双方离婚, 双方又复合, 可取消离婚判决？[2018] MLJU 737

一对夫妻在14-12-2017通过法庭提交了离婚申请。法庭批准了申请，之后发出离婚庭令。然而在庭令发出庭令的3个月后，这对夫妻之后决定复婚，要求法庭撤销所发出的庭令。
根据离婚法令第61条文，法庭判了离婚， 3个月的冷静期完毕后，此婚姻就是永远结束了。除非申请者有很好的理由或者特殊情况，否则任何离婚者是不能平白无故地申请推翻离婚庭令。Wong Cheng Ping v Chin Guan Seng @ Tan Guan Seng [2010] MLJU 226
很好的理由或者特殊情况指的是以下的状况：
- 法庭在做出判决时的决定是错误的；
- 此离婚庭令是以欺诈手段取得的；
- 所取得的离婚判决因违法而无效
这对夫妻无法提出任何很好的理由或者特殊情况，法庭驳回了双方的申请。
在没有合理的理由下，双方的婚姻将在法庭批准离婚后的3个月，离婚自动有效。所以，只要超过3个月的冷静期，就算律师法庭还没有发离婚证书，双方的离婚也自动生效。
另外，法庭也质疑为何在这3个月期间，双方都没有向法庭做出申请，一直到3个月后已成定局时才向法庭提出推翻的庭令要求。

更多内容请参阅英文版的文章

Introduction

Enclosure 7 was jointly filed by the petitioners. The petitioners sought for an order that the Decree Nisi granted by this Court on 2.1.2018 be rescinded. In other words, they intended to restore their original status of marriage which was that they were legally married as lawful husband and wife, as if they had not divorced before.
On 26.4.2018, this Court dismissed the petitioners’ application. The reasons for the decision are set out as below.

Brief Background Facts

The petitioners were legally married on 12.4.2005 under the Law Reform (Marriage and Divorce) Act 1976 (hereinafter ‘the Act’) in Malaysia. The petitioner husband is a Malaysian, whereas, the petitioner wife is a China national. Twelve years later, the petitioners mutually consented to dissolve their marriage. The petitioners filed a joint divorce petition (dated 12.12.2017) seeking for a decree of divorce pursuant to s. 52 of the Act. The joint divorce petition was filed in Court on 14.12.2017.
The prayers in the divorce petition were: their marriage to be dissolved, no claim from either party against the other for maintenance, and the costs of the proceedings to be borne by the petitioner wife.
The joint divorce petition was heard by me with the petitioners present on 1.2018. This Court was satisfied that both petitioners understood the prayers as prayed and had freely consented to the filing of the joint divorce petition. This Court was also satisfied that the filing of the joint divorce petition had met the requirement of the expiration of two years from the date of the marriage. The threshold for the petitioners to seek a divorce decree pursuant to s.52 of the Act was met. Hence, this Court granted an order in terms of the prayers as prayed. This Court ordered that the marriage be dissolved, and further ordered that the decree of divorce (or decree nisi) shall be made absolute upon expiry of three months unless sufficient reasons be given to the court within that three months from the date of the order dated 2.1.2018 why the decree nisi ought not be made absolute. The date of the expiration of the three month period was on 2.4.2018.
After the expiration of three months from the date of the decree nisi, the petitioners filed enclosure 7 on 5.4.2018. They prayed for the decree nisi dated 2.1.2018 to be rescinded and the costs of the proceeding to be borne by the petitioners. In their supporting affidavit, the petitioners stated as follows:

“4. Kami sesungguhnya menyatakan bahawa Sijil Menjadi Decree Nisi Mutlak belum difailkan. 5. Kami sesungguhnya menyatakan bahawa masalah perkahwinan kami telah berjaya diselesaikan dan kami telah saling bersetuju untuk memohon kepada Mahkamah yang Mulai ini agar Dekri Nisi tersebut dibatalkan supaya perkahwinan kami boleh diteruskan.”

The petitioners’ application may appear to be straightforward at first blush, however, this Court dismissed the application because of the reasons below.

Reasons for the decision

On 2.1.2018, this Court ordered, inter alia, that the decree nisi shall be made absolute upon the expiration of three months, unless sufficient reasons be proven to the Court why it ought not to be made absolute. During the three month period, there was no application filed by any party to prove to the Court why the decree nisi ought not to be made absolute. The three month period lapsed on 4.2018. The petitioners did not apply for a decree absolute. Instead, they filed an application to rescind the decree nisi.
Insofar as the family law is concerned, there are only two provisions which allow the Court to rescind a decree nisi. One is found in the Act, particularly in Section 61(2) of the Act, and the other one is found in the Divorce and Matrimonial Proceedings Rules 1980 (hereinafter ‘the Rules’), particularly in rule 52(1) of the Rules.

Sections 61(1) and (2) of the Act

Section 61(1) of the Act provides that ‘every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant unless the court by general or special order from time to time fixes a shorter period’.
Section 61(2) of the Act states as follows:

“(2) Where a decree nisi of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court and on that application the court may –

(a) notwithstanding the provisions of the last foregoing subsection, make the decree absolute;

(b) rescind the decree nisi;

(d) otherwise deal with the case as it thinks fit.

The foregoing provision provides that when an application could have been made to make a decree nisi absolute but there was no application filed to make it absolute, the decree nisi could be rescinded under Section 61(2)(b) of the Act.
After a careful reading of the provision, this Court is of the considered view that Section 61(2)(b) of the Act only applies to a decree nisi granted under s. 53 of the Act, not to a decree nisi which was obtained under Section 52 of the Act. The former is a unilateral divorce petition; whereas, the latter is a joint divorce petition.
The words of Section 61(2) of the Act in underscore denote that there are two opposing parties in the decree nisi: the words “by the party to whom it was granted” and “the party could have made” refer to the petitioner in a divorce petition, whereas, the words “the party against whom it was granted” refer to the respondent in a divorce petition.
A Certificate of Making Decree Nisi Absolute (Form 9 of the Rules) must be issued before either party in the divorce may remarry (see Section 62 of the Act). Hence, if a petitioner refuses, fails, neglects and/or omits to apply for a certificate under Form 9 of the Rules, the respondent cannot remarry if he/she wishes to do so.
Section 61(2)(a) of the Act provides a remedy for the respondent. It allows the respondent to apply to the court for the issuance of the certificate, i.e. make the decree nisi absolute. Once a certificate in Form 9 of the Rules, i.e., Certificate of Making Decree Nisi Absolute, has been issued by the registrar, the respondent (and the petitioner) are free to marry again pursuant to Section 62 of the Act.
Section 61(2)(b) of the Act allows the court to rescind the decree nisi upon an application made by the party against whom the decree nisi was granted. The justification of this provision is that if the party to whom the decree nisi was granted is not interested to file and obtain a decree absolute after three months, the party against whom the decree nisi was made may apply to rescind it on the ground that the party to whom the decree nisi was granted was not serious to see through the proceedings to formally obtain a decree absolute, i.e. the certificate of Form 9 of the Rules.
The provisions of Section 61(2)(a) and (b) (including (c) and (d)) of the Act, as explained above, clearly refer to a situation where there is a petitioner and a respondent, and only the respondent to a decree nisi obtained under s.53 of the Act could seek the remedies as provided under Section 61(2) of the Act.

Rule 52(1) – Divorce and Matrimonial Proceedings Rules 1980

Another provision in the law that allows the court to rescind a decree nisi is found in rule 52(1) of the Rules which states as follows:

“52(1) Where, after a decree nisi has been pronounced but before it has been made absolute, a reconciliation has been effected between the petitioner and the respondent spouse, either party may apply for an order rescinding the decree by consent.”

A careful reading of the foregoing rule, it appears that the rule applies only in a situation where:

(i) before the decree nisi has been made absolute, a reconciliation was effected between the petitioner and the respondent, which in turn could be interpreted as referring to the parties to a decree nisi obtained in a unilateral divorce petition, i.e. pursuant to s. 53 of the Act;

(ii) either party may make the application; and

(iii) by consent the parties have agreed to rescind the decree nisi.

The meaning of the words “before it (decree nisi) has been made absolute must be understood within the context consistent with the pronouncement of the decree nisi by the court. In the present case, the relevant part of the decree nisi pronounced by the court reads as follows:

“…bahawa perkahwinan tersebut…dibubarkan melainkan jika sebab-sebab yang mencukupi dibuktikan kepada Mahkamah dalam tiga (3) bulan mulai daripada tarikh dekri kenapa dekri itu tidak patut dijadikan mutlak….”

The foregoing paragraph in the decree nisi connotes the decree nisi shall become absolute upon the expiry of three month period unless sufficient reasons are proven to the court within that three months from the date of the order (dated 2.1.2018) why the decree nisi ought not to be absolute. As such, the decree nisi had become absolute upon the expiry of three month period on 2.4.2018, since there was no reason proven to the court why it ought not to be absolute within the three month period.

在没有合理的理由下，双方的婚姻将在法庭批准离婚后的3个月，离婚自动有效。所以，只要超过3个月的冷静期，就算律师法庭还没有发离婚证书，双方的离婚也自动生效。

Section 61 of the Act requires the court in the first instance to grant a decree nisi, and it shall not be made absolute before the expiration of three months (or a shorter period as the court may order). The Latin word ‘nisi’ in the English language simply means ‘unless’. Hence, the first instance decree nisi granted by a family court is to dissolve the marriage, but this dissolution of the marriage will not take effect immediately, vis-a-vis will not be made absolute. The dissolution of the marriage will be made absolute upon the expiry of three month period unless it is proven to the court within the three month period (or shorter period as the court may order) why it ought not be made absolute.
A decree nisi is a peculiar order which can only be found in family law. A decree nisi is inchoate and temporal in nature. One of the reasons that a temporal period is needed before a decree nisi becomes absolute is to allow the parties to adjust and to try out the resolution of problems relating to the children and financial matters as per the terms of the order of a divorce. The parties are allowed to come back to the court to fine-tune the terms of the order which the court can vary if the court thinks fit and necessary to do so. The court can even rescind the decree nisi for a dissolution of the marriage if parties could furnish a good reason for the court to do so within the three month period (or shorter period ordered by the court). A good reason could be the parties regretted the filing of the divorce proceedings and want to reconcile.
This Court is of the considered view that a marriage is legally dissolved upon the expiry of the three month period (or any shorter period ordered by the court) after a decree nisi is granted. The application for a certificate in Form 9 of the Rules, i.e. Certificate of Making Decree Nisi Absolute, is merely a formality to complete the divorce proceedings.
In this instant case, the petitioners filed their application on 5.4.2018 after the expiry of the three month period on 2.4.2018. Therefore, after having examined Rule 52(1) of the Rules, this Court is of the considered view that the petitioners’ application was out of time as the decree nisi dated 2.1.2018 had become absolute upon expiry of the three month period. Further, this Court is not convinced that the petitioners could rely on Rule 52(1) as their basis for the application, because the rule can only be relied on by a petitioner or a respondent in a unilateral divorce petition filed pursuant to s. 53 of the Act. The interpretation of the term ‘…before it (decree nisi) has been made absolute.’ in rule 52(1) of the Rules
This Court observed that the petitioners in their affidavit stated that the Certificate of Making Decree Nisi Absolute has not been filed. Does that mean that as long as the certificate is not issued by the registrar, the decree nisi has not become absolute, and the petitioners could apply to the court to rescind the decree nisi after the three month period has expired?
It would be erroneous to take the view the wordings ‘…before it (decree nisi) has been made absolute….’ in rule 52(1) of the Rules to mean the filing of the certificate and the issuance of the certificate by the registrar.
If that is the correct interpretation, then it would mean that as long as a certificate is not issued by the registrar, even after the three month period (or any shorter period ordered by the court) has expired, the parties could come back to rescind the decree nisi at any time. If this reading of the rule is correct, that would mean that the dissolution of marriage would not be final and absolute, and it would remain indefinite, as long as no certificate under Form 9 of the Rules is issued by the registrar.
The above interpretation could not be correct. After the expiry of the temporal period ordered in the decree nisi, the law presupposes the parties will apply for Form 9 of the Rules to be issued. Form 9 of the Rules is to certify the dissolution of the marriage as final and absolute after the temporal period expires. The issuance of a certificate under Form 9 of the Rules is merely to certify the decree nisi has become absolute. The certificate is not a court order making the dissolution of the marriage absolute – the decree nisi is the order that makes the dissolution absolute on the terms stated. This is clear from the wording of Form 9 in the Rules: “Referring to the decree made in this cause on the …day of…20…, whereby it was decreed that the marriage solemnised on the…day of…20…at…between…the petitioner and…the respondent be dissolved unless sufficient cause be shown to the court within…from the making thereof why the said decree should not be made absolute, and no such cause having been shown, it is hereby certified that the said decree was on the …day of…20…made final and absolute and that the said marriage was thereby dissolved.”
The law presupposes that the petitioners will apply for a certificate under Form 9 of the Rules after the expiration of the three month period. If the petitioners are allowed to take a lackadaisical attitude and not apply for a certificate under Form 9 of the Rules after the expiration of the three month period, but can come back to court to rescind the decree nisi as and when they wish, this will make a mockery of the marriage and divorce law in the country.
This court has taken the view that a decree nisi shall become absolute upon the expiry of the three month period, not as and when a certificate under Form 9 of the Rules is issued. As such, in the present case, the decree nisi has become absolute.

Could a decree absolute which is obtained under s. 52 of the Act be rescinded?

Wong Cheng Ping v Chin Guan Seng [2010] 10 CLJ 743 held, in obiter, as follows:

“[32] There is no provision in the Act for rescinding or setting aside a decree nisi that already has been made absolute. It appears to me that it is the intention of Parliament to preserve the integrity and finality of a decree nisi that already has been made absolute after three months. As such, parties are not allowed to freely apply to the court at any time to rescind or set aside unless for very good reasons or in exceptional circumstances.?”

This Court is of the considered view that since the Act is silent on the court’s power to rescind a decree absolute following a decree nisi for dissolution of a marriage, therefore, the general legal principles for setting aside a perfected judgment or order of a court shall apply in a case of decree absolute.
It is said that ‘when a judgment or order has been perfected or sealed…the court is deemed to be functus officio and the general principle is that the court has no power under any application in the same action to alter, vary or set aside a judgment regularly obtained after it has been entered or an order after it has been drawn up’ (see Malaysia Civil Procedure 2015, vol. 1, 565).
However, there are exceptions to the general rule. The exceptions are, inter alia, that (i) to correct errors in expressing the intention of the court; (ii) judgment obtained by fraud; (iii) judgment obtained is null and void on ground of illegality or lack of jurisdiction (see Eu Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37 and Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393).
None of the aforesaid exceptions apply to the present petition.
Based on the above analysis, this Court holds that the petitioners in this instant case have no right to rescind the decree nisi after the expiry of the three month period stated in the decree nisi. This Court is of the considered view that the petitioners should in the circumstances comply with the Rules to obtain a Certificate of Making Decree Nisi Absolute, and then remarry.

Conclusion

This Court could not find a foothold in the law, especially within the Act, to exercise any judicial power to rescind the Decree Nisi in question. Hence, this Court dismissed the petitioners’ application.

Source: Ng Boon Chwee & Anor [2018] MLJU 737.High Court Johor Bahru. Choo Kah Sing J.

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