Divorce Stands After Six Years: Court of Appeal Refuses to Set Aside a Decree Nisi Absolute

Case Background & Strategy

Once a decree nisi has been made absolute in Malaysia, it will be set aside only for very good reasons or in exceptional circumstances, and a challenge to substituted service must be brought promptly and in proceedings for that very purpose. In Allison Fong v Chong Sin Lai @ Song Sin Lai [2025] MLJU 4970, NZSK acted for the husband, Chong Sin Lai @ Song Sin Lai, and the Court of Appeal refused the wife’s attempt to undo a divorce that had been final for six years.

Case at a Glance

The Problem: An Attempt to Reopen a Divorce Six Years Later

Our client, Chong Sin Lai @ Song Sin Lai, and his wife married in 1988 and had lived apart since 2011. In 2016 he filed a divorce petition in the Seremban High Court. After two attempts at personal service at her last known address failed, the court allowed substituted service: the petition was pasted at that address, posted on the court notice board and advertised in a Chinese-language newspaper. The decree nisi was granted in September 2016 and made absolute in November 2016.

In December 2022 the wife applied to set aside the decree, the decree absolute and the substituted service order. She said she had moved to Ampang, that the attempts at service were defective, that the petition was invalid because the marriage had not first been referred to a conciliatory body under section 106 of the Law Reform (Marriage and Divorce) Act 1976, and that she had lost the chance to claim maintenance and a share of the matrimonial assets. The High Court dismissed her application, and she appealed.

Our Strategy: Finality, Proper Service and No Real Prejudice

We relied on the finality the law gives to a decree that has been made absolute. There is no express provision for rescinding one, and the courts require very good reasons or exceptional circumstances. We showed that the substituted service order had been complied with, that the wife had never said on oath that she told our client of her new address or that she did not see the newspaper advertisement, and that she could not attack the order collaterally years later. Neither spouse disputed that the marriage had irretrievably broken down after more than a decade apart, which made a reference to a conciliatory body pointless. Her financial complaints could be pursued in other ways and did not justify unravelling the divorce.

The Court of Appeal’s Decision

The Court of Appeal unanimously dismissed the appeal with costs of RM5,000. It held that a party who wishes to challenge a substituted service order must do so in proceedings brought for that purpose, and that the wife, who had combined that challenge with her application to set aside the decree, had to show good reasons or exceptional circumstances. Service by pasting at the last known address, posting on the court notice board and advertising in a newspaper was deemed good service whether or not she actually saw the notice.

After an inordinate delay of six years, setting the decree aside could unravel life-changing events that follow a divorce, such as remarriage and rights of inheritance. A conciliatory body reference served no purpose where reconciliation was impossible, a claim for maintenance could be raised by application under the Act, there was no cogent evidence for the matrimonial assets claim, and an allegation of fraud had to be brought in a fresh action. The High Court’s decision was affirmed.

The Law in Brief: Setting Aside a Decree Nisi Absolute

The Law Reform (Marriage and Divorce) Act 1976 does not provide for rescinding a decree nisi once it has been made absolute. The Court of Appeal has held that Parliament intended to preserve the integrity and finality of a decree absolute, so an application to set it aside succeeds only for very good reasons or in exceptional circumstances. Delay, the irretrievable breakdown of the marriage and the prejudice that reopening the divorce would cause are all relevant.

An order for substituted service made by the High Court must be obeyed, and its validity can only be challenged in proceedings instituted for that purpose. A party who waits years before acting faces a heavy burden.

Key Takeaways

• A divorce that has been made absolute is final, and the courts protect that finality.
• Setting aside a decree nisi absolute requires very good reasons or exceptional circumstances.
• Substituted service by pasting, court notice and newspaper advertisement is deemed good service.
• Delay matters: six years was held to be inordinate.
• Claims for maintenance and matrimonial assets have their own routes and do not justify reopening the divorce.

Frequently Asked Questions

Related reading: Can a decree nisi absolute be set aside in Malaysia?; What is a single petition divorce?

Worried about the validity of a divorce, or facing an application to reopen one? Book a consultation with NZSK so we can review your court papers and advise on your position. Learn more about our family law and divorce practice.

Messrs Ng, Zainurul, Seke & Khoo (NZSK) is a Malaysian law firm with offices in Mont Kiara, Kuala Lumpur and Puchong, Selangor. Partner Khoo Ai Theng, an Advocate & Solicitor of the High Court of Malaya since 2014, acts in custody, divorce and other family disputes and is the author of Child Custody in Malaysia: A Practitioner’s Comprehensive Guide (Thomson Reuters, 2026).