In a recent landmark decision[1], the Kuala Lumpur High Court, via a judgment delivered by Yang Arif Puan Evrol Mariette Peters on 15th April 2024, ruled that a Marital Agreement consenting to husband having another woman partner beside the wife AND agreeing to its exclusion as adultery/ a ground for divorce, is valid and enforceable.
It is apparent that the Honourable Court had demonstrated meticulous analysis of both the factual circumstances and legal principles, briefly as follows:
- The Marital Agreement is a post-nuptial agreement statutorily recognized under Section 56 of the Law Reform (Marriage and Divorce) Act 1976. So long as there is no violation of any law, parties to a marriage have the rights to make decisions about their own relationship and lifestyle preferences according to their unique needs, desires and circumstances, including deciding the terms and boundaries of their marriage, of which even the Court shall have no authority to dictate the dynamic of a married couple’s life within their marriage.
- The Marital Agreement was executed post-registration of the marriage, negating the premise of any form of pre-marital pressure. The Petitioner Wife had already possessed the autonomy to refuse to sign the agreement and she did not refuse the same.
- As a graduate of the National University of Singapore, the Honourable Court was not convinced that someone of the Petitioner Wife’s standing was forced to consent to the terms of the Marital Agreement without understanding the implications thereof. The evidence of her initials on every page and signatures of four witnesses, made it implausible to contend that she was pressured or coerced into signing.
- It was the Petitioner Wife’s intention to sought security of the marriage ensuring provisions for both herself and her son from her previous marriage. The Petitioner Wife did not manage to discharge her burden of proof to show that she did not sign the Marital Agreement voluntarily.
- While Section 497 of the Indian Penal Code criminalizes adultery, a landmark decision by the Supreme Court of India (2019) 3 SCC 39, AIR 2018 SC 4898 declared Section 497 to be arbitrary and unconstitutional. It was apparent that the Malaysian Penal Code distinctly mentions that “There is no section 497”, explicitly acknowledging that, within the Malaysian context, adultery does not constitute a criminal offence among non-Muslim citizens.
- The clause that allows the Respondent Husband to have mistress embodied the Petitioner Wife’s acquiescence to adultery committed by the Respondent Husband. The breakdown of marriage is proved not to be solely contingent upon the establishment of adultery. Such adultery has not made it intolerable for the Petitioner Wife to cohabit with the Respondent Husband.
- The Petitioner Wife had voluntarily signed the Marital Agreement wherein she explicitly accorded permission for the Respondent Husband to maintain a relationship with one mistress at any given time, indicating her prior tolerance and acceptance of the Respondent Husband’s extramarital activities within the agreed parameters.
- No proof was shown by the Petitioner Wife on any withdrawal of her consent regarding the Respondent Husband’s engagement with any mistress.
Whilst the Honourable Court took the view that the alleged adultery was not the reason to irretrievable breakdown of the marriage, the divorce was granted with no damages awarded against the Co-Respondent, i.e. the mistress. We shall be guided accordingly should there be any appeal which may affect the outcome.
[1] HLC v PTL [2022] MLJU 1370
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