G E M v P E T (WA-33-243-05/2021)

This was an application in enclosure 79 (“this Application”) by the Petitioner wife for ancillary relief for spousal maintenance in the monthly amount of MYR2,000, to be calculated from May 2021, and for the Respondent husband to disclose fully his income and assets. In this Application, the Petitioner had also claimed 50% of the value of the matrimonial home, 50% of the Respondent’s shares in specific companies, and 50% of their child’s school fees to be reimbursed.

Due to the importance of safeguarding the privacy of the parties involved and the sensitivity of the issues addressed in these proceedings, the names of the Petitioner and Respondent have been anonymised in this judgment as GEM and PET respectively.

The Petitioner and Respondent (collectively “the Parties”) aged 64 and 58 respectively, at the time of the hearing of this Application, were married in January 1988 and were blessed with a son (“the Child”), aged 24 at the time of the hearing of this Application. 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 3 [4] Following their marriage, the Parties initially established their matrimonial home at Jalan Kasipillay, Kuala Lumpur. However, in April 2020, the Petitioner chose to depart from the matrimonial home, citing instances of domestic violence as the reason for her departure. Subsequently, the Petitioner sought accommodation by residing with her sister.

In May 2021, the Petitioner filed a divorce petition, and in October 2022, she filed this Application, which was scheduled to be heard on 19 January 2023. However, it was discovered that the Parties had not filed their respective statements of income and assets, pursuant to rule 61 of the Divorce and Matrimonial Proceedings Rules 1980, which reads: Rule 61 – General provisions as to evidence etc on application for ancillary relief

A petitioner or respondent who has applied for ancillary relief in his petition or answer and who intends to proceed with the application before a registrar shall, subject to Rule 84, file a notice in Form 12 and within four days after doing so serve a copy on the other spouse.

Where a respondent or a petitioner is served with a notice in Form 11 or 13 in respect of an application for ancillary relief, not being an application to which Rule 62 or 63 applies then, unless the parties are agreed upon the terms of the proposed order, he shall, within 14 days after service of the notice, file an affidavit in answer to the application containing full particulars of his property and income, and if does not do so, the court may order him to file an affidavit containing such particulars.

Within 14 days after service of any affidavit under paragraph (2) or within such other time as the court may fix, the applicant shall file an affidavit in reply containing full particulars of his property and income. [Emphasis added.] 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 4 [6] Hence, this Application, was rescheduled to 7 March 2023 after the Parties had filed further affidavits to reflect their income and assets. [7] This Application was allowed only partially, for the following reasons. Contentions, evaluation, and findings [8] The starting point of this Application is section 77 of the Law Reform (Marriage & Divorce) Act 1976 (“Law Reform (Marriage & Divorce) Act”), which empowers this Court to order maintenance payment against the husband for the benefit of his wife. The provision reads: Section 77 – Power for court to order maintenance of spouse

The court may order a man to pay maintenance to his wife or former wife –

during the course of any matrimonial proceedings;

when granting or subsequent to the grant of a decree of divorce or judicial separation;

if, after a decree declaring her presumed to be dead, she is found to be alive. [Emphasis added.] [9] First and foremost, it is important to note that section 77(1) of the Law Reform (Marriage & Divorce) Act grants the Court the discretion to determine whether the Petitioner was entitled to maintenance, as indicated by the use of the word ‘may’. However, it was essential to consider that the obligation for a man to maintain his wife or former wife is not an absolute rule. 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 5 [10] It should be acknowledged that the Law Reform (Marriage & Divorce) Act was formulated during a time when societal gender roles were more clearly defined. In that era, women predominantly assumed the role of stay-at-home mothers, relying financially on their husbands who were the primary breadwinners for the family. Consequently, the provisions of the Law Reform (Marriage & Divorce) Act were designed with this traditional family structure in mind. [11] Nevertheless, it is crucial to recognise that societal dynamics have evolved significantly since the enactment of the Law Reform (Marriage & Divorce) Act. Today, gender roles are more fluid, and both parties to a marriage often contribute to the financial well-being of the family. Consequently, it is important for the Court to consider the specific circumstances of each case and exercise discretion when determining whether maintenance should be awarded to the Petitioner. Whether Petitioner had fulfilled ‘means and needs’ test [12] The subsequent issue that this Court had to address was whether the Petitioner had fulfilled the ‘means and needs’ test. At this juncture, it was important to note that the law on a claim for maintenance is documented in section 78 of the Law Reform (Marriage & Divorce) Act, which reads: Section 78 – Assessment of maintenance 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, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 6 the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. [Emphasis added.] [13] The application of section 78 of the Law Reform (Marriage & Divorce) Act was seen in numerous cases including Sreedevi Naidu a/p T Sree Ramalu Naidu v Eelasegaran a/l T Nadarajah & Anor [2016] 3 MLJ 26 and Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 863, where in the latter case, it was stated by Hashim Yusoff JCA, speaking for the Court of Appeal, in the following passages: What is needed to be decided now is the amount of maintenance to be awarded to the wife. It is an established principle that in deciding what amount of maintenance the husband should pay the wife, the court must take into consideration the means and needs of the parties. In assessing the means and needs of the parties the court has always had regard to 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 the duration of their marriage, the parties earning capabilities and whether the divorce would have affected the husband's position financially. [26] We are of the view that with the standard and cost of living of the respondent, the sum awarded is justifiable. We are in agreement with the learned counsel for the respondent that the respondent is to be placed in a position to enjoy the same standard of living as she had during the existence of the marriage [Emphasis added.] [14] Reference was made also to the case of Ananda Dharmalingam v Chantella Honeybee Sargon [2006] 6 MLJ 179, where I drew guidance from the enlightening comments made by Faiza Thamby Chik J, in the following passage: 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 7 Having dealt with the above facts, I will reiterate the two separate tests set out in the LRA (one for the wife and another for the children) that must be considered in considering maintenance for the wife and children herein. By virtue of s 78 of the LRA set out aforesaid, the only test that this court needs to adopt in deciding if (interim) maintenance should be awarded to the wife in these proceedings is the means and needs of the parties. The wife in the application herein contends that she needs RM6,800 in maintenance. However, the wife has not satisfied or discharged her duty to evidence that she does indeed need this sum of money. Indeed, the breakdown put forward by the wife at para 8 of her affidavit affirmed on 21 June 2004 does not add up to the amount of RM6,800. Further, the matters detailed in the said breakdown have not been evidenced by any receipts or bills or any form of documentation or other evidence whatsoever. It is therefore my finding that the wife has not adequately and/or properly evidenced her needs and that the figure of RM6,800 claimed by the wife in the application herein is an excessive and unjustified amount. the husband in this case had been working in government service until recently. He left government practice at the end of last year. He only began working as a doctor in private practice from March 2004. In the circumstances, this is a husband who had only just started out in his career in private practice. [Emphasis added.] [15] By mandating an assessment of the means and needs of both parties, section 78 of the Law Reform (Marriage & Divorce) Act ensures that the Court takes into account the financial circumstances and obligations of each individual. Furthermore, the consideration of the respective conduct of the parties is an important aspect of the Court’s evaluation. This provision acknowledges that the breakdown of a marriage is often a complex and multifaceted issue, with both parties potentially contributing to the circumstances that led to its irretrievable breakdown. By assessing the behaviours and actions of each party, the Court aims to establish a comprehensive understanding of the situation and ensure that any 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 8 maintenance awarded aligns with the principles of fairness and equity. [16] In the present case, both the Petitioner and Respondent had levelled allegations of domestic violence against each other. Considering the contested nature of these allegations, it was my view that the most suitable time to ascertain responsibility for the breakdown is during the hearing proper of the divorce petition. Thus, I took the position that it would be inapt, at this stage, for this Court to delve into apportioning blame for the breakdown of the marriage. As such, bearing in mind that this Application was an interim one, only the ‘means and needs test’ was considered. [17] The requirement of considering both the Petitioner’s needs and the Respondent’s means is essential. The conjunctive requirement of ‘means and needs’ ensures a comprehensive assessment, taking into account the financial capabilities of both Parties involved. It is worth noting that this consideration remains significant regardless of the proportion of maintenance in relation to the income of the husband or wife, as applicable. [18] In the current proceedings, the Respondent consistently maintained that he lacked any financial means to provide support to the Petitioner. He justified his stance by presenting a range of reasons, including the adverse impact of the COVID-19 pandemic on his business and his ongoing responsibility to support his unemployed son. He also made unsubstantiated averments of his ailments and illnesses, and the fact that he had to support his son who was currently unemployed. 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 9 [19] The Respondent vehemently refused to provide the Petitioner with any form of maintenance and adamantly asserted that the Petitioner had complete control over all assets and businesses. He went so far as to insist that he currently resides in a decrepit house and lacked the financial means to sustain himself, let alone support the Petitioner. [20] I found the reasons presented by the Respondent to be weak and insufficient in justifying a complete exemption from providing maintenance to the Petitioner. The excuse of the COVID-19 pandemic, which the Respondent relied upon, is a commonly used argument and, in this case, lacked substantial merit. Additionally, the Respondent’s claim of ongoing support for the Child could not be considered by this Court, given that the Child is already 24 years old and had completed his tertiary education. [21] Although it had been alluded to earlier that there is no hard and fast rule for a man to maintain his wife or former wife, it is important to note that this does not imply complete exemption for the Respondent from providing maintenance to the Petitioner. [22] In the present case, it was brought to light that the Respondent is director and shareholder of two companies, namely Creative Pathfinders Sdn Bhd and Nation Events Sdn Bhd (although he had denied making any profit from such companies). Additionally, the Respondent not only owned BMW cars, he had also made substantial withdrawals from his Employees Provident Fund (“EPF”). Despite his claim of residing in a run-down dwelling, it was conveniently left unmentioned by the Respondent that the said dwelling was, in fact, a bungalow. It was, therefore, untenable for 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 10 him to claim that he could not to pay the Petitioner any maintenance whatsoever. [23] I also had to bear in mind that the Petitioner had no alternative but to separate from the Respondent due to significant disagreements within the marriage. As such, it would be inequitable for the Respondent to completely wash his hands off the Petitioner’s welfare. [24] Upon a thorough examination of the affidavit evidence, it was clear that whilst the Petitioner required financial assistance, I observed that she had not adequately substantiated her claim for a monthly sum of MYR2,000 to sustain her livelihood. It was undisputed that she possessed a property, referred to as the Mayfair Property, which generated a rental income of MYR1,100 (despite her assertion that the net rental was only around MYR700). [25] Although the Petitioner had provided an itemised list of expenses, I took the position that it would be inequitable for her to insist that the Respondent pay to maintain the Mayfair Property, her Subaru car as well as their Child’s insurance. [26] Consequently, I firmly concluded that it was incumbent upon the Respondent to contribute a monthly maintenance sum of no less than MYR1,000, which should be deposited into the Petitioner’s designated account by the 7th of every month. This determination was grounded in the understanding that the Petitioner, presently residing with her sister, required means to sustain herself. From my perspective, this amount was reasonable and not excessive, 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 11 considering the Respondent’s history of providing for the Petitioner even prior to the deterioration of their marital relationship. [27] I however had refused to allow the Petitioner’s claim for 50% of the value of the matrimonial home, 50% of the Respondent’s shares in specific companies and 50% of their Child’s school fees to be reimbursed, as I was of the view that these items would he better addressed at the full hearing of the divorce petition. Conclusion [28] In conclusion and with the aim of upholding justice, and following a thorough examination and prudent evaluation of all the evidence adduced, encompassing both written and oral submissions by Counsel, this Application was allowed, only to the extent of a monthly spousal maintenance of MYR1,000, which is to be deposited into the Petitioner’s bank account by the 7th of every month from the date this decision was delivered. No other relief prayed for by the Petitioner in this Application was allowed. Dated: 20 June 2023 SIGNED …………………………………………. 20 June 2023 ………………………………………………………………………………………… _____________________________________________________________________ 12 (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner wife – Lee Sok Wah and Nuramira Hidayah binti Razali; Messrs Lee Sok Wah & Co Respondent husband in person Cases referred to: ➢ Ananda Dharmalingam v Chantella Honeybee Sargon [2006] 6 MLJ 179 ➢ Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 863 ➢ Sreedevi Naidu a/p T Sree Ramalu Naidu v Eelasegaran a/l T Nadarajah & Anor [2016] 3 MLJ 26 ➢ Wong Chong Kiew v Lee Hock Seng [2020] MLJU 254 Legislation referred to: ➢ Divorce and Matrimonial Proceedings Rules 1980 – rule 61 ➢ Law Reform (Marriage and Divorce) Act 1976 – sections 77, 78