A Court Order is not just a piece of paper, it is enforceable against you!
Court Order Obtained in Matrimonial Proceedings
No one gets married with an intention to divorce. Unfortunately, there are multiple factors which lead to a breakdown of a marriage. According to the Department of Statistics Malaysia, the number of divorce cases in 2018 for both Muslim and non-Muslim household was 50,356 cases.
In usual civil divorce proceedings, (Muslims will have to apply to the Shariah Courts for a divorce) the parties will obtain a Decree Nisi from Court ordering the dissolution of the marriage. At times, the Court will concurrently issue a separate Court Order stating all the terms of the divorce. For example, the Court Order would include one or all of the following:-
- the custody, care and control of the children;
- the access to the children;
- the spousal and/or children maintenance; and
- the division of matrimonial assets.
Once the Court Order is sealed by the Court, a copy of it will be delivered to every party and/or the solicitors. What happens if despite having a copy of the Court Order, the person knowing its content refuses to follow it?
Enforcement of the Court Order
A Court Order may be enforced/executed against the non-complying party through the following modes:-
Order for payment of money
First, determine the amount that is due and owing. Then, file the affidavit verifying the amount against the ‘the violator’ pursuant to Rule 72(1) Divorce and Matrimonial Proceedings Rules 1980 (“the DMPR”).
A. Judgment Summons
This is where the debtor is being summoned to Court to settle the arrears. Pursuant to Rule 73(5)(b) of the DMPR and the Debtors Act 1957, the Judge will examine the debtor’s financials and may make an order of commitment to settle the outstanding amount together with costs within a specified time or by instalments. If the debtor fails to do so, he or she may be arrested, especially if there is a possibility that he will likely leave Malaysia, to be brought to Court to explain on the default of the order of commitment. He or she could remain in prison until the hearing date.
If the debtor is unable to provide a satisfactory answer to the Court on the default of the order of commitment, he or she can be imprisoned for up to 6 weeks. However, serving the imprisonment term does not mean the debt has been paid or satisfied. The creditor can still apply for other modes of the execution to recuperate the debt.
In the case of Wong Kam Fung v Chin Chen Kong  10 MLJ 661, the respondent failed to strictly comply with certain maintenance orders of the court so the petitioner took out a judgment summons against the respondent for payment of arrears. Due to the respondent’s failure in attending the hearing of the judgment summons, the petitioner successfully applied for, inter alia, the respondent’s legal and beneficial interest in the properties to be transferred to her absolutely in order to satisfy the debt.
The procedures for applying for a judgment summons are set out in Rules 72 and 73 of the DPMR and it is a useful mode of execution if it is known that the debtor has the means to pay but deliberately refuses or delays to do so.
B. Garnishee Proceedings
A Garnishee Order is an order which allows the creditor to recover the debt by taking the money through a third party. A simple example would be ordering the bank to release the money in the debtor’s account to pay the creditor. In the context of matrimonial proceedings, the default usually happens when the debtor fails to pay spousal and/or children maintenance or willfully keeps the proceeds from the sale of the matrimonial assets.
(a) Bank account
As mentioned above, the creditor may apply to Court for an order to extract the funds from the debtor’s bank account provided that the creditor has knowledge of the debtor’s bank account details.
If the debtor is under employment, a Garnishee Order can be issued to the debtor’s employer. In this situation, the employer will deduct the ordered amount from the salary to pay the creditor.
Order requiring a person to do or abstain from doing an act
C. Committal Proceedings
Committal Proceedings for contempt of court may be commenced against any person who deliberately disobeys a Court Order. A more in depth look on committal in matrimonial proceedings is found in the previous article; “Committal in the Family Court”
How to Avoid Execution: Variation Order
If there are factors which make it difficult to comply with the Court Order, the person should apply to Court for a variation order to avoid any of the execution proceedings stated above from being imposed on them.
The Court has the powers under Section 83 and 96 of the Law Reform (Marriage and Divorce) Act 1976 to vary, rescind or substitute maintenance and custody orders respectively. In order to do so, the applicant is required to prove that the Court Order was obtained based on one of these 3 grounds:-
(a) misrepresentation of fact;
(b) mistake of fact; or
(c) where there has been any material change in the circumstances
Misrepresentation of fact
Hayatul Akmal JC (as she then was) held in Malcolm Fernandez v Melissa Marie Albert  1 LNS 1092:-
“(i) Misrepresentation can either be innocent which entitle to rescission, or fraudulent which allows for repudiation (see Lee Cheong Fah v. Soo Man Yoke  2 BLJ 356;  2 MLJ 627);..”
Failure of the party to make full and frank disclosure of their financial position and/or income during the divorce proceedings may amount to misrepresentation of fact. The other person, who is affected by the consequences of the misrepresentation of fact, may apply to the Court for a reassessment of the spousal/children maintenance order.
Mistake of fact
The Judge also defined mistake of fact in Malcolm Fernandez v Melissa Marie Albert (supra), where it held:-
“(ii) Mistake of fact is the unconscious ignorance or forgetfulness as to facts material to the contract or into believing in the existence of a thing material to the contract which do not exist while mistake of law is in coming to an erroneous conclusion as to the effects of the law from a series of known facts (see Court of Appeal’s decision in Soon Lee Huat Palm Oil Mill Sdn Bhd v. Stable-Win Sdn Bhd  MLJU 257);”
The Court of Appeal in Lim Soon Heng v Tan Beng Choo (P)  MLJU 261 held that the Court is satisfied that the maintenance order was based on a mistake of facts and the Learned Judge had not given due consideration to the fact that the appellant did not have the means of satisfying the maintenance order prior to November 2004 based on the following facts:-
(a) The husband was a bankrupt since 23.10.1987 and was only discharged on 2.1.1998;
(b) The husband was imprisoned from August 1995 to 1997; and
(c) The husband was only gainfully employed in November 2004.
Therefore, the Court of Appeal allowed the appeal and set aside the order to pay all the arrears up to November 2004. Instead, the Court of Appeal varied the date of commencement of the maintenance payment to November 2004 because of mistake of facts.
Material Change in Circumstances
Another ground and quite commonly used in a variation application is the material change in circumstances. Material changes are subjective but mainly due to old age, health condition or unemployment.
In Anna Tay Siew Hong v Joseph Ng Tiong Yong  MLJU 257, the court is satisfied that there was a material change in the circumstances after considering the respondent husband’s old age and poor health condition. Since the petitioner wife was being well looked after by their daughter, the Court rescinded the maintenance order.
The modes of execution are to assist the parties in enforcing an order against a mischief party. The consequences for disobeying a Court Order is dire, where one could spend long period of time in prison. Therefore, the parties should strictly follow the Court order and if impossible to do so, rectify or vary the Court Order as soon as practical to do so.
Joanne Leong & Lee Su Ting
DISCLAIMER: This article is for general information only and should not be relied upon as legal advice and/or legal opinion. Messrs Yeoh & Joanne accepts no liability for any loss which may arise from reliance on the information contained in this article.
在Wong Kam Fung v Chin Chen Kong  10 MLJ 661一案中，被告未能严格遵守法院的某些赡养令，因此，原告申请判定债务传票，要求被告支付欠款。由于被告未能出席判定债务传票的听证会，除其他外，原告成功地申请了被告以转让财产中的合法和实益权益作为清偿债务的方式。
Hayatul Akmal司法委员(她当时的身份)在Malcolm Fernandez v Melissa Marie Albert  1 LNS 1092陈述:-
“(i)虚假陈述如果是无意的，将可以被撤销，如是欺诈性的，则允许被否认(见：Lee Cheong Fah v. Soo Man Yoke  2 BLJ 356;  2 MLJ 627)；..”
法官还在Malcolm Fernandez v Melissa Marie Albert (见上文) 一案中界定了事实错误，并认为：
“(ii)事实错误是对合同重要事实的无意识的无视或遗忘，或相信不存在的合同重要事物的存在，而法律错误是从一系列已知事实得出关于法律效力的错误结论(见上诉法院在Soon Lee Huat Palm Oil Mill Sdn Bhd v. Stable-Win Sdn Bhd  MLJU 257中的判决)；”
上诉法院在Lim Soon Heng v Tan Beng Choo (P)  MLJU 261一案中认为，法院认为赡养令是基于一个事实错误，而法官没有根据以下事实适当考虑上诉人在2004年11月之前没有办法满足赡养令的事实
在Anna Tay Siew Hong v Joseph Ng Tiong Yong  MLJU 257一案中，法院认为，在考虑到被告丈夫的年老和健康状况不佳之后，情况发生了重大变化，和因为请愿妻子得到了女儿的良好照顾，法院撤销了该赡养令。
律师事务所合伙人梁佩欣律师(Joanne Leong)与李淑婷律师(Lee Su Ting)
免责声明:本文仅供参考，不应作为法律建议和/或法律意见。Yeoh & Joanne律师事务所不会承担因依赖本文所含信息而产生的任何损失的责任。