the determination of any title or interest by operation of law.”. 16 17 [36] This would be in accord with established principles of law as 18 explained in the case of Kumaradevan Rajadevan v Jeevamalar 19 Kumarasubramaniam [2024] CLJU 887 : 20 21 “[18] This Court finds that this contention cannot stand as the facts are 22 crystal clear that both the Plaintiff and Defendant are co-proprietors. The 23 Plaintiff in his Affidavit at Enclosure 2, has exhibited a copy of the 24 registered title, showing that he and the Defendant are the co-proprietors 25 of the Property. As such, in line with section 340(1) of the NLC, this 26 Court finds that it is indisputable that the Plaintiff is the registered 27 proprietor of the half share of the Property. 28 … 29 [38] This Court finds that there is no order by the Family Court to restrain 30 the selling of the Property. Further, the Plaintiff as the rightful co- 31 proprietor, does have a right under section 145 of the NLC and O31 32 ROC 2012, accordingly.”. 33 S/N phfya82sEWtOk3zaUUd8w [37] The legal basis for such a conclusion is now well settled and beyond 1 question. It is crucial to bear in mind that as the co-proprietor of the 1st 2 property the PW is entitled to a share of the proceeds of the sale equally 3 to that of the RH. The RH is not entitled to diminish the rights of the PW 4 that is vested in the 1st Property and he cannot unilaterally at his sole 5 discretion use her share of the proceeds at his whims and fancies. 6 7 [38] Given the circumstances the contention by the RH that the PW is 8 not entitled to any part of the proceeds of the sale of the 1st Property is 9 unjust and inequitable. This Court accepts as correctly submitted by the 10 PW that her entitlement to half of the proceeds of the sale cannot be 11 further divided by the RH’s EPF withdrawal or any rental amount paid. 12 13 [39] It is the finding of this Court that the proceeds of the sale which is to 14 be divided are only to be taken and calculated from the sum of 15 RM420,000. This amount is substantiated and proved by the Sale and 16 Purchase Agreement executed by the parties. The documentary evidence 17 readily demonstrates that the 1st Property was transacted at the price of 18 RM420,000. In my judgement the RH’s insistence that the property was 19 sold at a lower price is not credible and devoid of merits. 20 21 [40] Accordingly, the PW is entitled to a half share (50%) of RM420,000 22 being the sale price of the 1st property. 23 24 2nd Property 25 [41] The RH has emphasized the fact that the 2nd Property is registered 26 solely in his name and that the costs towards purchase and upkeep of the 27 2nd Property was undertaken by him alone. He stated that the 2nd Property 28 was purchased at the price of RM768,000 by using part of the sale 29 S/N phfya82sEWtOk3zaUUd8w proceeds of the 1st Property and loan obtained from CIMB Bank Bhd. He 1 also made EPF withdrawals towards settlement of the loan sum. 2 3 [42] Relying on the provisions of Section 76 LRA 1976 the RH contended 4 that the PW had failed to adduce any documentary evidence showing that 5 she had contributed financially towards the purchase of the 2nd Property 6 or any significant non-financial contribution towards purchase of the 2nd 7 Property to justify her claim. 8 9 [43] The RH wished the court to take note that his contributions went 10 beyond financial contribution support incorporating non-monetary aspects 11 whereby he was responsible for maintenance and upkeep of the 2nd 12 Property. Furthermore, he claimed to have played an active role in the 13 care and well being of their only child. 14 15 [44] Premised on the above submissions, the RH had in his written 16 submissions suggested that the PW should be entitled to only 25% of the 17 value of the 2nd Property. He argued that the correct computation to be 18 undertaken by the Court should be based on the calculation shown below: 19 20 Valuation as at 29.3.2024 : RM900,000 21 Less Outstanding Loan as at 5.4.2024 : RM523,970.74 22 Less sum paid vide RH’s EPF towards 23 loan repayment : RM62,135.79 24 25 Net Value RM313,893.47 X 25% = RM78,473.36 26 27 [45] The PW took a dim view of the percentage offered by the RH. The 28 PW argued that notwithstanding the fact that the asset is not jointly owned 29 S/N phfya82sEWtOk3zaUUd8w by the PW, it still fell within the classification of a “matrimonial asset”. As 1 such the PW is entitled by law to an equal share of the value of the 2 property. 3 4 [46] I readily agreed with that contention which I think is the correct 5 proposition of the law. The decision of the court in the case of Au Yong 6 Kin Choy v Chow Ayi Lian [2024] MLRHU 65 has put this issue to rest 7 in the following paragraph : 8 9 “[12] In my view, the classification of assets as matrimonial cannot solely 10 be determined by registered ownership. Drawing insight from the 11 pertinent case of Ching Seng Woah v Lim Shook Lin [1995] 2 MLRA 12 487, Gopal Sri Ram JCA (as he then was) provided a definition of 13 matrimonial assets. In that case, he outlined the concept beyond mere 14 ownership, emphasizing factors that contribute to the marital estate. The 15 following passage from the case serves as a guiding principle in 16 understanding the broader scope of matrimonial assets: The Act does 17 not define what matrimonial assets are. We think that during the 18 subsistence of a marriage the expression refers to the matrimonial home 19 and everything which is put into it by either spouse with the intention that 20 their home and chattels should be a continuing resource for the spouses 21 and their children to be used jointly and severally for the benefit of the 22 family as a whole. It matters not in this context whether the asset is 23 acquired solely by the one party or the other or by their joint efforts. 24 Whilst the marriage subsists these assets are matrimonial assets. 25 Such assets could be capital assets. The earning power of each spouse 26 is also an asset. 27 [13] It was undisputed that all four Properties were acquired during the 28 course of the marriage, which was registered in 1992, and endured for 29 at least 29 years before the Divorce Petition was filed in April 2021. 30 Given these undisputed facts, it was my view that all four Properties 31 should be deemed matrimonial assets. Consequently, the Respondent 32 S/N phfya82sEWtOk3zaUUd8w was not entitled to a declaration suggesting otherwise. The pivotal issue 1 at hand, therefore, revolved around the equitable division of the four 2 Properties as dictated by s. 76 of the Law Reform (Marriage and 3 Divorce) Act.” 4 5 [47] As far as the 2nd Property is concerned I am of the view that the 6 PW’s claim for an equal share is not unfounded. I find myself in agreement 7 with the PW’s contention that when a marriage breaks up, the Court 8 should avoid undertaking an exercise of accounting for all expenditure 9 incurred for the duration of the marriage. It bears emphasis that the 10 function of the Court is to make a fair and equitable division of the 11 matrimonial assets that exist at the time of the divorce, always taking into 12 account the factors provided for in section 76 LRA. It is unclear why the 13 RH believed that the PW was only deserving of 25% share of the property. 14 I find there is no legitimate basis for the RH to concede only 25% 15 apportionment to the PW. 16 17 [48] In examining the parties’ contentions and assessment in regard to 18 the division of the 2nd Property I took particular consideration of the 19 duration of the marriage. As noted earlier the parties were married for 20 more than 20 years and they lived together with their Child in that property 21 until the marriage fell apart. While it was acknowledged that the PW had 22 not made direct monetary contributions towards the 2nd Property, it cannot 23 be denied that she had been a loyal and dutiful wife and mother. She had 24 gone through IVF in order to conceive their only child. This Court must 25 take into consideration her sacrifices in maintaining the home and caring 26 for the family and maintaining a work home balance. There is no denying 27 that this required much time, patience and commitment. 28 29 S/N phfya82sEWtOk3zaUUd8w [49] And I hardly need mention that the PW was left on her own to look 1 after their Child when the RH accepted a job offer in Nigeria and worked 2 there from May 2011 to 2016. It would not have been easy to have been 3 saddled with the sole responsibility of being the primary caregiver to the 4 growing Child. 5 6 [50] I reject the RH’s contention that the PW is entitled to only 25% of 7 the value of the 2nd Property. I find the concession of 25% suggested by 8 the RH is unfair and unjustified. It is a shame that all her sacrifices had 9 gone unappreciated. The PW from hereon has the responsibility of having 10 physical custody care and control of the Child who will continue to live with 11 her, hence it is fair that PW be given an equitable apportionment of the 12 distribution. 13 14 [51] This Court is much inclined towards equality of division. This point 15 is supported by a majority of cases. It is well illustrated in the case of 16 Baheerathy Arumugam V Gunaseelan v. Visvanathan [2013] 1 CLJ 17 954; [2012] 5 AMR 771, where Justice Yeoh Wee Siam held as follows :- 18 19 “The guiding principle under s. 76(2) of the LRA is for the court to incline 20 towards equality of division of the matrimonial assets if both parties have 21 acquired the assets by their joint efforts. “ 22 23 [52] As observed earlier, though she did not own a share of the 2nd 24 Property, the PW is entitled to benefit from this asset in recognition of her 25 sacrifices and hardship endured throughout the ups and downs of their 20 26 year marriage. By all accounts the RH was not an easy husband or father 27 to live with. His exacting standards set for his family were unrealistically 28 S/N phfya82sEWtOk3zaUUd8w high and there were harsh consequences when these standards were 1 crossed or not met to his satisfaction. 2 3 [53] This Court can and will take into account contributions that were 4 made in kind and not necessarily monetarily. I find nothing turns on the 5 complaint that the PW left the marriage, that factor ought not to be taken 6 against her because she was left with little choice. 7 8 [54] This court in its evaluation recognized and took note of the RH’s 9 financial contributions towards the 2nd Property. His contributions are not 10 overlooked. That said it is not to say the PW’s contributions were 11 insignificant and to be diminished. Her contributions to the family’s welfare 12 though non-monetary were valuable and ought to be acknowledged and 13 appreciated. 14 15 [55] It is abundantly clear from the facts adduced that the 2nd Property is 16 in fact a matrimonial home and consequently in line with the provisions of 17 section 76, I am satisfied and I hold that the PW and RH shall have equal 18 rights and apportionment of this matrimonial home. I am of the view that 19 such an approach is just and reasonable and in line with the formula set 20 out in section 76 LRA. 21 22 [56] In the circumstances of the case, I had ordered that the PW is 23 entitled to 50% of the value of the 2nd Property less the redemption sum 24 due to the chargee bank. As per the relief prayed for in Paragraph 29(h) 25 that apportioned ½ share shall be held upon trust in favour of their only 26 Child. 27 28 29 S/N phfya82sEWtOk3zaUUd8w EPF Contributions 1 [57] I refer to the PW’s claim for 50% of the RH’s EPF money and the 2 RH’s objections to it. It is settled law affirmed by numerous decided cases 3 that EPF is matrimonial asset and a wife may claim an apportionment of 4 the husband’s EPF account as at the date of decree nisi. (see Koay 5 Cheng Eng v Linda Herawati Santoso [2008] 4 CLJ 475, Ching Seng 6 Woah v Lim Shook Lin [1997] 1 CLJ 375. 7 8 [58] In my view the decision of the court in the case of Rajakumar a/l 9 Mariappan v Vijiya Selvarajoo [2024] CLJU 1293 clearly explained the 10 entitlement of a wife towards the husband’s EPF: 11 12 “[45] The Employees Provident Fund Act 1991 had been amended to 13 provide: 14 15 "S. 53A (1) Notwithstanding section 51, when an order is issued by a 16 court that part of the sums of money standing to the credit of a member 17 of the Fund is matrimonial asset, the Board may, after being served with 18 the sealed order, transfer the sum of money as ordered by the court from 19 the account of a of the Fund into the account of the receiver named in 20 the order subject to any terms conditions as prescribed by the Board.