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FAMILY LAW- DIVORCE- MAINTENANCE

Miss Ong (the petitioner) and Mr. Kam (the respondent) have divorced. Miss Ong has custody of the three sons (Carson, aged 24, Jason, aged 22, and Danny, aged 16). In the Decree Nisi (divorce order) given by the court, Mr. Kam agreed to pay monthly maintenance of RM1,000 for Danny, in addition to his tuition fees until he reached the age of 18 or when he finished his tertiary education. Miss Ong is not receiving any maintenance from Mr. Kam since she is working.

After Miss Ong lost her job, she applied to the court for an increase in the maintenance for Danny to RM5,580 each month. Recently, she won a suit against her former employer and was entitled to a huge amount of money. Can Miss Ong amend the Decree Nisi issued by the court?

Q: What should the court consider in awarding maintenance to Miss Ong?

A: The court will consider whether to award maintenance to Miss Ong by looking at the “means and needs” of the parties i.e. the basic needs and obligations of the parties. The court will disregard the proportion of the maintenance taken from the income of Mr. Kam (Section 78 of the Law Reform (Marriage and Divorce) Act 1976).

Q: What factors does the court have to take into account in considering the means and needs?

A: The court will look into:

  • How long does the marriage last;
  • Whether there were any children in the marriage;
  • The age of the parties;
  • Whether Miss Ong depended on Mr. Kam financially during the marriage;
  • The parties’ earning capabilities; and
  • Whether the divorce would have affected Mr. Kam’s position financially.

Q: Can Miss Ong amend the Decree Nisi issued by the court?

A: Mr. Kam is currently maintaining Danny’s expenses until he graduates or reaches the age of 18. Miss Ong has gotten a huge amount of money after winning the suit against her former employer, she definitely has no problem maintaining herself, and her three sons’ expenses. Furthermore, she has not reached the age of retirement and is capable of seeking another job to maintain herself and the sons. She lost her employment and this cannot be used as a reason to claim additional maintenance from Mr. Kam.

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