ALL IS FAIR IN LOVE AND WAR?

ALL IS FAIR IN LOVE AND WAR?

**可以在下方查看本文章的华文版本

During divorce proceedings, it comes as no surprise that the division of marital assets is usually one of the main disputes between spouses following the breakdown of a marriage. In Malaysia, the Court will consider each spouse’s contribution before dividing the marital assets.

What constitutes matrimonial assets?

Although the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) does not define matrimonial assets, guidance can be sought from judicial precedent. The Court has held the following to be matrimonial assets:-

  • the matrimonial home and everything which is put into it by either spouse
  • movable and immovable properties acquired during the marriage
  • intangible assets such as shares, stocks and monies in bank accounts
  • the Employees’ Provident Fund/pension received during the marriage

It is a common misconception that assets acquired by one party before the marriage are excluded from division. Marital assets would also include assets owned by one party before the marriage which have been substantially improved during the marriage by the other party or by their joint efforts. An example of this would be a property acquired by one spouse before marriage in which the other spouse had made significant improvements on it such as renovations or paying for the household expenditures.

Division of matrimonial assets

Section 76 of the LRA empowers the Court to order the division of assets acquired during the marriage when granting a decree of divorce or judicial separation. Previously, Section 76 of the LRA was centred on a distinction between the joint efforts of both spouses and the sole effort of a spouse in acquiring the asset. If an asset is acquired by the sole effort of one of the spouses, he or she will receive a greater proportion of the asset. Meanwhile, the Court would lean towards an equality of division of assets if acquired by the joint efforts of both spouses.

The Law Reform (Marriage and Divorce) (Amendment) Act 2017 has recently amended section 76, in which the distinction between jointly acquired assets and assets acquired by the sole effort of a party has been removed. The Court no longer needs to take into consideration whether the asset was jointly or solely acquired and would be inclined towards an equality of division of assets but prior to that, the Court must take into account the following statutory considerations: –

  • the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family;
  • the extent of the contributions made by the other party who did not acquire the assets; to the welfare of the family by looking after the home or caring for the family;
  • any debts owing by either party which were contracted for their joint benefit;
  • the needs of the parties’ minor children; and
  • the duration of the marriage.

The objective of the amendment to Section 76 of the LRA was to give due recognition to the non-financial contributions of spouses, namely in taking care of the home and the family. The new statutory provision would now protect the class of stay at home moms and dads, who had contributed in taking care of the home and the family but yet, deprived of any entitlement to the assets due to the fact that they were unable to prove the requirement of “joint effort” under the previous section 76 of the LRA.

Applicability of the amended Section 76 of the LRA

Although there are currently not many reported cases on how the Court would interpret the newly amended Section 76 of the LRA, the case of Theynarasi Selambaram v. Periasamy Chinnappan & Anor [2019] 1 LNS 818 has given an insight on the Court’s approach in the application of the amended section 76 of the LRA.

The High Court in the case observed that under the amended section 76 of the LRA, there are now only two categories of properties – matrimonial assets which fall under section 76(1) and non-matrimonial assets which fall under section 76(5). If the assets are non-matrimonial properties, the division is not permissible as of right whereas, for matrimonial assets, the division is as of right.

Relying on the provisions of the amended Section 76 of the LRA, the Court had ordered the matrimonial home as well as the other 3 properties that were registered under the husband’s name to be divided equally between the parties. In exercising its discretion, the Court took into account the statutory considerations i.e. the fact that the parties had been married for 26 years and the extent of the contributions made by the wife in looking after the home and caring for the family.

Meanwhile, in respect of the properties that were owned by the husband before the marriage, the Court held that the wife failed to prove that she has substantially improved these properties during the marriage and therefore, they were not considered matrimonial assets under section 76(5) of the LRA to be divided between the spouses.

As seen in the above case, the Court is now apt to order an equal division of matrimonial assets between divorcing spouses in accordance with the new provision, regardless of whether the asset was solely or jointly acquired.

Does conduct affect the division of assets?

The conduct of the parties such as adultery or unreasonable behaviour does not bear a relevance in the determination of division of matrimonial assets. As held by the High Court in the case of Lim Bee Cheng v Christopher Lee Joo Peng [1996] 2 CLJ 697, the power of the Court to order division of matrimonial assets under Section 76 is subject only to those considerations prescribed therein and conduct of the parties is and has always been irrelevant.

Conclusion

The drafting of section 76 of the LRA does not provide for any precise apportionment of a spouse’s share in the matrimonial assets based on their contributions. As Faiza Tamby Chik J held in the case of Choy Yoke Ying v Yong Yook Seng [2004] 8 CLJ 105, the discretion vested in a judge of the family court is to do “rough justice” between the parties, as there is no measure which can fit all marriages. That being said, the Court endeavours to reach a fair and equitable division in each case and the apportionment would depend on the nature and extent of the contribution, as well as all the circumstances of the case.

By: Jaclyn Chang

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.

 

 

爱情和战争都是公平的吗?

 

在离婚诉讼中,婚姻财产的分割通常是婚姻破裂后配偶之间的主要纠纷之一,这并不奇怪。在马来西亚,法院将在分割婚姻财产之前考虑配偶双方的贡献。

什么是婚姻财产? 

虽然《1976年法律改革(婚姻和离婚)法》没有界定婚姻财产,但可以从司法先例中寻求指导。法院认定以下为婚姻财产:-   

  1. 婚姻住所和配偶任何一方置入其中的一切
  2. 婚姻期间获得的动产和不动产
  3. 无形资产,如股票、股票和银行账户中的资金
  4. 婚姻期间收到的员工公积金/养老金

一种常见的误解是,婚前一方获得的财产将不会被分割。婚姻财产还包括婚前一方拥有的、在婚姻存续期间由另一方或双方共同努力大幅改善的财产。这方面的一个例子是一方配偶婚前获得的房子,另一方配偶对其进行了重大改进,如翻新、装修或支付家庭开支。

婚姻财产的分割 

《1976年法律改革(婚姻和离婚)法》第76条授权法院在发布离婚或司法分居令时,下令分割婚姻期间获得的资产。以前,《1976年法律改革(婚姻和离婚)法》第76条的重点是区分配偶双方的共同努力或配偶一方唯一努力而获取的资产。如果一项资产是由配偶一方单独努力获得的,他或她将获得更大比例的资产。同时,如果配偶双方共同努力,法院将倾向于平等分配资产。

《2017年法律改革(婚姻和离婚)(修正)法》最近修正了第76条,其中取消了共同获得的资产和仅由一方努力获得的资产之间的区别。法院不再需要考虑资产是共同获得还是单独获得,并且倾向于平等分配资产,但在此之前,法院必须考虑以下法定因素:-

  1. 各方在金钱、财产或工作中为家庭利益获取资产或支付费用所做贡献的程度;
  2. 未参与获得资产的另一方的贡献程度;通过照看房子或照顾家庭成员来促进家庭的福利;
  3. 任何一方为其共同利益而欠下的任何债务;
  4. 双方未成年子女的需求;和
  5. 婚姻的持续时间。

修正案对《1976年法律改革(婚姻和离婚)法》第76条的目的是为了给予无金钱贡献的配偶适当的承认,即通过照顾家庭和家人。新的法定条例现在将保护在家工作的配偶,他们为照顾家庭所做出了贡献,但却被剥夺了对资产的任何权利,因为他们无法证明《1976年法律改革(婚姻和离婚)法》先前第76条规定的”共同努力”的要求。

1976年法律改革(婚姻和离婚)法》第76条修正案的可行性 

虽然目前关于法院将如何解释新修订的《1976年法律改革(婚姻和离婚)法》第76条的案例不多,但Theynarasi Selambaram v. Periasamy Chinnappan & Anor [2019] 1 LNS 818一案中使人们对法院如何应用经修订的《1976年法律改革(婚姻和离婚)法》第76条的有了深入的了解。

高等法院在该案中指出,根据经修订的《1976年法律改革(婚姻和离婚)法》第76条,现在只有两类财产- 属于第76(1)条的婚姻财产和属于第76(5)条的非婚姻财产。如果资产是非婚姻财产,申请人分割的权利需要法庭的允许,而对于婚姻财产,申请人将有分割的权利。

根据经修订的《1976年法律改革(婚姻和离婚)法》第76条的规定,法院命令婚姻住所以及以丈夫名义登记的其他三项财产被双方平等分配。在行使酌处权时,法院考虑了法定因素,即双方已经结婚26年的事实以及妻子在照顾房子和家庭方面的贡献程度。

与此同时,关于丈夫婚前拥有的财产,法院认为,妻子未能证明她在婚姻存续期间大幅改善了这些财产,因此,根据《1976年法律改革(婚姻和离婚)法》第76(5)条,这些财产不被视为夫妻之间可分割的婚姻财产。

从上述案件中可以看出,法院现在倾向于根据新的规定,命令离婚配偶之间平等分配婚姻财产,无论财产是单独获得还是共同获得。

行为会影响资产的划分吗? 

双方的行为,如通奸或不合理行为,与婚姻财产分割的决定无关。正如高等法院在Lim Bee Cheng v Christopher Lee Joo Peng [1996] 2 CLJ 697一案中所认定的那样,法院根据第76条命令分割婚姻财产的权力只受其中规定的考虑因素的制约,而当事方的行为现在和过去都是不相关的。

结论 

《1976年法律改革(婚姻和离婚)法》第76条的起草并没有规定根据配偶的贡献对其在婚姻财产中的份额进行任何精确的分配。正如法官Faiza Tamby Chik J在 Choy Yoke Ying v Yong Yook Seng [2004] 8 CLJ 105一案中所认为的那样,家庭法院法官的酌处权是在双方之间进行“大致公平合理的处置”,因为没有任何措施可以适用于所有的婚姻。尽管如此,法院努力在每个案件中实现公平和公正的分配,分配将取决于贡献的性质和程度以及案件的所有情况。

文章来自于:张美琪律师 (Jaclyn Chang Mei Qi)

文章翻译: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。

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