THE UPDATE SCOOP (#7/2024)

Marital Agreement Enabling Husband to have a Mistress │ Family / Contract

 

By TAY & HELEN WONG – May 13, 2024

 

            In a ground-breaking decision, the High Court in HLC v PTL (Kuala Lumpur High Court, Divorce Petition No.: WA-33-30-01/2021) upheld a marital agreement in which the wife consented to the husband to have a ‘mistress’ during the subsistence of their marriage. The wife had petitioned for divorce, spousal and child maintenance, division of matrimonial assets and damages from the co-respondent whom she had accused of committing adultery with her husband/respondent which had allegedly caused the breakdown of the marriage.

There was a post-nuptial agreement dated 9.8.1997 (the Marital Agreement), after their marriage was registered in July 1997. It contained provisions on the custody, care and control of child(ren) born out of the marriage and alimony/maintenance in the event of a separation and/or divorce. The wife had also agreed that the husband could at any time have one other woman partner in his life besides the wife and it shall not be treated as adultery or used as a ground for divorce (Clause 6). The wife however took a diagonally opposite position at the hearing of her petition when she contended that the Marital Agreement was not valid and unenforceable on the ground, among others, that it sanctioned adultery within the institution of marriage hence illegal and immoral pursuant to s.24(a) and (e) of the Contracts Act 1950 (the Act).

The learned Judge rejected such contentions. In her view, adultery did not constitute an illegal or criminal act among non-Muslims in Malaysia. There was no provision in Penal Code that criminalizes adultery. She was also reluctant to regard Clause 6 as inherently immoral and contravened public policy, such public policy objection being of less importance now that divorce was so commonplace. Further, s.54(1)(a) of the Law Reform (Marriage and Divorce) Act 1976 (LRMDA) delineated that the irretrievable breakdown of a marriage was not solely contingent upon the establishment of adultery but hinged crucially on whether such adultery had made it intolerable for the petitioner to cohabit with the respondent. On that score, given that the wife had consented to Clause 6 which signaled her prior tolerance and acceptance of the husband’s extramarital activities, her assertion that the alleged adultery between the husband and co-respondent had caused the irretrievable breakdown of the marriage was untenable.

On the provisions in the Marital Agreement on custody and care of the child(ren) and maintenance for the child(ren), the learned Judge ruled that they were invalid. Parents could not oust the protective/parental jurisdiction entrusted to the court over their children in matters of custody and maintenance.

The provision in the Marital Agreement which compelled the party initiating the divorce to provide maintenance to the other party was also struck down by the court. No spouse should be compelled to make financial payments solely based on initiating divorce proceedings. It was unreasonable and punitive in coercing parties to remain in an undesirable marriage solely to avoid financial penalties. And under LRMDA, award of maintenance predicated upon means and needs of the parties as well as the underlying causes of the breakdown of the marriage. The provision was thus in violation of s.24(b) of the Act which rendered unlawful the consideration or object of an agreement if it was such a nature that, if permitted, it would defeat any law.

Eventually, the divorce was granted and the decree nisi was made absolute immediately. The husband was ordered to pay spousal and children maintenance, and the matrimonial assets were divided accordingly between the parties. No damages were awarded to the wife from the co-respondent. The wife had not proven adultery between the husband and co-respondent on a balance of probabilities at a higher degree of such standard. The cause for the irretrievably breakdown of the marriage was not adultery. On the final analysis of all other facts and events, the learned Judge ruled that both parties bore equal responsibility for the breakdown.

 

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Tags: [family law] [divorce] [marital agreement] [post-nuptial] [adultery] [mistress] [Law Reform (Marriage & Divorce) Act 1976, s.54(1)(a)] [Contracts Act s.24(a), (b), (e)]