MAINTENANCE OF WIFE

“Can I request a specific sum of money from my husband as maintenance for me?”

In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, S 78 of Law Reform (Marriage and Divorce) Act 1976 (LRA) indicates that the court shall determine the amount based on the means and needs of the parties as well as the degree of responsibility. In Koay Cheng Eng v Linda Herawati Santoso, in assessing the means and needs of the parties, the court takes note of the duration of the marriage, whether there were any children of the marriage, the age of the parties, whether the husband had financially supported the wife during of their marriage, the parties’ earning capabilities and whether the divorce would have affected the husband’s position financially.

In case that one is going to request a specific amount of maintenance, S 80 of LRA also provides that parties to a marriage may enter into an agreement for the payment, in money or other property for all future claims to maintenance but it will only be effective if it has been approved subject to conditions by the Court.

“When will the agreement to pay maintenance ceased to be effective?”

S 81 of LRA provides that if the maintenance was unsecured, an order for maintenance will expire when the party is dead. However, if the maintenance was secured, even if the spouse is death, the other spouse may receive maintenance from the person whom the favour was made.

According to S 82 of LRA, a divorced person who previously receive maintenance from his/her ex-spouse shall cease to receive the maintenance if he/she has remarried or living in adultery with any person unless the agreement said otherwise. However, if the person who is responsible to pay the maintenance is remarried, the maintenance order will not cease which we may refer to Lim Hong Bee v Mah Teck Oon. In this case,the husband contented that he has remarried and therefore is entitled to be discharged from paying any maintenance but the court held that the husband’s remarriage does not constitute a material change in circumstances.

“Although I have divorced with my wife, I paid for maintenance. I found that she is living in adultery. It is not fair. She spent my money on the other men. Can I stop paying the maintenance?”

One may stop paying maintenance to his former wife as according to S 5(2) of MWCA if she is living in adultery or if she refuses to live with her husband without any sufficient reason.  

‘Can I make changes to the agreement after the contract is made?’

If one wishes to vary the maintenance agreement, under S 83 of LRA and S 6(1) of Married Woman and Children (Maintenance) Act 1950 (MWCA), the court may vary or rescind order for maintenance, whether secured or unsecured when the order was found to be based on any misrepresentation; mistake of fact; or where there has been any material change in the circumstances. The person who applies for the changes must prove and make sure that the changes are material but not any changes minor in nature and does not affect the maintenance order. As an example, in Anna Tay Siew Hong v Joseph Ng Tiong Yong, the husband filed an application for a rescission of the maintenance order as he claimed that he was 60 years old, suffering from several ailments, had no permanent work and was dependent on his second wife for financial support. The application was allowed by the court because there had been a material change in the circumstances.

 “The maintenance is left unpaid for nearly four years, can I grant it back now?”

Although S 86(1) of LRA provides that arrears of unsecured maintenance shall be recoverable as a debt from the defaulter and if there is accrued maintenance due before his or her death, shall be a debt due from his or her estate, there must have an agreement between both parties to prove such matter and it must be claimed within 3 years according to S 86(3) of LRA. To illustrate, in Choong Yee Fong v Ooi Seng Keat, the lack of an agreement/ court order between the respondent and the petitioner to pay maintenance to the petitioner, caused the petitioner to lose her claim for arrears in maintenance.

Read also: Adultery

MAINTENANCE OF CHILDREN

“Is both parents responsible to pay maintenance for children?”

S 92 of LRA provides the parental duty to pay maintenance which means both father and mother are responsible for the care of children. For father, under S 93(1) of LRA, the court may order the father to pay maintenance as it was father’s obligation to maintain the standard of living of the child. In the case of Leow Kooi Wah v Ng Kok Seng Philip & Anor, both parents are earning, so both would have a liability to maintain their children according to his or her means.

“When will the maintenance of child cease?”

Generally, there are three situations where the parents may cease to pay the maintenance. It is governed under S 95 of LRA, when the child attains the age of 18 years; or where the child is under physical or mental disability, on the ceasing of such disability; or where the child is pursuing further or higher education or training, on completion of such further or higher education, the maintenance order shall expire unless the court orders for a shorter period.

Children education shall not be affected just because his or her parents have divorced. They shall support the educational fees as we may see the case, Tong Sek Ee v Ho Shu Joon where the court held that although the legal position was that an order for custody or maintenance of a child shall expire on the attainment by the child of the age of 18 years, the respondent husband is responsible to bear the educational expenses for the child’s first academic degree.