ANCILLARY CLAIMS

Maintenance of wife and children

The statutes that are related to the maintenance of wife and
children are as follows:

i) Law Reform (Marriage and Divorce) Act 1976.

ii) Married Women and Children (Maintenance) Act 1950.
iii) Married Woman and Children (Enforcement of
Maintenance) Act, 1968.
iv) Maintenance Orders (Facilities for Enforcement) Act,
1949.
v) Maintenance Ordinance 1959, Sabah.
• Application
• Law Reform (Marriage & Divorce) Act 1976
(LRA)
• i) Only applicable when there is a petition for
divorce.
• ii) Maintenance of spouse: The court may order
a man to pay maintenance to his wife or former
wife OR to order a wife to pay maintenance to
her husband or her former husband where he is
incapacitated, wholly or partially, from earning a
livelihood by reason of mental or physical injury
or ill-health.
• Married Women and Children (Maintenance) Act
1950 (MCMA):

• (i) Only applicable, when there is no petition of

divorce and the marriage is still subsisting and
still in force.
• ii) Maintenance of spouse: The court may only
order a man to pay maintenance to his wife and
not to order a wife to pay maintenance to his
husband even if the husband is incapacitated,
wholly or partially, from earning a livelihood by
reason of mental or physical injury or ill-health.
• LRA:

• iii) Section 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 the marriage. (even one of the
parties has converted to Islam)
• MCMA:

• iii) This Act shall not apply to any person

professing the religion of Islam and whose
wife or whose legitimate or illegitimate
child, as the case may be, professes the
religion of Islam.
• Assessment of maintenance

• LRA:
• Section 78: the husband is liable to pay for
the maintenance of his spouse/ex-spouse
according to the means and needs of the
parties. The means and needs of the
parties are important for the court to
assess a nominal sum for the
maintenance of the wife.
• MCMA:

• Section 3: the husband is liable to pay for the

maintenance of his wife according to the means
and needs of the parties.
• The means and needs of the parties are
important for the court to assess a nominal sum
for the maintenance of the wife.
• The means and needs vary between individuals
depending on their status in the community. If
the party belongs to a respectable family, the
order for maintenance would be higher.
• Effect of breakdown of marriage
• LRA:

• Section 78: if the other party to the marriage

causes the breakdown of the marriage, the
amount for maintenance would be affected.
Case: Lee Yu Lan v. Lim Thian Chye [1984] 1
MLJ 56
• Principle of the case: where the court took into
account the responsibility on the part of the
respondent husband for the breakdown of the
marriage by arriving at an appropriate sum of
maintenance.
 MCMA:

• If the wife lives separately from the

husband with reasonable refusal to live
with the husband, the court may make or
enforce the order although the husband
made it a condition that the wife lives with
him and the wife fails to do so: section 5
• Expiration of maintenance order
• LRA:
• Section 81: an order for maintenance shall
expire (a) if the maintenance was
unsecured, on the death of the husband or
the wife, which ever is the earlier, (b) if the
maintenance was secured, on the death of
the spouse, in whose favor it was made.
• Section 82: the right to maintenance will cease
on remarriage. The said section provides that
the right of any divorced person to receive
maintenance from his or her former spouse
under any order of court shall cease on his or
her marriage to or living in adultery with any
other person.

• The right of any divorced person to receive

maintenance from his or her former spouse
under an agreement shall cease on his or her
marriage to or living in adultery with any other
person unless the agreement otherwise
provides.
 MCMA:

• Section 5(2): No wife shall be entitled to

receive an allowance from her husband, if
she is living in adultery, or without any
sufficient reason, she refuses to live with
her husband.
• Rescission/Variation of maintenance order
• LRA:

• Case: Anna Tay Siew Hong v Joseph Ng Tiong Yong

[1995] 3 CLJ 717, where 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.

• The court was satisfied that there had been a material

change in the circumstances both of the respondent and
the petitioner. The court must be satisfied that there is
extreme hardship to the existing order.
 LRA:

• Lim Bee Kee v Leong Ah Chuan [1998] 1 MLJ

675, where the respondent had been paying RM
600 maintenance for the petitioner and the three
children of the marriage and applied to the High
Court to have the amount reduced to RM 300 a
month.

• The court dismissed the application, as there

was no material change in the circumstances.
• MCMA:

• Section 6: On the application of any

person receiving or ordered to pay a
monthly allowance under the Act, and a
proof of a change in the circumstances of
such person, his wife or child, the court by
which such order was made, may rescind
the order or may vary it as to it seems
reasonable.