案件：
- 一对夫妇，男方有过外遇也打过女方一次。
- 女方接着带着孩子离开。
- 分居两年后，男方申请单方面离婚，女方反对离婚。
法庭判决：
- 离婚除了分居，还要证明婚姻无法挽留。
- 由于女方证明了为了孩子，她愿意挽救婚姻，所以男方不能申请离婚。
*小编认为如果以法令解读，判决是对的，但是不切实际。如果真的是这样，每一次女方都说要挽留，那么男方永远就没有办法离婚了？
*没有办法挽留，就面对现实，跟对方和谈条件，开始生命的另一页。世界上没有了对方，并不是生命的终点，我们还是必须向前方前进，过更精彩的余生。
- The Petitioner (P) and the Respondent (R) were Sales Representatives for Medical Apparatus Company and they first met at the company’s seminar.
- They appeared to have many things in common and they decided to get married.
- The couple was blessed with the birth of a son.
- The happy marriage changed into a rocky union; domestic quarrels increased in frequency, which culminated one day when P could not restrain himself, punched and broke R’s nose.
- The police arrested P and he was kept in the lock-up for 4 nights. At the behest of R, P was released from custody with no charge pressed against him.
- On returning home, P found the house empty as both R and the son had gone.
- Since then P and R had lived separately.
- Two years after the separation, P filed this divorce proceedings.
- During the trial, R testified that she was prepared to forgive and forget, and was willing to go back to P. But P refused to accept her back because he no longer loved her.
- P relied solely on the ground that the parties had lived apart for a continuous period of 2 years (Subsection 54 (1)(d), Law Reform (Marriage and Divorce Act 1976)).
- Section 54(2) of the Act says that in considering whether it would be just and reasonable to make a decree on the ground that the marriage has irretrievably broken down, the Court should consider all the circumstances, including the conduct of the parties and how the interests of any children of the marriage or of either party may be affected if the marriage is dissolved, but if it should appear to the Court that in all the circumstances it would be wrong to dissolve the marriage it should dismiss the petition.
- R felt that the marriage could be saved at the very least for the sake of their son. She was prepared and prayed that one day P would be more realistic and come to his senses.
- R believed that a marriage is a holy union, she was determined and positive that her marriage could one day be normalized. As such she opposed P’s petition.
- P has failed to prove that the marriage had irretrievably broken down and R had bona fide recognised the marriage as subsisting.
- The court decided that it is not wise to dissolve the marriage, and dismissed the divorce application.
Law Reform (Marriage and Divorce Act 1976)
53.Breakdown of marriage to be sole ground for divorce
(1) Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.
(2) The court hearing such petition shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution.
54.Proof of breakdown
(1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say:
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
(2) In considering whether it would be just and reasonable to make a decree the court shall consider all the circumstances, including the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved and it may make a decree nisi subject to such terms and conditions as the court may think fit to attach, but if it should appear to the court that in all the circumstances it would be wrong to dissolve the marriage it shall dismiss the petition.
Source: Chong Lay Kwong v. Lim Lay Kuan [2001] MLJU 137. HC Kota Bahru. Muhammad Kamil Awang J
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