SECTION 3:
JUDICIAL SEPARATION
SECTION 4:
NULLITY OF MARRIAGE
4.1 VOID MARRIAGES
4.2 VOIDABLE MARRIAGES
4.3 CONSEQUENCES OF A NULLITY DECREE
SECTION 5:
MAINTENANCE
5.1 MAINTENANCE DURING MARRIAGE
5.2 PROCEDURE TO CLAIM FOR MAINTENANCE DURING MARRIAGE
5.3 MAINTENANCE AFTER DIVORCE |
SECTION 3
JUDICIAL SEPARATION
3.1 If you opposed to divorce whether on religious or other grounds but you wish to live apart from your spouse, you may petition to the Court for a decree of judicial separation.
3.2 In order to obtain such a decree, you must prove the same grounds as in a divorce petition as stated in 2.1.1(d).
3.3 Once the Court grants such a decree, you are no longer obliged to live with your spouse. However, such a decree is not a divorce.
3.4 The wife's property will then devolve in the case if she dies intestate (i.e., without making a will), as if her husband was dead.
3.5 You may still petition for a divorce after a decree for judicial separation is granted.
SECTION 4
NULLITY OF MARRIAGE
4.1 VOID MARRIAGES
4. 1.1 Even if you have gone through a ceremony of marriage, there is no legal marriage if.
(a) either of you is already lawfully married and the former spouse is still living;
(b) a male person marries under eighteen (18) years of age or a female who is between sixteen (16) years and eighteen (18) years, marries without a special marriage licence issued by the Chief Minister;
(c) if the person to whom you are married is within the prohibited close family relationships;
(d) you and your spouse are not respectively male and female.
4.1.2 In any of the above situations, your marriage is considered a "void marriage" in law, i.e., it is not a valid marriage from the very beginning.
4.2 VOIDABLE MARRIAGES
4.2.1 Although there is a legal marriage, you may petition to the Court to annul your marriage in any of the following circumstances:
(a) if the marriage has not been consummated due to incapacity of either you or your spouse to do so;
(b) when after the marriage your spouse refuses, without good reason, to consummate the marriage;
(c) when either of you did not consent to the marriage or your consent was obtained as a result of threats, mistake or unsoundness of mind;
(d) when at the time of the marriage, either of you though capable of giving a valid consent, was suffering from mental illness such as to be unfit for marriage;
(e) when at the time of the marriage your spouse was suffering from venereal disease in a communicable form; or
(f) when at the time of the marriage your wife were already pregnant by someone other than by you.
4.2.2 If any of the above situations occurs, your marriage is considered a "voidable marriage", i.e., you can petition to Court for a decree of nullity to declare the marriage void.
4.2.3 The Court will not grant the decree of nullity if.
(a) since the marriage, you knew that you have grounds for nullity but gave your spouse the impression that you will not seek a decree;
(b) the Court finds that it would be unjust to your spouse to grant the decree;
4.2.4 If you are asking for decree of nullity of marriage on grounds stated in Section 4.2.1(e) or 4.2.1(f), you must prove to the Court that you were ignorant of these facts at the time of the marriage.
4.2.5 Collusion does not prohibit the granting of a decree of nullity.
4.3 CONSEQUENCES OF A NULLITY DECREE
4.3.1 Like a divorce decree, a nullity decree only becomes absolute after a period, usually three (3) months.
4.3.2 A decree of nullity granted on the ground that the marriage is voidable operates to annul the marriage only after the date of the decree and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.
4.3.3 Once it becomes absolute you are free to marry.
4.3.4 However, any child or children born of a voidable marriage which has been annulled will be and will remain legitimate.
4.3.5 The children of a void marriage will only be considered legitimate if at the time of the solemnisation, the parties to the marriage reasonably believed that the marriage was valid and this only applies if.
(a) the father of the child was domiciled in Malaysia at the time of marriage; and
(b) in so far as it affects inheritance to any property only to children born after 1 st March 1982.
SECTION 5
MAINTENANCE
The Court may order the man to pay maintenance to his wife/former wife:
(a) during the matrimonial proceedings.
(b) when granting the decree of divorce or judicial separation; or
(c) if after a decree declaring her presumed to be dead, she is found to be alive.
5.1 MAINTENANCE DURING MARRIAGE
5. 1.1 Under the Married Women And Children's (Maintenance) Act 1950, a married woman is entitled to maintenance from her husband for herself and their children to maintain themselves during the marriage without having to wait for the divorce hearing in the Court.
5.1.2 An illegitimate child is also entitled to claim maintenance from his/her father.
5.1.3 The wife is entitled to claim reasonable maintenance when:
(a) the husband neglects to support her; or
(b) he refuses to provide for the family.
5.1.4 Upon proof of either of the above situations, the Court may order the husband to make a monthly allowance as maintenance.
5.1.5 When making a maintenance order, the Court normally will take the following circumstances into consideration:
(a) The husband's means;
(b) The family's financial needs such as food and lodging expenses and the children's education;
(c) The wife's physical or mental disability; and
(d) The standard of living enjoyed by the family before the husband neglected or refused to provide maintenance.
5.2 PROCEDURE TO CLAIM FOR MAINTENANCE DURING MARRIAGE
5.2.1 Make out a complaint at a Magistrate's Court. In the complaint the wife is required to state how much the husband is earning, how many dependent children there are, how much maintenance they need and circumstances under which the husband has failed to maintain them. No fee is required for filing this complaint.
5.2.2 The Court will then order a notice to be sent to the husband and a day will be fixed for a Court hearing.
5.2.3 At the hearing, after taking all the evidence and when the Court is satisfied that the husband has failed to provide maintenance, it will grant a Maintenance Order against the husband. The maintenance is payable from the date of neglect or refusal or from such date as is stated in the order.
5.2.4 If either party is not satisfied with the Order, he/she has a right to appeal.
5.2.5 Subsequently if there is a change in circumstances, e.g. if the husband earns more, or if the wife finds that the Maintenance Order is inadequate, the wife can return to the Court and ask for a variation order. Similarly, if the husband's circumstances change, for example, if he loses his job, he can also ask for the Order to be varied.
5.2.6 If the husband faiIs to make one or more payments, the wife can make a complaint to the Court and the Court will issue a notice to show cause to the husband. If he fails to show cause he can be imprisoned for up to one (1) month for each month's maintenance he defaults.
5.2.7 To ensure that the husband does not default the wife can apply to the Court for an attachment of earnings' order which means that the husband's employer will be responsible for deducting the maintenance payment from the husband's salary so that it can be sent to the wife directly through the Court. It is advisable that this application be made at the same time the application for maintenance is filed.
5.2.8 If the husband is not a wage earner but has other sources of income then the Court can make an order that the maintenance sum be paid direct to the Court to be forwarded to the wife.
5.3 MAINTENANCE AFTER DIVORCE
5.3.1 The Court may order a husband to pay maintenance to his wife/former wife:
(a) when granting the decree of divorce or judicial separation; or
(b) if after a decree declaring her presumed to be dead, she is found to be alive.
5.3.2 The Court may also order the wife to pay maintenance to her husband/former husband if he is unable to earn a living due to mental or physical injury or ill-health and the Court is satisfied that having regard to her means, it is reasonable to order so.
5.3.3 In deciding the sum for maintenance, the Court shall consider the following facts:
(a) the future and present income, property resources and earning capacity of both parties;
(b) the financial needs of both parties;
(c) the degree of responsibility which the Court apportions to each party for the breakdown of marriage.
5.3.4 The Court may order that the person liable to pay maintenance to provide security to guarantee payment of such maintenance.
5.3.5 An agreement for payment of a capital sum (whether money or other property) in settlement of all future claims to maintenance is not effective unless it has been approved by the Court and when so approved is a good defence to any claim for maintenance.
5.3.6 An order for maintenance shall expire or cease to have effect:
(a) if the divorced spouse in whose favour the order was made remarries or lives in adultery with any other person;
(b) 'where the maintenance was unsecured, on the death of either party; or
(c) if the maintenance was secured, on the death of the spouse in whose favour the order was made.
5.3.7 The Court may at any time and from time to time vary or rescind any order for maintenance upon application by either party where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances as such substantial increase in the salary/income of either party, change in health conditions or remarriage of one party.
5.3.8 You may also make an agreement for maintenance. However, the Court may at any time and from time to time vary the terms of such an agreement where it is satisfied there has been material change in the circumstances notwithstanding any provision to the contrary in such agreement
5.3.9 The right of any divorced person to receive maintenance from his or her former spouse under an agreement also ceases when he/she remarries or lives in adultery with any other person unless the agreement states otherwise.
5.3.10 Maintenance payable to any person under any Court order cannot be assigned, transferred and is not liable to be attached, sequestered or levied upon for any debt or claim whatsoever.
5.3.11 Arrears of maintenance can be recovered as a debt from the defaulter:
(a) if the defaulter is dead and the arrears accrued due before his/her death, the arrears can be claimed from his/her estate;
(b) if the arrears accrued due before the death of the wife or husband entitle to it, then her/his personal representative can make a claim for it.
(c) If the arrears accrued due before the making of a receiving order again the defaulter it should be provable in his or her bankruptcy.
5.3.12 The maximum period for which arrears can be claimed is three (3) years before the claim is filed.
(Reproduced with the courtesy of the Bar Council.) |