MAHON V MAHON [1971] 2 MLJ 266

AMIERA SYAKINAH BT ZULKIFLI 2008401836FATINA AMYRA BT ABDUL JALIL 2008401834

NOR DIANA BT NOR AZWA 2008401838NUR SURIATI BT MOHAMAD 2008401806

SYARIAH BT HASSIM 2008409012WAN HAFSAH BT WAN MUHAMAD SARIDAN 2008409018

Facts of the case:The petitioner applied for dissolution of her marriage with the respondent. The parties were domiciled in Ireland but the petitioner claimed that she was ordinarily resident in Malaysia for the last three years immediately preceding the commencement of the proceedings. On the facts although the petitioner had resided in Penang she was absent in Ireland for about 15 months out of the preceding 36 months. The petitioner owned a furnished dwelling in Dublin and had a half share in another house in Dublin. The children of the marriage were living in Ireland and the petitioner said that she intended to return and settle down in Ireland with her children after the conclusion of the proceeding.

The law in issue:

S. 49 (1)(b) Divorce Ordinance 1952

S.49(1) Without prejudice to any jurisdiction exercisable by the court apart from this section, and notwithstanding the provisions of paragraph (b) of sub-section (1) of section 4, the court shall by virtue of this section have jurisdiction to entertain proceedings by a wife in any of the following cases, notwithstanding that the husband is not domiciled in the Federation, that is to say:--

(b) in the case of proceedings for divorce or nullity of marriage and any proceedings consequent thereupon, if the wife is resident in the Federation and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings.

Principle:1. High Court The main issue in the proceeding was whether the

court has jurisdiction to entertain the petitioner application for divorce.

The basis for invoking the jurisdiction of the court came from section 49(1)(b) where the petitioner had been ordinarily resident in this country for the 3 years immediately preceding the commencement of this proceedings.

The court held that the petitioner was ‘ordinarily resident ‘ in the Federation because they have no house of their own in this country and they have clear intention to return to their country of origin. So, the petition must be dismissed for lack of jurisdiction.

2. Federal Court

The issue is whether the wife was "ordinarily resident" in Malaysia even if she was away in Ireland during 15 months of the 3 years immediately preceding the filing of the petition.

The court used the case of Levene v Commissioners of Inland Revenue [1928] to define the word ‘reside’ as 'to dwell permanently or for considerable time, to have one's settled or usual abode, to live in or at a particular place’.

Fox v Stirk [1970] – 3 principles highlighted in this casea) that a man can have two residences. He can have a flat in London and a house in the country. He is resident in both.b) temporary presence at an address does not make a man a resident there. A guest who comes for the weekend is not resident. A short- stay visitor is not resident.c) that temporary absence does not deprive a person of his residence. If he happens to be away for a holiday or away for the weekend or in hospital, he does not lose his residence on that ccount.

The court highlighted that section 49(1)(b) is meant intended to prevent transient visitors, who are not bona fide resident, with some degree of permanence, in the Federation from availing themselves of the court's assistance.

The court held that the court allowed the appeal because there can be no doubt that the petitioner had been "ordinarily resident" in the Federation since 1955 as she has a considerable (sufficient) degree of permanence where the greater must include the lesser.