离婚: 同住20个月，赡养费如何？[2022] MLJU 295

男方在2016年与妻子结婚，他在2017年离开双方的婚姻住所；随后在2019年以分居两年为由，要求法庭宣布与妻子的婚姻无效。男方也指双方在婚姻期间没有完成夫妇的责任(性关系)。
妻子在法庭上指控被男方遗弃，要求得到婚姻损害的赔偿。然而法庭认为男方的证供是可信的。由于双方时常争吵，女方也经常吵着要离婚，法庭认为男方搬离他们同住的房子和申请离婚程序是正常之举，因为双方的婚姻已经无法挽留了。
1976年法律改革（婚姻与离婚法）的第54条文也阐明，“配偶的行为方式导致另一半无法继续与他或她一起生活”，是其中一个可以被法庭接纳为导致婚姻破裂的原因。根据整个男方离开家里的情况+双方没有完成夫妇的责任(性关系)，法官觉得男方并没有遗弃女方，反而是女方‘建设性遗弃’了男方。
另外，由于双方只相处了20个月左右，彼此也没有任何孩子；法庭驳回了妻子要求男方支付赡养费的申请。法庭不认为妻子在经济上依赖男方，这是因为妻子本身是一名医生，在结婚前就已经经济独立，有能力照顾自己。The petitioner has been at all material time gainfully employed. The petitioner is not in a 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.Rose v. Rose [1950] 2 All ER 311 & Thevathasan v. Thevathasan [1960] 26 MLJ 255
至于妻子要求男方赔偿她为住所所支付的租金，也都被法庭驳回。法庭认为之前一直都是双方共同支付房屋的租金，没有理由让男方赔偿这些已付的租金。
而妻子所要求的其他婚姻损害赔偿，由于无法提供证据证明这些损失的存在，也都被法庭驳回。

详细的案情和判决，请阅读以下的英文版文章。

Introduction

This was a petition (“the Petition”) and cross-petition (“the Cross- Petition”) filed respectively by the Petitioner husband and Respondent wife to dissolve the marriage between the parties.
The Petition was filed on the basis that the parties had lived apart for a continuous period of at least two years immediately prior to the filing of the Petition, whilst the Cross-Petition was filed on the ground of the Petitioner’s alleged unreasonable behaviour.

The factual background

The Petitioner, an engineer, and Respondent, a doctor, had their marriage solemnised on 26 June 2015 and started living together some time in February 2016, after they had undergone their Hindu customary wedding ceremony. There were no children to the marriage.
On 25 October 2017, the Petitioner moved out of their matrimonial home, which was a rented apartment in Johor Bahru, and filed for divorce in November 2019. The Respondent filed the Cross-Petition in September 2020.
The Petition was allowed, whilst the Cross-Petition was dismissed, with costs, for the following reasons.

Contentions, Evaluation and Findings

Whether the parties had fulfilled two-year requirement of living apart

The Petitioner’s case was rather straightforward. After more than two years of marriage, and constant bickering and arguing for one year and eight months, the Petitioner, on 25 October 2017, had moved out of the matrimonial home, which was an apartment in Johor Bahru that they had rented.
The Petitioner filed this petition on the basis of having lived apart for more than two years, which was pursuant to Section 54(1)(d) of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform Act”).
Although the two-year separation period in itself was, on the face of it, proof of breakdown, the Petitioner testified to the circumstances which led to him leaving the marriage.
It was undisputed that the Respondent was extremely unhappy, and had claimed that her relationship with the Petitioner had lacked chemistry. As a result of her unhappiness, the Respondent had, on innumerable occasions, informed the Petitioner that she had made a mistake and that she wanted a divorce.
I found the Petitioner to be a convincing witness in his narrative of what had led to the breakdown. He was direct, and struck me as a truthful person. He did not fault the Respondent entirely, but explained that with the constant arguments between the parties, he felt that divorce would be the best option. 法庭认为男方的证供是可信的。由于双方时常争吵，法庭认为男方搬离他们同住的房子和申请离婚程序是正常之举，因为婚姻已经无可挽留了。
It was no surprise, therefore, that the Petitioner had left the matrimonial home and filed for divorce, as the marriage had undeniably and irretrievably broken down.

Whether the Petitioner had deserted the Respondent

The Respondent, on the other hand, had cross-petitioned for divorce on grounds of unreasonable behaviour of the Petitioner, and that he had deserted the Respondent, pursuant to paragraphs (b) and (c) respectively of section 54(1) of the Law Reform Act.
The Respondent claimed that the Petitioner, by leaving the matrimonial home had deserted her.
In my view, especially after having perused the 800 pages of WhatsApp messages between the parties, and the numerous times the Respondent herself had raised the topic of divorce, her contention on desertion was untenable.
The messages between the parties also indicated that most of the arguments were initiated by the Respondent herself. Considering the circumstances in which the Petitioner had left, coupled with the fact that the marriage had not been consummated, in my view there could not have been desertion by the Petitioner. In fact, if at all, there was constructive desertion by the Respondent, that led to the breakdown of the marriage. 根据整个男方离开家里的情况+双方没有完成夫妇的责任(性关系)，法官觉得男方不是遗弃女方，而是女方‘建设性遗弃’男方。
The issue of constructive desertion was adverted to in the landmark case of Pheasant v. Pheasant [1972] 2 WLR 353, where Ormrod J had explained in the following passage: “All these considerations point to only one conclusion, namely, that the test to be applied under sub-paragraph (b) is closely similar to, but not necessarily identical with, that which was formerly used in relation to constructive desertion. I would not wish to see carried over into the new law all the technicalities which accumulated round the idea of constructive desertion but rather to use the broader approach indicated by Pearce J in Lissack v. Lissack [1951] P1 and consider whether it is reasonable to expect this petitioner to put up with the behaviour of this respondent bearing in mind the characters and the difficulties of each of them, trying to be fair to both of them, and expecting neither heroic virtue or selfless abnegation from either. It would be consistent with the spirit of the new legislation if this problem were now to be approached more from the point of view of breach of obligation than in terms of the now out-moded idea of the matrimonial offence.”
Reference was made also to the case of Joseph Jeganathan v. Rosaline Joseph [1989] 3 MLJ 106, where the Court held that the proper test to be adopted is whether a right-thinking man, in all the circumstances, would conclude that the respondent had behaved in such a way that the petitioning spouse could not reasonably be expected to live with the respondent. In doing so, the Court has to consider the circumstances holistically, including the characters and personalities of the parties.
I also found instructive the case of Wong Siew Boey v. Lee Boon Fatt [1994] 2 SLR 115, where it was held that the Court must look at the behaviour of the parties by considering its cumulative effect, which includes active or passive conduct. The behaviour is not confined to behaviour towards the spouse but may have relevance to the marriage even if it is towards other members of the family or outsiders. All types of behaviour may be considered, including omissions, where it has reference to the marriage.
In the present case, the Respondent was unhappy from the very beginning of this union. It was obvious that she had unrealistic expectations of a marriage and constantly complained of being bored, depressed, unhappy, disinterested and felt a lack of chemistry between herself and the Petitioner. She had also subjected the Petitioner to verbal and emotional abuse, which in my view was just as aggravating as physical abuse or even adultery, for that matter. Her words to him such as “I want to split”, “I can find a better person”, “useless” and even “barbaric baboon” were condescending and uncivil. The Petitioner, of course, was not blameless, but his responses were a reaction to the Respondent’s harsh words.
The Respondent justified her WhatsApp messages by saying that she had not meant what she had said, and that her conduct was common between couples, and part and parcel of the vicissitudes of a marriage. I, however, have to disagree with such proposition for the following reasons. First and foremost, being married is not a carte blanche to treat one’s spouse disrespectfully. Although there is no denying that in most marriages, spats are not uncommon, spouses should nevertheless be more deferential of each other. Secondly, everyone has limits, no matter how patient one is. In the present case, the constant barrage of name-calling was, in my view, more frequent than the usual bickering in a marriage. No one, man or woman, should be subject to such constant tirade of verbal abuse. The Petitioner had every right to leave the marriage, and if anyone should have complained of desertion, it should have been the Petitioner, for constructive desertion, more so since there was no consummation of the marriage.

Whether non-consummation amounted to unreasonable behaviour

The issue of non-consummation was raised by the Respondent in the Cross-Petition as the ground for the unreasonable behaviour, based on her averment that Petitioner had refused to consummate the marriage.
I found this rather baffling, as the WhatsApp messages between the parties indicated that it was the Respondent who had refused any form of intimacy with the Petitioner. Furthermore, during cross-examination, she had admitted that the non-consummation was due to her refusal, emanating from a condition known as dyspareunia, that she claimed she had suffered from, and was therefore afraid to engage in sexual intercourse.
This revelation of her condition was not only not pleaded and not proved, it was a contradiction of what she had maintained all along, that is, it was the Petitioner who had refused to consummate the marriage. This was most injudicious on the part of the Respondent, and her credibility was compromised by the contradiction between her testimony in Court and what she had pleaded. In fact, the Respondent’s version of how the marriage had broken down was generally unconvincing and, in my view, based on both oral and documentary evidence, her conduct was far from decorous.
Furthermore, if non-consummation of the marriage was a genuine ground that the Respondent had intended to rely upon, it begs the question why she had not applied to have the marriage annulled pursuant to Sections 68 and 70 of the Law Reform Act?
This revelation had also displayed a lack of bona fide on the part of the Respondent. It was obvious that it was not open for the Respondent to rely on non-consummation as a ground to annul the marriage because the refusal to do so was on her part, and not the Petitioner’s.
[26]The Respondent’s reliance on the ground of unreasonable behaviour of the Petitioner, therefore, was bereft(失去) of merit.

Whether the Respondent was entitled to maintenance

The Respondent claimed for maintenance from the Petitioner in the monthly amount of MYR2,500. In determining the issue of maintenance, reference was made to Sections 77 and 78 of the Law Reform Act.
In the present case, the parties had lived together for one year and eight months only. Furthermore, the marriage had not been consummated and as such, did not produce any children. The parties had shared costs and expenses during the marriage and there was no evidence that the Respondent was financially dependent on the Petitioner. The Respondent is a doctor, gainfully employed and had been financially independent even before the marriage. I was, therefore, guided by the case of Choong Yee Fong v Ooi Seng Keat & Anor [2006] 5 CLJ 144, where the wife’s application for maintenance was dismissed on the ground that she was financially independent and capable of supporting herself. In adopting the English case of Rose v. Rose [1950] 2 All ER 311, and Singapore case of Thevathasan v. Thevathasan [1960] 26 MLJ 255, where it was elucidated: “The petitioner has been at all material time gainfully employed. The petitioner is not in a 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. 76 amounts to a total sum of RM114,668.64. The potential earning power of the claimant must also be considered.”
As such I had to dismissed the Respondent’s claim for maintenance.

Whether the Respondent was entitled to damages

Engagement and Wedding Ceremonies

In the Cross-Petition, the Respondent claimed for both general and special damages. Her claim for special damages was based on costs and expenses incurred for the engagement and wedding ceremonies, as well as rental for the matrimonial home.
In the case of costs and expenses for the engagement ceremony, there was no basis for such claim, as there was no breach of promise to marry, as the engagement had led eventually to the marriage.
With regard to the costs and expenses for the wedding ceremony, it was pertinent to note that except for cases involving adultery, the Law Reform Act does not provide for any form of damages, whether special or general. On this note, I drew guidance from the cases of Ananth a/l Kalyanasundram v Nalineswari a/p Puthiran [2013] 1 LNS 252 and Shobana a/p Perumal v Ganesh a/l Guna [2016] 3 AMR 806.
In fact, the validity of a marriage pursuant to the Law Reform Act is marked by its registration, as provided for in Part IV of the Law Reform Act. There is no legal requirement for parties to have a wedding ceremony, be it religious or customary. Any expenses borne for a ceremony should be considered a gift to the marriage, which means to both parties. As such, the Court was not in a position to order any party to reimburse the other for costs and expense of a wedding ceremony, more so in the present case, where the breakdown of the marriage was not due to the Petitioner’s fault.
The Respondent relied on the case of RS Thanalachimi v. Sundararaju Mattaya [2011] 7 CLJ 197 to argue that her claim for special damages should be allowed. In my view, however, the case of RS Thanalachimi v. Sundararaju Mattaya is distinguishable as in that case, the claim was for breach of promise to marry. In the present case, the marriage had been registered and the Respondent had cross-petitioned for divorce. As such, there was no basis for this Court to award special damages.
In any event, it was undisputed that the costs and expenses for the engagement and wedding ceremonies were borne by the father of the Respondent, who was not a party to these proceedings. As such, there was no basis for the Respondent to claim for the same.

Rental for Matrimonial Home

There was also no basis for the Respondent to claim the rental of the apartment which was their matrimonial home. It was rental for a home that they both had shared for at least one year and eight months. Since all household expenses during the marriage were shared between the parties, it would be inequitable for the Respondent to now make claims for rental that she purportedly paid for.

Breach of Marriage Contract – Forever Lasting Marriage

The Respondent contended that her claim for general damages was also based on the premise that the Petitioner had breached the marriage contract, after having being given the guarantee that the marriage would last.
In my view, this argument was bereft of merit. It would naturally be ideal if marriages lasted forever. However, the traditional vows of a marriage are no longer applicable today, and as such, a marriage lasts for only as long as the parties intend it to, and not necessarily upon death. Furthermore, there was no evidence that the Petitioner had given the Respondent such guarantee. 童话故事的诺言。一生一世。
At this juncture, it is apt to be reminded that although a marriage was traditionally described in Hyde v Hyde (1866) LR 1 P & D 130, as ‘the voluntary union for life of one man and one woman to the exclusion of all others’, the more contemporary definition may be found in Bellinger v Bellinger [2001] EWCA Civ 1140, where Thorpe LJ described marriage as ‘a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations’.
It was, therefore, untenable for the Respondent to seek general damages on the basis of her expectation that the marriage contract she had entered into would be a long-lasting one.

Conclusion

In the present case, both Petitioner and Respondent admitted that they had made a colossal mistake in getting married. The Respondent, especially, had entered into the marriage with rose-tinted glasses and unrealistic expectations. Little did she realise that marriage is a partnership, that is, a contract which parties have obligations to fulfil and duties to perform.
The Respondent found herself in a marriage that was devoid of the excitement and adrenaline rush she had expected. Instead she went through the partnership with dull, dread and doom. Her husband was not the knight in shining armour that she thought he was.
In the present case, since the parties felt trapped, and had reached a point of no return, it was my view that they should move forward and each should start on their respective clean slates.
In the upshot, therefore, the Petition was allowed whilst the Cross-Petition was dismissed, with costs.

Source: VKR v NNT [2022] MLJU 295. High Court Johor Bahru. Evrol Mariette Peters JC.

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