KUALA LUMPUR: A postnuptial agreement between a husband and wife allowing him to keep a mistress during their marriage has been deemed valid by the High Court here.
Justice Evrol Mariette Peters, in her decision, said the wife, a Singaporean woman (the petitioner) in her 50s, voluntarily signed the marital agreement where she explicitly accorded permission for the husband (the respondent), a businessman in his 60s, to maintain a relationship with one mistress at any given time.
"This arrangement evidently signalled the petitioner's prior tolerance and acceptance of the respondent's extra-marital activities, assuming they occurred within the agreed parameters," the judge ruled.
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," Justice Peters said.
The 87-page judgment, dated April 15, was uploaded on the judiciary's website.
The petitioner, anonymised as HLC, and the respondent, known as PTL, registered their marriage in July 1997.
The petitioner left their matrimonial home with her son from a previous marriage and five children she shared with the respondent in October 2020, citing adultery and unreasonable behaviour from the respondent.
She subsequently initiated divorce proceedings in January 2021.
Justice Peters also stated that consequently, it appeared fundamentally unjust for the petitioner to now allege that such acts of adultery had singularly precipitated the irretrievable breakdown of their marriage.
"In summary, I concluded that adultery did not serve as the cause for the irretrievable breakdown of the marriage.
"This conclusion stemmed from the lack of evidence of adultery, and even if it were established, it was my view that the petitioner had not found it intolerable, as stipulated in Clause 6 of the Marital Agreement," she said.
The judge was of the view that the marriage "had run its natural course".
"It seemed clear that the petitioner initially viewed the union as a means of ensuring financial stability for herself and SP3 (the petitioner's 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," she said.
Justice Peters said while the respondent provided for his family financially, he was an absent father, leaving the petitioner to shoulder responsibilities of running the household and caring for the children single-handedly.
"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," she added.
The court granted the petitioner and the respondent a divorce and the decree nisi made absolute with immediate effect.
She ordered the respondent to pay the wife RM10,000 for spousal maintenance and a further 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.
The petitioner's claim for damages from a co-respondent identified as GEN was dismissed, as there was no proof of adultery.
