ANCILLARY CLAIMS

(MAINTENANCE)
APPLICABLE STATUTES
(1) Law Reform (Marriage & Divorce) Act 1976
(“LRA”)*
(2) Married Women and Children (Maintenance) Act
1950 (“MWCA”)
(3) Married Women and Children (Enforcement of
Maintenance) Act 1968
(4) Maintenance Order (Facilities for Enforcement) Act
1949

*Amendments to LRA vide the Law Reform (Marriage and Divorce)(Amendment)

Act 2017 came into force on 15 December 2018.
MAINTENANCE OF
SPOUSE
LRA
Section 77 of LRA
(1) The court may order a man to pay maintenance to his
wife or former wife-
(a) during the course of any matrimonial proceedings;
(b) when granting or subsequent to the grant of a decree of
divorce or judicial separation;
(c) if, after a decree declaring her presumed to be dead, she is
found to be alive.

In matter of nullity of marriage:

 Void marriage: marriage has never subsisted and the woman is never the
wife of the man - the man is under no duty to maintain her even before the
decree of nullity is granted
 Voidable marriage: the woman is the wife of the man until the decree of
nullity is granted - she should be able to claim maintenance for the duration
her marriage had subsisted.
LRA
Section 77 of LRA
(2) The court shall have the corresponding power to order a
woman to pay maintenance to her husband or former
husband where he is incapacitated, wholly or partially, from
earning a livelihood by reason of mental or physical injury or
ill-health, and the court is satisfied that having regard to her
means it is reasonable so to order.

Section 78 of LRA
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 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.
LRA – Means & Needs
Koay Cheng Eng v Linda Herawati Santoso [2004] 6 MLJ
395 (HC); [2008] 4 MLJ 863 (CA)

The amount of maintenance the husband should pay to the wife

must depend on the means and needs of the parties, taking into
account the standard of living of the parties which was enjoyed
by them during the marriage. 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.
LRA – Means & Needs
Chan Beng Tiow v Kok Mei Mooi [2005] 3 MLJ 719 (CA)

The learned High Court took into account the husband’s income
at the material time, the amount of maintenance for children of
the marriage who were still schooling or pursuing further
education, the fact that the wife was not gainfully employed and
her monthly expenses.

Chaw Anui v Tan Kim Chai [2004] 4 MLJ 272 (HC)

The issue of a fair and reasonable maintenance must be

determined by reference to the facts and circumstances of each
case. The court took into account the devotion of the wife, the
likelihood of the wife to be gainfully employed, wife’s health and
medical needs, the husband’s financial needs, the standard of
living of the wife and the means and needs of the parties.
LRA
Section 79 of LRA
The court may in its discretion when awarding maintenance
order the person liable to pay such maintenance to secure
the whole or any part of it by vesting any property in trustees
upon trust to pay such maintenance or part thereof out of the
income from such property and, subject thereto, in trust for
the settlor.

*Section 79 provides the power of the Court to order security for

maintenance.
LRA
Section 80 of LRA
An agreement for the payment, in money or other property, of
a capital sum in settlement of all future claims to maintenance,
shall not be effective until it has been approved, or approved
subject to conditions, by the court, but when so approved shall
be a good defence to any claim for maintenance.

*Section 80 provides that parties to a marriage may enter into an agreement

for the payment, in money or other property, of a capital sum in settlement of
all future claims to maintenance. Will only be effective if it has been approved
or approved subject to conditions by the Court.
LRA
Section 82 of LRA
This provisions states that the right of any divorced person to
receive maintenance from his or her former spouse under any
order of court or an agreement shall cease on his or her
remarriage to or living in adultery with any person unless the
agreement said otherwise.

Section 84 of LRA – Power for court to vary agreements for

maintenance if it is satisfied that there has been any material
change in the circumstances. See Uma Sundari a/p
Muthusamy v Kanniappan a/l Thiruvengadam [2009] 5 MLJ
853 (HC)
LRA
Section 81 of LRA
An order for maintenance shall expire:-
◦ On the death of the husband/ wife (if maintenance was
unsecured); or
◦ If the maintenance was secured, on the death of the
spouse, in which favour it was made; or

Section 83 of LRA
The court may vary or rescind, subsisting order for
maintenance, whether secured or unsecured, on the application
of the person in whose favour or of the person against whom
the order was made:-
◦ where the order was based on any misrepresentation; or
◦ mistake of fact; or
◦ where there has been any material change in the
circumstances.
LRA
Anna Tay Siew Hong v Joseph Ng Tiong Yong [1995] 3 CLJ
717 (HC)
◦ The R had been paying RM 500 per month for many years
but defaulted in his payments. As the result, R 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. the court
satisfied that there had been a material change in the
circumstances both of the R and the petitioner.

Lim Bee Kee v Leong Ah Chuan [1998] 1 MLJ 675 (HC)

◦ R had been paying RM 600 maintenance to the petitioner
and the 3 children of the marriage and applied to the High
Court to have the amount reduced to RM 300 a month.
◦ The court dismissed the application as there was no
material change in the circumstances.

See also Seetha a/p Vijayaratnam v Vicknesh a/l Visvalingam

LRA
Section 85 of LRA
Maintenance payable under order of court shall not be
assignable or transferrable.

Section 86 of LRA
Arrears of unsecured maintenance, whether payable by
agreement or under an order of court, shall be recoverable as a
debt from the defaulter. However, no amount owing as
maintenance shall be recoverable in any suit (suit for recovery
of maintenance) if it accrued due more than 3 years before the
institution of the suit.
LRA
It is noted that section 86(1) of the LRA expressly provides that
there must be an existing court order or agreement to compel
payment of the maintenance.

Choong Yee Fong v Ooi Seng Keat [2006] 1 MLJ 791 (HC) –
the lack of an agreement between the respondent and the
petitioner and/or a court order against the respondent to pay
maintenance to the petitioner, caused the petitioner to lose her
claim for arrears in maintenance.

Koey Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ

863 (CA) – a claim for arrears of maintenance of a year before
the institution of the proceedings was found to be well within the
three year timeframe provided by LRA and was thus allowed.
LRA
Section 51(2) LRA
The court upon dissolving the marriage may make provision for
the wife or husband, and for the support, care and custody of
the children of the marriage although one of the parties converts
to the Islamic faith.

However, now the courts can grant ancillary claim although the
petition for divorce was made under other grounds for divorce,
other than section 51. See Tan Sung Mooi v Too Miew Kim
[1994] 3 MLJ 117 (SC).
MWCA
MWCA is an act providing for the maintenance of wives and
children. It is applicable only when there is no petition of divorce
and the marriage is subsisting and still in force.

Section 1 of MWCA – applicable to West Malaysia, Sarawak

and Labuan. Sabah is not included herein.

Section 13 of MWCA - not applicable to any person professing

the religion of Islam (section 13)
MWCA
Section 3 of MWCA
Court may order a person who neglects or refuses to maintain:-
(a) his wife or a legitimate child of his which is unable to
maintain itself;
(b) an illegitimate child of his which is unable to maintain itself.
to make a monthly allowance in proportion to the means oof
such persons, as the court seems reasonable.

Such allowance shall be payable from the date of such neglect

or refusal or from such later date as may be specified by the
Court.

Section 4 of MWCA
Failure to comply with the Court’s order may be subject to fines
or imprisonment for a term which may extend to 1 month for
each month’s allowance remaining unpaid.
MWCA
Section 5(1) of MWCA
If any person offers to maintain his wife on condition of her living
with him, his wife must do so, unless the following:-

 the court shall consider any grounds of refusal stated by such

wife; or
 such person is living in adultery or for any other reason it is
just so to do.
MWCA
Court has to consider whether or not the wife’s refusal is
sufficient. If the wife’s grounds sufficient, she is entitled to
maintenance.

 Marimuthu v Thiruchitambalam [1966] 1 MLJ 203

◦ Facts: after the couple had been married for 3 years, the
husband R brought another woman into the house and
soon after started to ill-treat the wife by scolding her,
beating and assaulting her. The husband took his wife and
children to her mother’s home where they stayed. During
this period the husband married the other woman who had
been brought into the house. Subsequently, the wife
returned to live with her husband but differences arose
between them. The wife could not tolerate the presence of
the new wife and after a year she again returned to her
mother’s home. The husband orally agreed to pay
maintenance for the wife and children and did so regularly
for 6 years.
MWCA
Cont..
◦ He then asked his wife to live with him and the new wife. She
refused and the husband stopped the maintenance payment
for 2 years. The wife applied for maintenance order.

◦ The lower court dismissed her application. She appealed.

High Court allowed her appeal and held that “….a wife is
entitled to live with that amount of decency and dignity which
prevails in her class and if the treatment of the husband
towards her does not permit her to lead such a life, his
conduct amounts to a neglect and refusal to maintain within
the meaning of section 3 of the Ordinance… as I have stated
above, there was ample evidence to support a finding by the
learned magistrate that the appellant had sufficient cause for
living apart from the R.”
MWCA
Ng Lean Huat v Lim Joo Kim [1993] 3 CLJ 647 (HC)
 In the context of section 5 of MWCA, the court considered/
accepted the wife’s refusal upon her husband’s offer to take
both her and her son back.

 The court held that ‘a wife would not be prepared to put up

with this kind of arrangement.’ The husband had wanted to
take advantage of both worlds. He wanted his wife and son
back and at the same time he wanted to keep his wealthy
mistress.

See also Ranjit Singh v Jaswant Kaur [1970] 2 MLJ 255

(FC).
MWCA
Section 5(2) of MWCA
The wife shall not be entitled to receive an allowance from her
husband if she is living in adultery or if she refuses to live with
her husband without any sufficient reason.

Definition: ‘living in adultery’ implies more than 1 incidence of

adultery.
MWCA
Rajalachmi v Sinniah [1973] 2 MLJ 133
◦ Facts: the appellant wife had made several allegations of
cruelty against the R husband, who in turn raised counter
allegations of adultery and leaving the matrimonial home
without sufficient reason.
◦ The court dismissed her claim for maintenance but allowed
maintenance for their children in her custody. It is observed
(Raja Azlan Shah J) that ‘it is settled law that a wife’s
adultery does not affect the court’s discretion to make an
order for maintenance with respect to children’.
◦ His Lordship explained the meaning of ‘living in adultery’ as
follows:
 ‘the words ‘living in adultery’ in their ordinary and natural
meaning are susceptible of only one meaning ie to a
course of guilty conduct rather than to an isolated act of
adultery or occasional lapses from virtue. That in my view
seems to be exemplified and established in a number of
judicial decisions under section 488 (5) of the Indian
Criminal Procedure Code, which is in pari materia to our
section 5(2) of the Married Women and Children
(Maintenance) Ordinance 1950’
MWCA
Section 6 of MWCA
On the application of any person receiving or ordered to pay a
monthly allowance under the Act, and a proof of a change in the
circumstances of such person, his wife or child, the court by
which such order was made, may rescind the order or may vary it
as to it seems reasonable.
MAINTENANCE OF
CHILDREN
LRA

Section 92 of LRA
It shall be the duty of a parent to maintain children whether they
are in his custody or her custody or the custody of any other
person. (‘parent’ includes father/mother)
 The word “child” means child of the marriage under section 2
of LRA and who is under the age of 18 years (section 87). For
avoidance of doubt, a child of marriage includes an illegitimate
child of, a child adopted by whether of the parties to the
marriage in pursuance of an adoption order made under any
written law relating to adoption.
LRA
Section 93
The court has power to order maintenance for children in 4
situations:-
◦ if he refused or neglected reasonably to provide;
◦ if he deserted his wife and the child is in her charge;
◦ during pendency of matrimonial proceeding; or
◦ when making or subsequent to the making of an order
placing the child in the custody of any other person.

It is the duty of the father to provide for the children and to

maintain the standard living of the children: see Sivajothi
a/p K. Suppiah v Kunathasan a/l Chelliah [2000] 3 CLJ
175 (HC)
LRA
Section 93(2) of LRA
The court shall have the corresponding power to order a woman
to pay or contribute toward the maintenance of her child where
it is satisfied that having regard to her means it is reasonable so
to order.

 Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995] 1

MLJ 852 (HC)
◦ Principle: where both parents are earning, both have a
liability to maintain their children each according to his or
her means.

 Wong Kim Fong v Teau Ah Kau [1998] 1 MLJ 359 (HC)

◦ In this case, Abdul Malik Ishak J ordered the mother to pay
RM 400 per month towards the maintenance of her son
while the husband had to pay RM 800 per month. Payment
was directed to be advanced to the petitioner as the son
was staying with her.
LRA
Section 94 of LRA
The court has power to order security for maintenance for the
benefit of any child

Section 95 of LRA
The duration of a maintenance order shall expire (unless the
court orders for a shorter period):-
(i) when the child attains the age of 18 years;
(ii) where the child is under physical or mental disability, on the
ceasing of such disability, whichever is the later;
(iii) where the child is pursuing further or higher education or
training, on completion of such further or higher education,
whichever is the later.*

*new amendment which came into force on 15 December 2018

LRA
Tong Sek Ee v Ho Shu Joon [2019] MLJU 143 (HC)
The learned High Court Judge took cognisance of the
amendment which provides for the cessation of child
maintenance upon completion of a child’s higher education or
training although at the time of the writing of the grounds of
judgment, 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 learned High Court Judge urged the
respondent husband to bear the educational expenses for the
child’s first academic degree that a child’s future education is not
affected by a divorce between the parents.
LRA
Section 97 of LRA
The court has the power to vary the terms of agreement for the
maintenance of a child.

Gisela Gertrud Abe v Tan Wee Kiat [1986] 2 CLJ 202 (SC)
The word to “vary” should be given a wide meaning and should
not be confined only to increase or reduce the amount of the
periodical payments of maintenance for the wife and/or the
children of the marriage but also to include power to “suspend”
the maintenance order or any provisions therein temporarily
and to revive the operation of the maintenance order or any
provisions so suspended.

See also Navarajan Subramaniam v Rajeswary Muniandy

[2019] 1 LNS 1014 (HC); Yeoh Ken Lee v Liew Chooi Hoong
[2005] 5 CLJ 408
LRA
Section 99 of LRA
A man has the duty to maintain a child who is not his child but
who is accepted by him as member of his family. (refers to
foster children or children adopted in accordance with custom
or whose adoptions may be registered under the Registration
of Adoptions Act 1952.

This duty shall cease if the child is taken away by his or her
father or mother and any sums expended herein shall be
recoverable as a debt from the father or mother of the child.

See T v O [1992] 3 CLJ 1756 (HC)

MWCA
See Section 3 of MWCA above. It provides that if any person
neglects or refuses to maintain an illegitimate child of his
which is unable to maintain itself, a court, upon due proof
thereof, may order such person to make such monthly
allowance as to the court seems reasonable.

Koh Lai Kiow v Low Nam Hui [2005] 7 MLJ 143 (HC)
The court held the following:-
(1) the customary marriage between the plaintiff and the
defendant was void and ought not to be recognized for
non-registration. The 2 children who were born out of their
relationship were therefore their illegitimate children
(2) whilst there was no express provision in the Guardianship
of Infants Act 1961 regarding maintenance of illegitimate
children, the court went on to state that the plaintiff was
entitled to apply for maintenance of the 2 children under
s.3(2) of MWCA, as the defendant’s legal obligation as the
putative father to provide maintenance to his 2 children
was provided for under that section.
QUESTIONS &
ANSWERS