Judgment

Suriyadi J

1. The petitioner wife was lawfully married to the respondent on 4 June 1987 at the National Registration Office in Malacca and had stayed in Malacca until sometime in July 1996. She has not denied that she is a Singapore citizen and is presently residing in Singapore which is her original place of domicile. This marriage blessed her with three children, two girls and a boy, all born in Malacca. They went through turbulent times and thrice attempted to reconcile their differences before a marriage tribunal but without much success.

2. The affidavit and the petition of the petitioner, which at this juncture I must presume to be true, tell the story of a battered wife who had to go through hellish moments even from as early as 1991. Going to hospital to receive medical treatment was the norm due to the heavy hands of the husband. On 7 July 1995, she left for Singapore alone to seek employment so as to financially support not only herself but also her children. She regularly returned to see the children but even during this period the husband continued his assault on her. In June 1996, she was again assaulted physically when she rejected his sexual advances resulting in her having to be admitted in the psychiatric ward in the Malacca General Hospital. This incident was reported to the police.

3. Being unable to bear any further physical and verbal abuses of the respondent she left for Singapore in July 1996 but this time with her two daughters. There she sought out employment to support the unfortunate children but unfortunately for her son, she did not return to Malaysia to visit him. It is just as well that she did not return as otherwise the scars that she would have been left with might be physically and mentally intolerable. Despite the physical chasm between them, threats were still being directed to her via telephone calls culminating in a police report being lodged on 24 September 1996. With such a background, it is no surprise that on 18 March 1997 she filed this divorce petition. Before I could proceed with the hearing, learned counsel for the respondent, En Aslam Zainuddin from the Legal Aid Bureau, objected to the legality of the action by virtue of her not being able to fulfil the requirement of her place of domicile as provided by s 48(1)(c) of the Law Reform (Marriage and Divorce) Act 1976 (‘the Act’). Section 48 reads:

   (1)	Nothing in this Act shall authorize the court to make any decree of divorce except – .... (c) where the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia.

4. In a nutshell, one of the pre-conditions to be fulfilled before a court may grant a decree of divorce is that the domicile of the parties when the petition was presented was Malaysia. In the case of WT Berge v Salamah Salim [1979] 1 MLJ 18, s 80(1)(a) of the Singapore Women’s Charter (Cap 47) – which is in pari materia with our above s 48 – was discussed by Choor Singh J. He opined that s 80(1)(a) was a mandatory requirement, a view which I totally agree with. Therefore, unless the contents of s 48(1)(c) are complied with then a High Court judge has no power to grant a decree of divorce for the applicant (see also Anthony v Anthony [1959] MLJ 42; Melvin Lee Campbell v Amy Edward Sumek [1988] 2 MLJ 338 and Jeyasakthy Kumaranayagam v Chandrakumaran [1996] 5 MLJ 612). There are too many authorities which have pronounced the impossibility of laying down an absolute definition of domicile, though in Malaysia illustrations have been resorted to so as to overcome this lacuna (see Re Bhagwan Singh, Decd [1964] MLJ 360). What is trite is that a place of domicile may be changed by several reasons, one of which is the metamorphosis to a domicile of choice by a person’s own act from that of a domicile of origin by birth. This domicile of choice on the other hand may not be permanent as the person concerned may abandon it which results in the return to the domicile of origin until a fresh place of domicile is acquired. In other words, during the time when a person moves off to another place and takes up domicile there, the domicile of origin is held in suspension, with the latter to be reactivated only if the domicile of choice has been abandoned. It is no coincidence that it is not possible to have more than one domicile at one and the same time. To clarify the above matter, an enlightening and simple approach to the meaning of domicile was suggested by Scarman J in the case of Re Estate of Fuld, Decd (No 3) [1968] P 675 at p 682; [1966] 2 WLR 717 at p 723 where his Lordship said:

   Domicile is ‘that legal relationship between a person ... and a territory subject to a distinctive legal system which invokes the system as [his] personal law ...’: see Henderson v Henderson [1965] 2 WLR 218. It is a combination of residence and intention. It takes two forms – domicile of origin and domicile of choice. A classic description of the concept is to be found in Lord Westbury’s speech in Udny v Udny (1869) LR 1 Sc & Div 441. Two features of his description are of particular importance in the present case. First, that the domicile of origin prevails in the absence of a domicile of choice, ie if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.

5. As regards the place of domicile of the husband in the current case, no problem is posed for the court as not only is he presumed to be domiciled here by virtue of his Malaysian citizenship, but also due to the fact that he is currently living in Malaysia (see s 3(2) of the Act). Where the wife is concerned, the Act is none too helpful as there is no presumption provision that can save her position or intention despite her ten years’ residence in this country. Therefore, direct and secondary evidence must be submitted by the applicant if the need arises. In the case of Melvin Lee Campbell v Amy Edward Sumek [1988] 2 MLJ 338, C.C. Tan J said at p 339: 

   There are two essential elements involved in determining the domicile of choice, and these are the factors of residence and the requisite intention to reside permanently for an indeterminate period in the country where it is alleged that the petitioner has adopted the domicile of choice. In this instance, it is to be noted that para 434 of 8 Halsbury’s Laws of England (4th Ed) states as follows: 434 Direct and secondary evidence of intention. Direct evidence of intention is often not available, but a person whose domicile is in question may himself give evidence of his intentions, present or past ....

6. It is not disputed that on the day the petition was presented she was already back in Singapore. Capitalizing on this fact, the respondent had no hesitation in suggesting that her return to Singapore by conduct was a clear expression of her desire to abandon Malaysia as her place of domicile. How counsel arrived at that conclusion was difficult for me to accept as there were many other inferences that I could draw and arrive at by her choice of sanctuary. I could infer that she went to Singapore as that was the only place in the world where sanctuary was assured for her however temporary that may be. That was the place where she could get immediate assistance from her friends, relatives or former business contacts, if any, with ease without having to go through some difficult processes or moments before her financial position was reestablished. With the history of suffering behind her, no reasonable person would have blamed her as regards her wisdom of choice. Moving further, I am unable to detect any legal doctrine, either through case law or statutes, which presumes an abandonment of the place of domicile merely by being at her domicile of origin. A Malaysian husband has a deeming provision to invoke for assistance; a person is presumed to be domiciled in the country in which he resides (Re Bhagwan Singh, Decd); there is a presumption in law that an infant’s place of domicile is the place of birth of its father and there was even once a presumption that the domicile of a married woman was that of her husband while the marriage subsisted even though the parties were living apart before that British law progressed on (Divorce Ordinance 1952). But certainly I am unable to come across any presumption that just because a wife has returned to her place of original domicile nine months later merely to seek out financial sustenance, she should be viewed with prejudice and distortion. The respondent also made out much of her nationality and of her not choosing a neutral country. I believe it needs more than that factor to convince me that she intended to abandon Malaysia. It is accepted law that the concept of nationality and the issue of domicile are two totally different concepts which deserve different and separate treatments. A person may change his place of domicile but yet not be divested of his nationality (Boldrini v Boldrini and Martini [1932] P 9). It will be fallacious to think of the terms ‘domicile’ and ‘residence’ as being synonymous (see H.H. Lee J at p 47 para h in Majumder v A-G of Sarawak [1966] 1 MLJ 41).

7. One should not seize upon the facts which state in no uncertain terms that she is a citizen of Singapore and presently staying in a particular address in that country as she was merely telling the truth. This truth surely cannot be construed as a statement of declaration of her intention to abandon Malaysia. Even if she had indicated that she desired to give up Malaysia as her place of domicile that factor proves nothing as it merely discloses the existence of animus without establishing the necessary factum (see Lord Handworth MR when referring to Winans v A-G [1904] AC 287 in Boldrini v Boldrini and Martini where he clearly said that a 'change of domicile was a serious matter ... it must be decided animo et facto'). In Copinger-Symes v Copinger-Symes [1959] MLJ 196, as regards proving the factum Good J said at p 198:

   The person claiming to have acquired a new domicile of choice must, for his claim to succeed, have ‘burnt his boats’. He must have settled in the country of his choice, or at least have taken some step indicating an intention to take up permanent residence there, such as the purchase of a house for his own occupation, the transfer of his effects (as an ancient Roman would have removed his Lares and Penates) or the like.

8. I am unable to find any evidence of her having undertaken any of those strong measures indicating her supposed desire to permanently move back to her country of birth. The facts did show that the applicant is residing in Singapore as per the given address but to equate a change of address as abandoning the original place of domicile and simultaneously proving factum certainly is an unsound argument. At the risk of repeating the above facts, it must be borne in mind that she left Malacca from July 1996 until March 1997 as she had to seek out employment somewhere and at the same time escape the constant abuses of her husband. I did stress to the respondent’s counsel that it was her privilege to choose wherever she wanted to go, to seek out the best haven to support her and her family, pending the settlement of the divorce. Even though her choice of place might invite a negative and distorted picture, to read into it a desire to abandon her domicile of choice would be stretching the facts too much. Proof of her change of domicile back to her original domicile surely requires stronger evidence than that. Permit me to quote Gill J in Re Bhagwan Singh, Decd [1964] MLJ 360 where at p 363 he said:

   The law on this point quite clearly is that a person who has formed the intention of leaving a country does not cease to have his home in that country until he acts according to the intention. In other words a domicile of choice continues until it is abandoned. It is divested only when the country of domicile has been actually abandoned with the intention of abandoning it forever.

9. As much as a temporary residence for the purpose of health or travel or business does not have the effect of changing the place of domicile, neither do I believe that by merely going to Singapore to work is proof of her desire to abandon Malaysia. Apart from this ‘negative’ fact which had been strenuously canvassed by the respondent, we have no other facts which may indicate her desire to return to Singapore permanently. On the other hand, we have these evidence which reflect otherwise, viz: 

   1. she had willingly left Singapore to marry and settle down in Malacca;

   2. she had been blessed with three children in Malacca;

   3. she had resided here for a period of no less than ten years, a length of time which would have made her eligible to attain Malaysian citizenship;

   4. she had contributed substantially for the deposit of their matrimonial home resulting in that property being registered under both names;

   5. despite the bad deal of the marriage, she agreed to have the matter referred before a marriage tribunal at least three times;

   6. she was literally driven out of the matrimonial home due to the savage attacks of the husband; and

   7. despite knowing the probable consequences to her if she were to return to visit the children at the matrimonial home, she still took the risk. It was only after it became humanly unbearable that she left for Singapore which eventually resulted in the petition being filed.

10. Perusing the facts without the applicant even having to adduce evidence of her domicile status, I am convinced that when she was in Malaysia she already had exercised her choice by making Malaysia her place of domicile. Furthermore, I am not convinced that merely by her remaining a Singaporean and seeking employment in Singapore during that temporary period she had abandoned Malaysia as her place of domicile. In other words, the respondent had failed to impress her changed status on me. I placed the burden on the respondent as the onus of proving that a person has abandoned his domicile of choice for that of another has always rested on the asserter. In Re Lloyd Evans, Decd [1947] 1 Ch 695 under ‘Held’ is summarized:

    .... that the onus of proof that the testator had abandoned his domicile of choice lay upon those who asserted that this had occurred.

11. A change of domicile from the domicile of origin to a domicile of choice is imputed to a person on clear and unequivocal evidence and that burden is heavy (see Travers v Holley & Holley [1953] 2 All ER 794 and Winans v A-G [1904] AC 287). On the other hand, the burden on an asserter for the reverse is no less onerous. In the case of Re Lloyd Evans, Decd, Wynn Parry J said at p 707:

    The only real difference in law between the two cases of acquiring a domicile of choice and, placing the domicile of origin in abeyance, on the one hand, and abandoning a domicile of choice, on the other hand, is that less evidence is required to establish the act of abandoning the domicile of choice than is required to demonstrate the acquisition of a domicile of choice. But in either event both the intention and the act must be demonstrated to be unequivocal.

12. At p 708, his Lordship concluded that even if a testator was often in two minds, that factor was insufficient to establish an unequivocal intention to abandon his domicile of choice. In other words, the law requires more than a fickle and unpatriotic mind. In the case of Re Estate of Fuld, Decd (No 3) [1968] P 675 at p 685; [1966] 2 WLR 717 at p 726, Scarman J said:

    There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?

    Further at p 686 para c; at p 726, his Lordship said:

    The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasize that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v Butlin (1838) 2 Moo PCC 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case.

13. For purposes of the current case, I am in grave doubt that the respondent is anywhere close to pricking my conscience let alone reach the stage of proving that the petitioner desired unequivocally to permanently leave Malaysia. As in the above case of Re Lloyd Evans, Decd where the deceased’s act of leaving Belgium was dictated by force of circumstances as a consequence of the Nazi invasion, and not the result of a free choice and therefore equivocal, similarly in this case the applicant’s return to Singapore was due to the abusive behaviour of the respondent. In simple terms her act was never pursuant to a free choice and therefore cannot be construed as unequivocal.

14. Stretching the argument further, if I may reiterate, the respondent had canvassed that by being away for nine months preceding the presentation of the petition that fact itself went against the requirement of s 48(1)(c) of the Act. I did toy with the thought of the situation if she had merely stayed over there for one week, maintained her Singapore citizenship and risked exposing her Singapore address? Would that have meant that she would not have been able to fulfil the prerequisites of the provision? Does it mean that by already staying in Singapore for that one week as per the hypothetical question the issue of factum would have been sufficiently proven against her?

15. Having considered the enormous wealth of authorities available, I must conclude that even though figures for purposes of stay are important they are not conclusive in proving the issue of domicile. An assertion of a change of domicile must be proved unequivocally, implying falling back on accepted norms of our evidential system by submitting admissible and credible evidence. For the current case, had the stay been very long coupled with other convincing evidence that she had burnt her boats I would not have dwelt too long on the objections of the respondent. What has to be proved is no mere inclination arising from a situation thrust upon her by an external or temporary pressure but an intention formed to reside in a certain territory indefinitely with that intention proved by sufficient evidence to establish the act of abandonment of the domicile of choice. Mere inferences and circumstantial evidence unsupported by other convincing evidence will not be sufficient (Rayden on Divorce (11th Ed) 47); The Laws of England (3rd Ed) Vol 7 p 17 para 32). Having considered the totality of the available evidence, I am satisfied that the respondent not only had not succeeded in proving the animus but also the factum. Based on this conclusion, the preliminary objection of the respondent is dismissed.

Cases

Anthony v Anthony (nee Pragasam) [1959] MLJ 42

Bhagwan Singh, Decd, Re [1964] MLJ 360

Boldrini v Boldrini and Martini [1932] P 9

Copinger-Symes v Copinger-Symes [1959] MLJ 196

Estate of Fuld, Decd (No 3), Re [1968] P 675; [1966] 2 WLR 717

Jeyasakthy Kumaranayagam v Chandrakumaran [1996] 5 MLJ 612

Lloyd Evans Decd, Re [1947] 1 Ch 695

Majumder v A-G of Sarawak [1966] 1 MLJ 41

Melvin Lee Campbell v Amy Edward Sumek [1988] 2 MLJ 338

Travers v Holley & Holley [1953] 2 All ER 794

WT Berge v Salamah Salim [1979] 1 MLJ 18

Winans v A-G [1904] AC 287

Legislations

Law Reform (Marriage and Divorce) Act 1976: s.3, s.48

Representations

N.C. Wong (S.K. Khoo & Tan Tian Tiok) for the applicant.

Aslam Zainuddin (Legal Aid Bureau) for the respondent.

Notes:-

This decision is also reported at [1997] 3 MLJ 467.