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2020 MarsdenLR 1455
HIGH COURT MALAYA KUALA LUMPUR
SSS – Appellant
Versus
JTSV – Respondent
[Divorce Petition No: S8-33-1613-2004]
Orders in matrimonial proceedings are final and subject to res judicata, preventing reopening without new material circumstances, regardless of amendments to maintenance provisions.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 – Section 95 – Amendment Act 2017 – Variation of maintenance orders – Wife's application to vary maintenance order for child dismissed, as the amendment was not applicable due to the timing of the decree nisi and the child's age – It held that orders in matrimonial proceedings are final and subject to res judicata principles. (Paras 54, 30, 41, 20)
(B) Applicability of transitional provisions – Noted that the divorce proceedings do not qualify as 'actions or proceedings commenced or pending immediately before the date into operation of the Amendment Act'. (Paras 46, 8)
Facts of the case: Husband and wife divorced by consent on 1 May 2005. Child reached age 18 on 17 January 2018. Wife sought to amend decree for additional maintenance and educational support based on recent amendments to the Law Reform (Marriage and Divorce) Act. (Paras 2, 3, 6)
Findings of Court: The court found the Variation Application not maintainable under the new amendment provisions as the relevant statutory provisions had not been met. (Paras 54, 48)
Issues: Whether divorce proceedings were pending at the time of the Amendment Act and if the wife could rely on the amendments for a variation request. (Paras 1, 29)
Ratio Decidendi: The court ruled that orders in matrimonial cases do not lose finality merely because subsequent applications can be made, emphasizing the importance of maintaining judicial efficiency and the res judicata principle. (Paras 30, 29)
Result: Variation Application dismissed.
JUDGMENT
[1] This is the petitioner husband's application under O 14A and/or O 33 r 2 and/or O 33 r 5 of the Rules of 2012 for the determination of the five questions of law listed in para [14] below.
B. Facts
[2] The marriage between the husband and wife was dissolved pursuant to a Decree Nisi dated 1 May 2005 ("Decree Nisi"), which was entered by consent between the parties.
[3] There is one child to the marriage, CLS, who reached the age of 18 years on 17 January 2018. The terms of the Decree Nisi included financial provisions for the maintenance, medical and dental costs and the education, including the tertiary education, of the child of the marriage.
[4] Section 95 of the Law Reform (Marriage and Divorce) Act 1976 (the "LRA") was amended by s 7 of the Law Reform (Marriage And Divorce) (Amendment) Act 2017 (Act A1546) (the "Amendment Act"). The amendment to s 95 of the LRA by the Amendment Act is shown in the underlined words below:
"95. Duration of orders for custody and maintenance
Except where an order for custody or maintenance of a child is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, or is pursuing further or higher education or training, on the ceasing of such disability or completion of such further or higher education or training, whichever is the later."
[5] The amendment to s 95 of the LRA came into force on 15 December 2018; after CLS reached the age of 18 years.
[6] On 18 July 2019, the wife filed an application to vary the terms of the Decree Nisi for the husband to be ordered to pay additional maintenance, education fees and medical costs for CLS until he completes his higher education at Swinburne University of Technology in Melbourne, Australia ("Variation Application"). She finds that the terms of the Decree Nisi are insufficient to cover CLS' current education and university expenses in Australia.
[7] It is the wife's case that the amendment to s 95 of the LRA constitutes "a material change in circumstances" for purposes of s 96 of the LRA.
[8] This Court is empowered under s 96 of the LRA to, among others, vary any order of maintenance for a child on the application of an interested person, if the Court is satisfied that there has been "a material change in circumstances".
[9] The husband has applied for this Court to determine and/or substantially dispose of the wife's Variation Application under O 14A and/or O 33 r 2 and/ or O 33 r 5 of the Rules of 2012 ("ROC") ("O 14A Application").
[10] The parties agree that the husband's O 14A Application is suitable for disposal of case on point of law and that the O 14A Application be heard and disposed of by this Court prior to the wife's Variation Application.
C. Is the Variation Application Suitable For Disposal Under Order 14A And/Or Order 33(2) And/Or Order 33(5) Of The ROC?
[11] The principles governing applications under O 14A and/or O 33 r 2 and/ or O 33 r 5 of the ROC are well settled. The Federal Court in Thein Hong Teck & Ors v. Mohd Afrizan Husain And Another Appeal, , citing with approval the Court of Appeal's decision in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd , ; reiterated that an application under O 14A of the Rules of the High 1980 (which is in pari materia with O 14A of the ROC) may only be used to dispose a case if: (i) there is no dispute between the parties as to the relevant facts; or (ii) the Court, from its scrutiny of the pleadings, concludes that the material facts are not in dispute; and (iii) the issues of fact are not interwoven with the issues of law. Hasan Lah FCJ in delivering the judgment of the Federal Court held as follows:
"[47] It is trite law that O 14A of the Rules of the High 1980 may only be resorted to if there is no dispute by the parties as to the relevant facts, or that the Court, upon scrutinizing the pleadings concludes that the ma
