COMMENT The recent judgment by the Court of Appeal on Khoo Kay Peng and former beauty queen Pauline Chai Siew Phin’s case has once again cast a doubt on the future of women’s rights in Malaysia.

In fact, this case is bound to reap repercussions in the near future for having set a bad precedent for future cases to follow and the message that the Court is attempting to indicate appears to be embedded in contrasting ideals - promoting women’s rights on one hand while claiming that women are by and large still tied to their husbands like property and chattels on the other.

Archaic law in action

To begin with, according to Halsbury’s Laws of England 4th Edition Reissue on Conflict of Laws, there are three types of domicile, namely, a domicile of origin, a domicile of dependence and a domicile of choice. A person can have only one domicile at any one time even though the person can have or can acquire more than one nationality or citizenship. A person can have more than one home, but only one domicile.

Of course, Chai’s case is that she has abandoned her domicile in Malaysia and has now made England her domicile of choice and the critical consideration revolves around whether as a wife, Chai’s domicile is a domicile of dependence (following that of her husband’s), or whether she can have her own domicile of choice.

This point is severely crucial in the said case as Chai maintained that her divorce petition should be properly heard in England since she is domiciled there and that Khoo is not allowed to file the divorce petition in Malaysia.

Most unfortunately however, the Court ruled in favour of Khoo given the fact that Chai, as a wife, is tied to her husband’s domicile and since it is indisputable that her husband’s domicile is in Malaysia, it follows that even if she was no longer a Malaysian citizen, she is also domiciled in Malaysia.

This misfortune is also fuelled by the fact that there is no legislation enacted to abolish the common law rule governing a wife’s domicile of dependence. Therefore, under Malaysian law until today, the common law rule applies, and a wife’s domicile is still dependent on her husband’s domicile.

By virtue of s.3(1)(a) of the Civil Law Act 1956, the common law of England and rules of equity as administered in England shall apply to peninsular Malaysia. From 1956 up till the time when the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976) was enacted and came into force, the common law principle on a wife’s dependent domicile applies. This would mean that a wife’s domicile automatically follows that of the husband’s domicile upon marriage.

The landmark cases which clearly reflected this principle are Charnley vs Charnley & Betty [1960] and Kanmani vs Sundrampillai [1953].  Regrettably, when the LRA 1976 was enacted, Parliament did not deem it fit to introduce a new law in Malaysia to abolish the old common law rule on a wife’s dependent domicile, which is clearly deemed antiquated in today’s 21st century.

At this point, without a Malaysian Act of Parliament similar to the English Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973), which abolished the old common law rule of a domicile of dependence in England, all cases decided in the English High Court based on the new DMPA cannot be applied by the Malaysian Courts.

In such light, should in any case the Malaysian Courts choose to follow the principles of the English courts, it would still nevertheless be the old common law principles on a wife’s domicile of dependence which marks the legal position in England prior to the DMPA. And till today, the principle of domicile by dependence remains and is affirmed by further recent cases like Neduncheliyan vs Kohila [1997] and Siah vs Janet Traynor [2010].

Perhaps the only Malaysian case law where the Courts have departed from the general common law rule lies in the odd case of Teo Ka Fook vs Loo Chiat Hui [2011], a case decided differently by the High Court of Sabah and Sarawak in Kuching. The ruling of this Court was held in favour of a wife who had abandoned her domicile of dependence and the Court similarly recognised that she had chosen her own domicile of choice.

However, while this case marked the only sole departure from the settled common law principle, it had never since been followed especially in cases tried in West Malaysia where the Courts are not bound by decisions made by Courts in East Malaysia. As such it is inevitable that the common law rule of a wife’s domicile of dependence still stands concretely in the archaic chain of case law despite the conscious evolution of women’s rights in Malaysia today.

When will we change our archaic laws?

Our position in Malaysia should be contrasted with that in other countries. Take the example of England itself where the passing of the DMPA 1973 simply altered the archaic position with regard to a wife’s dependent domicile. By virtue of the DMPA 1973, a married woman’s domicile is ascertained by reference to the same factors as individuals who are capable of having an independent domicile.

This is clearly in line with the vast promotion of human rights and typically, women’s rights in a modern society.

To add on, Lord Keith in his judgment in the landmark case of R vs R (1991) with regard to marital rape, had once stated that marriage is, now in modern times, regarded as a partnership of equals and not one which a wife must be the passive chattel of the husband.

To add on, even our neighbour, Singapore has done the same in the eighties. The Singaporean Women’s Charter Amendment Act 1980 has effectively abolished the common law rule of a domicile of dependence for a wife through the introduction of express statutory provisions. Thus, when other countries have already embarked on the task of updating their laws to reflect a sense of modernity, when will we move away from our ancient laws with regards to women?

Based on the mentioned, it is clear that laws evolve as a society and a nation progresses. We cannot claim to be progressive yet maintaining such archaic laws in our statute books. With that said, like what other nations have long done, it is clear that amendments to our existing laws are needed with regards to wives being domiciled according to their husbands, to better reflect the status and dignity of women in our modern era today.  

Additionally, the legislature should also consider the introduction of new domestic laws, incorporating provisions of the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), which the nation ratified in 1996, to allow a wife to opt for her own domicile in future.

 

KOAY SY LYN holds an LLB from the University of London and is currently a research analyst of the Penang Institute. CLARENCE TAN is currently reading law at BAC and is also an intern with YB Steven Sim, MP for Bukit Mertajam.