Undermining the purpose of “forum conveniens?”

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Dr Kay Peng Khoo is a prominent Malaysian businessman. He and his wife Pauline Chai were married in 1970. He is now 75 and she is 67. They have five adult children. They lived in Malaysia until 1980, when Mrs Chai and the children moved first to Australia, and then to Canada from 1989 until the late 2000s. Although they were de facto living apart during most of this time, and in spite of serious problems in the marriage, they both regarded the marriage as continuing. They both have a Malaysian domicile of origin. Dr Khoo has never lived anywhere but Malaysia.

Since October 2012 Ms Chai has been living in England. She filed her first divorce petition in England February 2013. Dr Khoo followed suit in Malaysia two weeks later, though under Malaysian law he was required to apply for permission to file a petition without a prior conciliation appointment. Each of them clearly believes that their preferred jurisdiction will be more advantageous financially.

In May 2013 Ms Chai filed an application in Malaysia for a stay of Dr Khoo’s proceedings on the basis that England was the forum conveniens. In a judgment in December 2013 (following a hearing without oral evidence) a Malaysian High Court Judge made the following orders:-

• She dismissed the wife’s stay application, holding that Malaysia was ‘overwhelmingly’ the forum conveniens.

• She granted the husband permission to file his petition.

• She held that the Malaysian court had jurisdiction on the basis of joint domicile.

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