JUDGMENTBY: JAMES FOONG J

: The petitioner is a nurse attached to a private hospital. The respondent is a medical doctor having his own private practice.

In January 1979, they got married by way of a civil marriage. On 2 December 1981 the first child, a girl, was born. This was followed four years later by a boy on 27 March 1985.

In October 1987, the petitioner moved out of the matrimonial home, No 40, Jalan Lemak, Taman Segar, Cheras, Kuala Lumpur (house No 40) and went to stay with her father in a flat known as the Blue Boy Mansion. To date, she still resides there with the two children. The reason for the move, as alleged by her, was that the respondent had formed a homosexual relationship with one of his ex-patients. This, of course, is denied by the respondent.

On 19 November 1996, a petition for judicial separation was filed by the petitioner to my court. Also claimed therein were:

(a) guardianship of the two children;

(b) maintenance of RM4,800 per month for the two children;

(c) that the matrimonial home, house No 40, be transferred to her and/or

be sold to the highest bidder with the proceeds to be apportioned as the

court deems fit; and

(d) costs.

On 16 June 1997, by consent of the parties, I granted a decree for judicial separation and guardianship of the two children to the petitioner. The issues on the maintenance and division of the matrimonial assets were adjourned to another date, to be heard in chambers.

I heard these matters in chambers on 12 August 1997. I managed to secure the consent of the parties to agree on the maintenance for the children to be RM3,000 per month to commence from the month of September 1997.

With regard to the matrimonial assets, the matter remains contested. With this, it becomes necessary for me to give some information extracted from either the cause papers or statements made to me by the parties and their counsel during submissions.

The only matrimonial assets claimed by the petitioner is house No 40. This is a dwelling house purchased on 16 September 1979. It was registered in the names of two persons in equal share -- the respondent and his mother. According to the respondent, this property was bought entirely by his mother who entered his name as proprietor for an undivided 1/2 share. Since the death of his mother, his mothers undivided 1/2 share was transferred to him in 1986. Under such circumstances, the respondent argued that this property was a gift from his mother, thereby not falling within the ambit of s 76 of the Law Reform (Marriage and Divorce) Act 1976 (the Act). For this, the petitioners claim for the matrimonial asset must fail.

The petitioner submitted that she had contributed RM15,000 towards the purchase of house No 40. In addition, she claimed that she had paid for the household expenditure during the period they were residing in the matrimonial home. By virtue of these contributions, she insisted on an entitlement to the property, particularly since she would need to care for her growing children.

The respondent denied these claims. He emphasized that the petitioner never resided at house No 40 between 1979 and 1982. They made this house their matrimonial home only in 1983, and even then, all the household expenses were taken care of by his mother.

With such disclosures, one thing seems certain. The undivided 1/2 share of the property derived from the respondents deceased mother which was transmitted to the respondent in 1986 is not subject to division. It falls outside the confines of s 76(1) of the Act. It is not an asset acquired by the petitioner and the respondent by their joint effort in the form of money, property or work towards its acquisition. It was a gift by the respondents deceased mother to her son. On this, I am in agreement with the textbook authors that a gift even acquired during the marriage to only one spouse should be excluded: see Matrimonial Law in Singapore and Malaysia by Tan Cheng Han; Law and the Family

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