Custody, Maintenance &
Matrimonial Assets (Civil)
Understand what custody, maintenance and matrimonial assets refer to in the context of divorce for non-Muslims in Malaysia.
Understanding Custody, Maintenance & Matrimonial Assets
During a divorce, you need to know about:
Custody is the right to look after a child’s welfare and physically take care of its concerns. Children below 7 years old are presumed to be better off with their mother, unless she is proven to be unfit. The older children’s wishes may be considered if the court feels they are mature enough to understand the implications of their decision.
When looking into the well-being of your children, the Court may consider:
- Your children’s preference to stay with either parent (if they are above seven years old);
- Not disturbing the daily routine of your children;
- The Welfare Report, if any prepared by the Social Welfare Department Office after conducting the interview with you and your husband and your children;
- The closeness of your children to their extended family and grandparents, uncles, aunts, and cousins living with you and your children now, babysitting and/or schooling arrangements.
If you gain custody of your children you will have to allow your husband reasonable access to them, and vice versa. Alternatively you and your husband may opt to make fixed arrangements or have joint custody.
Guardianship means the legal rights over your children. You and your husband have equal guardianship rights. This means either one of you can apply for the identity cards, passports, and schools for children.
NOTE: Children 18 years old and above are considered adults.
This is a monetary support you and your children may get from your husband. You can apply for maintenance before your divorce has been finalized.
Maintenance for Wife
Maintenance Prior to Divorce
You can make an application for maintenance to the Court once your husband has failed to provide money for your children’s education or for you to buy, for example, food and clothing for your family’s needs, even if you have not yet decided to divorce your husband.
The amount of maintenance ordered will be in proportion to the means of your husband. It can be made payable from the date he neglected to support you and your children financially.
If your husband is an employee, you may apply to have the amount of maintenance deducted from his salary. His employer will then send the said amount to you directly.
Even if your children are illegitimate (i.e your marriage is not valid), they will be entitled to maintenance from their father – but you will not.
Note: At the time of your divorce, if your husband is physical or mentally incapacitated and cannot earn living, you may have to pay him maintenance.
Maintenance upon Divorce
(a) In deciding the amount of maintenance to be ordered, the Court will consider the future and present income, property resources, and earning capacity of both parties. The financial needs and degree of responsibility which the Court apportions to each party for the breakdown of marriage will be the deciding factors for the maintenance.
(b) The Court may also order the person liable to pay maintenance to provide security to guarantee payment of such maintenance.
(c) An order for maintenance shall cease to expire if the divorced spouse in whose favour the order was made remarries or lives in adultery with any other person.
Maintenance for Children
Children from this marriage can also apply for maintenance. These are factors will be considered:
- Financial needs of the child;
- Income, earning capacity, property, and other financial resources of the parent;
- Standard of living enjoyed by the family before the breakdown of the marriage;
- Any physical or mental disability of the child;
- Manner in which he/she was being educated and trained.
Currently, the order for maintenance expires when the child attains 18 years of age or when the child completes his or her further or higher education or training, whichever is later. If the child is under physical or mental disability, the order for maintenance expires when the child turns 18 or on the ceasing of such disability, whichever is later.
Failure to Pay Maintenance to Wife and Children
Where a husband fails to comply with the court order for maintenance, the court may levy a fine or sentence the husband to imprisonment for a maximum term of one month for each month’s allowance that remains unpaid.
Variation of Maintenance
The Court may, at any time and from time to time, vary or rescind any order for maintenance upon application by either party where it is not reasonable or satisfactory because that the order was based on misrepresentation, mistake of fact, or where there has been any material change, for example, the earning capacity, health condition, or remarriage of either party.
Matrimonial assets are assets both parties acquire during marriage. This includes assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. In this situation the Court will normally order a sale of the property and divide the proceeds of the sale between the parties.
The Court will take into consideration the following when making the order:
- The extent of the contributions made by each party in money, property or work towards the acquiring of the assets, or payment of expenses for the benefit of the family. This includes how much you and your husband contributed in terms of money to buy the property, and how much was paid to maintain/upkeep the property for the family’s benefit.
- 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. For instance, if you are a homemaker and your husband had bought the matrimonial home which is registered in his name, your contributions in looking after the home or caring for the family (e.g. cooking, cleaning, transporting the children to school, etc) will be taken into consideration in determining your share of the asset.
- Any debts owing by either party which were contracted for their joint benefit, for example, a loan which you took to finance the purchase of the family home.
- The needs of the minor children, if any, of the marriage.
- The duration of the marriage.
Subject to all these considerations, the Court will lean towards equality of division. Therefore, it is important for you to highlight all the above factors which are relevant to your situation in your application for maintenance to ensure that your rights are protected.
Check out useful resources you can use.