ACT 1950 Application of this Act Only applies to Peninsular Malaysia and Sarawak Sec 13 : This Act is not applicable to person and whose wife and child, legitimate or illegitimate, professes Islam if there is already law regulating maintenance of such persons in the State Section 3 : (1) If any person has neglected or refused to maintain his wife or legitimate child who is unable to maintain itself, such persons can apply to the court for maintenance (2) If any person has neglected or refused to maintain his illegitimate child who is unable to maintain itself, the court may order such person to make monthly allowance to the child (3) Maintenance under (1) and (2) shall be payable from the date of neglect or refusal or from a date specified by the court Section 5 : A wife shall not entitle to maintenance in 3 situations; - The husband offers to give her maintenance if she come back to him, but she refuses to do so without any reasonable ground - Living in adultery - Refuses, without any reasonable ground, to live with her husband
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Section 6 : If there is a change of circumstances or some other good cause, application may be made to rescind or vary the order of maintenance Issues 1 : Whether the word ‘wife’ includes secondary wife? Mui Siu Hing v Lee Hong Kee Section 37 of the Minor Offences Ordinance of Straits Settlement which is in pari material with s3 of MWC, must be deemed to be enacted with special reference to the custom of the people of SS Thus, the legislature has intended maintenance to be granted to secondary wives as much as to principal wives, provided that the secondary wives are lawful
Issue 2 : Whether the child needs to be maintained until he is 18
yrs old or until he is economically independent? Kulasingam v Rasammah Since the MWC is silent on to what extend the child need to be maintained, Age of Majority Act applies i.e. until 18 yrs old It was submitted that perhaps the court should look at the phrase ‘unable to maintain itself’ following the word ‘child’ – implies that as long as the child was unable to maintain itself, his father is bound to provide for him until the child is released from such incapacity
Issue 3 : What amounts to ‘neglected or refused to maintain’?
Marimuthu v Thiruchitambalam
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A wife is entitled to live with certain amount of decency and dignity i.e. not to be abused in front of other wives – if the treatment of the husband was such that she was deprived of such life, the husband conduct amounts to a neglect and refusal to maintain within the meaning of s3 Issue 4 : How should the court determined the amount of maintenance to be paid? Raquiza v Raquiza The husband claim that he need not maintain his wife because she was earning her own income Held : Even if the wife is earning her income, this does not exempt the husband from fulfilling his duty to pay maintenance Since they do not have children, the amount of maintenance to be paid by the husband should be 1/3 of their joint income – however, the court says that regards still need to be given to the means of the husband – it was found that the husband still have to maintain his aged mother and if he were to pay 1/3 of maintenance, he will be left in total destitute (poorness) – order $30 to be paid Thevathasen v Thevathasen Issue was whether the potential earning capacity of the wife should be taken into account to determine the amount of maintenance The wife is a teacher who earns $160 before her marriage – so her potential earning capacity is $160, meaning she is able to earn up to $160 even if she is divorced Held : It is in the interest of the wife that she should go out to work – since she is capable of earning $160 per month, the My Doc\Andrew`s Academic\2ndYear\Family Law amount of maintenance to be paid by the husband should be reduced Issue 5 : If the husband has not maintained his wife or child for 3 yrs, can the court order him to pay the maintenance in arrears from the date of neglect or refusal, that is maintenance of 3 yrs? Amrick Lall Magistrate had ordered the A to pay arrears of maintenance of 4 yrs – A appealed Held : Although the law provides that the wife can enforced the whole arrears of maintenance, the practice of the court is that arrears can only be enforced up to 12 months Gangagharan v Sathiabhama The rationale behind the practice that only arrears of 12 months can be enforced lies with the fact that the court treats the payment as a fund for maintenance and not as property Lee Yu Lan v Lim Thain Chye In the absence of express provision allowing such practice, the court should not be precluded from making order of payment of maintenance from the date of neglect of refusal
Issue 6 : What amounts to ‘refusal of the wife to live with her
husband’? Chong Hooi v Tee Ngi If the wife has rejected the offer of her husband, the onus lies on the court to consider any grounds of refusal – if the wife`s refusal was reasonable, she is entitled to the maintenance without having to accept the husband`s offer and live with him My Doc\Andrew`s Academic\2ndYear\Family Law Ranjit Singh v Jaswant Kaur The parties had been living separately for 9 yrs – attempts were made by the wife and her relatives to reconcile but the husband treat such attempt with indifference – the husband never made any serious attempt to take her back to live with him either – found that the husband`s arrangement to leave his wife at her parents` house was so that he did not have to support her Held : To determine the reasonableness of the wife`s refusal, the court also have to take into account the genuinty of the husband`s offer – whether it is the offer is genuine or not must look at the fact of the case The husband only make the offer when the wife initiate the proceeding for maintenance – the offer was made after 9 yrs of separation – the husband had once requested for a deed of separation intending it to dissolve their marriage – the offer was not genuine – thus, the wife`s refusal to live with her husband was reasonable See Ng Lean Huat where the court held that the offer was not genuine for the husband wanted to take advantage of both worlds – wanted his wife back and at the same time, wanted to keep his wealthy mistress Marimuthu v Thiruchitambalam The husband brought another woman into the matrimonial home – starts to ill-treat the wife by scolding and beating her – she left the house and the husband offer her to come back but she refused – husband stop the payment of maintenance Held : A wife is entitled to live with a certain amount of decency and dignity and if the treatment of the husband towards her
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does not permit her to lead such life, it is reasonable for her to refuse living with her husband Issue 7 : What amounts to ‘living in adultery’? Rajalachmi v Sinniah Standard of proof to prove adultery – beyond reasonable doubt – a single act of adultery does not amount to ‘living in adultery’ – it must be a continuous adulterous conduct
Issue 8 : What amounts to ‘change of circumstances’?
Lee Swee Peng v Koon Kum Keng The husband was ordered to pay $50 a month as a maintenance to his child – claim that he was unable to pay $50 a month – the court found that he has married and has to maintain his aged mother, his monthly expenditure being $258.20 while his salary is $262 a month – as a result, he has to exercise strict economy in his expenditure Held : There is no evidence of change of circumstances – at the time the order was made, he was also earning $260 and his expenditure was almost the same
B. ENFORCEMENT OF THE ORDER OF MAINTENANCE
Married Women & Children (Maintenance) Act
Section 4 : If the husband wilfully neglects to comply with the maintenance order, the court may direct the amount to be paid to be levied or may sentence him to imprisonment for a term up to one month for each month`s maintenance remaining unpaid
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Yap Ki Swee v Phua Thiam Lai Despite the order of maintenance made by court, the husband defaulted payments for 3 months – the wife apply to the court to sentence the husband to imprisonment under s4 but the session court refused to do so and instead give the husband an opportunity to pay the arrears – the wife appeal Held : The wife must proved that the husband has wilfully neglects to comply with the order Thus, before the court could sentence him to imprisonment or levied the amount of maintenance to be paid, the husband must be given a reasonable opportunity to be heard and explain himself before the court Since the husband was not present during the trial, the session court`s refusal was correct
Married Women & Children (Enforcement of Maintenance) Act
Section 4 : If the husband fails to comply with the maintenance order, application can be made by the receiver of the maintenance for an order of attachment of earnings i.e. the employer deducts the maintenance amount from D`s salary and channel it to the court – can also be made during the proceeding of maintenance order Section 6 : Effect of attachment of earnings order – all other existing proceedings for the enforcement of the maintenance order shall be suspended The attachment of earning orders will ceased to have effect if warrant has been issued to levy the amount due to be paid, or D has been sentenced to imprisonment, or the maintenance order has been rescinded My Doc\Andrew`s Academic\2ndYear\Family Law Sec 12 : Non-compliance with the attachment of earnings order – imprisonment not exceeding one year or fine not exceeding RM1,000 Sec 13 : If the D do not have any employer, the court may order the sum of money payable under the maintenance order to be paid directly to the court on a fixed day – if the D defaulted the payment, the court will call upon the D to show cause why he had failed to comply with such order If the cause is not sufficient, the court may issue a warrant to recover the amount or sold the property of the D If the sum cannot be recovered or there is no property to be sold, the court can sentence D to imprisonment for a term not exceeding 1 month for each month of maintenance remaining unpaid – Although being imprisoned, the D is still obliged to pay the amount due Such imprisonment will terminate however if the amount has been recovered
Maintenance Orders (Facilities For Enforcement) Act
Section 3 : Transmission of maintenance order made in foreign country to Msia - Where an order of maintenance was made against any person in reciprocating countries (foreign) – a certified copy of the order will be send to the Minister in charge of judiciary in Msia – the Minister will then send the copy to appropriate local court for registration Upon registration, the order shall have effect and can be enforced in Msia as if it had been obtained in the local court
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Section 4 : Transmission of maintenance orders made in Msia to foreign country - If it is proven that the person whom the order was made against is residing in foreign country, the court will send a certified copy to the Minister in charge of foreign affairs – the Minister will then send the copy to the appropriate authority in that foreign country
C. LAW REFORM ACT
Maintenance of spouse or former spouse
Sec 77 : (1) 3 situations where a husband has to pay maintenance to his wife/ former wife; a) During any matrimonial proceedings b) After the granting of decree of divorce/ judicial separation c) After being presumed to be dead, the wife is found to be alive
(2) Court may order a wife/ ex-wife to pay maintenance to
her husband/ ex-husband if – the husband is incapacitated from earning a livelihood due to mental/ physical injury or ill health – will take into account the means of the wife Sec 78 : Amount of maintenance to be paid is according to; - The means and needs of the parties - Degree of responsibility of each party to the breakdown of marriage - Regardless of the proportion such maintenance bears to the income of the parties My Doc\Andrew`s Academic\2ndYear\Family Law Leow Kooi Wah v Ng Kok Seng Philip The husband – amount of maintenance=1/3 of joint income if the wife is earning – the wife RM900 and husband RM1800 – amount of maintenance payable to the wife is RM900 – that is 100% of her monthly income – thus she is entitled to no additional allowance Held : Amount of maintenance is payable regardless of the proportion of the maintenance bears to the income of the wife – the rule of 1/3 is totally misconceived Sec 79 : Security of maintenance – person liable to pay maintenance may be required by the court to secure the maintenance with his property Sec 80 : Parties may entered into agmt of paying a capital sum of money in settlement of all future claims of maintenance – but, it will not be effective until approved by the court (may with modification to the provisions) – once approved by the court, the agmt will become a good defence for future claims of maintenance Sec 81 : Duration of maintenance; (a)If maintenance was unsecured, the order will expire on the death of the husband or the wife, whichever is earlier (b) If secured, the order will expire on the death in whose favour it was made The order may expire before such death if - a shorter period was set by court - rescission of the order by the court
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- remarriage or living in adultery of the spouse Sec 82 : The right to receive maintenance under order of court or agmt (unless provides otherwise) shall cease if the spouse remarried or living in adultery with other persons Sec 83 : Order of maintenance can be varied or rescinded if; - there is misrepresentation or mistake of fact as to the order - material changes in the circumstances Gisela Gertrud Abe v Tan Wee Kiat The issue is whether the court can rescind the maintenance order for a limited period where the husband is without employment? Held : If a maintenance order is rescinded, it ceases to have effect henceforth and cannot later be revived – thus an order cannot be suspended if the court wants to rescind it – the only way to do so is by varying it The word ‘vary’ should be given a wide meaning to include the power to suspend and revive the maintenance order What amounts to material change of circumstances? This case seems to suggest that when the husband or the wife remarries – when husband remarries, he had to assume new financial burdens and responsibilities and thus two households – the wife if remarries will secure a new legal right to be supported Anna Tay Siew Hong : The husband is 60 yrs old, ill health, no work and dependent My Doc\Andrew`s Academic\2ndYear\Family Law on his 2nd wife for financial support Lim Bee Kee : Standard of proof for change of circumstances=balance of probabilities Sec 84 : Agmt of maintenance can be varied; - if there is material change in the circumstances - even though there is provision prohibiting the agmt to be varied Sec 86 : Arrears of unsecured maintenance – if accrued due before the death of the defaulter, it shall be a debt recoverable from the representatives of such person Arrears accrued due more than 3 years are not recoverable – can only be recovered up to 3 years Maintenance for children Sec 87 : ‘Child’ in this context refers to; - child of marriage as defined in s2 - under 18 yrs old Sec 93 : (1) The court may, at any time, order a man to pay maintenance to his child if; a) he has refused/ neglected to provide for the child b) deserted his wife and the child is in her care c) during the pendency of matrimonial proceedings d) when/ subsequent to the making of order placing the child in the custody of other person
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See Saraswathy v Palakrishnan where the court held that order of maintenance for children can be made at any time without waiting for a divorce petition to be invoked (2) May order the mother to pay/ contribute maintenance to her child – having regard to her means (3) Payment will be directed to person having care and control of the child See Wong Kim Foong – court order father to pay RM800 while mother pay RM400 and the payment shall be directed to the mother as the child was staying with him Sec 94 : Security of maintenance Sec 95 : Duration of maintenance – until the child reach 18 yrs old or in case of the child suffering from disability, until such disability cease, whichever is the later However, see Section 96 where the court may vary or rescind the order before the child is 18 yrs old if there is misrepresentation/conmistake of fact or material change See Ching Seng Woah v Lim Shook Lin where the court held that involuntary financial dependence such as studying in university is a physical disability under s95 – order RM500 to be paid as educational expenses until both of her daughter obtained their first university degree Sec 99 : Maintenance of a child who is not the child of a man but is accepted by the man as a member of his family – the court may, for the welfare of the child, order a man to maintain such child until he is 18 yrs old. The duty cease if the child was taken away by his natural parents – any sums spent by the man maintaining the child is recoverable as a debt from the parents of the child My Doc\Andrew`s Academic\2ndYear\Family Law Sec 100 : Advice of person who is trained or experienced in child welfare may be taken but the court is not bound to follow Sec 102 : (1) The court may set aside or grant injunction to prevent the disposition made by spouse or parent, within the preceding three yrs, with the intention of escaping from paying maintenance