DIVORCE? SHOW ME THE MONEY- EPISODE 1
In our previous article, we discussed about the enforcement of a Court Order obtained after the divorce proceedings. One of the terms that often included in the Court Order is spousal and/or children maintenance.
The term ‘maintenance’ has a very wide meaning. It signifies any form of material provision that will enable an ex-spouse to live a normal life and the necessities for a child to be brought up properly.
Faiza Tamby Chik J (as he then was) in Sivajothi A/P K Suppiah v Kunathasan A/L Chelliah  6 MLJ 48, adopted the definition of ‘maintenance’ in the English case of Borthwick & Anor v Beauvais & Ors  1 Ch 395 where Harman J held:-
“It is said that maintenance is the-only thing you can look at. What does that mean? It does not mean that you can only give the dependant just enough to put a little jam on his bread and butter. It has been already held that what is reasonable for one may not be reasonable for another. It must depend on the circumstances of the case. It certainly depends to some extent on the circumstances of the widow, but I think it may also depend on the circumstances of the testator, that is to say, whether he died a rich man or not, because a rich man may be supposed to have made better provision for his wife’s maintenance than a poor one. Maintenance does not only mean the food she puts in her mouth it means the clothes on her back, the house in which she lives, and the money which she has to have in her pocket, all of which vary according to the means of the man who leaves a wife behind him. I think that must be so. Maintenance cannot mean only mere subsistence.”
First, pursuant to Section 77(1) of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”), the Court may order a man to pay maintenance to his wife or former wife, in situations below:-
(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 found to be alive.
It is not necessary for a party to file a divorce petition prior to seeking a maintenance order. The Court in Diana Clarice Chan Chiing Hwa v Tiong Chiong Hoo  2 MLJ 97;  2 AMR 1527;  1 CLJ 721 held that that the action of the Wife in applying to the reconciliatory tribunal constituted a start to the divorce proceedings and therefore, she was allowed to claim for maintenance under section 77 (1) of the LRA.
Although section 77(1) of the LRA specifies payment of maintenance by a man to the woman, the Court nonetheless, has the power under section of the 77(2) of the LRA to order a woman to pay maintenance to her husband or former husband if he is incapacitated, wholly or partially, unable to earn a livelihood by reason of mental or physical injury or ill-health, and the Court is satisfied that she has the means and reasonable to so.
Do note that Section 77 of the LRA only limits to divorce and judicial separation proceedings. In the event the parties wish to annul the marriage, no maintenance order will be made.
Assessment of the maintenance amount
The assessment of the maintenance amount is in Section 78 of the LRA and the key points to note are:-
(a) the Court will assess the means and needs of the parties although the maintenance ordered will affect the income of the paying husband/wife;
(b) the Court will consider the degree of responsibility of the parties to the breakdown of the marriage.
It is further elaborated in Koay Cheng Eng v Linda Herawati Santoso  4 MLJ 863 that the Court will have regard to the duration of the marriage, the amount of children of the marriage, the age of the parties, the financial arrangement during the marriage, the parties earning capabilities and whether the divorce would have affected the spouse’s position financially when assessing the means and needs of the parties.
Despite the wife is gainfully employed and possibly self-sustain with the salary earned, she is still entitled to maintenance as seen in Kathirsean Kumarasan v Punaswarthy K Shanmugam  10 CLJ 329. The Court granted the maintenance equivalent to the amount she has received during the marriage so that she could be placed in same standard of living as she had during the marriage.
However, in the case Dr Shameni Pillai Pb Rajedran v Dr S Arulselvam Sanggilly & Anor  6 CLJ 782, the Petitioner Wife failed to justify her needs or explained how the Respondent Husband should pay her RM7,500 a month from his earnings of RM4,500 per month. The Petitioner Wife was a professionally qualified medical doctor and was capable of earning a good living. She is also young and the marriage was short-lived with no children. In view of these circumstances, the claim for maintenance was dismissed by the Court.
In summary, the assessment on the maintenance amount is decided on a case to case basis and not cast in stones vis a vis section 78 of the LRA.
Type of the maintenance payments
(a) Periodical payment of maintenance
Periodical payment of maintenance is the most common form of maintenance order that the Court grants. The spouse is usually obliged to pay to make monthly maintenance payments to the other spouse.
(b) Lump sum maintenance
As Section 77(1)(a) of the LRA is silent on the method of payments, the Court is empowered to order payment of maintenance in a lump sum payment after considering the facts and circumstances prevailing in the particular case.
In Chaw Anui v Tan Kim Chai  4 MLJ 272, the husband had the financial means, capacity and resources to make a lump sum payment. Therefore, the Court made the lump sum maintenance order to achieve a practical and feasible clean break.
(c) Order for Maintenance Pending Suit (also known as Interim Maintenance).
A contested divorce proceeding usually takes a long time to be completed. In such situation, it is appropriate for the spouse to ask for interim maintenance pending the completion of the divorce. The purpose for an interim maintenance is well explained in Lee Chin Guan (L) v Pang Kim Joon (P)  MLJU 2021 where the Court held that:-
“the rationale behind the provision of maintenance is to prevent the destitution of the wife and children. The Act empowers the court to order maintenance payment against the husband for the benefit of the wife.
The premature issue does not arise, as it is for her benefit to ensure her continued sustenance of a normal life that she is accustomed to during the existence of the marriage in accordance to the means of a man who leaves a wife behind. The court must consider this issue in light of the foregoing guiding legal principles.”
However, the amount ordered to be paid in the interim maintenance order may not necessarily be the same amount when granting the decree nisi for divorce.
(d) Arrears of maintenance
Arrears of maintenance are maintenance defaulted by the spouse during the period of their marriage and becomes a debt. However, the other spouse has the right to recover the arrears of maintenance for only up to 3 years before the institution of the divorce suit pursuant to Section 86(3) of the LRA.
Security for maintenance
Secured maintenance order will be granted by the Court if there are reasonable grounds to believe that the periodical payments order and/or lump sum payment order will not be carried out although there are funds or assets available to do so.
Usually, the Court will order a security for maintenance when:-
(a) the spouse has failed to obey the previous maintenance order, such as interim maintenance order;
(b) the spouse has a history of financial irresponsibility;
(c) the recipient of the maintenance has been informed of the refusal to pay despite there being a maintenance order.
Pursuant to Section 79 of the LRA, the Court may order the person who is liable to pay the maintenance, to vest the whole or part of his or her property in trust to ensure that he or she will be committed to pay the maintenance. If he or she failed to do so, the property will be sold and/or transferred for the satisfaction of the maintenance payment.
For example in the case of Chaw Anui v Tan Kim Chai  4 MLJ 272, the Court ordered the matrimonial home to be vested in the husband as trustee for the wife. The trust will be registered with the relevant land administrator or land registry to secure the payment of the lump sum maintenance of RM1million to the wife. The trust could only be discharged upon the satisfaction by the husband of the RM1million payment.
Duration of the order for spousal maintenance
Pursuant to Section 81 of the LRA, unless it is expressly stated that the spousal maintenance order should be for a shorter period, the order of maintenance shall expired:-
(a) Unsecured maintenance – on the death of the husband or wife, whichever is the earlier;
(b) Secure maintenance – on the death of the spouse in whose favour it was made.
Nonetheless, Section 82(1) of the LRA ceases the payment of maintenance upon the recipient spouse remarriage or is living in adultery with any other person.
In Show Me the Money – Episode 2, we will discuss about the maintenance for the children of the marriage, which is also governed under the LRA.
By: Lee Su Ting & Joanne Leong
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.
Faiza Tamby Chik J法官(他当时的身份)在Sivajothi A/P K Suppiah v Kunathasan A/L Chelliah  6 MLJ 48一案中，采用了英国案例Borthwick & Anor v Beauvais & Ors  1 Ch 395中的“赡养费”定义，Harman J法官认为:-
一方没有必要在申请赡养费令之前提出离婚申请。法院在Diana Clarice Chan Chiing Hwa v Tiong Chiong Hoo  2 MLJ 97;  2 AMR 1527;  1 CLJ 721案件中认为，妻子向婚姻调解庭提出申请的行为构成了离婚诉讼的开始，因此，她被允许根据《1976年法律改革婚姻与离婚法令》第77 (1)条要求赡养费。
在Koay Cheng Eng v Linda Herawati Santoso  4 MLJ 863案中，法院将考虑婚姻的持续时间、婚姻的子女数量、双方的年龄、婚姻期间的财务安排、双方的收入能力，以及在评估双方的能力和需求时考虑离婚是否会对配偶的财务状况产生影响。
尽管妻子从事有报酬的工作，并可能靠挣得的工资自给自足，但她仍有权获得赡养费，如Kathirsean Kumarasan v Punaswarthy K Shanmugam  10 CLJ 329案件中可看到。法院判给她相当于她在婚姻存续期间所获金额的赡养费，以便她能够享有与婚姻存续期间相同的生活水平。
然而，在Dr Shameni Pillai Pb Rajedran v Dr S Arulselvam Sanggilly & Anor  6 CLJ 782一案中，申请人妻子未能证明自己的需要，也未能解释答辩人丈夫应如何从每月4500令吉的收入中每月支付她7500令吉。申请人妻子是一名专业合格的医生，有能力谋生。她也很年轻，该婚姻很短暂，他们没有孩子。鉴于这些情况，法院驳回了她对赡养费的要求。
在Chaw Anui v Tan Kim Chai  4 MLJ 272案中，丈夫有财力、能力和资源一次性付款。因此。法院颁发了一笔一次性赡养费令，以实现切实可行的彻底分开。
有争议的离婚诉讼通常需要很长时间才能完成。在这种情况下，配偶在离婚结束前要求临时赡养费是适当的。在Lee Chin Guan (L) v Pang Kim Joon (P)  MLJU 2021一案中，法院充分解释了临时赡养费的目的，法院认为：-
例如，在Chaw Anui v Tan Kim Chai  4 MLJ 272一案中，法院命令丈夫将婚姻住所授予妻子作为受托人。信托将在相关土地管理人或土地登记处登记，作为向妻子一次性支付100万令吉的担保。只有在丈夫支付了100万令吉后，信托才能被解除。
(a) 无担保赡养费令 —— 丈夫或妻子死亡时，以较早者为准；
(b) 有担保赡养费 —— 在获得赡养费的配偶死亡时。
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。