After a marriage is dissolved, a person may have financial obligations under the Decree Nisi to continue maintaining his spouse and children. For example, a man may have to pay RM3,000/month as spousal maintenance to his ex-wife and RM1,000/month as child maintenance, among other things.
However, this financial obligation may be varied and in some cases, even rescinded. This article will delve into the situations where a person can apply to court to vary or rescind the terms of the Decree Nisi regarding his or her financial obligations under the Decree Nisi.
Variation and Rescission
Pursuant to Sections 83 (spouse) and 96 (children) of the Law Reform (Marriage and Divorce) Act 1976, a court has the power to vary or rescind an order for maintenance at any time if the court is satisfied that the order was based on:
- Mistake of fact; or
- Where there has been any material change of circumstances.
The word “vary” is given a wide meaning and is not confined only to the increase or decrease in the amount of maintenance payments. It also includes the power to temporarily suspend the maintenance order or to revive the operation of the suspended maintenance order.
Further, to rescind a maintenance order is to “abrogate, annul, revoke, cancel, discharge or to put an end” to the maintenance order altogether.
The term “misrepresentation” is not defined in the Law Reform (Marriage and Divorce) Act 1976. However, the Contracts Act 1950 defines misrepresentation to include:
- the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
- any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and
- causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.
Further, the Court of Appeal adopted the following definition of misrepresentation:
- A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be an unambiguous false statement of fact, the second is that it must be addressed to the party misled and the third is that it must be a material inducement to entry into the contract.
Applying the definitions of misrepresentation above, a situation where a maintenance order may be varied or rescinded due to misrepresentation is as below:
H and W file a joint petition for divorce. In the joint petition, W agrees to receive a monthly maintenance of RM1,000 a month from H as H told her that he could only afford to pay her RM1,000 a month based on his income at the time. The amount of RM1,000 was not sufficient to cover the needs of W but she agreed based on H’s representation. However, a few months after the decree nisi was granted, W discovers that H had a separate source of income at the time of filing of the joint petition which was concealed by H and not disclosed to W or the court prior to and during the hearing of the joint petition. Under such circumstances, W can apply to the High Court to vary the maintenance order and increase the monthly maintenance payable by H based on H’s misrepresentation as to his income at the time of filing of the joint petition.
Mistake of Fact
A mistake of fact is another ground in which a person can apply for a variation or rescission of a maintenance order. Again, what constitutes a mistake of fact is not defined in the Law Reform (Marriage and Divorce) Act 1976. However, a mistake of fact in the law of contract is defined as “the unconscious ignorance or forgetfulness as to facts material to the contract or into believing in the existences of a thing material to the contract which do not exist”:
In 1995, W obtained a maintenance order against H for the monthly payment of RM2,000 for herself and RM1,000 for her son. 10 years after the maintenance order, H filed an application to vary and rescind the maintenance order. H sought to rescind the order for maintenance payment to W and to reduce the child maintenance sum to RM300 a month.
On appeal, the Court of Appeal varied the maintenance payable to W to RM1,000 a month from November 2004 to February 2009 and RM1,500 from 1st March 2009 onwards. The Court of Appeal held that the maintenance order granted by the lower court pursuant to H’s variation application was based on a mistake of fact. The Court of Appeal also held that the lower court judge failed to give due consideration to the fact that H did not have the means to satisfy the maintenance order prior to November 2004. Based on available facts, amongst the reasons why H did not have the means were that:
- H was a bankrupt from October 1987 until January 1998;
- H was imprisoned from August 1995 to 1997; and
- H was only gainfully employed in November 2004.
The Court of Appeal then held that had the lower court judge taken into account H’s circumstances of livelihood, the terms of the maintenance order would have been more reasonable.
Regarding the maintenance payments to S, the Court of Appeal also varied the date of commencement of maintenance payment to November 2004 based on the same ground of mistake of facts. However, the amount of maintenance payable was unchanged.
Material Change in Circumstances
The most common ground that is relied upon in applications for variation of maintenance orders is the fact that there is a material change in circumstances that justifies a variation. For this ground to succeed, there must be a “material change” in an essential part and not just any simple change. The proper approach is to start from the original maintenance order and examine the changes, financial or otherwise, that have taken place to either party since the commencement date of the maintenance order.
Case Example of Material Change in Circumstances
In 1986, W obtained a maintenance order which required H to pay a monthly maintenance of RM500 to W. In 1994, H filed an application to rescind the maintenance order based on the following reasons:
- That he was 60 years old;
- That he was in poor health, i.e. suffering from gout, diabetes, hypertension and failing eyesight;
- That he no longer had a permanent job; and
- That he remarried and was depending on his new wife for financial support.
The High Court held that based on the circumstances, there was a material change in circumstances which entitled the court to rescind the maintenance order.
Case Example of No Material Change in Circumstances
In 2012, W obtained a maintenance order whereby H was required to pay maintenance of RM800 a month for their son, S with an increase to RM1,200 from January 2013 until S turns 21.
In 2017, W applied to vary the maintenance order to increase the maintenance sum from RM1,200 to RM10,000 until S turns 21 with a further increase of RM300 per month starting from January 2018 and any further escalation based on an increase in school fees and other curriculum activities. W argued that there has been a material change in circumstances as S has grown to be a teenager with greater needs both in school and in his upbringing. W also claimed that she enrolled S into an international school due to S’s alleged dyslexic condition.
The High Court held that there was no material change in circumstances to justify the application for variation based on the following reasons:
- There was no psychological report to prove that S was dyslexic;
- W failed to justify her decision to enrol S into an expensive international school which was beyond the means of both parties, in particular H;
- The financial difficulty faced by W is one that is created by her own unilateral decision. It is a self-inflicted hardship; and
- The want of a party is distinguishable from the need of the said party.
Accordingly, the High Court dismissed W’s variation application.
Based on the above, there are three main grounds for a person to vary or rescind the terms of the maintenance order. However, the right to vary a maintenance order is not only limited to the person who is required to pay maintenance. A former spouse who is the beneficiary of a maintenance order can also apply to court to increase the amount payable to him or her under a maintenance order if there are justifiable reasons. Similarly, a parent who has the custody of a child can also apply for an increase in child maintenance payments from the other parent where the original order was granted based on a misrepresentation, mistake of fact or where there has been a material change in circumstances.
By Eric Toh
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
 Sections 83 and 96 of the Law Reform (Marriage and Divorce) Act 1976
 Gisela Gertrud Abe v. Tan Wee Kiat  2 CLJ 202
 Section 18 Contracts Act 1950
 Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim  3 MLJ 460
 Lim Tian Deng v Koh Poh Gaik  1 LNS 1220
 Lim Soon Heng v Tan Beng Choo (P)  MLJU 261
 Sivajothi K Suppiah v Kunathasan Chelliah  5 CLJ 318
 Gisela Gertrud Abe v. Tan Wee Kiat  CLJ (Rep) 133
 Anna Tay Siew Hong v Joseph Ng Tiong Yong  3 CLJ 717
 Karen Young v Ng Tia Ching  11 MLJ 377