1. Application to vary child maintenance order under Section 96, LRA, following an amendment to Section 95, LRA, regarding maintenance for children pursuing higher education. (Para 1 , 3 , 4 , 6 , 8 )
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2020 MarsdenLR 1082
HIGH COURT (KUALA LUMPUR)
FAIZAH JAMALUDIN, J
SSS – Plaintiff
Versus
JTSV – Defendant
DIVORCE PETITION NO. S8-33-1613-2004
Advocates:
Nicole Wee (Chooi & Company + Cheang & Ariff) for Petitioner Husband.
Honey Tan (Tay Kit Hoo with her) (Tan Law Practice) for Respondent Wife.
Nicole Wee (Chooi & Company + Cheang & Ariff) for Petitioner Husband.
Honey Tan (Tay Kit Hoo with her) (Tan Law Practice) for Respondent Wife.
Legislative amendments to the duration of child maintenance orders do not apply retrospectively to concluded proceedings nor constitute a "material change in circumstances" under the Law Reform (Marriage and Divorce) Act 1976 if the child attained majority before the amendment's commencement.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 95 and 96 - Law Reform (Marriage and Divorce) (Amendment) Act 2017 - Section 8 - Duration of maintenance orders - Variation of orders - Material change in circumstances - Finality of judgments - The statutory right to vary orders for child maintenance under section 96 of the Act does not negate the finality of the original judgment; the doctrine of res judicata prevents the relitigation of matters already decided to ensure judicial efficiency and protect litigants (Paras 30-39).
(B) Law Reform (Marriage and Divorce) (Amendment) Act 2017 - Section 8 - Transitional provisions - An action or proceeding is not considered "pending" if a final decree has already been entered; subsequent compliance with the terms of a decree does not reopen the proceedings or render them pending (Paras 40-46).
(C) Statutory Interpretation - Retrospectivity - Amendments to legislation do not have retrospective effect unless expressly provided in transitional provisions; an amendment to the age of maintenance expiry does not apply to a child who attained the age of majority before the amendment came into operation (Para 50).
Facts of the case:
Marriage was dissolved by a consent decree which included financial provisions for a child's education. The child reached the age of 18 before an amendment to the law regarding the duration of maintenance orders came into effect. The wife subsequently applied to vary the decree for additional maintenance for higher education, contending that the legislative amendment constituted a "material change in circumstances" under section 96 of the Law Reform (Marriage and Divorce) Act 1976.
Findings of Court:
The divorce proceedings were not pending at the time the amendment came into force as the final decree had been entered years prior. The amendment to the law does not constitute a material change in circumstances under section 96 of the Act for proceedings that were already concluded.
Issues: Whether the divorce proceedings were "pending" under the transitional provisions of the Amendment Act; whether the amendment to section 95 of the Law Reform (Marriage and Divorce) Act 1976 constitutes a "material change in circumstances" justifying a variation of the maintenance order under section 96 of the same Act.
Ratio Decidendi: The court held that the doctrine of res judicata ensures finality of judgments, and the statutory ability to apply for variation does not render a judgment non-final. Since the decree was final, the proceedings were not "pending" under the transitional provision of the Amendment Act. Consequently, the amendment to the law cannot be used retrospectively to extend maintenance for a child who had already reached 18, nor does such a legislative change constitute a "material change in circumstances" for a concluded case.
Result: Variation Application dismissed.
Legal Category Hierarchy
- family law
- practice and procedure
Table of Contents
2. Whether the amendment to Section 95, LRA, constitutes a material change in circumstances and whether the proceedings were pending under the Amendment Act's transitional provisions. (Para 7 , 15 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 )
3. The court analyzed the finality of judgments, the scope of transitional provisions, and the distinction between a final decree and subsequent variation applications. (Para 16 , 17 , 18 , 19 , 20 , 21 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 42 , 43 , 44 , 45 )
4. Statutory rights to vary maintenance orders do not negate the finality of judgments or render proceedings pending for the purpose of transitional legislative provisions. (Para 30 , 39 , 46 )
5. Variation application dismissed. (Para 54 )
6. When do transitional provisions of an amending Act apply to legal proceedings?
Transitional provisions apply to actions or proceedings that were commenced or pending immediately before the date the amending Act came into operation. (Para 17 , 20 , 21 , 46 )
7. Does the statutory right to vary maintenance orders under the LRA affect the finality of a court judgment?
No. The statutory right to vary orders based on material change in circumstances, or the implied liberty to apply, does not render a judgment less final or prevent the application of the doctrine of res judicata. (Para 30 , 33 , 36 , 37 , 39 )
8. Does a legislative amendment to the duration of maintenance orders automatically constitute a material change in circumstances under Section 96, LRA?
Not necessarily. If the proceedings do not fall within the transitional provisions and the amendment does not apply retrospectively to the specific case, the amendment does not constitute a material change in circumstances justifying a variation. (Para 49 , 50 , 52 )
Faizah Jamaludin J:
JUDGMENT
A. Application
[1]This is the petitioner husband’s application under Order 14A and/or Order 33 Rule 2 and/or Order 33 Rule 5 of the Rules of Court 2012 for the determination of the five questions of law listed in paragraph [14] below.
B. Facts
[2]The marriage between the husband and wife was dissolved pursuant to a Decree Nisi dated 1.5.2005 (“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 17.1.2018. 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 95Law Reform (Marriage and Divorce) Act 1976LRA”) was amended by section 7 of the Law Reform (Marriage and Divorce) (Amendment) Act 2017 (Act A1546) (the “Amendment Act”). The amendments to section 95 of the LRA by the Amendment Act are 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 section 95 of the LRA came into force on 15.12.2018; after CLS reached the age of 18 years.
[6]On 18.7.2019, 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 is insufficient to cover CLS’ current education and university expenses in Australia.
[7]It is the wife’s case that the amendment to section 95 of the LRA constitutes “a material change in circumstances” for purposes of section 96 of the LRA.
[8]This Court is empowered under section 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 the wife’s Variation Application under Order 14A and/or Order 33 Rule 2 and/or Order 33 Rule 5 of the Rules of Court 2012 (“ROC”) (“ Order 14A Application”).
[10]The parties agree that the husband’s Order 14A Application is suitable for disposal of case on point of law and that the Order 14A Application be heard and disposed off 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 Order 14A and/or Order 33(2) and/or Order 33(5) of the ROC are well-settled. The Federal Court in Thein Hong Teck & Ors v Mohd Afrizan Husain & Another Appeal ; [2012] 2 MLJ 299; [2012] 1 AMR 489, citing with approval the Court of Appeal’s decision in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd ; [2008] 2 MLJ 812; reiterated that an application under Order 14A of the Rules of the High Court 1980 (which is in pari materia with Order 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 Court 1980
