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2024 MarsdenLR 878
HIGH COURT MALAYA KUALA LUMPUR
NAN – Appellant
Versus
PAN – Respondent
[Judicial Separation Petition No: S4-33-1485/2000]
A consent order for spousal maintenance can only be varied with compelling evidence of a significant material change in circumstances, which was not demonstrated in this case.
Headnote:(A) Law Reform (Marriage & Divorce) Act 1976 – Section 83 – Spousal maintenance – Application to vary monthly spousal maintenance from MYR5,000 to MYR1,000 dismissed – Consent orders must be respected unless exceptional circumstances arise – Material change in circumstances must be significant and proven – Respondent's claims of age, health, and income reduction were unsubstantiated and did not warrant a reduction. (Paras 7, 9, 11, 15, 30, 61)
(B) Consent Orders – Variation of consent orders requires compelling justification – The court must ensure stability in legal arrangements established through mutual consent. (Paras 10, 12, 13)
(C) Material Change in Circumstances – The Respondent failed to demonstrate a material change in circumstances justifying a reduction in maintenance obligations. (Paras 15, 32, 40)
Facts of the case: The Respondent sought to reduce spousal maintenance from MYR5,000 to MYR1,000, citing age, health, and income reduction as reasons. The court found no substantial evidence to support these claims. (Paras 1-6)
Findings of Court: The court dismissed the application, emphasizing the need for compelling evidence of material change in circumstances. (Paras 9, 61)
Issues: Whether there was a material change in circumstances to justify the reduction in maintenance; whether a consent order is subject to variation. (Paras 7, 8)
Ratio Decidendi: The court ruled that the Respondent's claims lacked sufficient evidence and did not constitute a material change in circumstances. (Paras 30, 61)
Result: Application dismissed with costs.
JUDGMENT
Introduction
[1] This was an application ("this Application") by the Respondent-Husband in encl 129, seeking to vary the term pertaining to monthly spousal maintenance in the amount of MYR5,000, by reducing it to MYR1,000. The obligation to pay monthly spousal maintenance of MYR5,000 was stipulated in two court orders granted in 2002 and 2015.
[2] In the interest of privacy of the parties concerned, and sensitivity of the issues in these proceedings, the Petitioner-Wife and Respondent-Husband have been anonymised in this judgment as NAN and PAN respectively.
The Factual Background
[3] The Petitioner and Respondent (collectively "the Parties"), both 78 years old at time of the hearing of this Application, were judicially separated in December 2000. The Petitioner then obtained a court order in March 2002 ("the 2002 Order"), which contained, among others, the following relevant term:
...
(iii) That the Respondent shall pay the Petitioner a sum of MYR5,000 at the beginning of each calendar month as the monthly maintenance.
[4] Throughout the years, several court orders were issued pursuant to several applications filed by the Parties concerning their marital disputes. In January 2015, the Parties ultimately reached a mutual agreement, documented in a consent order ("the 2015 Order"), which stipulated that the Respondent must pay the Petitioner MYR5,000 per month in spousal maintenance, a term which was also stipulated in the 2002 Order. The divorce was finalised in June 2015.
[5] In August 2017 ("the 2017 Application"), the Respondent sought to vary the 2002 Order which contained the term pertaining to the monthly spousal maintenance by requesting a reduction from MYR5,000 to MYR2,500 per month. The 2017 Application was dismissed in September 2018.
[6] In January 2024, the Respondent filed this Application, seeking once again to vary the monthly spousal maintenance by reducing it, this time, from MYR5,000 to MYR1,000 per month.
Issues
[7] The main issue for consideration by this court was whether there was material change in circumstances to warrant a reduction in monthly spousal maintenance from MYR5,000 to MYR1,000, payable by the Respondent to the Petitioner.
[8] Following the main issue, the court had to also address the following questions, namely, (a) whether a consent order was subject to variation; and (b) whether the following circumstances amounted to material change, namely, the (i) Respondent's advanced age and alleged deteriorating health; (ii) Respondent's alleged reduction in income; and (iii) Respondent's remarriage and new family.
[9] This Application was dismissed for the following reasons.
Contentions, evaluation, and findings
Whether A Consent Order Was Subject To Variation
[10] At the outset, it was crucial to recognise that the term ordering the Respondent to pay the Petitioner monthly spousal maintenance in the amount of MYR5,000 was contained in both the 202 and 2015 Orders. It was crucial to note that the Parties had consented to this term pertaining to the monthly spousal maintenance, pursuant to the 2015 Order. The issue, therefore, was whether a term that was agreed upon by the Parties could be the subject matter of a variation application.
[11] On this point, I found instructive the case of Lau Hui Sing v. Wong Chuo Yong , , where it was stated by Hamid Sultan Abu Backer J (as he then was) in the following passage:
As a general rule, consent order even in a divorce matter must be rarely disturbed unless there are exceptional circumstances and that too clearly stated in the affidavit to warrant the intervention of the court for the benefit of the minor children.
Applying the above principle to the present case, the consent order must be honoured and complied with strictly by both parties, including the Petitioner Husband, since it was entered into voluntarily.
[Emphasis Added]
[12] Given this consensual basis, the court had to approach this Application with careful consideration. This cauti
