Unacceptable Behaviour – Introduction
Jane (not her real name) could never forget how her husband humiliated her in front of his relatives. To her, it was unacceptable behaviour. It was embarassing. The incident came flooding back every time she saw his face. She felt ashamed and she just wanted to leave her marriage.
Unacceptable behaviour is a real problem for many marriages. Here are some examples.
When a husband comes home drunk and beats up his wife, that’s unacceptable behaviour.
When a husband takes drugs in the basement, that’s unacceptable behaviour.
When a wife is addicted to mahjong and gambles away the family fortune, that’s unacceptable behaviour.
When a wife has been caught in flagrante at the office party with her boss, that’s unacceptable behaviour.
(The husband who has been going around town with his arms around his pretty young secretary is also exhibiting unacceptable behaviour.)
Unacceptable behaviour does not have to be tolerated.
The other spouse can either choose to accept it, or to seek a divorce.
But, are the examples given above enough to constitute unacceptable behaviour?
And is it enough to be considered grounds for breakdown of marriage — and grounds for divorce?
We’ll dive into that, in this article.
So what is unacceptable behaviour as a grounds for divorce?
Under Malaysian law, you can seek a divorce if your spouse has behaved in such a way that it has become unreasonable to expect you to live with him or her.
So, to understand the law, we turn to sections 53 and 54 of the good old Law Reform (Marriage and Divorce) Act 1976.
First, either party to a marriage may seek a divorce on the grounds that the marriage has broken down, irretrievably. The court will have to enquire into the facts of the case, and make a decision as to the divorce. (section 53, LRA 1976)
Then, in enquiring into the circumstances that have led to the breakdown of the marriage, the court may take into consideration, that “the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent” (section 54(1)(b), LRA 1976).
But you know, it’s quite unclear what is “unacceptable”.
It’s also quite unclear what “behaved” means.
All that the LRA 1976 says is, when the other party “behaved in such a way” that makes the applicant unable to live with the other party, then it’s a ground for divorce.
So let’s try to suss out what it isn’t.
Here’s an example. When your spouse is extra short, that’s not behaviour. That’s an attribute. And so being short, isn’t “behaving” in any way. It therefore isn’t a grounds for divorce under section 54(1)(b).
Which is good news, because being ugly and/or fat and/or stupid isn’t “behaviour”. It’s more of an attribute.
But it’s arguable that “attribute” sometimes crosses the line and becomes “behaviour”. For example, a person who whines constantly — is that “behaviour” or “attribute”?
Domestic Violence as Unacceptable Behaviour
A woman who has been battered can claim that her husband has behaved in such a way that she cannot be expected to live with him anymore. It is unacceptable behaviour indeed.
In the English case of Ash v Ash [1972] 1 All ER 582, the courts said that the behaviour of both parties is relevant in considering whether or not to grant divorce. It was a case of a husband who, after being promoted, turned to drinking to cope with the pressures of the job. Once drunk, he turned violent, and in his drunken stupor, beat his wife badly. He ultimately lost his job. The court in that case ruled that the wife could divorce the husband because after such bad behaviour, the wife could not be expected to continue to live with her husband.
In another case of Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766, the husband criticized his wife in almost every aspect of her life, including all the petty things about her. Nothing was safe from his criticizing, as he touched on topics such as her friends, her way of life, and even her underwear which she soaked in the sink each night. He was abusive and called her names. One night he threw her out of the house, locking her out. He then threw water on her as she tried to get back in. The court granted her a divorce on the grounds that she could not be expected to live with him after his behaviour.
Testing for Intolerable Behaviour
In the case of Joseph Jeganathan v. Rosaline Joseph [1989] 3 MLJ 106 there was reference to “the cumulative effect of all these problems to show that the marriage has irretrievably broken down”. There, the Court held, “the proper test to be adopted is whether a right thinking man in all the circumstances would conclude that the respondent had behaved in such a way that the petitioning spouse could not reasonably be expected to live with the respondent. In doing so, the court must take into account the whole of the circumstances and the characters and personalities of the parties.”
In a Singaporean case, Wong Siew Boey v. Lee Boon Fatt [1994] 1SLR 323, the complaint was “that the respondent has not shown or only shown little love and affection, little communication and when they did communicate, it ended up in a quarrel”. The Singapore Court held there, that:
(a) “the question whether the respondent behaved in such a way that it was unreasonable to expect the petitioner to live with the respondent was essentially a finding of fact’;
(b) “the court must take into account the cumulative effect of behaviour. Any conduct, active or passive, constituted behaviour. The behaviour was not confined to behaviour towards the petitioner. The behaviour should effect the marriage although it may be towards other members of the family or towards outsiders. All behaviour may be taken into account, including omissions, where it had reference to the marriage . …The court must have regard to the personalities of individuals before it, however far these may be removed from some theoretical norm, and it must assess the impact of the respondent’s conduct on the particular petitioner in the light of the whole history of the marriage and their relationship.”
(c) Referring to Rayden’s Law and Practice in Divorce and Family Matters, in explaining cumulative effect of behaviour, “Regard will be had to the cumulative effect of behaviour, for, while conduct may consist of a number of acts each of which is unreasonable in itself, it may well be even more effective if it consists of a long continued series of minor acts no one of which could be regarded as serious if taken in isolation, but which, taken together, are such that the petitioner cannot reasonably be expected to live with the respondent.”
Other Considerations
As usual, divorces are subject to a minimum of two years having elapsed from the date of the marriage.
If you have been married only recently, it is a good idea to keep in mind the words of Benjamin Franklin: “Keep your eyes wide open before marriage, but half shut afterwards.”