By Christine Toh and Eric Toh
According to the Malaysian Statistics Department, the divorce rate for non-muslim males aged 18 and above was 6.5 per cent in 2017; whereas the divorce rate for non-muslim females aged 16 and above stood at 7 per cent in the same year.
Divorce is becoming increasingly common and the recent amendments to the Law Reform (Marriage & Divorce Act) 1976 (“the Act”) have been long awaited in order to better protect children and wives, in particular, matters in relation to the welfare of the children and division of matrimonial assets. However, one of the most controversial issues in relation to the unilateral conversion of children is not addressed in this amendment.
The amendments came into force on 15 December 2018. In this article, we will introduce to you the key amendments to the Act and how they may affect your rights.
Maintenance of Children above 18 years of age
A father of a divorced couple is now duty-bound to maintain his child until the completion of the child’s higher education or training under section 95 of the Act. Previously, the law required a father to maintain his child until the child turned 18.
This means that the father has a duty to maintain his child beyond the age of 18 if the child decides to pursue higher education or training. This amendment is anticipated as the financial burden of higher education is generally higher compared to the education a child receives in his early years.
Unfortunately, what amounts to “higher education or training” is not defined in the Act and it is not clear if the duty to maintain covers a second degree or other professional qualifications.
In Tong Sek Ee (P) v Ho Shu Joon & Anor (2019) MLJU 143 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.
Division of Matrimonial Assets
Section 76 of the Act, which provides the Court with the power to order division of matrimonial assets, has been amended to take into consideration non-financial contributions made by a spouse towards the family.
In Malaysia, it is common for the breadwinner, typically the husband, to contribute towards the financing of the matrimonial home; whereas the homemaker, typically the wife, is expected to look after the home and spend her time caring for the family.
Previously, in deciding the division of matrimonial assets, the Court will first determine if the matrimonial assets were acquired by (i) the joint effort of both spouses; or (ii) the sole effort of one of the spouses. If it is acquired by the sole effort of one of the spouses, he or she will receive a greater proportion of the asset pursuant to section 76(4) of the Act.
Under the new regime, the distinction between assets acquired by the joint effort of spouses and sole effort of a spouse is abolished. In exercising its power to order the division of matrimonial assets, the Court will have regard to additional factors such as:
- Expenses paid by a spouse for the benefit of the family;
- The extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family; and
- The duration of the marriage.
This amendment is significant especially to those who decide to leave the workforce to care for the welfare of the family by providing their time and effort instead of contributing to the family financially.
Petition for Divorce by converted Muslim
Pursuant to Section 3 of the Act, the right to petition for divorce is now extended to the converting / Muslim spouse. Previously under the old law, once a spouse has converted to Islam, he or she would not be able to petition for divorce in the civil courts; the right to petition for divorce would only be available to the non-converting / non-muslim spouse.
Furthermore, pursuant to the new section 51 of the Act, both husband and wife will also be able to apply for mutual divorce, as opposed to the previous position where they were unable to do so when a spouse converted to Islam.
Inheritance of Property by Non-Muslim Family Members
The new section 51A of the Act now allows the following people to apply for distribution of the matrimonial assets of a person who converted to Islam but dies before the non-Muslim marriage of that person is dissolved:
- Surviving spouse of the deceased;
- Surviving children of the marriage; and
- Parents of the deceased
Prior to this amendment, if a spouse converts to Islam, the non-converted spouse and other non-Muslim family members were not able to inherit from the converted spouse unless the converted spouse had specifically bequeathed some of his assets to the non-Muslim family members. The new amendments will at least safeguard the rights of the non-Muslim family members in relation to matrimonial assets of a converted Muslim.
Consent to Marriage of a Child under the age of 21
Previously, consent of a person’s father or adoptive father is required before that person can get married if that person is under the age of 21. Consent from the person’s mother or adoptive mother will only be accepted if the person is an illegitimate child, or if the father or adoptive father of the person is deceased. The section is inconvenient for those whose fathers have left the matrimonial home and/or cannot be found.
With the amended section 12, mothers now have the same right to consent to the marriage of her child who is under the age of 21.
The amendments in the new Act are progressive and in line with societal development. They address one of the most paramount considerations in any divorce proceedings, i.e. the welfare of the children. They also give a fairer recognition to spouses whose contribution to the family are not monetary in nature. While the amendments do not address all the issues, in particular, the core issue of unilateral conversion of children, the changes are nonetheless an improvement in the law.
By Christine Toh and Eric Toh