The common law principle stating a woman’s domicile must follow that of her husband is invalid, the Court of Appeal in Putrajaya heard today.
Counsel Gopal Sri Ram argued that the common law rule violated the right of a wife of being equal before the law and gender discrimination which were guaranteed under the federal constitution.
“The common law rule of coverture is an ancient law originating from the time when a married woman had no legal personality of her own, and is no longer applicable,” he said.
He said the High Court judge had erred in applying the common law principle to rule that the domicile of Pauline Chai Siew Phin, the wife of tycoon Khoo Kay Peng, was in Malaysia and hence, the Malaysian courts had the jurisdiction to hear their divorce petition.
Sri Ram is representing Chai who is appealing against the High Court ruling that the Malaysian courts have jurisdiction to hear the couple’s divorce petition as she would have to follow her husband’s domicile, even though she lives in England.
Chai, 68, the former Miss Malaysia/International 1969, wants the British court to decide on the divorce proceedings because she no longer domiciled in Malaysia since 1980. However, her husband wants the Malaysian courts to decide on their divorce proceedings.
Sri Ram submitted there was sufficient evidence before the court to show that Chai was a habitual resident in England and she had a genuine intention to permanently reside there.
“The High Court judge fell into error in not holding that the wife (Chai) had in fact, established a domicile of her choice in England,” he argued before a three-member panel chaired by Justice Balia Yusof Wahi.
He said Chai had the capacity in law to establish her own domicile of choice and had done so, adding that since she no longer resided in Malaysia, the High Court did not have the jurisdiction to grant reliefs sought by Khoo.
Sri Ram also said the Malaysian authorities had not addressed on the conflict between the common law rule and the provisions of Article 8 (1) (right of a citizen to be equal before the law) and Article 8 (2) (gender discrimination) of the federal constitution.
Khoo, 75, filed an application in the High Court for dispensation of the need to go before a reconciliation body before divorce under Section 106 of the Law Reform Marriage and Divorce Act.
On Dec 11, 2013, the Kuala Lumpur High Court ruled there was no need for Khoo to meet the conciliatory body in London, and that he could file his divorce petition in Malaysia.
‘Too many disputed facts’
On April 22, last year, the Court of Appeal remitted the case back to the High Court for a fresh trial to determine jurisdiction and domicile issues after ruling there were too many disputed facts.
On Nov 28, last year, the High Court ruled it had jurisdiction to hear Khoo’s divorce petition.
Meanwhile, Chai filed the divorce petition in a London court in February 2013, seeking a £500 million (RM2.75billion) settlement.
The couple married in 1970 and have five grown-up children.
It was reported that Chai would get a smaller portion in matrimonial properties if the case was decided, according to Malaysian law, compared with an entitlement to half of Khoo’s fortune if it was heard in Britain.
Khoo’s counsel CV Das will make his submission tomorrow before the panel which also comprises justices Hamid Sultan Abu Backer and Abdul Rahman Sebli.
- Bernama
