FAMILY LAW & YOU SECTION 6 MATRIMONIAL PROPERTY

6.1

WHAT IS MATRIMONIAL PROPERTY? 6.1.1 Matrimonial property is:  The property both parties acquire during marriage, and  Also includes the property owned by one party before the marriage, but to which there has been substantial improvements made by the other party or by joint effort during marriage.

6.2

DIVISION OF MATRIMONIAL PROPERTY 6.2.1  

When granting a decree of divorce or judicial separation, the Court has the power to order one of the following: To divide matrimonial property between the parties, or To sell such property and then divide the proceeds of the sale between the parties.

6.2.2 In making such an order, the Court will consider the following facts:  The extent of the contribution made by each party whether in the form of money, property or work towards the acquisition of the assets  The debts incurred by either party for the benefit of both parties, and  The needs of the minor children, if any, of the marriage. Subject to these considerations, the Court tends to award equal shares to both parties. 6.2.3  

Where such property is acquired by the sole effort of one party only, the Court shall consider the following facts in dividing the assets: The extent of the contribution made by the other party who did not acquire the property, to the welfare of the family e.g. keeping the house clean, cooking and generally, looking after and caring for the family, and The needs of the minor children, if any, of the marriage. Subject to these considerations, the Court may divide the assets of the proceeds of sale. The Court will generally award the party who acquired the property a bigger share, but in all cases, the Court will do whatever is reasonable.

6.2.4  

The Court has also powers to deal with properties which were disposed off with the intention of OR reducing a person’s means to pay maintenance OR of depriving the other party of the rights to the properties as follows: If the disposition is still pending, the aggrieved party may apply to the Court for an injunction to prevent the disposition. If the disposition has been made within the preceding three (3) years, the aggrieved party can apply to the Court to set it aside. (i.e. the disposition is treated as if it was never made),



Such application can be made when: i. Any matrimonial proceeding is pending, ii. An order for the division of assets (jointly acquired during the marriage) has been made but not complied with, iii. An order for the maintenance of a wife or former wife or child has been granted, iv. Maintenance is payable under any agreement to any wife/former wife/child.

SECTION 7 WELFARE OF CHILDREN

7.1

WHO IS CONSIDERED A CHILD OF THE MARRIAGE?    

7.2

7.1.1 A child of the marriage is: A child of both parties who is under the age of (18) years, A child of one party to the marriage accepted by the other party, An illegitimate child, and/or A child legally adopted by either of the parties to the marriage. CUSTODY OF CHILDERN OF THE MARRIAGE 7.2.1

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The Court may at any time place a child of the marriage in the custody of one of the following persons: Either of the child’s parents, or Where there are exceptional circumstances making it undesirable that the child be entrusted to either parent: i. Any relative of the child, ii. Any organisation/association the objects of which include child welfare, or iii. Any other suitable person. 7.2.2

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The factors which help the Court to decide on the most suitable guardian are: Most importantly, the welfare of the child, The wishes of the parents, The wishes of the child if capable of independent opinion. 7.2.3

The Court usually presumes that it is for the good of a child below (7) years of age to be with his or her mother.

7.2.4

If one parent already has custody of the child, the Court will have regard to the undesirability of disturbing the child’s life by changes of custody and may not disturb the position.

7.2.5

Where there are (2) or more children, the Court is not bound to place both or all in the custody of the same person. The welfare of each child of the marriage will be considered independently of the rest.

7.2.6

The order for custody entitles the guardian to decide the child’s upbringing and education.

7.2.7    

The Court may impose such conditions as it deems fit in an order for custody and which may include: Matters relating to the child’s residence, education and religion, Temporary guardianship to someone other than the legal guardian, Visits to parent or relative(s) not granted custody, Right to access to the child for parent or relative not granted custody. 7.2.8

7.3

The order for custody may also prohibit the legal guardian from taking the child out of Malaysia.

TAKING CHILDREN OUT OF MALAYSIA

7.4

7.3.1

The Court also has powers to restrain the parent of a child from taking a child out of Malaysia.

7.3.2

An application can be made either at the time when any matrimonial proceeding is pending or after an order for custody has been granted to one parent.

7.3.3

Either parent can apply for an order to restrain the other from taking the child out of Malaysia.

7.3.4

The Court may grant the order or may give leave for such a child to be taken out of Malaysia with or without conditions imposed.

7.3.5

An application can be made by any interested party to restrain any person other than the person having the custody of the child.

7.3.6

Failure to comply with the order of Court relating to the above is punishable as a contempt of Court.

MAINTANANCE FOR CHILDREN   

7.4.1 Duty to maintain children. Whether or not the child is in the custody of a parent, it is the duty of both parents to provide or pay for the following items for the child, having regard to the parent’s means and station in life or by paying the costs of: Accommodation Clothing

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Food; and Education. 7.4.2 Liability of a man to maintain his children: A man be ordered by the Court to pay maintenance for his children: i. If he has refused or neglected to provide for the children, ii. If he has deserted his wife and the children are in her charge, iii. At any stage of any matrimonial proceedings, or iv. When an order for custody of the children is given to another or after the order is made. 7.4.3 Liability of a woman to maintain her children: The Court can order a woman to pay or contribute towards the maintenance of her children if it is reasonable to do so. 7.4.4

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Factors which the Court will take into consideration when making an order for maintenance for any child: The financial needs of the child, The income, earning capacity, property and other financial resources of the parent, The standard of living enjoyed by the family before the breakdown of the marriage, Any physical or mental disability of the child, The manner in which he/she was being educated and trained, The manner in which the parties to the marriage expected him/her to be trained, and All the circumstances of the case. 7.4.5 Order for maintenance expires: When the child attains (18) years of age; or Where the child is under any physical or mental disability, on the ceasing of such disability, whichever is the later. 7.4.6 The court has powers to vary its own orders for custody and maintenance Any interested party can apply for the variation; The factors that can be taken into consideration are: (i) that the order was based on any misrepresentation/mistake of fact; or (ii) where there has been any materials change in the circumstances 7.4.7 (i) (ii)

The Court has powers to vary agreement for custody and maintenance as follows: the terms of any such agreements can be varied; the Court will take into consideration such factors as to whether it is reasonable and whether it is for the welfare of the child to do so

7.4.8 Recovery of arrears of maintenance:  Arrears of maintenance are recoverable for a maximum period of (3) years;  Arrears are recoverable if the accrued before a receiving order was made against the defaulter and shall be provable in his bankruptcy,  Arrears are recoverable as a debt due from the defaulter’s estate if they accrued before the defaulter’s death.

SECTION 8 DOMESTIC VIOLENCE

8.1

DOMESTIC VIOLENCE 8.1.1    

If your spouse has used or threatened to use violence against you, you may seek one of the following reliefs: Apply to the High Court for an order restraining your spouse from doing so. However, this relief is only available if a petition for the dissolution of the marriage has been presented by one of you. Apply for an injunction from the High Court restraining your spouse from using or threatening to use violence against you. Seek protection under criminal proceedings for hurt, criminal force or assault by making a police report but such proceedings will have to be brought by the police who will be responsible for prosecuting your spouse. If no action is taken by the police as in 8.1 (c), then you can go to a Magistrate’s Court and make out a complaint on oath to the Magistrate. i. You should set out in the complaint the circumstances of the act or acts of violence or the threat of such violence. ii. The complaint should be accompanied by copies of Police Report and Medical Report, if any. iii. If the Court is satisfied that there is sufficient ground for proceeding against your spouse then the Court will issue a summons ordering the attendance of your spouse. iv. On the day of the hearing, if your spouse admits your complaint then the Court can impose a sentence in accordance with the punishment provided for the offence to which your spouse has pleaded guilty. v. If your spouse disputes your complaint then the case will have to be tried as a criminal case and if your spouse is found guilty and convicted, your spouse will be sentenced according to the law. vi. The Court may also order your spouse to pay you costs of the prosecution of the complaint or compensation for any damages sustained by you or both. vii. If your spouse does not attend Court, then the Court will issue a warrant of arrest against your spouse.

8.1.2

(a) If you are a victim of domestic violence, you may also apply to the Court for a protection order and claim for compensation pursuant to the provisions of the Domestic Violence Act, 1994 (DVA) which came into force on 1st June 1996. (b) The provisions of the DVA apply to all members of the family.