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2021 MarsdenLR 852
HIGH COURT SABAH & SARAWAK KOTA KINABALU
YEE CHI KHONG @ ALLAN – Appellant
Versus
LIM SUI SIANG – Respondent
[Divorce Petition No: BKI-33-118/10-2014]
The burden of proof for varying maintenance orders based on financial changes rests on the applicant, who must demonstrate a material change on balance of probabilities.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 – Section 83 – Application to vary maintenance order based on material change in financial circumstances – Petitioner asserts a decline in income but fails to prove a material change on balance of probabilities – Previous consent order for maintenance must not be disturbed absent exceptional circumstances. (Paras 11-18)
Facts of the case: The Petitioner, facing financial difficulties due to business losses attributed to the Covid-19 pandemic, applied to vary a maintenance order initially set at RM5,000 and later reduced to RM4,000. He asserted that the Respondent, being financially independent, should not receive maintenance. (Paras 1-16)
Findings of Court: The Court found insufficient evidence of a material change in the Petitioner's financial circumstances and dismissed the application. (Paras 17-19)
Issues: Whether there has been a material change in the Petitioner's circumstances justifying a variation of the maintenance order. (Paras 10-11)
Ratio Decidendi: The burden lies on the Petitioner to demonstrate a material alteration in circumstances; mere claims are insufficient without supporting evidence, particularly regarding income changes post-2017. (Paras 12-18)
Result: Application dismissed.
JUDGMENT
(Enclosure 57)
[1] This is an application by the Husband Petitioner under s 83 of the Law Reform (Marriage and Divorce) Act 1976 to rescind or to vary the subsisting order for maintenance dated 19 June 2019 on the ground that there has been a material adverse change in the financial circumstances of the Petitioner.
[2] The factual background as stated in the Petitioner's Affidavit in Support wherein the Petitioner asserted as follows:
1. The Respondent and the Petitioner were lawfully married to one another on 23 December 2006. There is no child of the marriage.
2. At all material times, the Petitioner's only source of income of RM10,000 per month is derived from the business operation of Ban Soon Kiong Sdn Bhd ("the Company") of which the Petitioner is a Director. The Company's nature of business is assembling and retailing of air conditioners, electrical goods and home appliances.
3. When the Petitioner commenced this divorce petition on 27 October 2014, his financial standing at the time allowed him to propose a sum of RM5,000 per month for the maintenance of the Respondent. At the material time, the Petitioner's main liability was to pay his housing loan of RM1,887 per month in respect of his residence which is charged to Malayan Banking Berhad ("the 1st Legal Charge") Given the Petitioner's income of RM10,000 per month, he still had RM3,000 more or less for his own monthly living expenses after deducting the housing loan of RM1,887 and the maintenance of RM5,000 for the Respondent.
4. By consent, the marriage was dissolved on 18 April 2016. The Petitioner had consented then to pay maintenance to the Respondent in the sum of RM5,000 per month commencing the month of May 2016.
5. Due to a material adverse change in his financial circumstances, the Petitioner had on 25 February 2018 applied to this Court for an order to vary the sum of maintenance payable to the Respondent. This Court had thereupon granted that the sum of maintenance payable to the Respondent be varied from RM5,000 to RM4,000 per month commencing July 2019 (the subsisting order).
6. Due to a further material change in his financial circumstances, the Petitioner is applying to this Court once again for an order to vary or rescind the Subsisting Order.
7. As shown in the the Petitioner's Previous Affidavit in support, the Company's business used to be reasonably good from 2012 to 2015. Since the year 2016 however, there has been a material change in the business of the Company. The Company has been suffering loss and continues to suffer loss:
8. In January 2015, the Petitioner had re-mortgaged his house ("the 2nd Legal Charge") to obtain a wider margin of loan facility to sustain the going concern of the Company's business. The loan repayment of this 2nd Legal Charge was RM2,979 per month which was intended to be borne by the Company. Thereafter, as the Company was financially strained and could not settle the monthly loan repayment of the 2nd Legal Charge, the same has to be borne by the Petitioner. Consequently, the Petitioner have had to bear the burden of the 1st Legal Charge (currently RM1898) and the 2nd Legal Charge (currently RM2,928).
9. For the year ending 2019, the Management Accounts of the. Company recorded a loss of RM327,414.
10. The Petitioner aver that the Company has become financially drained. The Covid-l9 pandemic has further caused a business downfall for the Company.
11. The Company has not been able to settle its debts due to its suppliers and is now facing legal actions by the same.
12. The Company has not been able to pay the Petitioner's salary since February 2020.
13. The Petitioner do verily aver that it is practically impossible for him to comply with the Subsisting Order. To that end, the Respondent has on 3 August 2020 issued a Notice of Demand to the Petitioner.
14. The Petitioner do verily aver that he have disclosed herein all relevant information regarding his present financial status. Save as stated therein, he
