INTRODUCTION

For those in the legal fraternity, when confronted with a problem of the division of
matrimonial assets, the question that predominantly occupies their concentration is this: “How
much did my client contribute to the acquiring of such assets?” Legal practitioners know that the
courts’ way in the award for the division of matrimonial assets is based on the contribution of the
parties towards the acquiring of the assets.1 However, the layman’s perspective is a stark
contrast. He is only interested in a single thing: the assets. His mind is only focused on a single
question: “How much can I get out of this?”

Matrimonial assets are the properties acquired during marriage. 2 It would also includes
the property owned by one party before the marriage, but to which there has been
substantial improvements made by the other party or by joint effort during marriage. No
expressed definition provided in the statutes regarding the phrase matrimonial asset but the laws
governed it are Law Reform Act 1976 (LRA), Distribution Act 1958 (DA) and Married Woman
Act 1957 (MWA).

The issue of matrimonial assets arises upon the death of either spouse or divorce. When
one of the spouses has died, his or her properties will be administered under DA. For divorce, the
LRA will govern the distribution of the properties.

POSITION PRIOR TO THE INTRODUCTION OF LRA

Prior to the introduction of LRA, law governs issue on matrimonial asset are MWA and
case laws. According to section 5 of MWA, a married woman shall be capable of acquiring,
holding and disposing of any property in all respects as if she was a feme sole. Section 11 states
that if there is dispute between husband and wife as to the title or possession of property, either
party may apply by summons or otherwise in a summary way to any judge of the High Court or
Session court and the judge will make order as he thinks fit. In the case of Chin Shak Len v Lin
Fah,3 in 1951, the respondent, the husband of the applicant, bought a 1/3rd share in a piece of
1
Section 76 of the Law Reform (Marriage & Divorce) Act 1976.
2
In Mohandass a/l Viran v Annuradha a/p Turasamy [2013] MLJU 78, the Central Provident Fund (CPF)
is matrimonial asset as they are acquired during the marriage.
3
[1962] MLJ 418.
land in Kajang, for $1,600, the greater part of which, $1,200, was provided by the wife, and
became the registered proprietor. In 1955 the husband deserted the wife who continued staying
on the said land. From 1951 to 1959 the respondent sold the greater part of his share to various
purchasers. In an application by the wife under section 11 of the Married Women's Ordinance
1957 for the determination of certain questions concerning the title to or possession of property,
the court held that the wife is entitled to the share registered in the husband's name on a resulting
trust, there being no presumption of advancement where a wife provides money for the purchase
of property in the husband's name.

Apart from that, there is a case which does not decided based on statute but based on case
laws. In the case of Nagapushani v Nesaratnam,4 the defendant husband purchased land in 1957
on his name. In 1959, he assigned the property onto plaintiff wife’s name. In 1961, plaintiff
reassigned the property to defendant’s name and in 1962, defendant reassigned the property on
his mother’s name, the 2nd defendant. Plaintiff claimed the right over the property claiming that
the assignments executed in 1961 and 1962 were void on the grounds of coercion and fraud. She
argued that she had contributed to the purchased of the property hence the assignment of the
property to the 1st defendant and 2nd defendant was null and void. By referring to several cases,
the court held that where a husband transfers a property to the name of his wife, there is a
presumption of intention to effect a gift to her. In this case, the presumption was rebutted by
plaintiff when she reassigned the property to her husband in 1961. There was a presumption of
gift to the plaintiff of the money deposited by the first defendant into plaintiff’s saving account.
The savings from household allowance however belonged to the 1 st defendant. As it was not
possible to ascertain the exact amount contributed by both spouses, the rule that equity learned
towards equality applied and both spouses have equal shares in the property.

THE POWER OF THE COURT TO ORDER DIVISION OF MATRIMONIAL ASSETS –

CURRENT POSITION

Distribution Act
4
[1970] 2 MLJ 8.
 When a spouse dies intestate, his or her estate will be administered according to the DA.
DA only applies to non-Muslims’ estates. Section 4 states that distribution of movable property
of the deceased will be regulated by the law of the country in which he was domiciled at the time
of his death. Section 6(1) explains how the distribution is made. Section 6(1)(a) states that if an
estate dies leaving a spouse and no issue and parents, the surviving spouse shall be entitled to the
whole estate. Paragraph (b) says if there is spouse and parents but no issue, the surviving spouse
shall be entitled to one-half of the estate and the parents entitled to remaining one-half.
Paragraph (c) states if there is issue but no spouse and parents, the issue will get whole estate.
Paragraph (d) states if there is no spouse and issue, the parents shall get the estate. Paragraph (e)
says if there are spouse and issue but no parents, the spouse and the issue will receive one-third
and two-third of the assets respectively. Paragraph (f) states if there is no spouse but there are
issue and parents, the issue and parents will get two-third and one-third respectively. Finally,
paragraph (g) states that if the intestate dies leaving all spouse, issue and parents, each will
receive one-quarter, one-half and one-quarter. Section 6(1)(i) stipulates that if an intestate dies
leaving none of them, the estate shall be held on trust for the following persons according to this
flow: brother, sister, aunt, uncle, grandparent, great grandparent, great grand uncle and great
grand aunt. If still nobody to receive the estate, the government will come into picture to become
the heir of the deceased.

Law Reform (Marriage and Divorce) Act

Under the LRA, distribution of matrimonial assets is based on the contributions of the
spouses. Contributions comprise of two i.e. joint effort and sole effort. Section 76 of the LRA
provides the court with a power to divide matrimonial property upon granting a decree of divorce
or judicial separation between the parties. The provision provides guidelines on how the
matrimonial property should be divided depending on whether the property was jointly or solely
acquired. However, before the division is made, there are certain factors to be considered by the
court. For the joint effort property, according to Section 76 (1), the factors to be considered are
the extent of the contribution made by each party in money, property or works towards the
acquiring of the assets, debt owing by either party which were contracted for the joint benefit,
and the needs of minor children if any from the marriage. The same section provides for those
considerations, the court shall incline towards equality of division.
 The application of the law can be illustrated in recent decided cases as follows. In Yew
Yin Lai v Teo Meng Hai & Anor,5 the petitioner wife sought ancillary relief, inter alia, RM
175,000 which was the half share of the matrimonial home and RM 500,000 as lump sum
payment as division of matrimonial properties. The respondent husband counterclaims for RM
182,500 as the respondent’s purported loan to the petitioner, RM 368,000 for the sale of a
company’s shares and half share of three-storey shop lot bought by the petitioner. The issues
arose before the court were, whether the petitioner was entitled to have all the property together
with the two-storey semi-detached house built on it, and whether the respondent was entitled
claim half of undivided share in the land with a unit of three-storey shop house or to share the
proceeds of the sale of the said shop house.

The court referred to Section 76 (2) of the LRA 1976 where in the exercise of power to
order division of matrimonial assets acquired during marriage by the joint efforts of parties, the
court shall have regard ‘to extent of the contribution made by each party in money, property, or
work towards the acquiring of the assets’ and subjects to the aforesaid considerations “the court
shall incline towards equality of division’. It was the finding of the court that RM 182,500 by the
respondent was a capital injected for a business and not a personal loan for the petitioner.
Therefore the respondent did not entitle for the money. Apart from that, the claim of half share of
the shop lot by the respondent was dismissed by the court for the reason that the properties were
bought by the petitioner after the marriage has practically broken down. The evaluation of the
court appears that the claim of the respondent for the properties was an afterthought to intimidate
the petitioner to back off from her claims in the proceedings.

It was decided by the court in awarding the petitioner’s claim for part of the value of
matrimonial home in view of the fact that the petitioner had made contributions in the form of
domestic services to the respondent husband and towards the welfare of the family and by
looking after the two children and bringing them up, the claim for part of matrimonial home is
allowed at RM175,000. The petitioner’s claim of RM500,000 from 120,000 of a company’s
shares, proceeds from lucrative bird's nest venture, profits from shares in public listed companies
owned by the respondent, money lending business and real estate business were dismissed for
the failure of the petitioner to produce the evidence.

5
[2013] 8 MLJ 787.
 Besides that, in Shireen a/p Chelliah Thiruchelvam v Kanagasingam a/l Kandiah &
Anor,6 the issues at the trial, inter alia, was the division of the matrimonial assets. In this case,
the court dismissed the claims of the petitioner wife for the share including the rent of four
properties (two shop lot, a land and a double storey house) purchased by the respondent husband
before the marriage on the ground of no proof of contribution by the petitioner towards the
acquiring of the assets, or her contribution to substantially improve the properties during the
marriage. However, the petitioner succeeded in her claims for division of other matrimonial
assets after the court took into consideration of the petitioner contributions in the payment of
loan for the properties purchased by the respondent. As example, the petitioner stated that she
had acquired an interest in a property (a condominium in Kuala Lumpur) through her
contributions in taking care of the home and caring for the family as a wife and mother. The
respondent stated that he paid more than 25% of the purchase price before his marriage to the
petitioner. The balance of 75% was paid in the course of the marriage and the respondent
conceded that the petitioner has a 35% interest in this property. In view of her contributions, and
bearing in mind the concession made by the respondent , the Court holds that the petitioner is
entitled to a half share of the property based on the 75% of the balance of purchase price that was
paid during the marriage. Therefore, the Court orders that the petitioner be given 37.5% share
and the RH 62.5% share of this property.

The court did also take into consideration that though the petitioner has no proof of
contribution to substantial improvement of an apartment located also in Kuala Lumpur, and the
fact that only the respondent made full payment of the loan during the marriage, the non-
monetary contributions of the petitioner by looking after the home and caring of the family must
be recognised. Thus the petitioner entitle for 25% of share for the apartment. In addition,
regarding the claims for the 3 motor vehicles, since these vehicles were acquired during the
marriage, they are therefore matrimonial assets. The respondent made all the monetary
contributions towards the purchase of these vehicles, but the petitioner made non-monetary
contributions by looking after the home and caring for the family. Therefore, a just division

6
[2011] MLJU 807.
under section 76 of the LRA would be 50% share for the petitioner and 50% share for the
respondent.

As for the division of shares in a company it is clear from the evidence that the
respondent and petitioner had worked hard together to improve the business in the three
companies by their joint efforts. However, it is also clear that the respondent is the prime-mover,
and had contributed more than the petitioner in carrying out the business and operations in all the
three companies, considering his business skills and past working experience in Singapore.
Therefore, the court hold that the petitioner is entitled to 35% of their total shareholding in the
three companies and the respondent is entitled to 65% of such shareholding.

Property acquired by sole effort refers to property acquired by the effort of one spouse
where the other spouse has not made any financial contribution either directly or indirectly. By
virtue of Section 76(3) of the LRA, the court shall have power, when granting a decree of
divorce or judicial separation, to order the division between the parties of any assets acquired
during the marriage by the sole effort of one party to the marriage or the sale of any such assets
and the division between the parties of the proceeds of sale.

Furthermore, in Section 76(4), the court in exercising the power conferred by subsection
(3) the court shall have regard to (a) the extent of the contributions made by the other party who
did not acquire the assets to the welfare of the family by looking after the home or caring the
family and (b) the needs of the minor children, if any, of the marriage. The same section provides
for those considerations, the court may divide the assets or the proceeds of sale in such
proportions as the court thinks reasonable but in any case the party by whose effort the assets
were acquired shall receive a greater proportion.

The application of the law can be illustrated in recent decided cases as follows. In the
case of Loh Kwee Eng v Phua Nai Peng,7 the Petitioner and the Respondent were married on
10.5.1986 and stayed at the said Property. Their marriage has irretrievably broken down. The
said Property is registered in the Petitioner's name on 7.1.1992 and is charged to Maybank

7
[2011] MLJU 774.
Finance Bhd / Malayan Banking Bhd. It is the Petitioner's contention that the said Property
belongs to her and that it was purchased and financed by her solely.

In his reply, the Respondent contended that the said Property was bought from monies he
inherited from his late father's estate as well as from his own money. He therefore regards the
said Property as the matrimonial home, and prayed that it be sold at market price and be given
half share of the sale price.

It was decided by the court, the said Property was acquired during the marriage.
However, the said Property was bought and registered in the Petitioner's name on 7.1.1992. Even
though in the Marriage Certificate showed the Petitioner as having no job, the Judge accepted the
Petitioner's testimony that she was working at that time. Furthermore, from the testimonies of
witnesses, the Respondent exhibited a mean personality, mean in terms of his non-supporting the
Petitioner and her 2 daughters financially let alone emotionally, and has a tendency to being
abusive physically and mentally to them. That being the kind of person the Respondent is, the
Judge cannot accept his testimony as being true when he testified that he was the one who paid
the deposit sum for the said Property and not the Respondent, and yet at the same time his
agreeing to the Petitioner's "request" to have the said Property registered in her name and not his
name just because she had asked him to do so. Thus, it is undisputed and unchallenged evidence
that the said Property was acquired in the sole name of the Petitioner and all the receipts by the
developer are in the Petitioner's name and not in the Respondent's name.

In addition, in the case of Amir Jeet Kaur A/P Bahan Singh Chand v Dilbagh Singh,8
the Petitioner and the Respondent were married on 26.12.1971 in Labuan. The Petitioner filed
this petition for divorce on the ground that the Respondent has committed adultery and the
Petitioner finds it intolerable to live with the Respondent. The Petitioner prays that the following
matrimonial assets be valued by a qualified valuer to be agreed by the parties and the Petitioner
shall be entitled to one half of the value in cash, the matrimonial home described as
TL207536445 and three other properties described as TL207536472, TL207505280 and
TG207505520 respectively.

8
[2011] MLJU 154.
 The property TG207505520 was transferred to the Respondent by his father in 1969,
before they were married. It is not an asset acquired during marriage by their joint efforts nor is it
an asset acquired during marriage by the sole effort of one party to the marriage. The Respondent
acquired the property TG207505280 in 1984 with bank financing. This property was acquired
during marriage with the earnings from the company which was owned by them and both of
them were then working with the company. This was a matrimonial asset jointly acquired by
them during marriage. As for the other two properties, the Respondent said that these are
subdivided from a parcel of land belonging to his father which he had inherited together with his
two brothers in 1966. In 1980 he built the matrimonial house on TL207536445. This is the house
that the Petitioner has been staying in since then. The Respondent said that his mother's house is
built on TL207536472. There was no evidence led by the Petitioner to contradict this.

It was decided by the court that the properties TL207505280 and TL207536445 are
matrimonial assets, in accordance to the provisions of section 76 of the Act. Therefore, the court
allowed the Petitioner's application in respect of these 2 properties only i.e these 2 properties
shall be valued by a qualified valuer to be agreed by the parties and after deduction of any
redemption sums due to any financial institutions, the balance thereof (if any) shall be divided
equally between the Petitioner and the Respondent. The Respondent shall pay the costs of the
valuation. While for the two properties i.e. TL207536472 and TG207505520, they are properties
acquired by sole effort of the Respondent.

ISSUES IN RELATION TO SECTION 76 OF LRA

It is acknowledged that Section 76 of the LRA covers matters relating to the division of
matrimonial assets in accordance to parties’ contribution to the acquiring of such assets. There
are however several issues in relation to Section 76 that are worth to be highlighted in this
discussion. The issues are (1) whether an order for the division of matrimonial assets can be
claimed after the court had ordered for a decree of divorce, (2) whether the parties have a duty to
give full and frank disclosure, (3) whether the role of each party in the breakdown of the
marriage is considered when deciding the division of matrimonial property, and (4) whether the
order for the division of matrimonial assets can be varied.
1) Whether an order for the division of matrimonial assets can be claimed after the court
had ordered for a decree of divorce?

For the first issue, Section 76 (1) and Section 76 (3) had explicitly stated “The court shall
have power, when granting a decree of divorce or judicial separation to order the division
between the parties of any assets acquired by them during the marriage…” The question that
arises is whether matters of division of matrimonial assets can be claimed in a separate trial after
the court had passed the decree of divorce. In the case of Manokaram a/l Subramaniam v
Ranjid Kaur a/p Nata Singh,9 a decree nisi was granted by the High Court on 3 rd August 1999
with hearing for claims of ancillary reliefs fixed on the 14 th September 2000. However, the claim
for such reliefs was struck off. Subsequently, the decree nisi becomes absolute on 5 th April 2001.
Despite the decree of nisi was made absolute, the respondent then filed a notice of intention to
proceed with the ancillary reliefs. Arifin Zakaria FCJ (as he then was) expressed the view that
the words “when granting” appearing in sub-sections (1) and (3) of Section 76 of LRA only
confer jurisdiction on the court to make such order at the time of the granting of the decree; in
the case of a divorce when the decree nisi is made absolute and not thereafter. As the
respondent’s application was made subsequent to the decree absolute, therefore, the Court has no
jurisdiction to grant such an order.

2) Whether the parties have a duty to give full and frank disclosure?

In matter of the second issue, it is to be noted that the duty to give full and frank
disclosure is not expressly stated in Section 76 of LRA. However, in property disputes, the duty
lies on both husband and wife, as affirmed by the Court of Appeal, in the case of Bee Giok v.
Loh Kum Yong.10 The court held that parties are required to give full coorporation to the court
by providing a full and frank disclosure of the details of the property, their economic situation
and their contribution towards the acquisition of the property. Otherwise, difficulty will arise in
assessing the worth of the assets. The duty is acknowledged of its existence as per Rule 61 (2)
and Rule 61 (3) of the Divorce and Matrimonial Proceedings Rules, where it requires filling “an
affidavit in answer to the application containing full particulars of his property and income…”
for a claim to an order for division of matrimonial assets after notice had been served.

9
(2009) 1 MLJ 21.
10
[1997] 1 SLR 153.
 In Lah Ah Chai v Chong Mee Ling,11 the petitioner wife applied for an order to vary the
decree nisi with respect to the distribution of matrimonial property and for the petitioner-husband
to make full and frank disclosure of all his properties acquired during the course of the marriage
and before the said decree nisi was made absolute by the court. She claimed that the husband
failed to make full and frank disclosure in the joint petition of all the assets procured by
petitioner-husband during the course of the marriage and before the decree nisi is made absolute
and/or had willfully concealed the true facts to induce the petitioner-wife to agree to the term of
the division of the matrimonial properties in the joint petition. The court in dismissing the appeal
decided that the husband could not be said to have knowingly or deliberately failed to make full
and frank disclosure and he did not willfully conceal the true facts to induce the wife to agree to
the terms of the division of the matrimonial properties in the joint petition as the wife is still at
that time managed the husband finance and thus have the knowledge about the third property.

3) Whether the role of each party in the breakdown of the marriage is considered when
deciding the division of matrimonial property?

As to the third issue, in the case of Watchel v Watchel,12 Lord Denning expressed his
view stating that the court should not reduce order for financial provision merely because the
party was regarded guilty or blameworthy for the cause of breakdown of marriage. Similarly in
the LRA, Section 76 did not mention the role of each party in the breakdown of the marriage as
one of the factors to be considered when deciding on the division of matrimonial property. 13 If it
were intended to include the role of the parties in the divorce, Section 76 of the LRA would have
mentioned it, as in Section 78 of the LRA on the issue assessment of maintenance.

In the case of Yap Kim Swee v Leong Hung Yin,14 the husband was granted a decree nisi
of divorce on the sole ground of the wife’s adultery. The wife sought relief for the division of the
matrimonial assets. The court held that the wife’s claim to a share in the matrimonial property
was in no way marred by her adulterous conduct. This is in support of the view that neither
Section 76 (2) nor Section 76 (4) of the LRA mentions the role of each party in the breakdown of

11
[ 2005] 2 MLJ 2010.
12
[1973] 1 All ER 829.
13
Nuraisyah Chua Abdullah.(2006). Family law for non-Muslims in Malaysia.Petaling Jaya: International
Law Book Services, at 222.
14
[1989] 3 MLJ 55.
the marriage as one of the factors to be considered when deciding on the division of matrimonial
property.

4) Whether the order for the division of matrimonial assets can be varied?

In relation to the fourth issue, after an order for the division of the matrimonial assets had
been made and passed, the order cannot be varied. In the case of Manokaram a/l Subramaniam
v Ranjid Kaur a/p Nata Singh,15 the court make reference to the case of Soo Lina v Ngu Chu
Chiong,16 and decided that it is amply clear that the court's power under section 76(1) and (3) is
indeed intended to be final. Haidar J (as he then was) in Soo Lina’s case stated that when
property adjustment order is made, be it in a judicial separation or divorce proceedings, section
76(1) of the Act is intended to make it final. This is consistent with the 'clean break' principle, as
stated earlier so that the parties can move forward and start a new life without the fear of fresh
claim being made by the other party hanging over his or her head.

ISSUES IN RELATION TO MATRIMONIAL ASSETS

There are two issues in relation to matrimonial assets, in which are (1) whether
Employees Provident Fund (EPF) forms part of matrimonial asset, and (2) the doubt that arises
pertaining to property which is bought by one of the parties after divorce proceedings have been
initiated.

1) Whether EPF forms part of matrimonial asset?

With regard to the first issue, since EPF supposed to be part of the wages or salaries of
workers and employees, it can be considered as matrimonial assets if acquired during the
marriage. Safe conclusion had been drawn by the judges in the case of Koay Cheng Eng v Linda
Herawati Santoso17 in which the husband’s EPF should be made available for division as EPF
contributions are matrimonial assets when acquired during the marriage. The husband’s EPF
would have been used for the benefit of the husband and wife, both. Besides, if the EPF
contributions were not deducted from the wages or salaries of the employees, they would have
15
Note 12.
16
[1992] 2 MLJ 870.
17
[2008] 4 MLJ 863.
gone to providing the family needs.Therefore, upon the breakdown of the marriage, the husband
should not be allowed to solely benefit from the EPF. In this case, there was clear evidence that
the EPF contributions were made during the marriage.

2) Property Acquired After Divorce Proceedings Have Been Initiated

Finally, the key to this issue is the contribution of the party towards the acquisition of
such assets by the other party. In deciding whether the other party is entitled to any share in the
property, it is important for the court to determine whether there is any contribution towards the
acquisition of such assets by the other party. In the case of Ching Seng Woah v Lim Shook
Lin,18 the husband claimed for share in the house which the wife had bought after commencing
the divorce proceedings, on the basis that a substantial amount which was paid towards the house
came from the fund which the husband had provided during the marriage. However, the court
found that the husband had made absolutely no contribution whatsoever towards the acquisition
of the house nor had made any substantial improvement to it. The house was bought by the wife
when divorce had already been initiated. Therefore, the house is not a matrimonial asset to be
divided upon divorce.

PROCEDURE FOR DIVISION OF MATRIMONIAL ASSETS

Under Rule 56(1),19 there are three types of ancillary relief and that includes an order for
maintenance pending suit, a property division order under section 76 of the Act, or a
maintenance order under section 77 of the Act. However, for the purpose of divisional of
matrimonial property, the focus will be on the type of relief under Rule 56(1)(b) i.e, a property
division order under section 76 of the Act. The procedure to apply for such reliefs can be made
either through Form 11 or Form 13. Such application can be divided into two; with or without
the leave from the court. As explained in Rule 56(2) of the same Act, 20 an application for
ancillary relief which should have been made in the petition or answer may be made
subsequently —

18
[1997] 1 MLJ 109.
19
Divorce and Matrimonial Proceedings Rule 1980.
20
Ibid.
(a) by leave of the court, either by notice in Form 11 or at the trial; or

(b) where the parties are agreed upon the terms of the proposed order, without leave by notice in
Form 11.

Further, sub-rule (3) requires application either by a petitioner or respondent for ancillary relief,
not being an application which is required to be made in the petition or answer to be made by
notice in Form 11.

The use of those forms differs from each other depending on the stage of the proceedings.
All those forms must be used at the appropriate stage as highlighted by the case of Susila a/p S
Sankaran v Subramaniam a/l P Govindasamy.21 For example, Form 11 is used by the applicant
to initiate the claim for ancillary reliefs. It Covers application for ancilliary relief which should
have been made in petition or answer may be made subsequently by leave of court. On the other
hand, Form 12 is used to apply to Court to consider the financial position of the respondent after
the divorce and Form 13 is used when the applicant intends to proceed with the application of
ancillary relief. In other words, it covers the situation where a petitioner has also applied for
ancillary relief in her petition and intends to proceed with the application.

The used of different forms for different stage was further illustrated by the case of Soo
Lina v Ngu Chu Chiong.22 In this case, the petitioner presented a divorce petition in which she
also filed a notice of application for ancillary relief in Form 11 of the Divorce and Matrimonial
Proceedings Rules 1980. The respondent objected to the application on the primary ground that
there was in existence a consent order for maintenance, property division, and custody of the
child of the marriage made in earlier proceedings in which a decree of judicial separation was
granted. The respondent's counsel also contended that the notice of application for ancillary
relief should have been made in Form 13 of the Rules. This is because, where a petitioner has
also applied for ancillary relief in the petition and intends to proceed with the petition, the
petitioner shall file the notice of application in Form 13. However, court held that, the use of
Form 11 by the petitioner would appear to be only an irregularity which was curable by O. 2 of
the Rules of the High Court 1980 and in view of the provisions of section 62 of the

21
(2012) 9 MLJ 779.
22
(1992) 2 MLJ 870.
Interpretations Acts 1948 and 1967. The two forms are in substance almost identical. The use of
the wrong form in this case had no substantial effect and was not calculated to mislead.

It is vital to use the correct mode in filing the application for ancillary relief. The
importance of it was stressed by the court in the case of Susila a/p S Sankaran v Subramaniam
a/l P Govindasamy.23 The wife in that case, filed summon in chamber seeking for ancillary relief
orders against her husband. The court was of the view that where a party claiming for an
ancillary relief she or he should file a notice of application in Form 11. It was held that the mode
used was wrong as the wife supposed to file the notice in Form 11 not filed summon in chamber.

Those Forms once filled up, need to be filed at the appropriate place. According to Rule
58,24 where an application for ancillary relief is made by notice in Form 11 or an application
under Rule 46 is made by notice in Form 12, the notice shall be filed —

(a) if the cause is pending in a Sessions Court in West Malaysia or a First Class Magistrate’s
Court in East Malaysia, in that court; or

(b) if the cause is pending in the High Court, in the registry. In which it is proceeding and within
four days after filing the notice, the applicant shall serve a copy on the respondent to the
application.

Next, where a respondent or a petitioner is served with a notice in Form 11 or 13 in

respect of an application for ancillary relief, not being an application to which Rule 62 or 63
applies then, unless the parties are agreed upon the terms of the proposed order, he shall, within
14 days after service of the notice, file an affidavit in answer to the application containing full
particulars of his property and income, and if does not do so, the court may order him to file an
affidavit containing such particulars. (Rule 61(5)).25

After that, under rule 61 (3) of the same Rules, the applicant has a corresponding
mandatory duty to file an Affidavit In Reply containing full particulars of her income and
property within 14 days after service of any affidavit under paragraph (2) or within such other
time as the court may fix. As for the notice filed in Form 12, Rule 46 of the Rules provides the

23
(2012) 9 MLJ 779.
24
Divorce and Matrimonial Proceedings Rule 1980.
25
Note 27.
same procedure. Based on Rule 46(2),26 applicant must after being served with notice in form 12,
file an affidavit in answer to the application containing full particulars of his property and
income, and if does not do so, the court may order him to file an affidavit containing such
particulars within 14 days. Subsequently, under Rule 46 (3) of the same Rules, the respondent
has a corresponding mandatory duty to file an Affidavit In Reply containing full particulars of
her income and property within 14 days after service of any affidavit under paragraph (2) or
within such other time as the court may fix unless he already gave all those particulars in an
affidavit filed by him/her under Rule 67(3).27

Afterward, once the above steps have been complied with, should the applicant require
further information, then the applicant may invoke rule 65(4) of the DMP Rules for that purpose.
Rule 65(4) of the same Rules provides as follows: Any party to an application for ancillary relief
may by letter require any other party to give further information concerning any matter contained
in any affidavit filed by or on behalf of that other party or any other relevant matter, or to furnish
a list of relevant documents or to allow inspection of any such document, and may, in default of
compliance by such other party, apply to the registrar for directions.

In other words, under rule 65(4),28 the applicant may serve a letter of demand for further
information or require the other party to furnish a list of relevant documents or allow inspection
of documents. In Leow Kooi Wah V. Philip Na Kok Sena & Anor,29 Mahadev Shankar J (as he
then was), stated in his judgment that, Rules 61(2) and 65(4) of the Rules impose upon the
parties a spontaneous duty to exercise utmost good faith in making the fullest disclosure of
relevant information. Whatever disclosure is by affidavit of facts, by affidavit of documents or
by evidence on oath, the obligation of the husband is to be full, frank and clear in that disclosure.

However, should the respondent fail to furnish the information required under that Rules,
then the applicant may apply to the Registrar for directions under rule 65(5) of the same Rules.
The Registrar "shall" investigate the allegations made and may order the attendance of any
person for the purpose of being examined or cross-examined, and may at any stage of the
proceedings order the discovery and production of any document or require further Affidavit.

26
Ibid.
27
Ibid.
28
Ibid.
29
[1997] 3 MLJ 133
Pursuant to Rule 67,30 the Registrar "shall", after completing his investigation under rule 65,
report the result thereof to a Judge to whom the application shall be adjourned. Hence, it is clear
from the above rules that those are mandatory obligations and specific steps to be taken by the
applicant and the Court.

Last but not least, for notice in Form 11 or 13, once all those steps has been adhere, Rule
65(1) provides that, an appointment shall be fixed for the hearing of the application by the
registrar on or after the filing of such notice. The same applies to the notice in Form 12, where
Rule 46(5) stated that, on or after the filing of notice in Form 12, an appointment shall be fixed
for the hearing of the application by the registrar.

In conclusion, matrimonial assets are properties acquired during marriage and also
properties acquired before marriage but have improved during the marriage. The distribution of
those assets depends on the contribution of the spouses in acquiring them. Whatever the outcome
of the distribution is, it is all governed under the law and the wisdom of the judges.

30
Ibid.