Ancillary claims 1) Maintenance of wife and children Maintenance of a wife during marriage (Married Women and Children (Maintenance) Act 1950 (MWCMA)): - - Sec. 3: The court may only order a man to pay maintenance to his wife and not to order a wife to pay maintenance to her husband even if the husband is unable to earn a livelihood due to mental or physical injury. Sec. 13: MWCMA is not applicable to Muslims. Extent of the obligation to maintain during marriage: - Sec. 5(1): If the wife lives separately from the husband with reasonable refusal to do so, the court may make or enforce the order for maintenance although the husband made it a condition that the wife lives with him and the wife fails to do so. - Ranjit Singh v Jaswant Kaur: The husband and wife lived separately for 9 years. The wife tried hard to reconcile the marriage until she gave up and when she filed a petition for maintenance, the husband sought the wife back. Held: The husband is not genuine because when the wife attempted reconciliation, the husband did nothing. Thus, the application for maintenance was allowed as the wife’s refusal to live with her husband was reasonable. - Sec. 5(2): No wife shall be entitled to receive an allowance from her husband, if: - She is living in adultery, or - Rajalachmi v Sinniah: The phrase ‘living in adultery’ implies more than a single act of adultery. - Without any sufficient reason, she refuses to live with her husband - Sec. 3(1): In the assessment of maintenance, the husband is liable to pay maintenance to his wife according to the means and needs of the parties. - The means and needs of the parties is a question of fact. - The court may reduce or increase the amount of maintenance, or rescind the maintenance order depending on changes in the parties’ circumstances. - Thevathasan v Thevathasan: The husband appealed against the decision of the magistrate court which awarded $450 as monthly maintenance. Held: In considering her potential earning capacity, before the marriage, the wife was working as a teacher for a period of 2 years and earning a monthly salary of $160. The wife ought to go out and work in her own interest as she is still young and has no children, and the fact that she was partly to blame for the breakup of the marriage was an additional reason for taking her potential earning capacity into account. The court subsequently ordered the amount of the maintenance to be reduced to $300 monthly. - Sec. 3(3): The maintenance order shall be payable from the date of the husband’s neglect or refusal to maintain or from such later date as may be specified in the order. - Amrick Lall v Sombaiavati: The court should not order payments of arrears for a period exceeding one year. - However, in Lee Yu Lan v Lim Thain Chye: Any arrears of maintenance may be claimed from the date of the first incident of neglect or refusal, be it ten or fifteen years. - Sec. 4: Failure of the husband to pay maintenance may cause the husband to be penalized, either by being ordered to pay an additional outstanding sum of maintenance or imprisoned for a term which may extend to one month for each month’s allowance remain unpaid. - Sec. 6: The court may vary or rescind the maintenance order upon the application of the husband or the wife, if it is satisfied that there are changes in the parties’ circumstances. - Lee Swee Peng v Koon Kum Keng: The husband was ordered to pay to the wife $50 monthly for the maintenance of their child. He applied to the court to rescind or vary the very same order. His sole ground was that he was unable to pay $50. The court varied the order after noting that the husband was drawing a salary of only $262 a month, was married and had to support an old mother of 61 years. His monthly expenditure amounted to $258.20, causing him to exercise a strict economy in his expenditure to meet the maintenance of the child. Maintenance of a wife after divorce (LRA) - - - Sec. 77(1): The husband may be ordered to pay maintenance to the wife or ex-wife where matrimonial proceedings are pending; after the court granted the order of divorce or judicial separation, or where a wife presumed dead was found to be alive. Sec. 77(2): The court may order a woman to pay maintenance to her husband or exhusband where he is unable to earn a livelihood due to mental or physical injury, or ill-health. Sec. 78: In the assessment of maintenance, the husband is liable to pay for the maintenance of his spouse or ex-spouse according to: The means and needs of the parties; - Koay Cheng Eng v Linda Herawati Santoso: In the assessment of maintenance, the court shall have regard to the duration of marriage, the age of the parties, whether there were any children of the marriage, whether the husband had financially supported the wife during the duration of their marriage, the parties’ earning capabilities, the standard of living the parties enjoyed during the marriage and whether the divorce would affect the husband’s financial position. - - Chaw Anui v Tan Kim Chai: The issue of fair and reasonable maintenance is a question of fact. The degree of responsibility of each party to the breakdown of the marriage - Yap Kim Swee v Leong Huang Yin: The wife was not entitled to maintenance as the divorce was granted based on her adultery. Duration of orders of maintenance after divorce (LRA) - Sec. 81: An order for maintenance shall expire: - If the maintenance was unsecured, on the death of the husband or the wife, whichever is earlier, - If the maintenance was secured, on the death of the spouse, in whose favour it was made. - Sec. 82(1): The right of maintenance ceases upon remarriage or adultery. - Sec. 82(2): The right of a divorced person to receive maintenance under agreement ceases upon remarriage or adultery unless the agreement provides otherwise. - Sec. 80: A lump sum payment of maintenance will cause a wife to be estopped from claiming ongoing maintenance, subject to the court’s approval. - Lump sum payment originated from the “clean break principle”: Upon the end of a marriage, there is no ongoing obligation to maintain a wife. It will be ordered by the court upon application and must be consented by parties. (Leow Kooi Wah v Ng Kok Seng Philip) - However, a lump sum payment is only enforceable upon a husband who has a good financial standing. - Watchel v Watchel – The court will not order a lump sum payment if it would cripple the husband’s earning power. - Sec. 83: The court may vary or rescind order of maintenance. - Anna Tay Siew Hong v Joseph Ng Tiong Yong: The respondent filed an application for a rescission of the maintenance order as he claimed that he was 60 years old, suffering from several ailments, had no permanent work and was dependent on his second wife for financial support. Held: The application was granted as the court was satisfied that there had been a material change in the circumstances of both the respondent and the petitioner. - There must exist extreme hardship to the existing order, otherwise such claim will be dismissed. - Sec. 86(3): No amount owing as maintenance shall be recoverable in any suit if it has not been paid for more than 3 years before the institution of the suit. Effect of conversion to Islam on maintenance of a divorced wife (LRA) - - - Sec. 51(2): The court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of marriage may attach conditions to the decree of the dissolution as it thinks fit. Tan Sung Mooi v Too Miew Kim: Sec. 51(2) was intended to give protection to the nonMuslim spouse and the children of the marriage. Therefore, the court has the jurisdiction to hear the ancillary claims made by the non-Muslim spouse against the convert spouse. - Where the convert spouse was a non-Muslim at the time of the marriage, the provisions in regards to maintenance on the ground of conversion to Islam is thus, applicable to the convert spouse by virtue of Sec. 3(3). The position on maintenance for the non-Muslim wife is that the converted husband has to pay maintenance to his former wife until the right ceases under Sec. 81 and 82. - The position is similar where it is the wife who has converted, the non-Muslim husband may be ordered to pay maintenance until the right ceases. - However, where the wife is the convert spouse, and the husband is unable to earn a living as under Sec. 77(2), the provision would still apply to her whereby she may be ordered to pay maintenance to the husband, despite it being contrary to Syariah Law. Maintenance of children (MWCMA and LRA) - An application for children’s maintenance under MWCMA and LRA can be made at any time, either during the marriage or matrimonial proceedings. - Sec. 3(1), MWCMA: The court shall order any person to make a monthly allowance if he neglect or refuses to maintain his wife or legitimate child. - Sec. 92, LRA (general provision): It is a parent’s duty to maintain his children whether they are in his custody or the custody of any other person. - Sec. 93, LRA: The basic responsibility of maintenance of a child is on the father. Leow Kooi Wah v Ng Kok Seng Philip: Where the LRA provides the term “a parent”, it can be interpreted to include the mother’s contribution to maintenance of the children if the court is satisfied that she is more capable of providing than the father. However, in Parkunan Achulingam v Kalaiyarasy Periasamy: The court maintained that the wife’s obligation to support a child is only secondary to the husband’s basic duty of providing a child’s maintenance. - - - Sec. 95, LRA: A child’s maintenance shall expire if the child has attained the age of 18 or if the child is under physical and mental disability, on the ceasing of the disability. - Ching Seng Woah v Lim Shook Lin: In appropriate cases, involuntary financial dependence is considered a physical disability under Sec. 95. Thus, the court ordered the father to pay for the children’s educational expenses until each of them has obtained their first university degree. - - However, in Karunairajah Rasiah v Punithambigai Poniah: Where the appellant in this case stopped payments of maintenance for his eldest child on the ground that she had attained the age of 18, the court held: The phrase “physical or mental disability” in Sec. 95 should be given a literal meaning and therefore, involuntary financial dependence cannot be brought within the meaning of physical disability. Sec. 98, LRA: Recovery of arrears of maintenance is allowed up to a maximum of three years (of unpaid maintenance) before the institution of the suit. Effect of conversion to Islam on maintenance of children - Tan Sung Mooi v Too Miew Kim: Conversion to Islam does not deprive the duty of a convert father to maintain the children as provided under Sec. 51(2), LRA. 2) Division of matrimonial property (LRA) Property acquired by joint effort and sole effort - - - - - Sec. 76(1): The court shall have power, when granting the decree of divorce or judicial separation to order the division of any joint effort matrimonial assets between the parties. Ong Ah Mai v Ling Pooi Ming: The court has no jurisdiction to make orders pertaining to the division of family property for the parties, if it is not made during the divorce petition. Ching Seng Woah v Lim Shook Lin: Asset (property) refers to the matrimonial home and everything which is put in by either spouse with the intention that their home and chattels should be a continuing resource for the spouse and their children to be used jointly and severally for the benefit of the family as a whole. It is irrelevant whether the assets are acquired solely or by their joint efforts. Whilst the marriage subsists, these assets are matrimonial assets. Wong Kim Fong v Teau Ah Kau: Shares are constituted as matrimonial assets and their division depends on the extent of the contributions made by each party. Sec. 76(2): In exercising the power of division of joint effort property, the court shall have regard to – The extent of the contribution made by each party in money, property or work towards acquiring of the assets; - Usha Rani Subramaniam v Sivanes Rajaratnam: The court took into account the efforts, and financial and physical contributions, of the wife in the setting up of the clinic which enabled the husband to devote his energy to the running of the clinic, and decided that she was entitled to one third of the total income of the clinic. - Any debts owing by either party which were contracted for their joint benefit; - Lee Yu Lan v Lim Thian Chye: The court considered the debts incurred by the husband in the course of acquiring the matrimonial home before dividing the matrimonial home between him and his former wife. - The needs of the minor children, if any, of the marriage, - Chan Choy Ling v Chua Che Teck: The wife was awarded custody of their three children. In preserving the needs of the minor children, the court awarded the matrimonial home to the wife so that she and her three children have a house to stay in instead of disposing the property for sale. - And subject to those considerations, the court shall incline towards equality of division. - Sec. 76(3): The court shall have power, when granting the decree of divorce or judicial separation to order the division of any sole effort matrimonial assets between the parties. - Section 76(4): In exercising the power of division of sole effort property, the court shall have regard to – - The extent of the contributions made by the party who did not acquire the assets to the welfare of the family by looking after the home or caring the family; - The needs of minor children, if any, of the marriage; And subject to those considerations, the court may divide the sole effort property in proportion as the court thinks reasonable; but in any case, the party by whose effort the assets were acquired shall receive a greater proportion. - - Lee Yu Lan v Lim Thian Chye: The court granted the wife RM60,000 which was 1/3 of the proceeds of sale of the matrimonial home, as she had contributed to the matrimonial home by caring and nurturing the children, and performed other general duties attended by her as housewife. - If the asset was acquired by the sole effort of one party, that party shall receive a greater proportion, but the court will also look into the extent of the contributions by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family. - Koay Cheng Eng v Linda Herawati Santoso – The husband, a Malaysian and the wife, an Indonesian, were married in the UK in 1980. Upon a petition for divorce, the court considered the wife’s contribution towards the household through the purchase of furniture, kitchenware, and groceries as a contribution towards acquiring that property and held that the wife is entitled to ½ of the assets in Malaysia and UK. The court also considered the Employees Provident Fund (EPF) contributions as matrimonial assets acquired during marriage due to the wife entering the marriage with the intention to grow old with the husband and on his retirement, they would both enjoy the benefit from the monies set aside in EPF contributions. Thus, the breakdown of the marriage should not entitle the husband to solely benefit from the EPF. The court held that the wife was entitled to half of the amount remaining in the husband’s EPF account as at the time of their divorce and that such monies should be paid out to the wife when the same is payable to the husband. - Lim Kuen Kuen v Hiew Kim Fook & Anor: Both, the EPF and gratuity payments (any payments arising from a benefit) are matrimonial assets thus subjected to distribution. Property owned before marriage - - - - Sec. 76(5): Property owned before marriage by one party, but substantially improved by the other party or their joint effort during the marriage may be considered as assets acquired during marriage. Shirley Koo v Kenneth Mok Kong Chua: The wife’s contribution in purchasing kitchenware and payment of servant’s salary, food and grocery bills amounted to substantial improvement to a semi-detached terrace house because her efforts made the value of the house increase. Ching Seng Woah v Lim Shook Lin: Buying furniture amounted to substantial improvement of the property, as once the house value experiences an increase during the period of marriage, the asset will fall within the ambit of the provision. However, in Shi Fang v Koh Pee Huat: The wife claimed a share in the matrimonial home, which was acquired by the husband long before the marriage. Held: The only way the wife could be entitled to the claim was to prove that the property had been substantially improved by her or their joint effort. The court found that the wife’s effort of conceptualizing the renovation as de minimis (too remote) and thus, she was not entitled to any share in the house. 3) Custody of children (Guardianship of Infants Act 1961 (GIA) and LRA) - Sec. 2(2)(a)(ii), GIA, ‘child’: A person who has not reached 21 years old. Sec. 87, LRA and Sec. 2, Age of Majority Act 1971, ‘child’: A person who is under the age of 18. Kanalingam v Kanagaraja: Where the definition of ‘child’ given the LRA and the Age of Majority Act 1971 is preferable, a child is thus a person under the age of 18. Application of custody - Sec. 5(2), GIA and Sec. 88(1), LRA: Parents of the child are entitled to apply for custody. R. Saraswathy v R. Palakrishnan: An application for custody could be made under the LRA even if there was no pending action for divorce. Types of custody: Sole custody order - Only one party is given the care, control and custody of the child while the other party is given the right to access. The parent to whom custody is granted has the right to determine the upbringing and major decisions including the child’s religion, education and healthcare. Joint custody order - - Both parents continue to have an active parenting role despite the divorce Even though care and control is given to one parent, the other parent retains his or her rights and responsibilities to be involved in the child’s upbringing Karen Cheong Yuen Yee: The court not only ordered joint custody, but also joint care and control of the children as the parties lived closely to one another and there was no evidence of violence. Sivajothi Suppiah v Kunathasan Chelliah: The fact that the parties were in persistent quarrels and disagreement was one of the important factors why joint custody was not granted. Factors taken into consideration in custody disputes: Welfare of the child - - - - Sec. 11, GIA and Sec. 88(2), LRA: The welfare of the child is the paramount consideration of the court in ascertaining the custody of the child. Re Satpal Singh, An Infant: The court in this case referred to: - Re Thain: Welfare must be taken in its large context as meaning that the welfare of the child as a whole must be considered. It is more than merely a question of whether or not the child would be happier in one place compared to another place, but his general well-being. - Allen v Allen: Welfare in the English equivalent means physical and moral welfare. Thus, mere adultery cannot cause a woman to be considered as an unfit person and who should not have the care and control of a child. K. Shanta Kumari v Vijayan: Welfare means that the care, comfort, attention, wellbeing and happiness of the child are matters that should be taken into consideration. Teh Eng Kim v Yew Peng Siong: The maintenance of a stable and secure home in which the children can enjoy love and affection is the most important thing that should be taken into consideration. Sivajothi Suppiah: The court granted custody, care and control of the eldest child to wife, while the husband was granted reasonable access. The court considered that the wife only worked 2 hours in the afternoon and would have more time to devote herself to the care and needs of the child and that it would not be in the best interest and welfare of the child, at his early and critical stage of life, to be brought up in an environment that would expose him to the risks posed by his father’s volatile (unstable) character resulting from his suicide attempt. - J v C – The HOL ruled that the Guardianship of Infant Acts 1925 applies to disputes not only between parents, but between parents and strangers, and strangers and strangers. In this case, the care and control of the child was granted to the foster parents instead of the child’s natural parents, upon it being medically proven that the child had a stronger relationship with the foster parents and family, such that if the child is returned to the natural parents, there is a slight (very little) success for the child to adjust to the situation, thus causing it to affect the child’s welfare. - Masam v Salina Saropa: A natural mother sought for the custody of her son from the foster parents who had been taking care of him since he was 9 days old. In this case, since the infant had lived with his foster parents for approximately two years and they had cared for him with love and affection, the court ruled that custody should remain with them. Taking him away from his foster parents may cause him to develop a permanent emotional scar. Wishes of the parents - Sec. 11, GIA and Sec. 88(2)(a), LRA: The wishes of the parents, subject to the welfare of the child, is to be taken into consideration by the court. Mahabir Prasad v Mahabir Prasad: The mere desire of a parent to have his children is secondary to the consideration of the welfare of the children, and can only be effective if it coincides with their welfare. Wishes of the child - - - Sec. 88(2)(b), LRA: The court, subject to the welfare of the child, shall have regard to the wishes of the child, where he is of an age to express independent opinion. Chang Ah May v A Francis Teh Thian Sar: The child preferred to stay with her father for the sole reason that she hated to be left in the care of a babysitter when her mother worked. However, where her maternal grandparents were willing to care for her in her mother’s absence, the custody of the child was given to the mother as the court found that she and her relatives could provide better care than the father and his relatives, and that there was a possibility that the wishes of the child were expressed under influence. B Ravandran Balan v Maliga Mani Pillai: The court rejected the view of the child where there was a probability that he was influenced by material gains promised to be given to or already given by the father. Whether a child can be considered of an age to express independent opinion depends on the opinion of the court in a particular case. Manickam v Intherahnee: A child of 8 years could not reasonably be expected to express any independent opinion on his preferences. - Mahabir Prasad v Mahabir Prasad: Children aged 7 ½ and 8 ½ years should be given the opportunity to express their wishes. A child under seven years old - - - - Sec. 88(3), LRA: There exists a rebuttable presumption that it is good for a child under 7 years to be with his or her mother. - L v S: Strong grounds are needed to rebut the presumption. Gan Koo Kea v Gan Shiow Lih: The husband applied for the guardianship, custody, care and control of the children. The court took into account the children’s continuous stay with the wife ever since the separation, the tender age of the children (both below the age of 7 years), the admission of the husband beating his children using clothes hangers, and the failure on the husband’s part in attending to the children after the separation. There was nothing in the facts to show that the wife was unable to provide for the children with an adequate home environment and nothing against the wife in respect of her ability to shower love and affection on the children. Thus, the rebuttable presumption was invoked by the court in that it is good for the children to be with their mother, who has always been with them since the separation of the parties and it was undesirable to disturb the life of the children by a change in custody. However, the presumption was rebutted in Re T (A Minor): The court found that it was good for the 4 year old daughter to be in the custody of her father due to her mother suffering from severe mental depression. Tay Chuen Siang v Wang Chiao-Wen: Children below the age of 7 that had been brought up in a stable and caring environment should not be disturbed by a change in custody. The presumption was rebutted where there was evidence of irrational behaviour on the part of the mother. Existence of more than one child in a marriage - - - Sec. 88(4), LRA: Where there are two or more children of a marriage, the court shall not be bound to place all the children in the custody of the same person but shall consider the welfare of each independently. Tan Chong Pay v Tan Swee Boon: The court decided that a boy, who was above 7 years should stay with the father as that was his wish while the younger brother, who was 4 years old should be given to the mother, taking into account the presumption under Sec. 88(3). Chong Siew Lee v Lau Mun Chong: Taking into account the interests of the child, the court granted custody of the elder child to remain with the mother while the younger child was given to the father. Opinion of the Welfare Officer - Sec. 100, LRA: The court, whenever it is practicable, shall take the advice of the welfare officer when dealing with custody matters. However, the court shall not be bound to follow such advice. Conditions to order of custody - Sec. 89(1), LRA: The court in making an order of custody, as it thinks fit, may attach conditions as listed in Sec. 89(2)(a) – (e). Variation order - Sec. 96, LRA: The court has the power to vary an order for custody. Sivajothi Suppiah v Kunathasan Chelliah: An 11 year old daughter was ordered to stay with the father after he applied for a variation order to the order made before which granted custody to the mother. Duration of custody - Section 95, LRA: The period of custody of a child ceases when the child attains the age of 18.
