EPISODE 2 – SHOW THE CHILDREN MONEY
Child maintenance for non-Muslims is governed under the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). In Peninsular Malaysia, additional powers are given to the Court under the Married Women & Children Maintenance Act 1950 (“MWCMA”).
Section 92 of the LRA places the responsibility of maintaining a child on either parent except if there is an agreement or order of court that state otherwise. It also reads that child maintenance includes providing “accommodation, clothing, food and education as may be reasonable having regard the parent’s means and station in life”.
A child is defined as an individual who is below 18 years of age and is “a child of both parties to the marriage or a child of one party to the marriage accepted as one of the family by the other party”. This definition includes illegitimate children that have been adopted into the family pursuant to an adoption order.
Under section 3(1) of the MWCMA, the Court is empowered to order monthly maintenance to be paid to the wife or the legitimate child in proportion to the means of the man. Section 3(2) of the MWCMA grants similar powers to the Court as above but in illegitimate children context.
Whose duty to maintain a child?
Usually, the father is required to maintain a child. Section 93 of the LRA provides that the Court will order the man to pay for child maintenance if:-
(a) he refused or neglected reasonably to provide for the child;
(b) he deserted and/or left his wife and child;
(c) during the determination of a divorce proceeding; OR
(d) when making or subsequent to making an order to place the child in the custody of any other person.
However, this does not mean the woman is not required to pay or contribute to child maintenance because section 93(2) allows the Court to order the woman to pay or contribute maintenance if the Court is satisfied that she has the means and reasonable to do so. Nonetheless, the duty of the mother to provide child maintenance is secondary to the father’s responsibility.
In the case of Khoo Cheng Nee v Lubin Chiew Pau Sing  4 MLJ 171, Abdul Wahab Patail JC (as he then was) held as follow:-
“The petitioner is not seeking maintenance for herself. However, she seeks RM1,000 per month per child. Plainly this is too high a sum. It takes no account of the respondent’s salary. There is no evidence he earns more than RM3,000 per month. While there is a legal obligation on the father to pay maintenance, it is not reasonable to order him to pay 66.7% of his salary ostensibly for just the children. The petitioner in wanting custody should also contribute.”
Similarly in the case Wong Kim Foong (F) v Teau Ah Kau @ Chong Kwong Fatt  1 MLJ 359, the Court held that it would be unfair if the husband was ordered to shoulder the full payment of RM1,200.00 for the maintenance of the child when the wife is gainfully employed. The Court decided that she should contribute to the maintenance and therefore, ordered her to pay RM400.00 per month towards the maintenance sum.
As such, although the responsibility for paying child maintenance primarily rest with the man, the woman or any individuals, who is having the custody, care and control or trustees of the child is liable to pay or contribute to child maintenance too.
Assessment of the child maintenance
Child maintenance is assessed based on the means of the parents and the needs of the child.
The following factors may be considered by the court in assessing the child maintenance:-
(a) Financial needs of the child;
(b) Income, earning capacity, property, and other financial resources of the parent;
(c) Standard of living enjoyed by the family before the breakdown of the marriage;
(d) Whether the child is suffering from any physical or mental disability.
However, the Court held in Karen Young v Ng Tia Ching  11 MLJ 377 that no child maintenance order should be granted if it would end up causing hardship to the person whom the order is made.
Security for maintenance
Just as spousal maintenance, the Court is empowered to order security for child maintenance 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 pursuant to section 94 of the LRA.
There are various forms of security that the Court may order. For example:-
In Leow Kooi Wah v Ng Kok Seng Philip &; Anor  1 LNS 278, the Court directed the spouse’s capital assets to be used to secure the periodical payments.
In Wong Chong Kiew v Lee Hock Seng  MLJU 254, the Court ordered the husband to hold a portion of his Employee Provident Fund (EPF) on trust for the maintenance and education expenses of the child.
Security for child maintenance is an important feature especially for the child’s future education expenses. As such, it is advised to consider and pursue in a divorce proceedings. Nevertheless, it is observed In Re Sim And Chia  3 CLJ 254 that parties are encouraged if their financial positions permit, to contribute either monthly or yearly to saving accounts or endowment policies or education policies for the children apart from the necessities.
Duration of the order for child maintenance
Pursuant to the amendment on section 95 of the LRA by the Law Reform (Marriage and Divorce) (Amendment) Act 2017, unless expressed to be for a shorter period, the order for maintenance shall expire when the child attains 18 years old or when the child completes his or her further or higher education or training, whichever is later.
The amendments have effectively extended the duration of child maintenance. Parents, custodians or trustees must bear in mind that they are now obligated to pay or contribute maintenance even though the child is legally considered an adult.
However, if the child is under physical or mental disability, the order for maintenance shall expire when the child attains 18 years old or on the ceasing of such disability, whichever is later.
Failure to pay the child maintenance
When the party who is liable to pay the maintenance fails to comply with the maintenance order, the other party may initiate committal proceedings to hold his or her ex-spouse in contempt for refusing to obey the court order. The process and requirements for committal proceedings can be found in our previous article: CONTEMPT IN THE FAMILY COURT.
Other methods of executing the maintenance order are also discussed in our article: A Court Order is not just a piece of paper, it is enforceable against you!)
Although the marriage has unfortunately come to an end, the welfare and benefit of the child should not be compromised and must be the utmost consideration of the parties. It is, therefore, advisable for the parties to achieve an amicable settlement on the child maintenance for the sake of the child.
By: 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Khoo Cheng Nee v Lubin Chiew Pau Sing  4 MLJ 171一案，在Abdul Wahab Patail JC (当时的他)的判决如下：
同样，在Wong Kim Foong (F) v Teau Ah Kau @ Chong Kwong Fatt  1 MLJ 359一案中，法院认为，如果妻子从事有酬职业，丈夫被命令承担抚养孩子的全部费用为1200令吉是不公平的。法院裁定她应支付部分赡养费，因此命令她每月支付400令吉作为孩子的赡养费。
然而，法院在Karen Young v Ng Tia Ching  11 MLJ 377一案中认为，如果孩子赡养令最终会给须执行法院令的一方造成困难，则不应批准该命令。
在Leow Kooi Wah v Ng Kok Seng Philip &; Anor  1 LNS 278案中，法院指示配偶的资本资产用于担保定期付款令。
在Wong Chong Kiew v Lee Hock Seng  MLJU 254一案中，法院命令丈夫以信托形式持有其雇员公积金(EPF)的一部分，用于孩子的抚养和教育费用。
孩子赡养费保障是一个重要特征，尤其是对孩子未来的教育费用而言。因此，建议在离婚诉讼中考虑和追讨。尽管如此，在In Re Sim And Chia  3 CLJ 254一案中观察到，如果当事人的财务状况允许，除了必需品之外，法庭鼓励他们每月或每年向储蓄账或儿童教育政策存款。
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。