Maintenance

1. MAINTENANCE OF
WIFE AND CHILDREN
UNDER CIVIL LAW
GLUP2103 FAMILY LAW I

2. STATUTES:
◦Law Reform (Marriage and Divorce) Act 1976
◦Maintenance of spouse : ss. 77-86
◦Maintenance of children : ss. 92-100
◦Only applicable when there is a petition for divorce.

3. DEFINITION OF
MAINTENANCE
Yeo Teng Ying (P) v Gan Cheng Gee
◦ The court quoted Parkunan Achul Ingam v Kalaiyarasy Periasamy
[2004] 7 CLJ 175, and viewed that the term ‘maintenance’ used in ss.
77 and 92 of the LRA should be construed widely as it signifies any
form of material provision that will enable the wife and children to
be placed in a position to enjoy the same standard of living as they
did during the existence of the marriage.

4. Re Borthwick (decd); Borthwick & Anor v Beauvais & Ors
[1949] Ch 395
◦ Harman J held –
◦ “… It has been already held that what is reasonable for one may not be reasonable for another.
It must depend on the circumstances of the case. It certainly depends to some extent on the
circumstances of the case. It certainly depends, to some extent, on the circumstances of the
widow, but I think it may also depend on the circumstances of the testator, that is to say,
whether he dies a rich man or not, because a rich man may be supposed to have made better
provision for his wife’s maintenance than a poor one. Maintenance does not only mean the food
she puts in her mouth, it means the clothes in her back, the house in which she lives, and the
money which she has in her pocket, all of which vary according to the means of the man who
leaves a wife behind him…”

5. Maintenance of spouse
under the LRA

6. Power for court to order maintenance of
spouse or former spouse – s. 77
◦ Whether a spouse can apply for the maintenance to be made by way of lump sum
payment –
◦ Chaw Annui v Tan Kim Chai [2004] 4 MLJ 272
◦ The W applied for the maintenance to be resolved by way of lump sum payment,
but the H argued that the LRA does not contain any provision empowering the
court to do so. Low Hop Bing J found it appropriate to consider the power of the
courts in the UK, Sigapore and Malaysia in making a maintenance order by way of
lump sum payment.
◦ The J was of the view that the H had the financial means, capacity and resources to
make a lump sum payment – the J exercised his discretion and awarded
maintenance by way of lump sum payment of RM 1 million to be paid by the H to
the W, made up of RM7,500 per month x 12 for 13 years.

7. Assessment of maintenance – s. 78
Case
Thevathasan v Thevathasan
[1960] MLJ 255
The appellate court took into consideration the R/W’s
potential earning capacity as a teacher which is assessed at
$160 per month, she was also partly blamed for the break-
up of the marriage – the maintenance was reduced to $300
per month from $450 awarded by the magistrate’s court
Lee Yu Lan v Lim Thain
Chye [1984] 1 MLJ 56
If the the other party to the marriage causes the breakdown
of the mrg, the amount for maintenance would be affected.
Yap Kim Swee v Leong
Hung Yin [1989] 3 MLJ 55
Breakdown of marriage due to applicant’s adultery – the J
ruled that she was not entitled to any maintenance

8. Power for court to order security for
maintenance – s.79
◦ Chaw Annui v Tan Kim Chai [2004] 4 MLJ 272
◦ The judge made an order that the matrimonial home Bungalow No. 5 be vested
in the H as trustee upon trust for the wife and such trust be registered with the
relevant land administrator by way of security for the payment of maintenance
RM 1 million to the W – such trust shall be discharged upon the satisfaction by
the husband of the order for lump sum maintenance.

9. Duration of orders of maintenance and
termination of maintenance – ss. 81 & 82
Rajalachmi v Sinniah [1973] 2 MLJ 133
 The app. was living in adultery and had refused to live with the H without
sufficient reason. The learned magistrate dismissed her claim for maintenance
but allowed a sum of $55 per month for the maintenance of the children. She
appealed, but the appeal was also dismissed.

10. Variation orders for maintenance –
s.83
B Ravandran s/o Balan v Maliga d/o Mani Pillai [1996] 2 MLJ 150
• The respondent W asked for maintenance of RM2500/month, consisting
(i) RM400/month for the 2 younger children (ii) RM500/month for the
other 2 children (iii) RM800/month for household expenses (iv)
RM100/month for utilities bills; and (v) RM300/month for herself.
• Previously, a consent order was made whereby the respondent agreed that
the monthly maintenance should be at RM1000. He was also paying the
monthly instalment for the matrimonial home. As he is a businessman, the
J agreed that his monthly income varied.
• Having regard to the means and needs of the parties and the income of
the petitioner, the J ordered the petitioner to pay maintenance to the
respondent and 4 children in the sum of RM1500/month. The J also noted
that each party was equally responsible for the breakdown.

11. ◦ Gisela Gertrud Abe v Tan Wee Kiat [1986] 2 MLJ 297 - the court took into
consideration the fact that the respondent was unemployed after having been
retrenched by his employer.
◦ Chan Beng Tiow v Kok Mei Mooi [2007] 1 MLJ 469 – the petitioner applied
for variation of the monthly maintenance RM500 to the resp and RM2000 for
their 4 children. The court took into consideration the fact that the p’s wife is a
cancer patient and required constant medical care; and their eldest daughter has
reached the age of 18 and works as a clerk. The monthly maintenance for the
eldest daughter is rescinded since she was no longer a minor, working and had
sufficient money to survive.

12. Power for court to vary agreement for
maintenance – s. 84
Lim Hong Bee v Mah Teck Oon [2010] 8 CLJ 473
The court ruled that – the curt will not intervene to vary or
discharge the maintenance payment, especially one which emanates
from a mutual consent order, unless satisfied that the applicant is
incapable of paying due to the adverse change in circumstances.

13. Recovery of arrears of maintenance –
s.86
Lee Lay Ling v Goh Kim Nam & Cheah Pei Ching [2013] 1 LNS
1000 – arrears of maintenance is recoverable as a debt and proveable in
bankruptcy.
Koay Cheng Eng v Linda Herawati Santosa [2008] 4 AMR 159 –
this case involves s.86(3) – divorce filed in September 1, 1999 – the
claim for arrears of maintenance started from July 1998. Held, the R’s
claim was well within the 3-year period.

14. Maintenance of
Children under the LRA

15. Duty to maintain children – whose duty to
maintain children?
Interpretation of ‘child’ – s.2
s. 92
Re Tan Hui Guan, decd (Phang Siew Fa v Aw Kim Siok) [2006] 3 MLJ
336 – the deceased’s mother as the administratrix was ordered to pay
maintenance, out of the deceased’s estate, to the deceased’s wife and child.
Shireen a/p Chelliah Thiruchelvan v Kanagasingam a/l Kandiah [2012]
7 MLJ 315 – the court observed that the resp was a man of means, owning
numerous properties, lived in a luxurious bungalow. The court ordered the resp
to pay RM2000 for the monthly maintenance of each of the 3 younger
children and RM3000/month for the eldest child studying in an international
school, and pay their medical and dental expenses.

16. Power for court to order maintenance for
children – s. 93
Loh Kwee Eng v Phua Nai Peng [2012] 7 MLJ 343
• The court took into consideration that the resp had failed, neglected and
refused to show proof of actual income even though he had been served
with a notice to produce; that the resp had all this while not maintained
the third child who is schooling in secondary school and would therefore
incur higher costs.
• The resp was ordered to pay RM500/month instead of RM300 for the
third child.

17. Duration of orders for maintenance - S. 95
Karunairajah a/l Rasiah v Punithambigai a/p Poniah
[2004] 2 MLJ 401 – the word ‘disability’ in s.95 covers only
physical and mental disability. It cannot cover financial
dependence for the purpose of pursuing tertiary/vocational
edu after the child had completed the age of 18 years.

18. s.95 LRA – amendment in 2017
S.95 Duration of orders for custody and maintenance
Except where an order for custody or maintenance of a child is expressed to be for
any shorter period or where any such order has been rescinded, it shall expire on
the attainment by the child of the age of eighteen years or where the child is under
physical or mental disability, or is pursuing further or higher education or training,
on the ceasing of such disability or completion of such further or higher education
training, whichever is the later.

19. Variation of orders for maintenance – s.97
Geh Thuan Hooi v Serene Lim Paik Yuan [2010] 4 MLJ
 … the court was not satisfied that there is a material change in the circumstances
to justify a variation of the amount of monthly maintenance. If the court allows
the variation by reducing it from RM14000 to RM2500/month, the reduction
would be very drastic … the children would have very little left for their
maintenance. This woud adversely affect the quality of their lives and deprive
them of whatever they have been provided with all this time and which they are
already very used to. It would certainly not be reasonable or for the welfare of the
children if the court were to allow the variation.

20. Recovery of arrears of maintenance
S.86 LRA
 Duty to maintain child accepted as member of family
S.99 LRA

21. Other statutes -
◦Married Women and Children (Maintenance) Act 1950
- Applicable only when there is no petition for divorce and the
marriage is subsisting and still in force
◦Married Women and Children (Enforcement of Maintenance)
Act 1968
◦Maintenance Orders (Facilities for Enforcement) Act 1949

22. Question:
◦Discuss whether a parent has to pay maintenance to his/her
children who are living with another person.

23. References:
◦ Mimi Kamariah Majid, Family Law in Malaysia, Malayan Law Journal
Sdn Bhd, 1999.
◦ Nuraisyah Chua Abdullah, The Law Reform (Marriage and Divorce) Act
1976 Commentary and Cases, Sweet & Maxwell, 2018.