Tan Hong Gim v Ooi Yong Por (KA-33-52-04/2018)

A. INTRODUCTION This is the Petitioner’s application for the dissolution of the marriage under the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). The marriage took place on 17 April 1994. The Petition was filed in 2018 and concerns a marriage of approximately 24 years, with four children of the marriage. The Petition alleges, among others, cruelty, habitual gambling, financial neglect, the presence of loan sharks, and the irretrievable breakdown of the marriage.

The Respondent disputes the allegations but has not filed any evidence at trial, despite multiple opportunities over several years.

The Petitioner proceeded with her case, supported by her own testimony and the corroborative evidence of the parties’ children.

The Grounds of Judgment are prepared following the conclusion of the trial and concurrent written submissions. The matter proceeded to decision via Zoom, given that this was a part-heard case before my transfer to the Kuala Lumpur High Court.

Since its filing in 2018, this matter has undergone numerous interlocutory applications, adjournments, changes of counsel, and procedural delays.

The Court has afforded more than sufficient opportunity for both parties to present their cases. However, in the interest of justice and finality, this case cannot be allowed to drag on indefinitely.

The salient events are summarised below.

Application to Amend Answer (Enclosure 133) and Appeal to Court of Appeal

The Respondent previously applied to amend his Jawapan Kepada Petisyen Terpinda. That application was dismissed. The Respondent appealed to the Court of Appeal, and I prepared written Grounds of Judgment for the appellate proceedings.

Although the interlocutory appeal against Enclosure 133 is scheduled to be heard on 7 July 2026, this Court sees no reason to withhold its decision after the full trial. In the event the appeal succeeds, the Court of Appeal may issue such further or consequential directions as are appropriate.

Application for Stay of Proceedings (Enclosure 153)

The Respondent applied for a stay pending his appeal. That application was dismissed, on grounds including the absence of special circumstances, the advanced stage of the trial, and the prejudice to the Petitioner if the matter were delayed further.

Application for KWSP Injunction (Enclosure 155)

The Respondent also sought an injunction restraining the Petitioner from dealing with her KWSP funds. This Court dismissed the application on grounds that:

there was no pleading foundation;

the application was filed late;

the Petitioner had reached age 55 and the KWSP monies were used for reasonable family expenses, including children’s education and instalments for GM18146; and

the Respondent did not come with clean hands.

Trial Delays and Respondent’s Non-Compliance

The trial commenced on 14 December 2021. The Respondent was repeatedly directed, since 7 September 2020 and again during case management on 31 December 2023, to file his witness list and witness statements. He failed to comply.

On 17 September 2025, after Petitioner closed her case, the Court granted the Respondent one final opportunity to file his witness list by the next morning. No list was filed. On 18 September 2025, both the Respondent and his counsel were absent, and no explanation other than a late medical leave was offered through a substitute counsel who was instructed to mentioned on behalf of the Respondent’s Counsel to inform that he was sick and to ask for another date. At that point of time, there was no medical certificate produced and the list of witnesses were also not coming as previously directed by the court. was absent.

This Court found that the Respondent’s conduct amounted to trial-by-ambush, intended to wait for the Petitioner’s evidence before deciding who to call. This prejudiced the Petitioner and undermined fairness.

Accordingly, the Respondent was deemed to have no witnesses, and his case was closed.

The parties were married for over two decades and resided together at No. 58 and 60 Pekan Tokai, where the family operated a small kedai runcit . Four children were born of the marriage, and as at the time of trial, at least one remained dependent.

The Petitioner alleges long-standing cruelty, physical intimidation, verbal abuse, and habitual gambling by the Respondent. She states that the Respondent regularly returned home late or disappeared for days to gamble, loan sharks frequently came to the home, he demanded shop funds for gambling, and he neglected family expenses since around 2017.

The Petitioner eventually left the matrimonial home with the children due to escalating threats and the Respondent’s involvement with another woman. She then supported the children alone through informal baking work, having lost her only source of livelihood i.e the shop.

The evidence adduced by the Petitioner and other witnesses gave a clear and consistent narrative, supported by contemporaneous circumstances. The testimonies given described persistent verbal abuse, threats, financial abandonment, and the Respondent’s refusal to reform despite repeated pleas.

Through the evidence of the witnesses, the Court gathered detailed recollections of the Respondent’s gambling addiction, aggressive behaviour, the presence of loan sharks, and the Petitioner’s hardship in supporting the family after leaving the shop.

Therefore, I found that the testimonies were unshaken and had strong probative value. It corroborates the Petitioner’s evidence on key elements of cruelty, misconduct, and financial neglect.

The Respondent filed no affidavit-in-chief, no witness statement, and called no witnesses. His pleadings are therefore unsupported by evidence. E.

Whether the marriage has broken down irretrievably under section 53 LRA.

Whether the Respondent committed cruelty or misconduct.

Whether the parties are separated and no possibility of reconciliation exists.

Whether maintenance should be awarded.

Whether the Petitioner is entitled to a share of matrimonial assets, and the appropriate apportionment.

Any other ancillary matters. F. FINDINGS AND ANALYSIS OF THE COURT

Irretrievable Breakdown (Section 53 LRA)

The unchallenged evidence shows continuous separation since 2017, repeated cruelty, financial abandonment, and the Respondent’s failure to participate meaningfully in the marriage or these proceedings. The marriage has, beyond doubt, broken down irretrievably.

Cruelty and Misconduct

The Petitioner provided consistent accounts of verbal abuse, intimidation, and aggressive conduct. The presence of loan sharks and the Respondent’s gambling habit materially endangered the family’s safety and well-being.

In the absence of any rebuttal evidence, the Petitioner’s version is accepted. The Court finds that the Respondent committed cruelty within the meaning recognised by Malaysian jurisprudence.

Separation and No Likelihood of Reconciliation

The parties have lived apart for more than seven years. The Respondent made no attempt at reconciliation and did not even attend the trial to defend the marriage. There is no reasonable possibility of resuming cohabitation.

Maintenance (Sections 77 and 92 LRA)

The Respondent has not contributed any maintenance since 2017. The Petitioner bore all children’s expenses, including education. Petitioner currently suffers from health issues (multiple eye surgeries) and has a limited earning capacity.

The Respondent has an obligation to support both spouse and dependants. A reasonable monthly spousal maintenance and contribution for any remaining dependent children is justified.

Matrimonial Assets (Section 76 LRA 1976)

Section 76 provides: 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 by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale.

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

the extent of the contributions made by each party in money, property or work towards the acquiring of the assets;

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

the needs of the minor children, if any, of the marriage, and subject to those considerations, the court shall incline towards equality of division.

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 (3) 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 for the family;

the needs of the minor children, if any, of the marriage; and subject to those considerations, the court may divide the 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.

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 joint efforts.

Having evaluated the admissible evidence, documentary materials, and the parties’ pleadings, I am satisfied that the following immovable properties constitute matrimonial assets within the meaning of section 76 LRA:

Jointly Owned Properties

Rumah kedai GM 18146, Lot 900, Seksyen 49, Alor Setar, Kedah;

(ii) Tanah lot kosong GM 768, Lot No. 4069, Pekan Tokai, Pendang, Kedah;

(iii) Tanah lot kosong GM 895, Lot 4068, Pekan Tokai, Pendang, Kedah.

Sole-Name Properties under the Respondent (but matrimonial assets)

Sebuah kondominium All Season Park, 6C/28/01 Autumn Tower, Lebuhraya Thean Teik, 11500 Ayer Itam, Penang;

(ii) Sebuah rumah berkembar No. 434, Taman Desa Seraya, 05350 Alor Setar, Kedah;

(iii) Lot 4060, Pekan Tokai, Pendang, Kedah;

(iv) Lot 4070, Pekan Tokai, Pendang, Kedah;

Rumah kedai, Lot 4061, Pekan Tokai, Pendang,

(vi) Rumah kedai, Lot 4062, Pekan Tokai, Pendang, Kedah.

Properties under items (i), (ii), and (iii) are jointly registered and therefore incontrovertibly fall within paragraph 76(1)(a) LRA as assets acquired through the joint efforts of both spouses.

Although properties under items (iv) to (vi) are registered solely in the Respondent’s name, the evidence demonstrates that they were:

acquired during the subsistence of the marriage;

utilised or intended for the family’s living, business or welfare; and

maintained or benefited from the Petitioner’s indirect contributions, including her daily work at the kedai runcit premises, household management, child-rearing, and her KWSP withdrawals for family obligations.

The Respondent tendered no evidence to rebut the statutory presumption under paragraph 76(1)(b) LRA that these properties were acquired for the common matrimonial purpose. His failure to file any witness statements or appear during trial further strengthens the inference that the Petitioner’s unchallenged testimony must be accepted.

Of particular importance is GM18146, which is partly financed by the Petitioner’s KWSP and directly connected to the children’s education and family expenses. This contribution is significant and enhances the Petitioner’s entitlement in the overall pool.

Apportionment of Matrimonial Assets

Subsection 76(2) LRA requires the Court to consider both direct and indirect contributions. Malaysian jurisprudence consistently acknowledges that non-financial contributions, such as running the household, raising children, and supporting the family business, carry equal weight.

Subsection 76(3) LRA further empowers the Court to assess whether any party has dissipated or wasted matrimonial assets. Petitioner’s testimony suggests that the Respondent had, over time, sold certain properties without accounting to the Petitioner and diverted family resources to gambling. No rebuttal evidence was offered.

Jointly-Owned Properties

With respect to the jointly-owned assets, the evidence shows:

both parties contributed during the acquisition;

the Petitioner’s indirect contributions were substantial, she worked daily at the family shop, managed the home, and raised the children;

since 2017, the Petitioner has been the sole caregiver and financial supporter of the children; and

the Respondent abandoned the family and failed to contribute financially thereafter.

Balancing the equities, the justice of the case supports a greater share for the Petitioner for these assets. Therefore the Court hereby orders that the Petitioner is given 60% and the Respondent is 40%.

(ii) Sole-Name Properties

In respect of the properties standing solely in the Respondent’s name, the evidence establishes that:

they were acquired during the marriage;

the Respondent was in control of family finances;

the Petitioner’s indirect contributions significantly enabled these acquisitions, given her total involvement in the family business and domestic responsibilities;

the Respondent dissipated or diverted marital resources into gambling; and

he has not discharged the burden to show that these properties were acquired without matrimonial effort.

In such circumstances, a substantially higher share to the Petitioner is justified, particularly considering:

her sole care of the children since the separation;

her use of personal KWSP funds for family needs;

the Respondent’s complete financial abandonment;

the Respondent’s procedural misconduct (multiple delays, no evidence, trial by ambush).

Therefore, the Court hereby orders that the Petitioner is given Petitioner, 70% and the Respondent, 30%.

The Court believes that when the matrimonial pool is viewed in totality, the evidence overwhelmingly favours the Petitioner as the spouse who:

bore the domestic and emotional burdens of the marriage;

raised the children largely alone;

supported the family through her labour at the business;

used her KWSP funds for family benefit;

endured the Respondent’s cruelty, gambling, and irresponsible conduct; and

continued to support the family post-separation for nearly a decade.

The Respondent’s absence at trial and failure to engage with the judicial process further diminish the weight of his position.

The Court has recorded that the Respondent was adjudicated bankrupt on 26 May 2019. Jabatan Insolvensi Malaysia (MDI) granted sanction/leave to proceed on 25 August 2019. This leave is legally sufficient to allow the matrimonial cause, such as divorce, maintenance, section 76 LRA distribution, to continue.

However, the Court’s power to distribute matrimonial assets interacts with the rights of the DGI. It has to be noted that leave to proceed does not equate to leave to enforce against the estate. The Court can determine rights, declare percentages, and make findings. But actual execution, transfer, or sale must respect insolvency law.

Effect of Bankruptcy on Matrimonial Assets

Assets jointly owned

In our case here, assets jointly owned, e.g., GM18146, GM 768, GM 895, do not vest fully in the DGI under section 8 IA 1967 because a joint owner is not a debtor of the bankrupt estate. Only the bankrupt’s undivided share vests in the DGI.

Therefore, the determination by the Court on shares of 60:40, after a decree, the Petitioner may apply to partition, buy out, or the DGI may sell the Respondent’s share to realise value. The Court’s judgment remains operative. It cannot override the DGI’s statutory rights to administer the bankrupt’s share.

(ii) Assets solely in the Respondent’s name

The Court must emphasise here that the important principle is that all property of the bankrupt vests in the DGI according to sections 24 and 38 IA 1967. However, the vesting in DGI does not prevent the family court from determining the non-bankrupt spouse’s entitlement under section 76 LRA. What vests is the bankrupt’s beneficial interest, not the non-bankrupt spouse’s share.

This means that the Court can declare the Petitioner’s percentage or entitlement, but execution, transfer, or sale requires the involvement or consent of the DGI. The Court’s judgment is only to determine the beneficial interest and the DGI administers the bankrupt’s interest. The DGI becomes bound by the Court’s determination of the Petitioner’s share.

Therefore, the following have to be noted:

Jurisdiction to determine despite bankruptcy

Although the Respondent was adjudicated bankrupt on 26 May 2019, and by operation of sections 24 and 38 of the IA 1967, his property vests in the DGI, the Court retains jurisdiction under section 76 LRA to determine the Petitioner’s matrimonial entitlement. The sanction granted by the MDI on 25 August 2019 permits these proceedings to continue.

Limitation on enforcement

This determination of percentages represents the parties’ beneficial interests in the matrimonial assets. Any transfer or realisation of the Respondent’s share must be undertaken in accordance with the IA 1967 and with the participation of the DGI.

Effect on jointly owned assets

For the jointly registered assets, only the Respondent’s undivided share vests in the DGI. The Petitioner’s share is unaffected and remains intact. The DGI is bound by this Court’s determination of the respective beneficial interests.

Effect on sole-name assets

While the legal title of the solely-owned properties vests in the DGI, the Petitioner’s matrimonial entitlement recognised under section 76 LRA confers a beneficial interest which the DGI must take into account when administering the estate.

In matrimonial distribution, percentages refer to beneficial interest in the value, not the number of properties. If there are six properties, and the Court awards Petitioner 70% and Respondent 30%. This means the Petitioner is entitled to 70% of the total net value of all the matrimonial assets, not 70% of the number of properties. The percentages apply to sale proceeds, valuation, or buy-out mechanisms. This is simply because some assets may be worth millions, others thousands.

Hence, the Court believes that counting assets by number is irrational and contrary to section 76 LRA.

In our present case, to apply the percentages since the Respondent is a bankrupt, the following are to be done:

For jointly owned assets, the Petitioner’s percentage is extracted directly from the value, and the DGI may deal only with the bankrupt’s share.

For sole-name assets, when the Court declares Petitioner is entitled to 70% beneficial interest, the DGI must account for that 70% before distributing the bankrupt’s estate to creditors.

The Court does not order direct transfer unless DGI consents. It is therefore, in respect of all matrimonial assets, the Petitioner is entitled to 70% of the total beneficial value, and the Respondent (through the DGI) is entitled to 30%. The declaration herein binds the DGI pursuant to the IA 1967. Any realisation, sale, transfer, or distribution shall be undertaken in strict compliance with insolvency law. The Petitioner’s rights are recognised, not defeated by bankruptcy

Having considered the totality of the evidence, the long period of separation, the irretrievable breakdown of the marriage, and the absence of any possibility of reconciliation, this Court finds no justification for further delay in dissolving the marriage. The Respondent has not challenged the Petition in any meaningful manner and has presented no evidence to preserve the marital bond.

In the peculiar circumstances of this case, including the parties’ separation since 2017, the Respondent’s abandonment of the family, and the need to regularise the parties’ status for the welfare of the children and the administration of matrimonial property, I am satisfied that there exist special circumstances to dispense with the statutory waiting period under subsection 61(2) LRA.

The Court is hereby ordered as follows:

Decree Absolute - A decree nisi is hereby made absolute with immediate effect. This is necessary to give closure to both parties and to allow the ancillary orders relating to property and maintenance to operate without further delay.

Custody - The issue of custody no longer requires determination. A prior High Court consent/order in KA-24F- 19-12/2017 has already granted the Petitioner custody, care and control of the youngest child. That order remains operative. Custody, care and control of the youngest child shall continue to vest in the Petitioner in accordance with KA-24F-19-12/2017. No further order is necessary on custody or access.

Maintenance for the Youngest Child –

The initial claim was RM750 per month when the youngest child was in secondary school. He is now a university student, and the cost of living and educational expenses has substantially increased. The Respondent has not contributed to the child’s maintenance since 2017.

(ii) The Court has an obligation under sections 92 and 95 LRA to ensure that a parent contributes proportionately to a child’s educational needs, especially tertiary education. The Respondent shall pay RM1,200 per month for the maintenance and educational expenses of the youngest son, until completion of his first degree.

Spousal maintenance payable to the Petitioner. The Respondent is to pay the monthly maintenance to the Petitioner an amount of RM2,000 for 5 years commencing from the date of this Order.

Matrimonial Assets, Bankruptcy and Apportionment. For ease of reference and enforcement, the Court reiterates the findings made in the earlier section of this judgment regarding the distribution of matrimonial assets.

Jointly-Owned Properties In respect of jointly owned properties (GM18146, GM 768, GM 895): - Petitioner: 60% beneficial interest - Respondent (via DGI): 40% beneficial interest

(ii) Respondent’s Sole-Name Properties In respect of properties standing solely in the Respondent’s name (Autumn Tower condominium, Taman Desa Seraya house, Lot 4060, Lot 4070, Lot 4061, Lot 4062): - Petitioner: 70% beneficial interest - Respondent (via DGI): 30% beneficial interest

Effect of Respondent’s bankruptcy. The percentages declared herein represent the parties’ beneficial interests. Any realisation, transfer, sale, or distribution involving the Respondent’s share shall be undertaken in accordance with the IA 1967, and under the administration of the IA 1967.

Costs of RM20,000 is awarded to the Petitioner. Dated : 24th December 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA ALOR SETAR, KEDAH For The Petitioner : Miss Ang Jun Jia Messrs. Max Yee & Ang Advocates & Solicitors For The Respondent :