner, attention is drawn to the petitioner's affidavit at para. 9 (encl. 76). The petitioner has averred therein that she was at one time until 2001, drawing a salary of RM1,800. The respondent in disclosing his financial ability at para. 17 to 24 of encl. 77 has averred that the average monthly income received by the respondent is RM2,800. The petitioner has been at all material time gainfully employed. The petitioner is not in a 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 10 situation where she is incapable of supporting herself but rather a case where there is an able-bodied petitioner who refuses to seek employment in order to claim for maintenance from the respondent. This refusal to be self-supportive is further proven by the petitioner herself whereby despite of her alleged tight financial situation, the petitioner has shown total lack of initiative in mitigating her financial woes but has instead went on a spending spree as evidenced by her indiscriminate use of credit cards facilities which according to the petitioner's averment at para. 12(a) and (b) of encl. amounts to a total sum of RM114,668.64. The potential earning power of the claimant must also be considered. [Emphasis added.] [28] In my evaluation, the Respondent did not satisfy the "means and needs" test to warrant spousal maintenance for the following reasons. [29] At the time of the divorce trial, the Respondent was 48 years old, in good health, and gainfully employed as a visual facilitator. During her testimony, she openly acknowledged that throughout the marriage, it was she who had been the primary financial provider for both the Petitioner and the Child, as the Petitioner had faced ongoing difficulties in securing and maintaining stable employment. This admission strongly suggested that the Respondent possessed both the capability and the financial means to support herself independently, without requiring ongoing financial assistance. [30] Under these circumstances, the Respondent’s claim for financial assistance from the Petitioner was unwarranted. Her previous role as the primary breadwinner directly contradicted any assertion of financial dependency. Consequently, I decided that the Respondent was not entitled to any spousal maintenance. 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 11 The Child Whether Petitioner was obligated to pay child maintenance [31] Although the Petitioner had no obligation to provide spousal maintenance, 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 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.] 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 12 [32] In the Cross-Petition, the Respondent sought a monthly child maintenance payment of MYR2,000, while the Petitioner proposed contributing only MYR550 toward the Child’s upbringing. [33] In my view, the Petitioner’s proposed sum of MYR550 was entirely insufficient to meet the needs of a growing child. Raising a six-year-old entails significant financial commitments, which would include expenses for food, clothing, housing, healthcare, and education. [34] After thoroughly evaluating the Child’s essential needs and considering the rising cost of living, I concluded that a reasonable and adequate monthly amount to financially maintain the Child would be approximately MYR3,000. Recognising that both parents share an equal responsibility for the Child’s well-being, I apportioned this obligation accordingly. As such, I ordered the Petitioner to contribute a monthly amount of MYR1,500 in child maintenance, which represented a fair and proportionate share of the overall expenses. To ensure consistency and financial stability for the Child, this amount must be deposited into the Respondent’s bank account no later than the seventh of each month. [35] However, this sum of MYR1,500 is intended to cover only the Child’s general living expenses. Additional costs, including but not limited to education, healthcare, tuition, and extracurricular activities, must be equally shared between both Parties. Any decisions regarding these expenses must be made jointly. Furthermore, when one Party incurs such expenses, the non-paying Party must reimburse their share within 14 days of notification, with official receipts serving as proof of 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 13 payment. This would ensure a fair and transparent system for managing the Child’s financial needs. Whether Parties should have joint guardianship and joint custody of the Child [36] The Petitioner sought joint guardianship and joint custody of the Child, while the Respondent insisted on sole guardianship and sole custody, arguing that she was the primary caregiver and that the Petitioner had not been cooperative in co-parenting. [37] 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 care and control of the Child should remain with the Respondent 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. [38] Reference was made to the Singapore case of CX v. CY (minor: custody and access) [2005] 3 SLR 690, where the Court of Appeal recognised the importance of joint parenting and established the preferable position to preserve the concept of joint parental responsibility. [39] It was crucial to bear in mind the role that a father has in ensuring that the child is raised in a nourishing environment. This was highlighted in the Singapore case of APE v. APF [2015] SGHC 17, where reference was made by Tan Siong Thye J to the article Contact and Domestic Violence - The Experts' Court Report [2000] Fam Law 615 by Claire, 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 14 Sturge and Danya Glaser, which provided an analysis of the role of the father to his child: The findings are that the position in law that parental involvement on both sides is indeed in the best interests of the child. In a paper commissioned by the Official Solicitor, Claire, Sturge and Danya Glaser," Contact and Domestic Violence - The Experts' Court Report" [2000] Fam Law 615 ("The Experts' Court Report") at pp 616-617, the authors comment that: Contact with fathers, as opposed to other family members or people with whom the child has a significant relationship, brings the following, in particular, to bear, although the general principles remain the same: • the father's unique role in the creation of the child; • the sharing of 50% of his or her genetic material; • the history of his or her conception and the parental relationship; • the consequent importance of the father in the child's sense of identity and value; • the role modelling a father can provide of the father's and male contribution to parenting and the rearing of children which will have relevance to the child's concepts of parental role models and his or her own choices about choosing partners and the sort of family life he or she aims to create. ... In summary, the benefits include the meeting of his or her needs for: • warmth, approval, feeling unique and special to a parent; • extending experiences and developing (or maintaining) meaningful relationships; • information and knowledge; • reparation of distorted relationships or perceptions. 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 15 [40] 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.] [41] Pursuant to section 3 (Duties of guardian of person) of the Guardianship of Infants Act, both parents 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. [42] It must be remembered that the provisions of the Law Reform (Marriage & Divorce) Act were discussed, deliberated and determined during a time when the demarcation of the role of a father and mother was clear, where most women were stay-home mothers, to manage the household and raise children, and fathers were mere breadwinners for the family. However, a whole generation has transitioned since the Law Reform (Marriage & Divorce) Act was enacted and along with it, the traditional roles of a father and a mother have evolved. There has since been a shift in cultural norms, and as such, the role of a father is 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 16 no longer relegated to secondary status. The relationship between a father and child has evolved and is more complex than one assumes. [43] It cannot be gainsaid, therefore, that a child needs both parents, as they would have invaluable contributions to make to a child's life. Hence, not all fathers should be painted with the same brush, as there are some who take a more active role in raising children, whilst others undeniably sit back and leave their children to be raised by their wives and domestic help. [44] Considering that both Parties reside in close proximity and there was no evidence suggesting that the Petitioner had been neglectful or abusive toward the Child, I found no compelling justification to deny the Petitioner joint guardianship and custody. While the Respondent alleged that the Petitioner had been uncooperative in co-parenting, it was equally evident that the Respondent had also exhibited a lack of cooperation. [45] In light of these circumstances, it was crucial that both Parties set aside their personal grievances and prioritise the Child’s well-being above all else. Co-parenting requires a civil, respectful, and collaborative approach to ensure the Child receives the love, support, and stability necessary for healthy development. Therefore, in the interest of the welfare of the Child, I urged both Parties to work together harmoniously in fulfilling their parental responsibilities. [46] Furthermore, since the Petitioner 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 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 17 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. [47] As part of having joint guardianship and joint custody, neither Party may unilaterally change the Child’s permanent residence without the express consent of the other. This would safeguard and ensure stability in the Child’s living arrangements and prevent unnecessary disruptions to the Child’s well-being. [48] Although both Parties have been granted joint guardianship and joint custody, the Respondent shall retain primary care and control of the Child and will retain the Child’s identification documents. However, the Petitioner will be entitled to reasonable access to the Child, as follows: a) Virtual Access – Online, video, or virtual access to the Child every Tuesday and Thursday for up to 30 minutes between 7pm and 8pm. The Respondent must not obstruct or hinder this access in any way and shall ensure that it is facilitated smoothly, without any interruption or interference. b) Midweek Access – Unsupervised, physical access every Wednesday, after school until 8pm. c) Alternate Weekend Access – Unsupervised, and overnight physical access every alternate weekend, from Thursday at 7pm until Monday morning, when the Petitioner will drop the Child off at school. Mother’s 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 18 Day and Father’s Day weekends will be spent with the respective parent. d) Public Holidays – Unsupervised, and overnight physical access every alternate public holiday, from 7pm on the eve of the holiday until 7pm on the holiday itself (or the last day of the holiday if it extends beyond one day). e) Christmas Period – Unsupervised, and overnight physical access from 23 December at 5pm to 30 December at 5pm. f) School Holidays (longer than one week) – Unsupervised, and overnight physical access during the first half of the holiday, beginning on Thursday at 7pm and ending on the last Sunday of that half at 7pm. g) Overseas Holidays – Both Parties are required to provide a minimum of 10 days’ advance notice before taking the Child on an overseas trip, accompanied by a detailed itinerary outlining travel dates, destinations and accommodation arrangement. Upon receiving such notice, the Respondent must promptly surrender the necessary travel documents to the Petitioner to facilitate the Child’s travel. Additionally, any overseas travel must be strictly limited to the designated access period of the traveling parent and must not infringe upon or overlap with the other Party’s scheduled access time. This would ensure that both parents retain their rightful and uninterrupted time with the Child, maintaining a fair and balanced co-parenting arrangement. 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 19 Matrimonial assets [49] The matrimonial assets in question comprised two properties in France and two businesses. [50] Regarding the businesses, the first was referred to in this judgment as TTD, while the second was identified as TTVS. The Petitioner sought the transfer of the Respondent’s shares in TTD to him but made no claim concerning TTVS. [51] However, during oral submissions in Court, it was revealed that the Respondent had already executed the necessary documents to transfer her shares in TTD to the Petitioner, rendering his claim moot. Whether Court had jurisdiction over division of Properties located in France [52] Consequently, the only remaining issue for determination was the division of the two properties in France, which remained the central point of dispute in these proceedings. [53] The Petitioner asserted that there were two matrimonial assets in France, which will be referred to in this judgment as Property No. 1 and Property No. 2 (collectively “the Properties”). He sought a division where he would retain Property No. 1 and the Respondent would receive Property No. 2. Alternatively, he suggested that both the Properties be sold, with the proceeds divided equally. 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 20 [54] The Respondent, however, contended that she had lent the Petitioner EUR120,000 for Property No. 1, which he was supposed to repay within two years. She further claimed that Property No. 1 was jointly registered in both their names and that the Petitioner had failed to return the loan amount, even after selling an asset in Canada. She also argued that the dispute should be decided by a French court, given that the Properties were located in France. [55] The Respondent further argued that this Court, being the High Court of Malaya, lacked jurisdiction to determine the division of matrimonial assets located outside Malaysia, specifically in France. She contended that any dispute concerning the Properties should be adjudicated by the French courts. [56] I found the Respondent’s contention on the issue of jurisdiction untenable for several reasons. First, by filing her Cross-Petition and Reply to the Divorce Petition on 6 May 2022, the Respondent had in fact submitted to the jurisdiction of this Court. If she had intended to challenge the Court’s authority, she should have raised the issue at an earlier stage in the proceedings rather than to wait until after the trial had concluded and to bring it up only during oral submissions. [57] Secondly, under matrimonial law, section 76 of the Law Reform (Marriage and Divorce) Act explicitly grants this Court the power to deal with any asset acquired by the Parties during the course of their marriage. The scope of matrimonial assets under this 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 21 provision is not confined solely to properties located within Malaysia; rather, it extends to all assets acquired during the marriage, irrespective of their geographical location. This would ensure a comprehensive and equitable distribution of matrimonial assets, reflecting the true financial contributions and entitlements of both Parties. Section 76 of the Law Reform (Marriage and Divorce) Act states: Section 76 – Power for 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. [Emphasis added.] [58] Therefore, the argument that this Court lacked jurisdiction over the division of the Properties in France was not supported by the legal framework. Whether Petitioner had provided sufficient evidence to justify division of Properties [59] Nevertheless, despite my disagreement with the Respondent’s contention, I ultimately refrained from making a ruling on the division of the Properties. This decision was based on the fact that the Petitioner had failed to provide any documentary evidence to establish ownership of the Properties or to demonstrate how the EUD120,000 he received from the Respondent was utilised in relation to Property No

26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 22 [60] When questioned about the absence of these crucial documents, the Petitioner claimed that they were in the possession of the Respondent. However, it was undeniable that the Petitioner had not taken any formal legal steps, such as applying for discovery, to compel the Respondent to produce the documents. This failure to substantiate his claims had cast serious doubts on the credibility of his assertions, ultimately leading to the Court’s decision not to rule on the matter. [61] Furthermore, the Petitioner testified that the EUR120,000 paid by the Respondent was used as a life insurance guarantee for a loan. In my view, this raised complex legal issues under French banking and contract law, including whether the life insurance policy affected property ownership, whether the Respondent’s financial contribution was secured within the insurance arrangement, the legal consequences of the Petitioner defaulting on the loan, and whether the Respondent had a right to reimbursement or a proportional share of the value of Property No 1. [62] With regard to Property No 2, the Respondent strongly contended that it should not be classified as a matrimonial asset, on the basis that the sale and purchase agreement for Property No 2 was executed solely by the Respondent, with no financial contribution or involvement from the Petitioner. Additionally, the Respondent claimed that the Petitioner had formally waived any claim to the property by signing a legal document in front of a notary under French law, acknowledging that Property No 2 belonged exclusively to the Respondent. Given these circumstances, the 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 23 Respondent argued that Property No. 2 should not be subject to division in the matrimonial proceedings. [63] During cross-examination, the Petitioner admitted that he had indeed signed legal documents related to Property No. 2. However, when questioned about the specific conditions outlined in the document, he became evasive and failed to provide a clear or consistent explanation. His lack of transparency raised doubts about his credibility and suggested an attempt to downplay the legal significance of the document he had willingly signed. [64] The fact of the matter was that the fundamental burden of proof lay with the Petitioner, as he was the one asserting that the Properties should be divided as matrimonial assets. However, despite making such a claim, the Petitioner had failed to produce any documentary evidence to substantiate his position. No title deeds, financial records, or contractual agreements were tendered to demonstrate joint ownership or financial contributions toward the Properties. This absence of evidence weakened the Petitioner’s case and reinforced the Respondent’s assertion that the Properties, if at all, should be divided according to French law by the French courts. [65] Given the complete lack of supporting evidence from the Petitioner, the Respondent urged the Court to draw an adverse inference pursuant to section 114(g) of the Evidence Act 1950 (“the Evidence Act”). This legal principle allows the Court to presume that if a party fails to produce evidence within their 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 24 possession, it is because such evidence would have been unfavorable to their case. Section 114(g) of the Evidence Act reads: 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; [Emphasis added] [66] As stated by the Supreme Court in Munusamy Vengadasalam v. PP [1987] CLJ (Rep) 221; [1987] 1 CLJ 250 [1987] 1 MLJ 492, evidence that is referred to in illustration (g) to section 114 of the Evidence Act must not only be relevant, it must be material. [67] In my view, the documentary evidence relating to the Properties was crucial to this case, as it could have substantiated the Petitioner’s claim regarding how the Properties should be divided. [68] On this note, reference was made to the case of Sabah Shell Petroleum Co Ltd & Anor v. The Owners Of And/Or Any Other Persons Interested In The Ship Or Vessel The 'Borcos Takdir' [2012] CLJU 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 25 1116; [2012] 1 LNS 1116; [2012] 5 MLJ 515, where it was stated by Nallini Pathmanathan J (now FCJ): ... The person best placed to explain fully the events of the day would have been the Master but the Defendant failed to call the master as witness. Stating that he was uncooperative. Given the importance of this witness' evidence, the defendant's failure to subpoena him led this court to conclude that the master's evidence if produced, would affect the defendant adversely. This was a fit and proper case for this court to draw an adverse inference under s. 114(g) against the defendant. [Emphasis added] [69] Another key aspect of the evidence referenced in illustration (g) to section 114 of the Evidence Act is that an adverse inference is drawn only when evidence is deliberately withheld. Such deliberate withholding is inferred when there is no reasonable explanation for the failure to present the evidence: 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. [70] The Petitioner had ample opportunity to obtain and present the necessary documentary evidence to support his claim regarding the division of the Properties. The Divorce Petition was filed in March 2022, and the Cross-petition and reply in May 2022, giving the Petitioner sufficient time to gather and produce relevant evidence. However, despite having more than enough time to substantiate his claim, the Petitioner failed to provide any supporting documents pertaining to the Properties. This complete lack of corroborative evidence significantly 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 26 undermined the credibility of his assertion that the Properties should be subject to division as matrimonial assets. [71] Furthermore, the Petitioner had failed to offer any explanation for his inability or unwillingness to produce documentary evidence in support of his claim. The absence of a valid justification led to a reasonable inference that the Petitioner had deliberately withheld relevant and material evidence, likely due to concerns that such evidence would contradict or weaken his position. As a result, I found the Respondent’s argument compelling and agreed that an adverse inference should be drawn against the Petitioner under section 114(g) of the Evidence Act. [72] I also took note of the fact that despite the Petitioner’s repeated insistence on claiming rights over both Properties, he and his Counsel failed to provide this Court with any meaningful assistance in addressing key legal and factual issues regarding ownership, financial contributions, and legal obligations. Without clarity on these fundamental aspects, the Court could not make a fair and informed ruling on how the Properties should be divided. The lack of substantial evidence from the Petitioner made it evident that his claim was not adequately supported by facts or law. [73] Additionally, I was unable to take judicial notice of French property law, as it is not one of the matters listed under section 57 of the Evidence Act, which outlines the categories of facts that the Court may recognise without requiring proof. Instead, the burden was on the Petitioner to present expert opinion, if at all, on French property law, as permitted under section 45 of the Evidence Act. This provision allows for the 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 27 introduction of expert opinion evidence when dealing with foreign legal matters. Section 45 of the Evidence Act, reads: Section 45 – Opinions of experts When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts. [Emphasis added.] [74] The Petitioner’s failure to fulfil this obligation further weakened his case, as he did not provide the Court with the necessary legal framework to support his claims regarding property division. As such, I agreed with the Respondent’s contention for the Court to dismiss the Petitioner’s relief for division of the Properties as matrimonial assets. Conclusion [75] In this case, after a thorough review of the submissions and evidence presented, the Court pronounced the divorce and for the decree nisi to be made absolute immediately. [76] In determining custody arrangements, both Parties were granted joint guardianship and joint custody of the Child. However, primary care and control were awarded to the Respondent, ensuring that the Child’s day-to-day upbringing and welfare remained under her supervision. 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 28 [77] To ensure the Child's financial well-being, the Court ordered the Petitioner to pay MYR1,500 in monthly child maintenance. Additionally, both Parties were required to equally share all other expenses related to the Child, including education, healthcare, tuition, and extracurricular activities. This arrangement sought to ensure that the Child’s needs were adequately met while maintaining financial fairness between the Parties. [78] With regard to the division of the Properties located in France, I concluded that there was no basis for adjudicating the matter — not due to any jurisdictional limitations of this Court, but rather because of the Petitioner's failure to provide sufficient documentary evidence. Consequently, any dispute concerning the ownership or division of the Properties should be deferred to the French courts and relevant authorities, as they would possess the necessary documentation and would be best positioned to render an informed decision. [79] The Respondent had also requested that the Court’s order be recognised in France as a mirror order, meaning that a corresponding order would be registered in the French legal system to ensure its enforceability in both jurisdictions. I found this request reasonable and accordingly allowed it, thereby providing legal continuity and safeguarding the rights of both Parties and the Child across international borders. Dated: 26 March 2025 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 29 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner-Husband – Thum Weng Shen and Nivetha Sri Shanker; Messrs The Chambers of Loh For the Respondent-Wife – Dhyana Shila Vasanthan and Syamala Jeyaraman; Messrs Dhyan & Co Cases referred to: ➢ Adel Muhd El-Dabbah v. AG of Palestine [1944] AC 156 ➢ APE v. APF [2015] SGHC 17 ➢ Choong Yee Fong v. Ooi Seng Keat; Chua Chong Hong (Joint Respondent) [2006] 5 CLJ 144 ➢ CX v. CY (minor: custody and access) [2005] 3 SLR 690 ➢ Dr Shameni Pillai PB Rajedran v Dr S Arulselvam Sanggilly & Anor [2011] 6 CLJ 782 26 March 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 30 ➢ Marappan Muthusamy v. R Sivam Ramasamy [2013] CLJU 1381; [2013] 1 LNS 1381; [2014] 4 MLJ 428. ➢ Murugan v. Lew Chu Cheong [1980] CLJU 49; [1980] 1 LNS 49; [1980] 2 MLJ 139 ➢ Munusamy Vengadasalam v. PP [1987] CLJ (Rep) 221; [1987] 1 CLJ 250 [1987] 1 MLJ 492 ➢ V Sandrasagaran Veerapan Raman v. Dettarassar Velentine Souvina Marie [1999] 5 CLJ 474 ➢ Sabah Shell Petroleum Co Ltd & Anor v. The Owners Of And/Or Any Other Persons Interested In The Ship Or Vessel The 'Borcos Takdir' [2012] CLJU 1116; [2012] 1 LNS 1116; [2012] 5 MLJ 515 Legislation referred to: ➢ Evidence Act 1950 – sections 45, 57, 114(g) ➢ Guardianship of Infants Act 1961 – sections 3, 5 ➢ Law Reform (Marriage and Divorce) Act 1976 – sections 76, 77, 78, 88, 92, 93 Other sources referred to: ➢ Contact and Domestic Violence - The Experts' Court Report [2000] Fam Law 615 by Claire, Sturge and Danya Glaser