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Agreement for tycoon husband to have mistress during marriage valid, court rules
Published on: Thursday, April 18, 2024
By: FMT, V Anbalagan
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Agreement for tycoon husband to have mistress during marriage valid, court rules
The High Court says a wife who tolerates her husband’s infidelity cannot cite adultery as the cause of marital breakdown.
Kuala Lumpur: A High Court here has ruled that a postnuptial agreement between a business tycoon and his Singapore-born wife, allowing the husband to keep a mistress during the subsistence of their marriage, is valid.

Justice Evrol Mariette Peters said the wife, identified as HLC, voluntarily entered into the accord with her husband, anonymised as PTL, in August 1997, a month after their union.

She said such agreements between non-Muslim spouses hold statutory recognition under Section 56 of the Law Reform (Marriage and Divorce) Act 1976.

“As long as there is no violation of any law, parties to a marriage have the right to make decisions about their relationships and lifestyle preferences according to their unique needs, desires, and circumstances,” Peters said in an 87-page judgment posted on the judiciary’s website earlier this week.

The wife, a graduate of the National University of Singapore, who petitioned for divorce, argued that the agreement was not enforceable as she had executed it in ignorance, and under pressure and duress.

However, Peters rejected the wife’s plea of ignorance, noting that she had signed the agreement in the presence of witnesses and initialled every page.

The facts of the case revealed that at the time of their marriage, the wife was already mother to a two-year-old child from her previous marriage. She subsequently had five children with her husband, the respondent.

One of the terms of their agreement allowed the husband, who owned property and vast business interests in Terengganu, to maintain a mistress at any given time.

In October 2020, the wife left the matrimonial home with the children, citing the husband’s adultery and his unreasonable behaviour.

She went on to petition for divorce and sought maintenance for herself and two of their children, the equal division of matrimonial assets, and damages from a co-respondent identified as GEN, whom she accused of committing adultery with her husband which in turn resulted in the breakdown of their marriage.

Meanwhile, the husband cross-petitioned specifically for monetary claims under a marital agreement and the return of money and jewellery.

Peters ruled that the husband’s act of maintaining another woman was not illegal.

The judge also said the wife was not entitled to rely on Section 54(1)(a) of the 1976 Act to cite adultery as the cause of the breakdown of their marriage as she had tolerated the husband’s infidelity.

Section 54(1)(a) provides that the court, in its inquiry into the breakdown of a marriage, can take adultery into account if “the petitioner finds it intolerable to live with the respondent” as a result.

Despite this, the judge granted the couple a divorce, making the decree nisi absolute with immediate effect.

“In my view, the marriage had run its natural course. It seems clear that the petitioner initially viewed the union as a means of ensuring financial stability for herself and (her son).

“Despite subsequently having five children with the respondent, she remained in the marriage primarily for convenience and financial security.

“Conversely, the respondent admitted to marrying the petitioner more out of a sense of duty rather than genuine affection, as she had become pregnant out of wedlock,” said Peters.

Describing the respondent as an “absentee father”, the judge said: “It was my conclusion, therefore, that while neither adultery nor abuse was proved, both parties bore equal responsibility for the irretrievable breakdown of their marriage.”

Peters also ruled that the terms of the couple’s agreement regarding custody and maintenance were not binding.

She ordered the husband to pay the wife RM10,000 for spousal maintenance and another RM6,000 for the maintenance of two of their children.

The judge also made orders distributing the couple’s matrimonial assets including immovable properties, vehicles, money, and shares in companies.

Peters, however, rejected the wife’s claim for damages from GEN, having ruled that there was no proof of adultery.

Lawyers M Kamalam and Eugene Teo represented the wife while Lee Sok Wah and Nur Amira Hidayah Razali appeared for the respondent and co-respondent.

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