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2023 MarsdenLR 87
HIGH COURT MALAYA KUALA LUMPUR
KAS – Appellant
Versus
VAS – Respondent
[Divorce Petition No: WA-33-532-12/2020]
The court emphasized that the breakdown of marriage justifies divorce, and spousal maintenance is discretionary based on the means and needs of both parties, while ensuring child welfare through custody arrangements.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 53, 54, 77(1), 78, 92, 93, and 76 - Divorce petition granted - Respondent granted sole custody of minor child, Petitioner ordered to pay child and spousal maintenance - Court emphasized assessment of means and needs in granting maintenance and the importance of joint guardianship. (Paras 10, 12, 14, 52, 86)
(B) Divorce - Grounds for divorce - Court finds marriage irretrievably broken down due to conduct of both parties, emphasizing that personal apprehensions regarding societal stigma cannot prevent divorce. (Paras 11, 13, 25)
(C) Spousal Maintenance - Court exercises discretion under s 77(1) and s 78 to award lump sum maintenance based on needs and conduct of parties, highlighting that entitlement is not automatic but assessed on various factors. (Paras 15, 18, 41, 46)
(D) Child Custody - Sole custody granted to Respondent with joint guardianship, emphasizing the welfare of the child and the importance of maintaining relationships with both parents. (Paras 61, 66) (E) Division of Assets - Respondent's claim for half the value of the Matrimonial Home dismissed due to lack of evidence of contributions or improvements during the marriage. (Paras 73, 76) (F) Other Claims - Respondent's claims for jewellery, loan recovery, and legal fees dismissed for lack of evidence. (Paras 77, 84)
| Table of Content |
|---|
| 1. divorce petition and background details. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. issues to be addressed by the court. (Para 9) |
| 3. respondent's opposition to divorce. (Para 10 , 11 , 12 , 13) |
| 4. spousal maintenance assessment criteria. (Para 14 , 15 , 16 , 17 , 18) |
| 5. cause of breakdown of marriage. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 6. petitioner's conduct and its impact. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34) |
| 7. religious concerns affecting marriage. (Para 36 , 37 , 38 , 39) |
| 8. respondent's means and needs assessment. (Para 40 , 41 , 42 , 43 , 44) |
| 9. child maintenance obligations. (Para 52 , 53 , 54 , 55 , 56) |
| 10. custody considerations. (Para 59 , 60 , 61 , 62 , 63 , 64) |
| 11. access rights of the father. (Para 67 , 68 , 69 , 70) |
| 12. division of matrimonial assets. (Para 73 , 74) |
| 13. claims for jewellery and loans. (Para 77 , 78 , 79 , 80 , 81) |
| 14. legal fees claim. (Para 84) |
| 15. final orders and conclusions. (Para 86) |
Introduction
[1] These were the Petitioner Husband's divorce petition to, inter alia, dissolve the marriage between him and the Respondent, and to obtain joint guardianship of and access to their child; and the Respondent's cross-petition, inter alia, for spousal and child maintenance.
[2] In the interest of privacy of the parties concerned, and sensitivity of the issues in these proceedings, the Petitioner and Respondent have been anonymised in this judgment as KAS and VAS respectively.
The Factual Background
[3] This case revolved around a disinterested husband who treated the matrimonial home as a bachelor pad, and a disillusioned wife who eventually had no choice but to leave the matrimonial home as she saw no future in the marriage.
[4] The Petitioner, a member of the Malaysian Armed Forces, and Respondent (collectively "the Parties") solemnised their marriage in March 2016, and were blessed with a son ("the Child"), born in January 2018. After the marriage, they resided in an apartment in Sentul ("the Matrimonial Home").
[5] The Respondent conceived sometime in April 2017 and by October 2017, she had returned to her parents' home in Setiawan, Perak.
While the initial plan was to move back to her parents' home for the sole purpose of childbirth, the marital issues had reached a critical point. Subsequently, even after the birth of their Child, the Respondent continued to reside with her parents and did not return to the Matrimonial Home.
[6] In December 2020, the Petitioner filed a petition for divorce ("the Divorce Petition"), followed by the Respondent's cross-petition ("the Cross-Petition") which was filed in April 2021.
[7] In March 2021, an interim consent order ("the Interim Order") was entered into, pursuant to an application vide Originating Summons No WA-24F-118-05/2020, where terms of custody of the Child had been agreed upon, together with child maintenance to be paid by the Petitioner to the Respondent in the monthly amount of MYR1,000.
[8] Following the trial and after considering the Parties' submissions, the divorce was granted and the decree nisi made absolute immediately. The Respondent was granted sole custody, care, and control of the Child, while guardianship was awarded jointly to both Parties. The Petitioner was ordered to settle arrears of child maintenance amounting to MYR27,000 pursuant to the Interim Order, and to continue maintaining the monthly child maintenance of MYR1,000. In addition, the Respondent was granted a lump sum payment of MYR26,000 as spousal maintenance which she had agreed for the Petitioner to disburse over a 26-month period in the amount of MYR1,000 monthly, commencing January 2024.
The Issues
[9] The issues that had to be addressed by this Court were as follows:
(a) The Divorce - With regard to the divorce itself, the issue was whether the marriage had irretrievably broken down to warrant a divorce;
(b) Spousal Maintenance - In the deliberation of whether spousal maintenance should be awarded, the following issues were imperative t
