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Context

Hii Chan Seng VS Aida Balingan Baron [2010] MYSSHC 446 (30 December 2010)

MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING

DIVORCE PETITION NO. 33-102-2009-III

5

IN THE MATTER of Section 52 of Law
Reform (Marriage and Divorce) Act, 1976
BETWEEN

10 HII CHAN SENG …. PETITIONER [WN.KP. 550225-13-5245]

59 Taman Sri Emas
Jalan Batu Kawa
93250 Kuching.

15 AND

AIDA BALINGAN BARON (F) …. RESPONDENT [Republic of the Philippines Passport
No. RR0317047]
P5-2-1E. Chongin Park

20 Jalan Tabuan

93200 Kuching.

GROUNDS OF DECISION

Introduction

25 The husband petitioner has prayed for dissolution. Unfortunately, save for dissolution, all ancillary matters such as custody, maintenance and division of matrimonial assets are disputed. However, by the time of the trial, the petitioner had given up custody of one of the children. The said child is from a previous relationship of the respondent.

30 Brief background facts

The petitioner is an engineer by profession. He is 55 years old. He had been previously married with children. It emerged during the trial that
one of his children is studying overseas. The petitioner worked in Sabah in the late 90’s. He met Aida, the wife respondent, in a karaoke establishment in Tawau. A contractor friend of his introduced her to him. She is from the Philippines. The petitioner was working on a project in

5 Tawau at that time. He apparently struck up a relationship with her. One month after he got to know her, he learnt that the respondent has a one year old daughter from a previous relationship with a former politician. He said the politician had ended his relationship with her by that time and she was in Sabah illegally without a permit or a visa. She had confided

10 that she had been arrested a number of times by the police. However, the petitioner continued his relationship with respondent. He said he agreed to her proposal to marry him and be a good wife. Moreover, he had just been divorced and was looking for another life partner. He married her on

13th January 2001. He also accepted the respondent’s child, Lovella who
15 is now 12 years old as his own child. A child, Margaret was born to the petitioner and the respondent on the 3rd July 2004. After marriage, they lived in various towns (Kota Kinabalu, Miri, Bintulu and Kuching) depending on the projects that the petitioner was working on. For the last two years, they lived in his house in Kuching which he acquired in 2007.

20 For a period of time, the petitioner’s mother also lived in the Kuching house. She passed on in January 2008. The petitioner has now petitioned for dissolution on the grounds that the respondent is violent, abusive and unreasonable. This is what he said in his witness statement:

Q12: What is the reason of you filing this divorce petition to dissolve

25 your marriage with Aida?

A12: The main reason is that I can no longer tolerate her unreasonable and violent behaviours towards me and the children. I have tried to tolerate her unreasonable behaviour all these years and I have given her so many chances and

opportunities to change her unreasonable behaviours but she just could not change. Her unreasonable and violent behaviours are

unbearable and had caused irreparable damage to our marriage.

He then proceeded to give various instances when the respondent had

5 been allegedly abusive, unreasonable and unbearable. He also mentioned an incident when she allegedly whipped her older child with a belt. He also said that the respondent was unstable emotionally as she had once attempted suicide in his house. Other allegations he made against the respondent can be summarized as follows:

10 1. She had neglected the family and was often out with her Filipina friends.

2. She had constantly accused him of having a mistress.
3. She had attempted to kill him with a knife once. During the serious altercation, he had to call the police to intervene.

15 4. She was often drunk after keeping late hours.

5. He even suspected her of consuming drugs, particularly methamphetamine.
6. She had lodged a false complaint to the Welfare Department stating that he had abused his children.

20 7. She had defamed him to his relatives and friends by saying he was keeping a mistress.

He said that after the respondent moved out of the house voluntarily in August 2008, he rented an apartment for her in Kuching. He said as follows:

25 Q: Did you ever rent a place for Aida to stay after she had moved out from the matrimonial home?

A: Yes, that was on or about early October 2008. I rented one unit of apartment at MJC, Batu Kawa for Aida to stay and I paid for the deposit of RM420 and the monthly rental of RM320 per

month from October 2008 until January 2009.

5 Q: How was the condition of the said apartment?

A: It was equipped with bed and some basic furniture. As a matter of fact, the said apartment was Aida’s own choice.

Q: How long have you rented the said apartment for Aida?

A: I rented the said apartment for about four months until January

10 2009. I ceased renting the said apartment because Aida told me that she does not want to stay there anymore as she was staying with a church counselor called “Perla” in order to receive spiritual and religious counseling.

According to the petitioner, even after they had parted ways, the

15 respondent came back to the house to see the children and used the occasion to create “havoc” and “embarrassment” to him. It was during one of these occasions that he had accidentally pushed the respondent to the floor. She lodged a police report and he was charged for causing hurt. The charge was later withdrawn. However the police charged both

20 petitioner and respondent for breach of peace. He had to sign a good behaviour bond as a result.

On the respondent’s part, she claimed as follows. She was forced by the petitioner out of the matrimonial home on 14th August 2008 and since then was not granted reasonable access to the Lovella and Margaret who were

25 just 10 and 4 years old respectively. She also told the court that throughout the marriage, the petitioner behaved unreasonably towards her by calling her names. She was also told by an unknown person that the petitioner was having an affair with a woman who was pregnant with his child. When she confronted the petitioner, she was slapped and punched.

She said that throughout the marriage, she had been a good mother and wife. She took care of the matrimonial home as well. She even took good care of the mother of the petitioner despite his assertions to the contrary. She denied the allegations that she had been drunk or had consumed

5 drugs. She said that since she left the matrimonial home, the petitioner had been relying heavily on a babysitter to look after Margaret.

Issues

The issues that called for determination are:
1. Custody of Lovella.

10 2. Custody of Margaret.

3. Maintenance for the respondent.
4. Maintenance for Margaret in the event custody is granted to the respondent.
5. Maintenance for Lovella.

15 6. Division of matrimonial property.

In respect of dissolution, the parties are in agreement and it is therefore a non-issue. The custody of Lovella is also a non-issue as the petitioner had surrendered custody of Lovella to the respondent before the trial. He is not seeking custody of Lovella anymore and is also agreeable to provide

20 reasonable maintenance for her upbringing.

Custody of Margaret

Both petitioner and respondent are claiming custody of Margaret who is barely seven years old. The right to custody of a child upon a dissolution decree is provided under section 88 of the Law Reform (Marriage and

25 Divorce) Act 1976 which reads as follows:

“88. Power for court to make order for custody.

(1) The court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either

5 parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.

(2) In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard -

10 (a) to the wishes of the parents of the child; and

(b) to the wishes of the child, where he or she is of an age to

express an independent opinion.

(3) There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in

15 deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody.

(4) Where there are two or more children of a marriage, the court shall not be bound to place both or all in custody of the same person but

20 shall consider the welfare of each independently.

It must be noted from this provision that in determining the custody issue, the paramount consideration is the welfare of the child. However, the court can also take into consideration the wishes of the parent and the wishes of the child who is of an age to express an opinion independently.

25 In the instant case, I interviewed the child with the assistance of a female Chinese Court Interpreter. In spite of some initial shyness that was expected of a child who is only 6 years plus, Margaret appeared to be well adjusted and reasonably articulate. When asked about her preference on custody, she indicated that she favoured her mother although she was

30 obviously not unhappy to be in the custody of her father at the moment.

However, I was of the opinion that her overall preference to be with her mother counts for little in considering her welfare. I only interviewed her to ascertain whether she was unhappy or unwilling to live with her father. That was not the case here. She is barely seven years old. At this age, she

5 would not have sufficient appreciation of what is good for her wellbeing in the long term. Furthermore in this case, her mother is a foreigner on a short term social visa. The risk of the child being taken to the Philippines in the event her mother’s social visa is not renewed or if her permanent residence application is not renewed cannot be ruled out. Such a change

10 of environment for a child of tender years may have a potentially upsetting and distressing effect. In the circumstances, the preference indicated by the child should not be taken into account in determining custody.

I shall now consider the wishes of the parents and the overall welfare of

15 Margaret. Both parents have indicated a wish to have custody of Margaret. However, the mere desire of a parent to have his children must be subordinate to the consideration of the welfare of the children, and can be effective only if it coincides with their welfare (see Mahabir Prasad v. Pushpa Mahabir Prasad [1981] CLJ 124). It goes without saying that the

20 welfare of the child would be adequately met if he or she is placed with the more suitable parent. Section 88(3) provides a rebuttable presumption that the mother is the better parent of a child who is below the age of seven. Apart from the statutory presumption, there are many authorities that say that a child of tender years should be with the mother during the

25 period of nurture. However, in considering this presumption, the court is bound to consider the undesirability of disturbing the life of a child by changes of custody. The court can also consider any factor that will have an effect on the welfare of the child. In Tay Chuen Siang v Wang, Chiao-

Wen [2009] 9 CLJ 84, Vernon Ong JC (as he then was) said as follows:

The court, however, is not precluded from considering any other factors which may be relevant or have an effect on the children's welfare. It is trite that the welfare of the children is paramount. What do we mean by

5 the term 'welfare of the child'? The word 'welfare' is defined by the Cambridge Advanced Learner's Dictionary, 2nd edn as 'physical and mental health and happiness, especially of a person'. Clearly then, the court must have the physical and mental health and happiness of the children as its overriding consideration (see J v. C [1970] AC 6618)

10 In the instant case, the main submission against the granting of custody to the respondent is that she had attempted to commit suicide and that she is a foreigner with uncertain immigration status as she is on a short term social visa. Counsel for the petitioner submitted that the suicide attempt which is not denied shows that the respondent is emotionally and mentally

15 unstable. The suicide attempt occurred after the respondent had accused the petitioner of carrying on an affair with a Chinese woman and fathering her child. In my opinion, this suicide attempt by itself does not disqualify the respondent from being considered a suitable parent. By all accounts, this is a one-off incident which followed an acrimonious domestic

20 argument over allegations of adultery. There is no evidence that the respondent had attempted suicide again. The other significant fact is that there is no medical evidence that the respondent suffers from mental illness or depression that makes her vulnerable to suicide attempts. Counsel for petitioner also referred to the one instance where the

25 respondent had inflicted harsh corporal punishment on the older daughter by beating her with a belt. Although such behaviour on the part of a parent in this day and age ought to be deprecated, I am of the view that a single instance of lapse of judgment that led to such conduct cannot automatically render the respondent an unsuitable parent. It is evident that

domestic discord and unhappiness during this period of time may have caused the respondent to behave the way she did. It is not disputed that the older child, Lovella, is in her custody and there is no issue that she is
being physically ill-treated.
5 However, my overall opinion is that the custody of Margaret should not be transferred from the father to the mother in this case. My reasons are as follows. Margaret has been living with both parents until 14th August,
2008. Since then she has been in the sole custody of her father. Therefore for the last two years plus, she has been looked after by her father. She

10 has continued to live in the same house since early infancy. The petitioner is working full time and therefore during working hours she is being looked after by a baby sitter who is also the neighbour. Margaret appears to be growing up well. P.W. 4, the baby sitter told the court as follows:

Margaret is growing very well both physically and mentally just like

15 any other kids. She is also very lovely and smart.

This is admitted by the respondent as well who said:

Margaret is growing up well and she is also cute like her mother.

There is no suggestion from the respondent that the petitioner had mistreated Margaret since she left the matrimonial home. The respondent

20 said that the petitioner had conveniently left Margaret to be looked after by a babysitter. However, there is no evidence that the petitioner had neglected Margaret and relinquished her care to the babysitter. He had only arranged for the baby sitter to look after Margaret during the period he was away at work just like any other working parent. The petitioner

25 told the court that he had been personally taking care of Margaret after working hours, during weekends and public holidays. I have no reason to doubt him. There is also no evidence that the petitioner suffers from any

infirmity of age that renders him an incapable parent. He is after all only
55 years old. It was not denied that the petitioner had undergone an operation on his back recently. However there is no medical evidence that he suffers from the ill effects of the said operation. Moreover, the fact that

5 Margaret is doing well in the custody of the petitioner for the last two years is testimony to his parenting ability. There was some complaint that the petitioner had initially restricted access of the respondent to Margaret. However, by the time of trial the parties seemed to have worked out access rights for Aida. In any event, this should be a non-issue as a

10 reasonable access order can be made by the court. Since Margaret is presently comfortable in her present home, I am of the opinion that a change of custody and environment may have a detrimental effect on her growing up. Although the mother in ordinary circumstances must be considered the more suitable parent for a child under the age of seven, on

15 the facts of the instant case, there are good reasons to suppose otherwise.

The respondent had been granted custody of the older daughter, Lovella, by agreement of the parties about six months before the trial. However, from the evidence, I find that the respondent had been unable to provide a stable home environment. I cannot conclude that this inability on her part

20 is from lack of financial resources alone. She had been away for as long as five months in Kota Kinabalu during this period. She was not very precise about what she was doing. During this time, Lovella had been left with Taska Faith, which is a nursery. On other numerous occasions as well, Lovella has been placed in the fulltime care of Taska Faith.

25 Although it has been more than two years since the respondent has lived apart from the petitioner, she has yet to find a home in Kuching. She had given up the apartment she rented with the financial assistance from the petitioner. The obvious reason is her frequent travel to Sabah. She has been contented to leave Lovella with the Taska Faith nursery. She also

admitted in court that her life is in “shambles” although two years had elapsed since her separation. Financial difficulty cannot be the only reason that her life is in shambles as the petitioner has been paying her RM650 a month and there is evidence that the respondent has been doing

5 part time work doing pedicure during this period. It is for this reason I find that the petitioner is in a better position to provide a more stable and secure home environment for Margaret.

The other very important factor to consider is her uncertain immigration status. The respondent is a Philippine citizen. She is in Sarawak on a

10 short term social visa which is up for renewal in March of 2011. She has not been granted permanent residence yet. Her counsel submitted that she has filed her application for permanent residence and that her application would receive a boost if she is granted custody of Margaret. In my opinion, the court should not consider that factor as the welfare of

15 Margaret should be the paramount consideration. It is also possible that the respondent may not be successful in her application for permanent residence and be denied extension of her visa. In such a circumstance, there would be a serious risk that Margaret would be brought out of the jurisdiction of this court to the Philippines. Such a change of environment

20 could be traumatic for Margaret. Apart from the change of environment, the legal implications must be considered as well. Margaret, like the petitioner, is a Malaysian citizen with no automatic right of residence in the Philippines. It is also possible that the petitioner could be prevented from having access to his daughter if such an eventuality comes to pass. I

25 am fully aware that, to borrow the words of Siti Norma Yaakob J in Lee Soh Choo v Tan Ket Huat [1986] CLJ (Rep) 440, that there is no substitute for a mother's love and attention, especially when children are of tender years. Unfortunately, that may not be sufficient in view of the peculiar

facts of the instant case, particularly the uncertainty of the mother’s right to continued residence in the country and her apparent failure to provide a stable home environment. Therefore, the presumption that the mother is the more suitable parent has been displaced in this case. The paramount

5 consideration is always the welfare of the child which not only includes the love and attention of parents but also adequate physical needs such as the safety and comfort of a proper home and the prospect of continuity in living arrangements.

In the premises, I am constrained to conclude that the petitioner is a more

10 suitable parent for Margaret. In arriving at this decision, I have also considered whether Margaret should be placed with her mother in order to avoid separation from her older half-sister, Lovella. It is of course desirable to allow siblings to grow up together and not to separate them in their formative years. However, the rule on this issue is not cast in stone.

15 Section 88(4) gives the court the discretion for their welfare to be considered separately. In this case, the parents have come to an agreement in June 2009 that the custody of Lovella shall be granted to the respondent. However, I shall have to give very careful consideration to the welfare of Margaret which is the paramount consideration. In any

20 event, it must be noted that Margaret has been separated from Lovella for about one and half years. The siblings may have come to terms with the pain of separation as it is a long time in the life of young child. The more important question is whether it is fair to Margaret to undergo a drastic change in living arrangements by being handed over to her mother who

25 has yet to find a home in Kuching. For the reasons given above, I am of the view that Margaret would be better off in the custody of her father.

Maintenance for Aida and Lovella

Section 78 states the principle to be applied in assessing the quantum of maintenance payable to a spouse upon dissolution of matrimonial ties. It
reads as follows:

5 In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former hus- band, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall

10 have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.”

In the Affidavit of Means, the petitioner disclosed that his take home pay is RM6,952.25 per month. He also stated in court that he is not receiving any income from his shareholding in TNTech Sdn Bhd of which he is also

15 a director. The reason is that the company has ceased operations. Counsel for respondent has not managed to challenge or adduced evidence that the petitioner’s take home pay is greater than RM6,952.25 per month. The basic principle to be considered in awarding maintenance is the means and needs of the parties. The degree of responsibility for the breakdown of

20 marriage is not the dominant criterion in determining maintenance. In the instant case, I agree with Counsel for petitioner that the respondent has been overly suspicious about her husband and this may have contributed to domestic strife. However, I cannot say that the respondent bore significantly greater responsibility than the petitioner in the breakdown of

25 the marriage. I shall therefore consider the means and the needs of the parties as the primary guide in determining maintenance. The respondent is a foreigner on short term visa. Unless, a work pass is issued by the immigration authorities, she cannot work legally. There is evidence that she has been earning some income by doing pedicure work for friends.

She has not been forthcoming with the average income from this work. Nonetheless, given the legal restrictions on her right to work and the impermanent nature of this type work, I cannot conclude that she is earning a stable or reasonable income. As the parties have agreed to

5 dissolution and the petitioner is earning a decent income, it is goes without saying that she is entitled to a reasonable maintenance. The petitioner told the court that his expenses, which include the maintenance of Margaret, comes to about RM5,000 a month. He had also been paying RM650 maintenance to the respondent since August of 2009. The respondent on

10 the other hand listed her monthly expenses as follows:

(i) Rental for Chonglin Park Apartment RM 600.00 (ii) Utility Bills expenses RM 140.00 (iii) Prepaid handphone usage RM 120.00 (iv) Home stay expenses of Lovella RM1,250.00

15 (v) Miscellaneous expenses for food, RM1,000.00 clothings and medical expenses

(vi) Taxi fares / transportation expenses RM 300.00 (vii) Salon hair do RM 220.00

----------------

20 RM3,630.00

----------------

Counsel for respondent submitted that a maintenance of RM3,500 for her client is reasonable. Apart from that, she is claiming RM1,200 for each of her two children. It is obvious that the respondent has totally disregarded

25 the means of the petitioner whose take home pay is only RM6,952. In my opinion, regardless of the alleged expenses of the respondent, the assessment of maintenance must necessarily take into account the length of the marriage, the standard of living she was accustomed to and the means of the petitioner. The parties lived as husband and wife for only

30 seven and the half years prior to separation. There is no evidence that the

petitioner is living a life of luxury. He has been looking after Margaret for the past two years and has been contributing RM650 to the respondent. After taking into account his various expenses which includes the maintenance of Margaret, the surplus from this take home pay is about

5 RM1,000 plus only. Therefore, the respondent has to accept the fact that the petitioner will not be able to comply with any maintenance order that is well beyond his means. To his credit, the petitioner is also willing to give reasonable maintenance to Lovella although she is not his biological child. Having regard to the limited means of the petitioner, I order him to

10 pay a sum of RM1,200 per month for the maintenance of the respondent.

In respect of Lovella, I order him to pay a sum of RM400 a month as maintenance until she attains the age of eighteen.
For sake of completeness, I must mention that I have not omitted to consider the “clean break” lump sum payment of RM250,000 in the

15 alternative prayer of the respondent. Her argument is that the lump sum payment is necessary because of the risk of any interrupted payment of monthly maintenance by the petitioner. Lump sum payment is envisaged by sections 79 and 80 of Law Reform (Marriage and Divorce) Act 1976:

79. Power for court to order security for maintenance.

20 The court may in its discretion when awarding maintenance order the person liable to pay such maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay such mainte-

nance or part thereof out of the income from such property and, subject thereto, in trust for the settlor.

25 80. Compounding of maintenance.

An agreement for the payment, in money or other property, of a capital sum in settlement of all future claims to maintenance, shall not be ef- fective until it has been approved, or approved subject to conditions, by

the court, but when so approved shall be a good defence to any claim for maintenance.

In construing the above provisions, Mahadev Shankar J said as follows in
Leow Kooi Wah v. Ng Kok Seng Philip[1995] MLJ 852:

5 Although there is no provision in the Law Reform (Marriage and Divorce) Act 1976 which expressly permits a lump sum payment in addition to maintenance s. 80 covers the situation where the parties may agree to the payment of a lump sum in cash or kind in lieu of periodic payments subject to court approval. In the absence of agreement, the

10 court has the power by s. 79 of the Act to order security for maintenance by vesting property in trust to pay such maintenance.

However, in the case of Gnasothy Nadarajah v Dr Manoharan Muthuthamby [2007] 3 CLJ 679, the Court of Appeal noted that the trial court held that the court has no power to order a lump sum payment unless

15 the parties reach an agreement. The Court of Appeal agreed that this order is made in only exceptional cases. The Court of Appeal cited the Singapore case of Lee Puey Hwa @ Lee Poi Wah v. Tay Cheow Seng @ Tay Chow Seng [1991] 3 CLJ 2703 which discussed the considerations to be applied in granting a lump sum payment. The Singapore Court of

20 Appeal said as follows:

In deciding whether to order a lump sum payment, the court should consider the individual circumstances of the parties, particularly the needs of the wife and the obligations and responsibilities of the husband, in addition to his assets, his earning capacity and other

25 available resources. In any case, an order for a lump sum should not be made if the husband does not have adequate cash or other capital assets which can be readily disposed of, or if the lump sum payment or the disposal of assets will effectively cripple his earning power.

In the instant case, a lump sum payment is not practical. The petitioner testified unchallenged that he had suffered serious business losses and has no means to pay a lump sum of RM250,000. Contrary to the submission of Counsel for respondent, there is no evidence that the shareholding of

5 the petitioner in TNTech Sdn Bhd can be converted to cash to make a lump sum payment. The petitioner had testified unchallenged that TNTech Sdn Bhd has ceased operations.

Division of Matrimonial Assets

It is common ground that the following assets are in the name of the

10 petitioner:

1. The matrimonial home at Lot 1921 Block 217 Kuching North Land

District.

2. Half share in Lot 436, Block 11, Salak Land District.

3. Lot 632 Block 6 Matang Land District and Lot 503 Block 11 Salak Land

15 District.

4. EPF balance of RM14,961.87.

5. RHB Bank account balance of RM6,117.96.

6. HSBC Bank account balance of RM12,331.89.

7. Maybank Bank account balance of RM12,042.09.

20 8. 50% of Shares in TNTech Sdn Bhd.

It is also common ground that all the above assets were acquired solely by
the petitioner’s efforts. However under section 76(3):

The court shall have power, when granting a decree of divorce or judi- cial separation, to order the division between the parties of any assets

25 acquired during the marriage by the sole effort of one party to the mar- riage or the sale of any such assets and the division between the parties of the proceeds of sale.

The court, therefore, has the power to order the division of the properties although the assets in question were acquired solely by the effort of the petitioner. Under sub-section (3) the court shall consider the following in
apportioning the share:

5 (a) 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 the family;

(b) the needs of the minor children, if any, of the marriage; and subject to those considerations, the court may divide the assets or the proceeds

10 of sale in such proportions as the court thinks reasonable; but in any case the party by whose effort the assets were acquired shall receive a greater proportion.

In Wong Kim Foong v Teau Ah Kau [1998] 1 CLJ 358, Abdul Malik Ishak
J related the term “matrimonial assets” to the term “family assets” in the

15 English case of Watchel v Watchel [1973] 1 All ER 829 CA. In that case, Lord Denning said as follows:

“The phrase 'family assets' is a convenient short way of expressing an important concept. It refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing

20 provision for them and their children during their joint lives, and used for the benefit of the family as a whole.

The parties in this case lived as husband and wife for seven and the half years. Lot 1921 Block 217 Kuching North Land District was their matrimonial home in Kuching. It was purchased in 2007. Counsel for

25 petitioner submitted that there is no evidence the respondent had made any contribution that increased the value of the house. He suggested that the respondent should only be given 10% of the share of the house. Although it is true that there is no evidence of contribution or improvement to the house by the respondent, she had lived as a wife and mother for about at

30 least 2 years in the house. Apart from living there as a wife and mother, there is also evidence that she also looked after the mother of the petitioner. She must have therefore contributed to the welfare of the

family and looked after the house as well. This type of contribution is certainly within the contemplation of section 76 Law Reform (Marriage and Divorce) Act 1976 (see Chan Beng Tiow v. Kok Mei Mooi [2005] 1
CLJ 664). Counsel for respondent suggested that she be awarded half

5 share in the house. However, in my opinion, this suggestion is unfair to the petitioner. They have been married for only seven years and they lived in the house from 2007 until their separation in 2008. In my opinion, the respondent should receive only 25% share of the house after taking into account the balance of the bank loan.

10 I now turn to Lot 436, Block 11, Salak Land District. The petitioner has a half share in this agricultural plot. The other co-owner is his brother. This land was purchased on 19th November 2002 when the petitioner was already married to the respondent. The petitioner told the court that this property was purchased with the sole effort of the petitioner as a personal

15 investment and not intended to benefit the family. In my opinion this argument cannot be accepted. Partners in a marriage who acquire properties either as investments or for current use must be presumed to have intended it for the joint benefit of the family and not for their personal benefit alone. Therefore the property is a matrimonial asset as

20 defined in the case of Wachtel v Wachtel that I cited earlier. For the same reasons as given earlier, I order that the respondent be given 25% of the half share of the petitioner’s land Lot 436, Block 11, Salak Land District.

Other landed properties

Counsel for respondent agreed in the written submission that only the

25 matrimonial home and the above mentioned agricultural land were acquired during the marriage. The other two lots of land were acquired prior to the marriage. There is no evidence that the respondent had contributed to the purchase of those lots or had in any way contributed to

their upkeep. The respondent is therefore not entitled to a share in these
properties.

EPF and bank accounts

There is no dispute that EPF money is matrimonial property. The monies

5 held by the petitioner in the banks are also matrimonial assets as they are intended to benefit the family as a whole during the subsistence of the marriage. However as they were acquired by the petitioner, the respondent is entitled to a smaller share. For the same reasons give earlier, in my opinion, she is entitled to 25% of the balance in these

10 accounts.

Shares in TNTech Sdn Bhd

The petitioner owns 50% shares in this company which he claimed is now defunct. However the shares were only acquired by the petitioner after he separated from the respondent. In the premises, it can be said that this

15 investment was not intended to benefit her. I shall therefore rule that she is not entitled to any share of his holdings in TNTech Sdn Bhd.

Conclusion

In summary, I rule as follows:
1. Dissolution of marriage granted as prayed. Decree nisi to be made

20 absolute in three months.

2. Custody of Lovella, by consent, to be granted to the respondent with reasonable access to the petitioner.
3. Custody of Margaret to be granted to the petitioner with reasonable
access to the respondent.

25 4. Respondent entitled to 25% of Lot 1921 Block 217 Kuching North

Land District after redemption of the property and expenses of

25 The above amounts should be paid within 30 days.

7. As for the monthly maintenance, I make the following orders:
(a) The petitioner is ordered to pay the respondent RM1,200 a month with effect from 7th January 2011 and each succeeding
7th day of the following month which is to be paid into her
Maybank account no. 111252012893.
5 (b) The petitioner is ordered to pay monthly maintenance of RM400 a month for the benefit of Lovella, the older daughter, with effect from 7th January 2011 and each succeeding 7th day of the following month to be paid into the respondent’s Maybank account no. 111252012893 until

10 Lovella attains the age of 18 years.

(c) The petitioner and respondent are granted reasonable access to Lovella and Margaret. The respondent is granted access to Margaret every Saturday 9 a.m. to Sunday 6 p.m. The petitioner is granted access to Lovella every alternate

15 Saturday and Sunday i.e. 9 a.m. Saturday to 6 p.m. Sunday.

Parties are at liberty to apply. Each party to bear its own costs.
(RAVINTHRAN PARAMAGURU)

20 Judicial Commissioner

Date of Grounds of Decision: 25.1.2011
Date of Delivery of Judgment: 30.12.2010
Date of Hearing: 11.10.2010

25 14-15.10.2010

12.11.2010
18.11.2010
6.12.2010
9.12.2010

30

For the Petitioner: Mr. Ronnie Sim
Messrs Wong, Sim & Partners Advocates
Kuching
For the Respondent: Mr. Alvin Yong & Ms Violet Yong

5 Messrs Chong Brothers Advocates

Kuching

10

15

20

25

Notice: This copy of the Court's Reasons for Judgment is subject to editorial revision.

Context