Retirement and remarriage alone do not constitute material change in circumstances to justify discharge from maintenance obligations; a duty to maintain remains unless explicitly altered.

Introduction

[1] This is an application by the respondent husband by way of summons in chamber in encl (32) praying for the orders as follows:

(1) that the respondent is released or discharged from paying any maintenance from October 2007 to the wife under the consent order of court dated 27 February 1985;

(2) that cost of the application is borne by both parties; and

(3) other reliefs this court deems fit.

[2] The respondent husband in his application laid down the grounds for his application which are among others:

(i) that the respondent husband has obtained the age of 55 and has retired and thereby there is no obligation on his part to comply with the consent decree nisi order dated 27 February 1985;

(ii) that the petitioner wife is employed and capable of maintaining herself and therefore does not require any maintenance;

(iii) that the respondent husband has remarried and is entitled to be discharged from paying maintenance; and

(iv) that there is material change in circumstances in this case.

Factual Background

[3] From the pleadings adduced by both parties in this court, the facts of this case are as follows:

[4] The respondent husband and petitioner wife obtained a decree for divorce by consent on 27 February 1985. The material term for the said consent order is for the husband to pay the sum of RM300 per month as maintenance to the petitioner wife. The rate of payment is further to be increased annually at 8% per annum.

[5] The respondent husband had agreed to record the consent order with the advice of his solicitors. The said payment is to be paid to the petitioner wife without a cut off period.

[6] From November 2007 onwards, the husband without seeking and obtaining any order from the court, unilaterally decided to stop making any payments towards the maintenance of the wife. Numerous letters and reminders were sent to the husband reminding him to make the said payments that were due but the reminders were ignored by the husband.

[7] Due to the husband's defiance of the said consent decree nisi order, the wife instituted committal proceedings against the husband which was filed vide encl 28.

[8] Upon being served with the committal papers, the husband filed this application to be released or discharged from the consent order dated 27 February 1985.

Respondent Husband's Submission

[9] In seeking the order to be discharged from the consent order dated 27 February 1985, counsel for the husband, Mr Loo Chay Meng submitted that on 5 November 2007 the husband attained the age of 55 and accordingly retired. Thus the retirement is a material change in circumstances and he should be automatically released from paying further maintenance under the consent order dated 27 February 1985.

[10] Mr Loo Chay Meng also submitted that the wife is capable of maintaining herself and therefore does not require any maintenance from the husband. Mr Loo referred to the case of Choong Yee Fong v. Ooi Seng Keat, Chua Chong Hong (Joint Respondent), 1984 MarsdenLR 5003 which stated:

The petitioner had the means within the contemplation of s 78 of the Act, to be self-sufficient and self-reliant to which her claim for maintenance to support herself must necessarily fail.

[11] Mr Loo further submitted that the husband has remarried and therefore is entitled to be discharged from paying maintenance. He referred to the case of Gisela Gertrud Abe v. Tan Wee Kiat , 1986 MarsdenLR 652 ; [1986] CLJ (Rep) 133 and the case of Amrick Lall v. Sowbaiavati ; [1973] 2 MLJ 191 to support his contention.

Petitioner Wife's Submission

[12] Counsels for the petitioner wife, Ms Velvashini and Ms Siau Chui Bing argued that it is clear from the express term of the decree nisi that the reasons of retirement and remarriage are clearly unjustifiable.

[13] They also submitted that the husband has not been truthful about his income as he has filed an affidavit of means without any supporting documents and made only bare allegation that he has no means to pay the maintenance.