FAMILY LAW

ACH v. PAY [2024] 2 CLJ 223 [High Court]

Brief facts

The wife as petitioner and the husband as respondent (‘parties’) had registered their marriage in October 2014 and thereafter resided in their matrimonial home (‘matrimonial home’). In June 2016, the parties were blessed with a son (‘child’). The marriage later deteriorated, leading to the wife and child depart from the matrimonial home. The wife then commences a divorce proceeding by filing a divorce petition. The husband responded with a cross petition.

In the deliberation of whether spousal maintenance should be awarded, the issues that arose were (i) the cause of the breakdown of the marriage as well as the contributory factors of such breakdown; and (ii) whether the petitioner had fulfilled the ‘means and needs’ assessment.

With regard to the child, the issues that arose were (i) whether guardianship should be joint as the wife insisted on sole guardianship; (ii) whether the husband was obliged to maintain the child, and what amount would be appropriate; and (iii) whether the husband should have access to the child, and on what terms.

As for the assets, the issue that arose was whether the wife was entitled to a division of all the matrimonial assets, and what portion would be equitable.

High Court’s Decision

[1] the term ‘may’ in s.77 of the Law Reform (Marriage and Divorce) Act 1976 (‘Act’) highlights that the court has discretionary power in determining spousal maintenance claims. In other words, it means a wife does not have an inherent right to receive maintenance from her husband, particularly when she has the capability of earning.

[2] In determining the spousal maintenance, as outlined in s. 78 of the Act, the court must consider the ‘means and needs’ of the parties. The wife claimed various expenses without receipts which were deemed unnecessary by the court. The evidence adduced was solely based on Form CP58 for 2020 may not accurately reflect the wife’s current financial status. Given that the marriage only lasted five years, it would be unjust for the husband to bear the burden of a perpetual monthly spousal maintenance, extending potentially throughout the entirety of the husband’s life or until she remarried or ‘lives in adultery’ with another man as stipulated in s. 82 of the Act. Spousal maintenance is not intended to perpetuate an enduring financial reliance by the former wife.

[3] The wife had levied numerous accusations against the husband by alleging that he had contributed to the demise of their marriage through his conduct and behaviour. However, the wife did not furnish any documentary evidence to support the allegations that the husband had engaged in extramarital affairs. Therefore, the wife’s oral evidence was not credible. The pivotal moment in the marriage occurred when, in the absence of the husband who was travelling, the wife not only vandalised the matrimonial home but also departed the matrimonial home with the child. The wife had failed to produce any tangible evidence substantiating the husband’s alleged neglect of both her and the child. It became evident that the wife harboured unrealistic expectations of marriage particularly in her continuous expression of dissatisfaction with the husband. The wife’s behaviour was unreasonable, and the irretrievable breakdown of the marriage was due to her actions.

[4] With regard to maintenance for the child, the wife had sought either a one-time lump sum payment, or as an alternative, a monthly maintenance. A singular lump sum payment for the child was not appropriate, given the myriads of factors that may arise throughout the child’s lifetime. After deliberation, this court ordered that the hysband provide the wife with a monthly child maintenance of RM3,000. It was also crucial to recognise that mothers who are endowed with the ability to generate income, should actively participate in sharing the financial responsibility of providing for their children.

[5] Despite the separation of the parties, the child had continuously resided with the wife. Consequently, uprooting the child from his current environment would not align with the best interest of the child’s welfare. However, the husband should not be denied joint guardianship. The child possessed the right to maintain a consistent and valuable relationship with both parents. Hence, both parties were granted joint guardianship as this arrangement underscored the significance of collaborative decision making concerning the child’s health, education, religion and general support.

[6] Given that the wife had sole custody, care and control of the child, it was only just and equitable that the husband be granted access. Access to the child should be recognised as an inherent right belonging to the child rather than solely to anyone of the parent. Any attempt to restrict the husband’s access to the child would inherently constitute a violation of the child’s rights. Taking into consideration the wife’s concerns regarding the suitability of unsupervised and overnight access due to the child’s current estrangement from the husband, this court opted to adopt a phased access strategy, designed to facilitate a gradual and supportive reconnection between the child and the husband. 

[7] Divorce proceedings should not be converted into a revenue-generating exercise. Thus, in regard to the assets, it would be fair and reasonable for each party to retain their respective properties in Taman Vista Jaya. As for the Kuala Ampang and Pandan Terrace properties, these properties qualified as matrimonial assets, the wife being granted 25% of their realisable value because the husband failed to prove that he held these properties in trust for friends. Given the financial responsibilities imposed on the husband, including child maintenance and division of two properties, it was fair and equitable for the husband to retain ownership of the shares in Super Group Resources Sdn Bhd. This was aimed to balance the financial obligations imposed on the husband while acknowledging the lack of contribution from the wife towards the acquisition or growth of the shares in question.

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