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2023 MarsdenLR 274
HIGH COURT MALAYA KUALA LUMPUR
GEM – Appellant
Versus
PET – Respondent
[Divorce Petition No: WA-33-243-05/2021]
The court emphasized the 'means and needs' test in awarding spousal maintenance, reflecting the evolving societal norms regarding financial support obligations in marriage.
Headnote:(A) Law Reform (Marriage & Divorce) Act 1976 - Sections 77 and 78 - Application for spousal maintenance - Court granted partial relief, awarding monthly maintenance of MYR1,000, while denying claims for 50% of matrimonial assets and child fees - Assessment of maintenance based on means and needs, with consideration of both parties' financial circumstances and contributions to the marriage. (Paras 8, 12, 26, 28)
(B) Maintenance - Discretion of the court - The obligation of a husband to maintain his wife is not absolute but subject to the means and needs test, reflecting evolving societal norms regarding gender roles. (Paras 9, 10, 11)
Facts of the case:
The Petitioner sought maintenance after separating from the Respondent due to domestic violence, claiming MYR2,000 monthly and a share in marital assets. The Respondent contested his financial capability. (Paras 1-4)
Findings of Court:
The Respondent was ordered to pay MYR1,000 monthly for spousal maintenance, while other claims were deferred for full hearing in the divorce proceedings. (Paras 26, 28)
Issues: The main issues included the Petitioner’s entitlement to maintenance, the Respondent’s financial means, and the validity of claims for marital assets. (Paras 12, 21, 28)
Ratio Decidendi: The court emphasized the importance of the 'means and needs' test in determining maintenance, noting that both parties' financial situations must be assessed fairly. (Paras 12, 15, 17)
Result: Application partially allowed.
| Table of Content |
|---|
| 1. application for spousal maintenance and asset disclosure. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. court's discretion in awarding maintenance under s 77. (Para 8 , 9 , 10 , 11) |
| 3. means and needs test for maintenance assessment. (Para 12 , 13 , 14 , 15) |
| 4. assessment of both parties' financial situations. (Para 16 , 17 , 18 , 19) |
| 5. court's findings on petitioner's and respondent's claims. (Para 20 , 21 , 22 , 23 , 24 , 25) |
| 6. determination of maintenance amount and denial of other claims. (Para 26 , 27) |
Introduction
[1] This was an application in encl 79 ("this Application") by the Petitioner wife for ancillary relief for spousal maintenance in the monthly amount of MYR2,000, to be calculated from May 2021, and for the Respondent husband to disclose fully his income and assets. In this Application, the Petitioner had also claimed 50% of the value of the matrimonial home, 50% of the Respondent's shares in specific companies, and 50% of their child's school fees to be reimbursed.
[2] Due to the importance of safeguarding the privacy of the parties involved and the sensitivity of the issues addressed in these proceedings, the names of the Petitioner and Respondent have been anonymised in this judgment as GEM and PET respectively.
The Factual Background
[3] The Petitioner and Respondent (collectively "the Parties") aged 64 and 58 respectively, at the time of the hearing of this Application, were married in January 1988 and were blessed with a son ("the Child"), aged 24 at the time of the hearing of this Application.
[4] Following their marriage, the Parties initially established their matrimonial home at Jalan Kasipillay, Kuala Lumpur. However, in April 2020, the Petitioner chose to depart from the matrimonial home, citing instances of domestic violence as the reason for her departure. Subsequently, the Petitioner sought accommodation by residing with her sister.
[5] In May 2021, the Petitioner filed a divorce petition, and in October 2022, she filed this Application, which was scheduled to be heard on 19 January 2023. However, it was discovered that the Parties had not filed their respective statements of income and assets, pursuant to r 61 of the Divorce and Matrimonial Proceedings Rules 1980, which reads:
Rule 61 - General provisions as to evidence etc on application for ancillary relief
(1) A petitioner or respondent who has applied for ancillary relief in his petition or answer and who intends to proceed with the application before a registrar shall, subject to r 84, file a notice in Form 12 and within four days after doing so serve a copy on the other spouse.
(2) Where a respondent or a petitioner is served with a notice in Form 11 or 13 in respect of an application for ancillary relief, not being an application to which r 62 or r 63 applies then, unless the parties are agreed upon the terms of the proposed order, he shall, within 14 days after service of the notice, file an affidavit in answer to the application containing full particulars of his property and income, and if does not do so, the court may order him to file an affidavit containing such particulars.
(3) Within 14 days after service of any affidavit under paragraph (2) or within such other time as the court may fix, the applicant shall file an affidavit in reply containing full particulars of his property and income.
[Emphasis Added]
[6] Hence, this Application, was rescheduled to 7 March 2023 after the Parties had filed further affidavits to reflect their income and assets.
[7] This Application was allowed only partially, for the following reasons.
Contentions, Evaluation, And Findings
[8] The starting point of this Application is s 77 of the Law Reform (Marriage & Divorce) Act 1976 ("Law Reform (Marriage & Divorce) Act"), which empowers this court to order maintenance payment against the husband for the benefit of his wife. The provision reads:
Section 77 - Power for court to order maintenance of spouse
(1) The court may order a man to pay maintena
