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Saturday November 1, 2014
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De facto law minister Nancy Shukri said recently the onus was on the Women, Family and Community Development Ministry to push for changes to the common law on a married woman’s domicile of dependence. ― File pic De facto law minister Nancy Shukri said recently the onus was on the Women, Family and Community Development Ministry to push for changes to the common law on a married woman’s domicile of dependence. ― File pic KUALA LUMPUR, Nov 1 ― Tycoon Tan Sri Khoo Kay Peng’s billion-ringgit divorce has prompted scrutiny on a common law in Malaysia that binds a married woman to her husband’s domicile, a rule critics contend is archaic and discriminatory.

Khoo, chairman of international brand Laura Ashley, is battling to get the divorce heard in Malaysia on the basis that local law provides that a husband’s domicile or permanent residence determines the jurisdiction of matrimonial proceedings.

On the opposing side, his estranged wife and former beauty queen Pauline Chai is fighting to have the case decided by courts in the UK, where she stands to get half of his estimated £400 million (RM2.1 billion) fortune, potentially the largest divorce settlement in British history.

“We are saddled with archaic laws such as this question of domicile, which no longer conform with contemporary notions of the marital partnership,” senior family lawyer Balwant Singh Sidhu told Malay Mail Online in a recent email interview.

He noted that while England abolished that common law provision with its Domicile and Matrimonial Proceedings Act 1973 that provides a married woman an independent domicile, Malaysia has failed to follow suit with its Law Reform (Marriage & Divorce) Act 1976.

The lawyer said it was a “no-brainer” on whether the law should be abolished and married women be given their domicile of choice, describing it as an archaic law like Section 498 of the Penal Code that criminalises enticing a married woman.

Section 498 had entered the spotlight through TV personality Daphne Iking’s case in 2009, during which her ex-husband had used the law to accuse another man of seducing her with the intention of having sex.

“After all, even if a wife is given an independent domicile, it will still be a matter of evidence, and it does not mean she can up and run away to Timbuktu and file for divorce,” said Balwant.

“It is understandable that racial and religious sensitivities often seem to stultify the process of law reform ― but we must have the political will to do the right thing, and give women equal rights and not just pay lip service to such a noble notion!” the lawyer added.

De facto law minister Nancy Shukri said recently the onus was on the Women, Family and Community Development Ministry to push for changes to the common law on a married woman’s domicile of dependence.

Chai’s lawyer Jane Tai from Bon Advocates said Malaysian courts generally award the wife, whose earning capacity is typically lower than the husband’s, “much less” in matrimonial assets in a divorce as the law places less importance on non-financial, home-building contributions.

“In the UK, the division of assets built up during a marriage starts, in practical terms, from the 50-50 presumption and the wife’s non-financial contributions are accorded equal value without discrimination between breadwinner and homemaker,” Tai told Malay Mail Online in an email interview.

Tai also noted that the Malaysian Court of Appeal had cited last April in Khoo’s and Chai’s divorce case a passage from the late eminent British judge Lord Denning’s judgment in Gray (orse Formosa) v Formosa (1963), in which coverture - where a woman’s domicile automatically follows her husband’s ― was described as “the last barbaric relic of a wife's servitude”.

“A marriage should be seen as a partnership of equals where no one’s status or identity is lower than that of another. Neither a man nor woman should lose his or her right, identity or status on marriage,” said Tai.

Women’s rights group Empower said the common law rule on a married woman’s domicile being dependent on her husband’s clearly discriminated against women.

“Even in today’s world where Malaysia continuously claims that women have greater access to education, women still have to deal with patriarchal thinking that are manifested in archaic laws. Women’s contribution is treated as second to men,” Empower executive director Maria Chin Abdullah told Malay Mail Online.

“The government has not taken much initiative to amend or abolish the discriminatory laws that still exists in Malaysia and which do not give full protection to the rights of women and children in areas of citizenship, employment, violence against women, right to choose one’s domicile and others,” she added.

Chin noted that Article 24(4) and Article 26(2) of the Federal Constitution explicitly deprived married women of Malaysian citizenship in certain circumstances, but was silent on men.

“These laws support the patriarchal narrative which prevail in our society’s thinking: Women, once married, are under the protection and cover of their husbands ― ‘till death do us part’ logic, except that women have to follow while men lead,” she said.

Women’s Aid Organisation (WAO) executive director Ivy Josiah said men are privileged in laws like a married woman’s domicile being tied to her husband’s, Section 498 of the Penal Code or Islamic law that makes it easier for a Muslim man to divorce his wife than vice versa.

“We must view marriage as a marriage of equals, not as leader and follower,” Ivy told Malay Mail Online.

“We live in a world where both parties are working, both contribute to the house equally. We should do a review of all laws ― amend all laws and practices that privilege men and disadvantage women in a marriage,” the women’s rights activist added.

The acrimonious divorce between Khoo, 74, and Chai, 67, is set for a hearing at the High Court here on November 3 to decide the jurisdiction of the case.

A British court ruled earlier on October 17 that the divorce should be heard in London, with British daily The Telegraph reporting the judge as saying he was convinced that Chai “genuinely” resides in the UK.

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