OPINION ON HLC V PTL & GEN [WA-33-30-01/2021] DECIDED ON 15 APRIL 2024
BACKGROUND FACTS
1. On 18 April 2024, several major news portals reported on a recent divorce case decided by High Court Judge Evrol Mariette Peters. Among others, FMT reported the case with a headline of ‘Agreement for husband to have mistress during marriage valid, court rules’.
2. This is the High Court case of HLC v PTL & GEN under Divorce Petition No.:WA-33-30-01/2021 (HLC). While the case dealt with several issues, the particular issue addressed in this opinion is as follows.
“whether a marital agreement dated 9 August 1997 entered into between the Parties, was valid and binding;”
3. For context, parties entered into a marital agreement during their marriage but before any separation. The Court considers the marital agreement as a post-nuptial agreement.
4. As such, it falls within the meaning of Section 56 of the Law Reform (Marriage and Divorce) Act 1976 (LRA).
“Section 56 – Rules to provide for agreements to be referred to Court
Provisions may be made by rules of court for enabling the parties to a marriage, or either of them, on application made either before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks fit.”
5. The marital agreement contained the following terms.
“WHEREAS the First and Second Party had on 12/7/1997 registered their marriage at the Civil Registry, Petaling Jaya vide marriage certificate no 891505 (hereinafter called “the Marriage”).
WHEREAS the First Party was a single unmarried man prior to the Marriage whilst the Second Party was a widow with a son born out of the previous marriage.
AND WHEREAS both parties to this agreement have agreed to be bound by the terms and conditions hereafter appearing.
NOW THIS AGREEMENT WITNESSETH as follows:
1. In the event of a separation and/or divorce, the custody, care, and control of any child(ren) born out of the Marriage of both parties hereto shall be placed as follows:-
a) The first child of the Marriage shall be placed in the custody, care, and control of the First Party,
b) Any subsequent children shall be divided between the parties hereto and
c) In the event the number of children under sub-clause (b) above is an odd number the last and youngest child shall be placed with the Second Party.
2. The child mentioned in the second recital shall at all times be the sole responsibility of the Second Party and shall not be taken into consideration when determining custody of the children mentioned in Clause 1 above.
3. If a divorce is sought by the First Party then the First Party shall pay to the Second Party as alimony of RM40,000 (Ringgit Forty Thousand) per year for each year the parties have been married (which shall be calculated from the date of registration to the date of separation) together with a further monthly sum of RM1,500 (Ringgit One Thousand Five Hundred) for each child of the Marriage in the custody of the Second Party being maintenance until the child(ren) attain the age of 18.
4. Should the Second Party seek a divorce then she will be liable to pay to the First Party an alimony of RM20,000 (Ringgit Twenty Thousand) per year for each year the parties have been married ((which shall be calculated from the date of registration to the date of separation) together with a further monthly sum of RM 750 (Ringgit Seven Hundred and Fifty) for each child of the Marriage in the custody of the Second Party being maintenance until the child(ren) attain the age of 18.
5. It is expressly agreed by the parties hereto that the alimony mentioned in Clauses 3 and 4 above shall be payable in one lump sum to the other party upon conclusion of divorce proceedings as full and final settlement and in lieu of any right towards division of matrimonial assets and maintenance.
6. It is hereby lastly agreed and expressly consented to by the Second Party that the First Party can at any time have ONE other woman partner in his life besides the Second Party and it shall not be treated as adultery or adulterous and used as a ground for divorce or in any manner whatsoever affect or prejudice the terms and conditions agreed upon hereinabove.”
APPLICABILITY OF MARITAL AGREEMENT IN A DIVORCE
Law on Marital Agreement
6. As set out above, marital agreement, or more commonly known as nuptial agreement, holds statutory recognition in Section 56 LRA.
7. At the outset, it must be stated that cases citing Section 56 LRA are meagre.
8. In the High Court case of Lim Thian Kiat v Teresa Haesook Lim nee Teresa Haesook [1997] 5 CLJ 358, James Foong J (as he then was) held that the Court can decide on the validity of a marital agreement.
9. James Foong J held as follows. “
In my view, the principles enunciated by Ormrod LJ In Edgar v. Edgar [1980] 3 All ER 887 at 893 should be applicable. It is as follows:
To decide what weight should be given, in order to reach just result, to a prior agreement… regard must be had to the conduct of both parties leading up to the prior agreement and to their subsequent conduct in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation and estoppel; all circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties. Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of the agreement. There may be other considerations which affect the justice of this case, the above list is not intended to be an exclusive catalogue.” (emphasis mine)
10. It is clear that there is no blanket acceptance of all marital agreement as binding between parties – they are subject to a test of reasonableness.
10.1. It appears that the Court is balancing between 2 main factors – on one hand the autonomy of parties to contract out of the provision of the LRA and on the other hand the protection of interest for all relevant parties.
Principles Applied in HLC
11. HLC did not appear to depart from the principle set out in Section 56 LRA and the available precedent.
12. When considering the clauses on guardianship, custody, care and control of the children and maintenance for children and spouse i.e. Clauses 1-5 of the marital agreement, the High Court Judge in HLC found reasons to reject their applicability. See Paragraphs 30 to 33 of the Grounds of Judgment.
13. The High Court Judge only upheld the applicability of Clause 6 of the marital agreement i.e. permitting the Respondent to maintain at least 1 other woman partner at any time.
14. The High Court Judge considered that the Petitioner agreed to tolerate the Respondent’s adulterous relationship, and that parties were at liberty to crystalise that position in the marital agreement.
15. At this juncture, it is also important to note that Her Ladyship held that the Petitioner was unable to prove adultery. See Paragraph 148 of the Grounds of Judgment.
Impact of HLC
16. Her Ladyship makes it clear that Section 54(1)(a) of the LRA requires satisfaction of both elements to proof the irretrievable breakdown of the marriage, i.e. (1) that the respondent committed adultery; and (2) the petitioner finds it intolerable to live with the respondent. See Paragraph 46 of the Grounds of Judgment.
17. It is important to recognise several other intricacies in Her Ladyship’s findings.
Adultery is merely a matrimonial crime
17.1. While adultery is a matrimonial crime, it is not a criminal offence. In Bastable v. Bastable [1968] 1 WLR 1684, 1687 CA Willmer LJ said:
“True, it is not a criminal offence; it is a matrimonial offence. It is for the husband petitioner to satisfy the Court that the offence has been committed. Whatever the popular view may be, it remains true to say that in the eyes of the law the commission of adultery is a serious matrimonial offence. It follows, in my view, that a high standard of proof is required in order to satisfy the Court that the offence has been committed.”
17.2. It must be noted here that the treatment of adultery being a matrimonial crime and therefore requires a higher standard of proof has somewhat lost its support since the High Court case of GCC v CCC & Anor [2016] CLJU 885.
17.3. Even in this case, and consistent with Her Ladyship’s past judgment on cases pertaining to Section 54(1)(a) of the LRA, Her Ladyship held that:
“[58] Contrary to the Respondent’s contention, I concluded that the standard of proving adultery should be on the balance of probabilities, for several compelling reasons. Primarily, the standard of proof beyond a reasonable doubt is traditionally reserved for criminal offences. It was pertinent to highlight that, as previously mentioned, within the context of non-Muslim demographics in Malaysia, the act of adultery does not constitute a criminal offence.” (emphasis mine)
Effect on monogamous marriages?
17.4. It is important to recognise that this case appears to allow parties to ‘contract out’ of a de facto monogamous marriage.
17.5. The effect of this decision on the preamble of LRA (below) was not considered in this case.
“An Act to provide for monogamous marriages and the solemnization and registration of such marriages; to amend and consolidate the law relating to divorce; and to provide for matters incidental thereto.” (emphasis mine)
17.6. The reason the preamble of LRA was not considered may be attributed to the way Clause 6 of the marital agreement was drafted – it was focused on the parties’ tolerance to adultery.
17.7. However, it may be possible that a differently worded marital agreement can be contrary to Section 24 of the Contract Act 1950.
“Section 24 – What considerations and objects are lawful and what not
The consideration or object of an agreement is lawful, unless-
(a) it is forbidden by a law;
(b) it is of such a nature that, if permitted, it would defeat any law;
(c) it is fraudulent;
(d) it involves or implies injury to the person or property of another; or
(e) the court regards it as immoral, or opposed to public policy.
In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” (emphasis mine)
FINAL THOUGHTS
18. Parties in a marriage often turn to post-nuptial agreement to resolve their matrimonial dispute. However, parties may be hit with a surprise when their post-nuptial agreement is not upheld by the Court in a divorce – like the parties in HLC above.
19. To avoid this, parties can avail themselves to Section 56 LRA. They can refer their post-nuptial agreement for the court to express an opinion as to the reasonableness of the same before divorce proceedings are begun.
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