ancillary claim maintenance

Azhani Binti Arshad Law 581(Jul-Nov 2009)

ANCILLARY CLAIMS(MAINTENANCE)

Groups: LWB06D&E


APPLICATION OF MAINTENANCE

Maintenance for wife and Children:- LRA Married Women and Children

(Maintenance) Act 1950 [MWCA] Married Women and Children

(Enforcement of Maintenance) Act 1968 Maintenance Order (Facilities for

Enforcement) Act 1949

LRA

Only applicable when there is a petition for divorce

In the process of divorce or after divorce

Maintenance of spouse provided under Part VII and the child under Part VIII

Maintenance of the wife and former wife includes the maintenance of the husband or former husband.


CONT…

Section 77: Power of the court to order maintenance of spouse during any matrimonial proceeding, when granting decree of divorce or judicial separation and after decree declaring her presumed to be dead, she is found to be alive (3 situations). In matter of nullity of marriage:

Void marriage: marriage has never subsisted and the woman is never the wife of the man-the man is under no duty to maintain her even before the decree of nullity is granted

Voidable marriage: the woman is the wife of the man until the decree of nullity is granted-she should be able to claim maintenance for the duration her marriage had subsisted.

Section 77(2): power of the court to order a woman to pay maintenance to her husband or former husband where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health and the court is satisfied that having regard to her means it is reasonable so to order.


CONT…

Section 78: in determining/ assessing the amount of the maintenance to be paid, based primarily on:- The means and needs of the parties, regardless of the

proportion such maintenance bears to the income of the husband or wife as the case may be. Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995] 1 MLJ 582 The court held that in assessing the amount of maintenance, the

court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be. In addition, consideration must be given to the fact that the appellant was a spouse.

Degree of responsibilities which the apportions to each party for the breakdown of the marriage if the other party to the marriage causes the breakdown of the

marriage, the amount for maintenance would be affected Lee Yu Lan v Lim Thain Chye [1984] 1 MLJ 56

Principle: where the court took into account the responsibility on the part of the R husband for the breakdown of the marriage by arriving at an appropriate sum of maintenance.


CONT…

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. While assessing the amount of maintenance, the court will take into account the amount of maintenance the husband should pay to the wife depending on the means and needs of the parties, taking into account the standard of living of the parties which they enjoyed during the marriage.

In deciding the amount of maintenance that should be paid by the husband, the court regarded the duration of the marriage, whether there were any children of the marriage, the age of the parties, whether the husband had financially supported the wife during of their marriage, the parties’ earning capabilities and whether the divorce would have affected the husband’s position financially.


CONT…

Chaw Anui v Tan Kim Chai [2004] 4 MLJ 272 The issue of a fair and reasonable

maintenance must be determined by reference to the facts and circumstances of each case. The court took into account the devotion of the wife, the likelihood of the wife to be gainfully employed, wife’s health and medical needs, the husband’s financial needs, the standard of living of the wife and the means and needs of the parties.


CONT…

Section 81: An order for maintenance shall expire:- On the death of the husband/ wife (if maintenance was

unsecured); or If the maintenance was secured, on the death of the spouse, in

which favour it was made; or On remarriage/ living in adultery with any other person (Section

82).

Section 83: the court may vary or rescind, subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made:- Where the order was based on any misrepresentation; or mistake of fact; or Where there has been any material change in the

circumstances.


CONT…

Anna Tay Siew Hong v Joseph Ng Tiong Yong [1995] 3 CLJ 717 The R had been paying RM 500 per month for many years but

defaulted in his payments. As the result, R 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 application was allowed by the court. the court satisfied that there had been a material change in the circumstances both of the R and the petitioner.

Lim Bee Kee v Leong Ah Chuan [1998] 1 MLJ 675 R had been paying RM 600 maintenance to the petitioner and

the 3 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.



CONT…

Section 86: that arrears of unsecured maintenance, whether payable by agreement or under an order of court, shall be recoverable as a debt from the defaulter. However, no amount owing as maintenance shall be recoverable in any suit (suit for recovery of maintenance) if it accrued due more than 3 years before the institution of the suit [sec 86(3)]

CONT…

Section 51(2) LRA: 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 although one of the parties converts to the Islamic faith.

However, now the courts can grant ancillary claim although the petition for divorce was made under other grounds for divorce, other than section 51. Case Tan Sung Mooi v Too Miew Kim [1994] 3 MLJ 117


MWCA

Applicable only when there is no petition of divorce and the marriage is subsisting and still in force.

Not applicable to any person professing the religion of Islam (section 13)


MWCA

Section 3: court may make order for maintenance of wife (includes secondary wives that are lawful and recognised by law) and legitimate child of a man if that man has neglected or refused to maintain them 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.

Section 5: wife living separate from husband also entitled for maintenance. Exception refusal of wife to live with him

without valid reason.Azhani Binti Arshad Law 581(Jul-Nov 2009)

GROUNDS OF REFUSAL

Section 5(1): provides that if a person against whom an order has been applied for or made for the maintenance of his wife, offers to maintain his wife on condition of her living with him, and his wife refuses to do so, the court shall consider any grounds of refusal stated by such wife, and may make or enforce the order aforesaid, notwithstanding such offer, if it is satisfied that such person is living in adultery or for any other reason it is just so to do.

Section 5(2): the wife shall not be entitled to receive an allowance from her husband if she is living in adultery or if she refuses to live with her husband without any sufficient reason.


SEC 5(1) MWCA

Court has to consider whether the wife’s refusal is sufficient or not.

If the wife’s grounds sufficient, she is entitled to maintenance.

Marimuthu v Thiruchitambalam [1966] 1 MLJ 203 Facts: after the couple had been married for 3 years, the

husband R brought another woman into the house and soon after started to ill-treat the wife by scolding her, beating and assaulting her. The husband took his wife and children to her mother’s home where they stayed. During this period the husband married the other woman who had been brought into the house. Subsequently, the wife returned to live with her husband but differences arose between them. The wife could not tolerate the presence of the new wife and after a year she again returned to her mother’s home. The husband orally agreed to pay maintenance for the wife and children and did so regularly for 6 years.


SEC 5(1) MWCA

He then asked his wife to live with him and the new wife. She refused and the husband stopped the maintenance payment for 2 years. The wife applied for maintenance order.

The lower court dismissed her application. She appealed. High Court allowed her appeal and held that “….a wife is entitled to live with that amount of decency and dignity which prevails in her class and if the treatment of the husband towards her does not permit her to lead such a life, his conduct amounts to a neglect and refusal to maintain within the meaning of section 3 of the Ordinance… as I have stated above, there was ample evidence to support a finding by the learned magistrate that the appellant had sufficient cause for living apart from the R.”


SEC 5(1) MWCA

Ng Lean Huat v Lim Joo Kim [1993] 3 CLJ 647 In the context of section 5 of MWCA, the court

considered/ accepted the wife’s refusal upon her husband’s offer to take both her and her son back.

The court held that ‘a wife would not be prepared to put up with this kind of arrangement.’ The husband had wanted to take advantage of both worlds. He wanted his wife and son back and at the same time he wanted to keep his wealthy mistress.



SEC 5(2) MWCA

Cases in which wife not entitled to allowance “(2) No wife shall be entitled to receive

an allowance from her husband under this Act if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband.”

Definition: ‘living in adultery’ implies more than 1 incidence of adultery.


SEC 5(2) MWCA

Rajalachmi v Sinniah [1973] 2 MLJ 133 Facts: the appellant wife had made several allegations of

cruelty against the R husband, who in turn raised counter allegations of adultery and leaving the matrimonial home without sufficient reason.

The court dismissed her claim for maintenance but allowed maintenance for their children in her custody. It is observed (Raja Azlan Shah J) that ‘it is settled law that a wife’s adultery does not affect the court’s discretion to make an order for maintenance with respect to children’.

His Lordship explained the meaning of ‘living in adultery’ as follows:

‘the words ‘living in adultery’ in their ordinary and natural meaning are susceptible of only one meaning ie to a course of guilty conduct rather than to an isolated act of adultery or occasional lapses from virtue. That in my view seems to be exemplified and established in a number of judicial decisions under section 488 (5) of the Indian Criminal Procedure Code, which is in pari materia to our section 5(2) of the Married Women and Children (Maintenance) Ordinance 1950’


SEC 6 MWCA

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.


CONT… Lee Swee Peng v Koon Kum Keng

[1954] MLJ 260 Facts: R husband was ordered to pay to the

appellant wife RM 50 a month for the maintenance of their children. He applied to the Court to rescind or vary the same order. His only ground was that he was unable to pay RM 50 a month. The court noted that the husband was drawing a salary of RM 262 a month, married and had to support an old mother of 61 years. His monthly expenditure amounted to RM 258.20. he had to exercise strict economy in his expenditure to meet the maintenance of the child.

The court varied the order.


Maintenance of the spouse

The court only order the man to pay maintenance to his wife and not to order a wife to pay maintenance to her husband even if the husband is incapacitated.


MAINTENANCE OF CHILDREN

Section 92: provides the duty of a parent to maintain children whether they are in his custody or her custody or the custody of any other person. (word ‘parent’ father/mother)

The word child means child of the marriage and who is under the age of 18 years (section 87). Child (section 2) includes an illegitimate child of, a child adopted by whether of the parties to the marriage in pursuance of an adoption order made under any written law relating to adoption.


CONT…

Section 93: power of court to order maintenance for children in 4 situation:- If he refused to provide; If he deserted his wife; During pendency of matrimonial

proceeding; or When making or subsequent to the

making of an order placing the child in the custody of any other person.

CONT…

Section 93(2) provides that the court shall have the corresponding power to order a woman to pay or contribute toward the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order.

Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995] 1 MLJ 582 Principle: where both parents are earning, both have a liability

to maintain their children each according to his or her means.

Wong Kim Fong v Teau Ah Kau [1998] 1 MLJ 359 In this case, Abdul Malik Ishak J ordered the mother to pay RM

400 per month towards the maintenance of her son while the husband had to pay RM 800 per month. Payment was directed to be advanced to the petitioner as the son was staying with her.



CONT…

Section 94: provides for secured maintenance for a spouse

Section 95: the duration of a maintenance order shall be until the child attains the age of 18 years or where the child is under physical or mental disability, on the ceasing of such disability, whichever is the later.


CONT…

Karunairajah v Punitharubiyai [2004] 2 MLJ 401 Facts: the husband (after the process of divorce)

was order by the High Court to pay maintenance of his children. However he stopped the payments of maintenance for the eldest child on the ground that she had reached the age of 18 years. The wife appeal at COA for an order for the husband to continue the payment for their daughter to pursue her tertiary education.

Federal Court allowed the husband appeal to be relieved from the payment of maintenance to his children by relying on section 95 of LRA.


CONT…

Held: no legal basis to interpret the word ‘disability’ as financial disability. It only covers ‘physical and mental disability’ as provided in the exception to the provision on maintenance under the LRA.

Abdul Hamid Mohamed FCJ: the court has no power to change the essence of the provision and it is the responsibility of the parliament to make such amendments. Therefore, the child’s right for maintenance was dismissed.


CONT…

Ching Seng Woah v Lim Shook Lin (1997) 1 MLJ 109 Facts: the father of a child has neglected over the

order of the High Court to pay maintenance for his 2 daughters for their tertiary education.

COA: dismissed the father’s application on the ground that the father has took oath that he will benefit his children until they obtain their first degree. The court relies on the doctrine of the law that a person can not be permitted to reprobate what he has approbated.

(the ‘financial disability’ should be included within the exceptions of the provision on maintenance under the LRA)


CONT…

Section 97; provides for the power of the court to vary the terms of agreement for the maintenance of a child.

Section 99: provides for the maintenance of a child who is not the child of a man but who is accepted by the man as member of his family. (refers to foster children or children adopted in accordance with custom or whose adoptions may be registered under the Registration of Adoptions Act 1952.

Law 581(Jul-Nov 2009)Azhani Binti Arshad

ancillary claim maintenance

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