- 申请单方面离婚前，申请者必须先到辅导中心或婚姻仲裁庭，进行3次的婚姻辅导。根据1976年法律改革（婚姻与离婚法） 的第106条文，你是可以在以下的情况/理由，申请免掉婚姻辅导：
(v) 另一方患有精神病; 或者
- 在L v C  MLJU 1053的案中，太太于31.01.2018提交了离婚申请。随后她在06/2018根据1976年法律改革(婚姻与离婚法) 第(106)(vi) 条文申请请豁免婚姻辅导。
- 同时丈夫也向法庭作出两项初步反对(Preliminary Objection)，以反对妻子的申请:
（i）离婚申请应通过Originating Summons 方式申请, 而并非通过Notice of Motion方式申请；和
- 法庭表示如果申请人在提交了离婚申请后才在第(106)(vi) 条文下做出豁免婚姻辅导的申请，若另一方提出初步反对，申请人只需提供口头或宣誓证据。关键在于申请人是否能提供证据证明有关的‘特殊情况’确实存在。
- The Wife Petitioner and the Husband Respondent were married in Sibu in 1994.
- From that marriage, they have 2 children.
- The Wife Petitioner filed the Divorce Petition on 31.01.2018, subsequent to which she sought an exemption under section 106(1)(vi) of the Law Reform (Marriage and Divorce) Act 1976 by way of a Notice of Application which was filed on 14.06.2018 to exempt from referring her matrimonial problems to a conciliatory body.
- The Husband Respondent opposed the Wife Petitioner’s application.
- Preliminary objections were raised. It was contended that the application shall be by way of an Originating Summons, not by way of a Notice of Motion. It was also contended that the application ought to have been made prior to the filing of the Divorce Petition.
- Both preliminary objections are dismissed.
- In respect of the preliminary objections, the Court is in agreement with the decision in C v A  4 CLJ 38 where R. K. Nathan J, having considered the manner in which evidence is to be adduced during the proceedings, held: –
“Does this mean that if a petitioner intends to rely on proviso (vi) to s. 106, the petitioner must first file an originating summons stating facts which the court ought to rely on, and upon being so satisfied, to give leave to the petitioner to then file a petition. I do not think so. It is not the intention of Parliament to cause hardship to litigants and more so in divorce matters where it might become necessary for parties to put an end to their marriage as soon as possible, so as to start their lives afresh. It is my judgment that if a petition is filed and it becomes necessary for the petitioner to comply with the proviso (vi) to s. 106, so long as a preliminary objection is taken by the respondent, it is sufficient for the petitioner to either give oral or affidavit evidence to satisfy the court that there are exceptional circumstances.”
- The reasoning puts paid to the preliminary objections based on the mode of, and the stage at which the evidence is to be adduced.
- Returning to the mainstream narrative, the pivotal issue is whether the Wife Petitioner is able to show exceptional circumstances which render reference to a conciliatory body impracticable.
- Section 106(1) provides : –
“No person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties:
Provided that this requirement shall not apply in any case-
(vi) where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable”
- The Wife Petitioner’s various allegations of abusive behavior, supported by the son’s affidavit, and lack of financial contributions on the part of the Husband Respondent are repeatedly denied.
- Depending on who is to be believed following a trial, the Husband Respondent had either stopped returning to the matrimonial home since 2016 (by the account of the Wife Petitioner) or was prevented from returning to the matrimonial home since 2017 (by his account).
- Going by high and trite authority, the Court cannot embark on a scrutiny of the affidavits in detail. There would otherwise be a trial based on the affidavits. As such, the Wife Petitioner is unable to establish exceptional circumstances which would render the requisite reference to a conciliatory body impracticable. She is required to refer her matrimonial problems to a conciliatory body, in keeping with the main thrust of section 106.
- The Wife Petitioner’s application is dismissed with costs of RM1,000.00 subject to payment of the allocatur fee.
Source: L v C  MLJU 1053. High Court Sibu. Lim Hock Leng JC
*We have more than 15 years of experience in the legal profession. We handle matters such as commercial disputes, civil litigation, debt recovery, probate & letter of administration, will, divorce, children custody, maintenance/alimony, adoption, distribution of matrimonial assets, drafting commercial agreement, drafting sale and purchase agreement, process loan documentations, legal consultation, legal advisory, miscellaneous legal works.
*Wilson Kuek是“法律与你同行 Law & Justice”面子书群组的创办人。“法律与你同行”是马来西亚最大的法律平台。我们每天为无数的平民百姓免费解除各类的法律困扰。
*加入 我们的“法律与你同行”FB 群组: http://bit.ly/fblawnjustice
*Like 我们的“法律与你同行” FB Page: http://bit.ly/lawnjusticefbpage
*Kuek, Ong & Associates. Advocates & Solicitors. No.86-1, Jalan Mahagoni 1, Bandar Botanic, 41200 Klang, Selangor Darul Ehsan. Klang Lawyer. 巴生(吧生)律师楼。#Kuek, Ong & Associates #Kuek Ong & Associates #Kuek Ong Associates #郭汪律师事务所 #郭汪律师楼
#Chinese Lawyer in Malaysia #Malaysia Lawyer #Klang Lawyer #KL Lawyer #divorce lawyer #马来西亚华人律师 #懂华文的律师 #懂华语的律师 #巴生律师 #吧生律师 #KL律师 #吉隆坡律师 #民事诉讼律师 #打官司的律师 #打离婚案的律师 #离婚律师
#婚姻辅导 #不需要婚姻辅导 #不要婚姻辅导 #申请免掉婚姻辅导 #特别因素免掉婚姻辅导