ANCILLARY CLAIMS

(DIVISION OF PROPERTY)
Groups: LWB06D&E

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 INTRODUCTION
 Ong Ah Moi v Ling Pui Ming [1984] 2
MLJ 129
 Principle: 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 or Judicial
Separation

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 LRA
 Section 76 LRA: provide power to court to order
division of matrimonial asset by way of:-
 Joint effort [section 76(1) & (2)]
 Sole effort [section 76(3) & (4)]

 Section 76(5) provides that the assets acquired

during a marriage include assets owned before
the marriage by one party which have been
substantially improved during the marriage by
the other party or by their joint efforts.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
 Ching Seng Woah v Lim Shook Lin [1997] 1 MLJ 125
 Facts: in this case, the appellant husband had initially purchased a house
with his mother. Subsequently, his mother transferred her half share in the
house to him. He thus became the sole owner of the house. The R wife
bought all the furniture in the house and looked after the house and the
family. It was contended that merely buying all the furniture and looking
after the house did not mean that the R had ‘substantially improved’ the
house within the meaning of section 76(5).
 The court order that the wife be given half of the undivided share of the
house. Shankar JCA said
 ‘…that the house is not a home and that the general conduct of the wife
throughout the marriage in addition to the purchase of the furniture made the
house a home and this came within the definition ‘substantial improvement’.’
 [Assets] ‘…..refers to the matrimonial home and everything which is put in it by
either spouse with intention that their home and chattels should be a continuing
resources for the spouse and their children to be used jointly and severally for the
benefit of the family as a whole. It matters not in this context whether the assets
are acquired solely by the one party or the other or by their joint efforts. Whilst
the marriage subsists, these assets are matrimonial assets. Such assets could be
capital assets. The earning power of each spouse is also an asset.’

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 JOINT EFFORT
 Section 76(1): provides power to the court when
granting a decree of divorce or judicial separation to
order the division of the assets acquired by parties
during the marriage by their joint effort or the sale of
any such assets and the division of the proceeds of sale.

 The Court needs to consider the factors mentioned under

section 76(2)(a)-(c) of LRA in determining the equality of
division. There are as follows:
 The extent of the contributions made by each party in money,
property or work towards the acquiring of the assets;
 Any debts owing by either party which were contracted for their
joint benefit;
 The needs of the minor children, if any, of the marriage.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CASES
 Koay Cheng Eng v Linda Herawati Santoso
[2004] 6 MLJ 395
 Facts: the petitioner (husband), a Malaysian and R, an
Indonesian were married in UK in 1980. after 6 years of
marriage, the husband petitioned for divorce. In the
issue of division of matrimonial assets, the court held
that the wife’s entitlement to half of the matrimonial
assets in Malaysia is derived under section 76(1) and (2)
of LRA. The court considered the wife’s contribution
towards the household i.e. purchase of furniture, kitchen
appliances, groceries, etc as contribution towards
acquiring that property and held that the wife is entitled
to one half of the assets in Malaysia and in the UK.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
 In addition, the court considered the Employees Provident
Fund (EPF) contributions as matrimonial assets acquired
during the marriage. The wife entered into the marriage
with the intention of growing old with the husband and on
his retirement, they would both enjoy the benefit from the
monies set aside in EPF contributions. Therefore, with the
breakdown of the marriage, the husband should not be
allowed to solely benefit from the EPF. Thus, the wife is
entitled to half of the amount remaining in the husband’s
EPF account as at the time of their divorce and such monies
should be paid out to the wife when the same is payable to
the husband.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
 Chaw Anui v Tan Kim Chai [2004] 4 MLJ 272
 Facts: the applicant (wife) made an application
against the husband for equal division of all
matrimonial properties registered under several
named companies and also under the husband’s
name, division of all shares acquired during the
marriage and all monies held in the bank during the
marriage as ancillary reliefs. The R (husband) argued
that some of the properties i.e the 2 bungalows were
gifts and therefore should be excluded from the
division. The husband further argued that the
properties held by LPI (M) Sdn Bhd and Sathyam
Holdings Sdn Bhd should also be excluded from the
division because they had been transferred to his
brother and daughter.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
 Court held: that on the facts, the 2 bungalows
were not gifts and even if they are gifts, they
would not be excluded from distribution as
matrimonial assets, since ‘coming into
possession of’ is a form of acquiring an asset
within the meaning of section 76 of the LRA. In
addition, the properties held by LPI (M) and
Sathyam Holdings and all share portfolios which
the husband previously held but had disposed
off, should be subject to distribution.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 SOLE EFFORT
 Section 76(3): provides power to the court when granting a
decree of divorce or judicial separation to order the division of
the 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 of the proceeds of sale

 Section 76(4): in exercising the power conferred by ss (3), the

court shall 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) after having regard to:
 The extent of the contributions made by other 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 the minor children, if any, of the marriage.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CASES
 Wong Kim Fong v Teau Ah Kau
[1998] 1 MLJ 359
 Principle: Shares are constitutes as
matrimonial assets and their division depends
on the extent of the contributions made by
each party.
 In this case the petitioner wife was awarded
5 out of 17 lots of shares

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
 Lee Yu Lan v Lim Thian Cyhe [1984] 1 MLJ 56
 Principle: if the asset is acquired by the sole effort of 1 party,
the party whose effort the assets were acquires shall receive a
greater proportion. The court will look into the extent of
contribution 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.
 Facts: the wife claimed that she had contributed to the
matrimonial home by caring and rearing the children at home
and other general duties attended by her as a housewife. The
house was brought by the husband and he had sold it for RM
191,000. after considering the debts the husband had to pay,
the possibility of creditors pressing for payment for some of his
liabilities and the court’s proposal to make an order for
maintenance for the wife, the court granted the wife RM
60,000 which was 1/3 of the proceeds of sale.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

Azhani Binti Arshad Law 581(Jul-Nov 2009)