Family law notes - Maintenance of spouse
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The document summarizes key points about maintenance of a spouse under Malaysian family law: 1) Section 77 of the Law Reform (Marriage and Divorce) Act provides the court the power to order maintenance for a spouse in three situations: during matrimonial proceedings, when granting or after granting a divorce or judicial separation decree, or if a spouse is found alive after being presumed dead. 2) The court determines maintenance amounts based primarily on the means and needs of the parties, regardless of income proportions, but considers the responsibility of each party for the marriage breakdown. 3) The right to receive court-ordered maintenance ends if the recipient remarries or lives in adultery with another person.
Family law notes - Maintenance of spouse
- 1. 1 Family Law notes – Maintenance of spouse Key point Explanation Act Case Maintenance of spouse - LRA > Part VII - Section 77(1) of LRA provides the power to the court to order maintenance of a spouse. > The court may order a man to pay maintenance to his wife or former wife in three situations: (a) During the course of any matrimonial proceedings; (b) When granting or subsequent to the grant of a decree of divorce or judicial separation; (c) If, after a decree declaring her presumed to be dead, she is found to be alive. > The ‘court’ here refers to the High Court. > Paragraph (a) refers to situations where proceedings for nullity, judicial separation, or divorce are pending, where the woman concerned is still the ‘wife’ of the man. > Paragraph (b) refers to the woman beings the ex-wife or former wife in situations of divorce, and ‘wife’ in situations of judicial separation. In nullity cases; if nullity is based on a void marriage, then the man has no duty to maintain her. If the nullity is based on a voidable marriage, the marriage subsists until the decree of nullity is granted. She should be able to claim maintenance for the duration her marriage had subsisted. > Paragraph (c) requires a cross-reference to section 63 of LRA. It will be remembered that under that section, the court may make a decree nisi of presumption of death and of divorce. This decree will become absolute as section 62 in relation to decree nisi - Lee Yu Lan v Lim Thian Chye, Peh Swee Chin J > The fault principle in divorce is still entrenched in the family law of Malaysia. > In this case, Peh Swee Chin J took into account the responsibility on the part of the respondent husband for the breakdown of the marriage, in connection with the co-respondent, among other factors before arriving at an appropriate sum of maintenance. - Goh Kim Hwa v Khoo Swee Huah > The court had rejected the husband’s allegations that the wife was to be blamed for the breakdown of their marriage.
- 2. 2 becoming absolute applies to such situations, too. The spouse once presumed dead but now found to be alive becomes and ex-wife or ex- husband. In this event the court may order maintenance for the former spouse. - Section 77(2) of LRA grants the court the corresponding power 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. > ‘Corresponding power’ implies that the situations listed in subsection (1) equally apply in relation to a husband or former husband. The only qualifications in the case of a husband or former husband are that he must be incapacitated from earning a livelihood due either to mental or physical injury, or ill-health, and having regard to this wife’s or ex-wife’s means, it is reasonable for the court to order her to maintain him. - Section 78 of the LRA provides that in determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, 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, but shall have regard to the degree of responsibility which the court apportions to each party for - Leow Kooi Wah v Ng Kok Seng Philip, Shankar J > In this case, the counsel for husband submitted that the wife is not entitled to any more allowance because her monthly income is the same as the allowance she demands. > Shankar J said this approach was totally misconceived (wrongly or badly planned or judged, typically because of faulty understanding) because
- 3. 3 - 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 breakdown of the marriage. - Section 79 of the LRA provides for the power of the court to order security for maintenance. The person liable to pay the maintenance may be required to secure the whole or any part of his property by vesting it in trustees upon trust to pay such maintenance or part thereof out of the income from such property and, subject thereto, in trust for the settlor. of the words of section 78, particularly, ‘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. ‘Living in adultery’ means - Rajalachmi v Sinniah discussed > Emphasized by the court, ‘living in adultery’ is not a single act of adultery, but an adulterous conduct. a) The words ‘living in adultery’ in their ordinary and natural meaning are susceptible of only one meaning i.e., to a course of guilty conduct rather than to an isolated act of adultery or occasional lapses from virtue b) Unless continuity of conduct is established it cannot be held from a single act of adultery that a woman is ‘living in adultery’. c) Living in adultery refers to a course of guilty conduct and not to a single lapse from virtue, the court held that the
- 4. 4 - Section 81 of the LRA provides for the general duration for maintenance orders, the exceptions being a shorter period spelt out by the court, a rescission of the order by the court, and the remarriage or living in adultery of the spouse concerned. Hence, if the maintenance was secured, as provided in section 79, the maintenance order shall expire on the death of the spouse in whose favour it was made. - Section 80 of the LRA provides that parties to a marriage may enter into an agreement for the payment, in money or other property, of a capital sum in settlement of all future claims to maintenance. The agreement, however, will not be effective until it has been approved, or approved subject to conditions, by the court. When it is proved, it shall be a good defence to any claim of maintenance. - Section 82(2) of the LRA states that the right of any divorced person to receive maintenance from his or her former spouse under an agreement shall cease on his or her remarriage to or living in adultery with any person unless the agreement otherwise provides. - Section 84 of the LRA, subjected to the section 80, allows the court at any time and from time to time, to vary the terms of any agreement as fact that the child was begotten when the husband could not get access to her shows that the wife has been guilty of adultery on more than one occasion. - Lim Thian Kiat v Teresa Haesook Lim & Anor > The High Court held that the separation deed
- 5. 5 to maintenance made between husband and wife, whether made before or after the appointed date, where the court is satisfied that there has been any material change in the circumstances and notwithstanding any provision to the contrary in any such agreement. - Section 83 of the LRA provides for the power of the court to vary orders for maintenance. > The court may vary or rescind, any 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 it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances. > In the case of secured maintenance, the legal personal representatives of the person against whom the order was made may make between the parties in that case concerning maintenance of the respondent and the children were subject to variation by the court as provided for under sections 80, 84 and 97 of the LRA. - Leow Kooi Wah v Ng Kok Seng Philip > The petitioner wife had applied for RM135,000 as a lump sum payment by the respondent husband. > On whether the LRA provides for lump sum payments to be ordered, Shankar J observed the payment can be made lump sum but the agreement must be subjected to court approval. In the absence of agreement, the court has the power by section 79 of LRA to order security for maintenance by vesting property in trust to pay such maintenance. - Gisela Gertrud Abe v Tan Wee Kiat > High Court had rescinded the maintenance order for a limited period which coincided with the period the respondent husband was without employment. > The issue was whether the judge had the power to do so under sections 83 and 96 of the LRA. > Salleh Abes SCJ held that the word ‘vary’ should be given a wide meaning and should not be confined only to increase or reduce the amount of the periodical payments of maintenance for the wife and/or the
- 6. 6 such application to vary or rescind any such maintenance order. children of the marriage but also to include power to ‘suspend’ the maintenance order or any provisions therein temporarily and to revive the operation of the maintenance order to any provisions so suspended. > The considerations that the court should be guided is that both the husband and wife are legally entitled to remarry and to start a new family which will affect the amount of money thus given in a maintenance order. - Anna Tay Siew Hong v Joseph Ng Tiong Yong > Respondent defaulted in his payments due to him being 60 years old, suffering from several ailments and had no permanent work nor property and was dependant on his second wife for financial support. > Mohd Ghazali Mohd Yusoff J allowed the application for rescission of the maintenance order. His Lordship was satisfied that there had indeed been material changes in the circumstances both of the respondent and the petitioner based on the facts in the case. - Lim Bee Kee v Leong Ah Chuan > Respondent applied to the High Court to have the maintenance amount reduced. > The court dismissed the application as the respondent failed to prove on the balance of probabilities that there
- 7. 7 - Section 85 of the LRA provides that maintenance payable to any person under any order of court shall not be assignable or transferable or liable to be attached, sequestered (isolated and hidden away) or levied (imposed) upon for, or in respect of any debt or claim whatsoever. - Section 86(1) of the LRA states that arrears (money that is owed and should have been paid earlier) of unsecured maintenance, whether payable by agreement or under an order of court, shall be recoverable as a debt from the defaulter. > Where they accrued due before the making of a receiving order against the defaulter, they shall be provable in his or her bankruptcy and where they accrued due before his or her death, they shall be a debt due from his or her estate. - Section 86(2) of the LRA > Arrears of unsecured maintenance which accrued due before the death of the person entitled thereto shall be recoverable as a debt by the legal personal representatives of such person. - Section 86(3) of the LRA > No amount owing as maintenance shall be recoverable in any suit if it accrued due more than three years before the institution of the suit. had been a material change in the circumstances since the making of the order for maintenance.
- 8. 8 > The ‘suit’ here must refer to the suit for the recovery of maintenance.