The common law rule which states that a wife’s domicile must follow that of her husband still applies in Malaysia, the Court of Appeal in Putrajaya heard today.

Counsel CV Das said Parliament did not introduce any legislative provisions in Malaysia to abolish the common law rule of a wife’s dependent domicile when enacting the Law Reform (Marriage and Divorce) Act 1976.

He submitted that in fact, two sections in the Law Reform Act which was enforced in 1982 - Section 48 (1) (c) and Section 49 - recognised the common law rule.

He said the Royal Commission on Marriage and Divorce Reform for Non-Muslims also did not recommend the abolishment of the common law rule on wife’s domicile.

Das is representing tycoon Khoo Kay Peng in the appeal brought by his wife, Pauline Chai Siew Phin to set aside a High Court ruling that the Malaysian courts have the jurisdiction to hear the couple’s divorce petition.

Chai, 68, former Miss Malaysia/International 1969, wants the British court to decide on the divorce proceedings because she has no longer been domiciled in Malaysia since 1980, and is currently living in England. However, her husband wants the Malaysian courts to decide on their divorce proceedings.

Das also submitted that the law of coverture had been substantially changed by the Married Woman's Act 1957 when section 4 of that Act declared a married woman as a ‘feme Sole’ which means that wives had all the legal rights as an independent woman.

He said any change to family law must be legislated, and not by way of judicial decisions, adding that it must also be consulted as it would affect the personal life of a citizen.

The counsel also argued that the rule was not discriminatory to the wife by virtue of Article 8 (5) of the federal constitution which stated that personal laws such as family laws and marriage and divorce laws were not subjected to the equality protection guaranteed under Article 8 (1) of the constitution.

He said Chai did not enjoy the gender discriminatory protection under Article 8 (2) of the constitution because that provision was only confined to Malaysian citizens and that Chai was no longer a Malaysian.

Malaysian citizenship revoked

He said Chai had her Malaysian citizenship revoked in November last year.

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 High Court in Kuala Lumpur ruled there was no need for Khoo to meet the conciliatory body in London and that he could file his divorce petition in Malaysia.

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 that 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.

The three-member panel comprising justices Balia Yusof Wahi, Hamid Sultan Abu Backer and Abdul Rahman Sebli fixed tomorrow to deliver their decision.

Chai was represented by counsel Gopal Sri Ram.

- Bernama