3 Divorce Laws In Malaysia That Men Should Know
Civil marriages in Malaysia is mainly statutorily based and governed under statutes such as the Law Reform (Marriage and Divorce) Act 1967 (“LRA 1976”) and Married Women and Children (Maintenance) Act 1950 (“MWCMA 1950”). The law generally recognizes the responsibilities and contributions of both parties in the marriage. However, there are matrimonial laws of Malaysia that men should be aware of when it comes to certain aspects, such as maintenance of spouse and child as well as the right of custody of the child. Here are 3 divorce laws in Malaysia that men should know.
- Maintenance of Wife (Section 77 (1), Section 78, Section 82 of LRA 1976, Section 5 MWCMA 1950)
Generally, unless otherwise agreed between the parties in a joint petition of divorce, the court may order a man to pay maintenance to his wife or ex-wife. The rationale behind the provision of spousal maintenance is to enable the wife to live a normal life that she is accustomed to during the existence of the marriage without relying on the children (if any).
In determining the issue of maintenance, the court shall appraise the situation on the means (affordability) and the needs of the wife having regard to the duration of the marriage, the age of the parties and whether the husband had financially supported the wife throughout the duration of the marriage. Such assessment is regardless of the proportion such maintenance bears on the husband’s income but having regard to the degree of responsibility which the court apportions to each husband and wife for the breakdown of the marriage.
There are also case laws that emphasised on the fact that the wife is employed and has her own income does not disentitle her to the maintenance from her husband, however, the quantum of the maintenance may be reduced. Also, a husband should also note that even no maintenance is paid to the wife during the marriage does not excuses his obligation to provide maintenance for the wife after the divorce.
Further, it is noteworthy that according to Section 5 of the MWCMA 1950, if a husband offers to maintain a wife on a condition of her living with him and his wife refuses to do so, the court would consider the grounds of such refusal and make or enforce the order notwithstanding that the husband is living in adultery or for any other reason it is just so to do.
On the other hand, a wife is not entitled to maintenance under Section 5 if she is living in adultery or refuses to live with her husband without any sufficient reason. This section of the law is also in line with the provision under Section 82 of the LRA 1976, where the right to receive maintenance from the other party would cease on his or her remarriage or living in adultery with any other person.
- Maintenance of Children (Section 92, 93 and 95 LRA 1976, Section 3 MWCMA 1950)
Child maintenance in Malaysia is defined under Section 92 of the LRA 1976 to include the provision of “accommodation, clothing, food and education as may be reasonable having regard the parent’s means and station in life or by paying the cost thereof”.
Generally, the responsibility of maintaining a child is on both the parents. However, Section 93 of the LRA 1976 provides that it will become the duty of the father to maintain the child:
- If he refused or neglected reasonably to provide for the child;
- If he deserted his wife and child;
- During the determination of a divorce proceeding; or
- When making or subsequent to making an order to place the child in the custody of another.
Similar provision can also be found under Section 3 of the MWCMA 1950.
In other words, it is the primary obligation of the father to provide all the needs of the children according to the standard of living that they are accustomed to during the time that their parents had lived together in the same house.
In deciding the quantum of maintenance for children, the court would consider the father’s capacity, his ability to pay and the realities of the father’s or the parties’ financial position. The potential earning of the mother for maintenance would also be considered.
The duty of parents to maintain a child’s maintenance is upon his or her reaching the age of 18 years old or upon cessation of any disability. If a child is pursuing higher education or training, such duty shall be extended until the completion of such education or training.
Duty to Maintain Child Accepted as Member of Family (Section 99 LRA 1976)
On a side note, even though a ‘child’ is commonly perceived as a child of marriage between the parties, it is important for everyone to know that the definition of a “child” under the law also includes a child of one party accepted as a family member by the other party as well as an illegitimate child that was not born out of wedlock between the parties.
Section 99 of the LRA 1976 clearly provides that even when a child is not a biological child of a man, it is his duty to maintain the child as long as he had accepted the child as a family member of the household and when the mother and father of the child fail to do so. The ultimate consideration of the court is to ensure the welfare of the child. Such duty to maintain the child will cease when the child is taken away by his father or mother.
- Custody of Children (Section 88 LRA 1976)
When it comes to deciding on the custody of a child, the court will take the welfare of the child as the paramount consideration and the overriding factor as a whole. In principle, both father and the mother are entitled to apply for custody of the child having regard to the wishes of both parties and also the wishes of the child where he or she is capable to express an independent opinion.
There is a general presumption under the law that a child that is under the age of 7 years old should follow his/her mother. However, it is not definite that the child must be placed under the custody of the mother because the father can rebut such presumption by adducing evidences to prove that such arrangement is not favourable to the upbringing of the child, e.g. that the mother is unfit to take care of the said child. However, such evidences must be strong enough to establish such claim and the court would also give in to the fact that it is undesirable to disturb the life of the child by change of custody.
This article is contributed by Siow Pey Yiaw.
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