YAY v WHO (NAN, CO-RESPONDENT)
CaseAnalysis
[2023] MLJU 73
YAY v WHO (NAN, co-respondent) [2023] MLJU 73
Malayan Law Journal Unreported
HIGH COURT (KUALA LUMPUR)
EVROL MARIETTE PETERS J
DIVORCE PETITION NO WA-33-178-04 OF 2019
17 January 2023
Bernard Scott (Sault, Scott & Co) for the petitioner.
April Tay (Chow Kok Leong & Co) for the respondent.
April Tay (Chow Kok Leong & Co) for the co-respondent.
Evrol Mariette Peters J:
GROUNDS OF JUDGMENT
Introduction
[1]This was a divorce petition filed by the Petitioner Wife, seeking, inter alia, sole guardianship and custody of the child of the marriage, division of matrimonial assets, spousal and child maintenance from the Respondent Husband, and damages against the Co-Respondent for adultery allegedly committed between the Co-Respondent and the Respondent.
[2]In the interest of privacy and considering the sensitivity of the issues in these proceedings, the Petitioner, Respondent, and Co-Respondent have been anonymised in this judgment respectively as YAY, WHO and NAN.
The factual background
[3]On 11 November 2016, the Petitioner and Respondent (collectively, “the parties”), registered their marriage and resided in Kuala Lumpur at a property known as Concerto North Kiara (“the Matrimonial Home”).
[4]The marriage, which was fraught with difficulties from the start, had broken down by June 2017. The Respondent had then left the Matrimonial Home and filed a judicial separation in August 2017 (“the Judicial Separation”).
[5]In October 2017, the Petitioner delivered their only child, a son (“the Child”), the birth of whom the Respondent was unaware of.
[6]At the end of 2018, the Respondent had withdrawn the Judicial Separation, and in April 2019, the Petitioner filed a divorce petition (“this Petition”) on the basis of adultery and claiming, inter alia, damages against the CoRespondent as the person who had committed adultery with the Respondent.
[7]The Petition was allowed partially (only with regard to child maintenance, damages for adultery, and one third of the Petitioner’s monetary claim), for the following reasons.
Contentions, evaluation, and findingsWhether adultery had been proved
[8]Although the parties had agreed to the divorce, the issue in the forefront was whether the cause of the breakdown of the marriage was due to adultery between the Respondent and Co-Respondent, pursuant to sections 53 and 54(1)(a) of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), which read:
