离婚: 赡养费(太太)+婚姻产业 [2011] MLJU 154

1. 妻子和丈夫于26-12-1971结婚。 双方有两个孩子，分别是38岁的儿子和33岁的女儿。妻子在法庭做出以下的申请：
   • 基于丈夫通奸将婚姻解除；
   • 丈夫每月须向她支付RM20000的赡养费；
   • 丈夫需要应将一辆BMW 车辆转让给她；
   • 妻子有权获得下列财政现金价值的二分之一：

(a)公司资产和业务（Sportmart Sdn Bhd以及旗下的Sportline Sdn Bhd and Ararat Sports & Souvenirs Sdn Bhd）；和

(b)婚姻产业和其他产业。

2. 妻子表示在儿子出生之前双方就住进了新房（婚姻房产）。她和丈夫一起创业，于1980年成立了Sportmart Sdn Bhd 。
3. 他们两是公司的股东和董事，期间也得到了丈夫父亲的资助。妻子负责公司的行政、销售和零售工作，而丈夫则是该公司的财务总监。妻子每月获得RM7800的薪水，其中包括 RM3500的薪水、RM2000信用卡津贴、另外RM2000额外津贴和RM350的电话津贴。
4. 妻子申诉丈夫在外头有第二个家，他有时和情妇住在一起。双方在2007年2月起分居。公司随后在2007年11月停止她身为董事的薪水 ，并在隔年1月4日起罢免她公司董事的职务。
5. 法庭发现导致双方婚姻破裂的原因是因为丈夫通奸。
6. 妻子要求20千的赡养费，法庭考量到妻子已经60岁了，孩子没有跟她住在一起，所以不需要住大房子。根据她的年龄，她每个月不需要餐餐大鱼大肉和花费数额2千家务开销，1千消遣费，3千车马费，1千衣服装束费等等。另外，妻子也没有提出单据或文件证明她一直的生活开销需要20千。
7. 丈夫和妻子有两家公司，双方都是股东。妻子只是早上处理公司事务，之后就回家照顾小孩。法庭考量公司多年来有发给她RM7800的薪水, 她应该拥有足够的储息。而且妻子是公司的股东，她可以将股份出售套现。在做出考量后，法庭认为合理的赡养费为每个月RM4500。
8. 在婚姻产业方面，法庭表示婚姻产业包括结婚前一方拥有的产业，另一方需要证明在婚姻期间对此产业做出了贡献或付出。此个案中的妻子要求获得的其中一个产业是1969年双方未婚前，丈夫的父亲转让给丈夫的产业。它不是双方在婚姻期间通过共同努力获得的资产，妻子也无法提供证据证明对此婚前产业有付出或奉献；因此法庭裁定妻子无权获得这个产业的分配。
9. 至于另外的产业TL207536445，这是丈夫的父亲所留下给丈夫和他的兄弟的地。丈夫在这块地上面起了一间房子，这间房子是丈夫和太太一起居住的房子。由于是属于双方的共同婚姻产业，根据离婚法令第76条文，属于婚姻产业的房子应该被双方同意的估价师估价，扣除银行贷款，剩下的余款(如有)，双方平分。法庭指示男方负责其估价费用。
10. 尽管丈夫在双方婚姻破裂时，将这产业转让给了两名子女，但根据婚姻法令第102条文，如果在离婚程序的3年内，任何一方恶意的为了避免把婚姻产业分给另外一方，而把婚姻产业转名，法庭有权利宣判其转名无效。
11. 法庭批准了妻子一部分的申请。

*详细的案情和判决，请阅读以下的英文版的文章。

1. The Petitioner and the Respondent were married on 26.12.1971 in Labuan. They have two children from the marriage, a son Avtar Singh Sandhu who is 38 years old and a daughter Dilshan Kaur Sandhu who is 33 years old.

2. The Petitioner filed this petition for divorce on the ground that the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent. The Petitioner prays that:

(1) the marriage be dissolved;

(2) the Respondent shall pay maintenance to her in the sum of RM20,000.00 per month;

(3) the Respondent shall transfer a BMW vehicle bearing registration number LA77 to her and

(4) the following matrimonial assets be valued by a qualified valuer to be agreed by the parties and the Petitioner shall be entitled to one half of the value in cash, after deduction of any redemption sums due to any financial institutions:

(a) the assets and business ventures of Sportmart Sdn Bhd (T-64031-K) and its associated companies Sportline Sdn Bhd and Ararat Sports & Souvenirs Sdn Bhd;

(b) the matrimonial home described as TL207536445; and

(c) three other properties described as TL207536472, TL207505280 and TG207505520 respectively.

3. At the commencement of the trial, the learned counsel for the Respondent informed the court that the Respondent is not contesting prayer 1 and prayer 3 of the Petition without prejudice to his defence to the other allegations in the Petition.

The history of the marriage avers by the Petitioner:

4. The Petitioner studied until Form 5 in Brunei and then worked as a clerk before she married the Respondent who was then working with JKR in Kota Kinabalu. After the wedding they resided in Kota Kinabalu. After Avtar was born, the Respondent resigned from JKR and started a sports business with the financial support of his father whom she said was a wealthy man. The business was not successful and they moved back to Labuan to stay with the Respondent’s parents. She said that they moved to their new bungalow house (the matrimonial house) before Dilshan was born on 14.10.1977 and the Petitioner has lived in this house ever since.
5. They started a new sports business under Sportmart Sdn Bhd which was incorporated on 4.11.1980 with both of them as the only two shareholders and directors of the company again with financial assistance from his father. She worked only in the morning when the children were young and stayed at home with the children in the afternoon. The children had their primary education in Labuan, had their secondary education in Singapore and their tertiary education overseas. She worked full time with Sportmart Sdn Bhd doing administrative work, sales and retail, after Dilshan left for Singapore in 1989, while the Respondent was the financial controller of the business. #夫妻档企业 #共同企业 #夫妻是董事股东 #夫妻是股东
6. Sportmart Sdn Bhd was and is very successful and the Respondent was a well known business tycoon millionaire in Labuan. It and its associate companies Sportline Sdn Bhd and Ararat Sports and Souvenirs Sdn Bhd have business outlets in Labuan, Kota Kinabalu, Keningau and Lahad Datu. She was paid RM7,800.00 per month which included a salary of RM3,500.00, credit card allowance of RM2,000.00, claims of RM2,000.00 and telephone allowance of RM350.00. She has the exclusive use of the BMW vehicle which is maintained by the company. The family had previously been on holidays to different countries for examples Germany, Italy and France.
7. The Respondent was a habitual womanizer. She said that the Respondent maintained a second home where he sometimes lived with his mistress by the name of Hermojenna Ledonia Enriquez. She said the mistress used to send offensive messages to her and harassed her. She said on 18.8.2006 she decided to confront the mistress which resulted in her being assaulted by the mistress. The mistress was subsequently charged for assault in the Labuan Magistrate Court. The Respondent and she have lived apart since February 2007.
8. In November 2007, the company stopped paying the RM3,500.00 salary to her and she was removed as a director of the company on 4.1.2008 without her knowledge on the allegation that she had taken cash from the cash register amounting to cancelled with a balance of RM9,233.04 still owing to the bank. Subsequently her telephone allowance was also cancelled. #停止付太太的董事薪水 #停付太太的董事薪水 #被罢免董事一职

Wife’s Maintenance

9. Section 77(1)(b) of the Law Reform (Marriage and Divorce) Act 1976 provides that the court may order a man to pay maintenance to his wife or former wife when granting or subsequent to the grant of a decree of divorce. Section 78 provides that in determining the amount of any maintenance to be paid, 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 have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.
10. The Respondent in his witness statement did not deny the averments and testimony of the Petitioner in respect of the history of the marriage, the breakdown of the marriage, his affair with the mistress, the payment of RM 7,800.00 per month to the Petitioner over the years, the cancellation of such payments since 2007 and her removal as a director of Sportmart Sdn Bhd. The Respondent instead dealt with his incomes, the businesses and matrimonial assets which I shall refer to later.
11. From the evidence, in particular his affair with his mistress over the years, it is the finding of this court that the Respondent had behaved in such a way that the Petitioner could not reasonably be expected to live with him and was primarily responsible for the breakdown of the mariage. 通奸导致婚姻破裂
12. The Petitioner at the moment is still staying in the matrimonial house which the Respondent has transferred to Avtar and Dilshan in 2007 and 2009. She stays there presently on their goodwill and may have to move out if they ask her to. She said that Labuan is a small place and in view of the acrimonious divorce proceedings, she is desirous to move to Kuala Lumpur which will also give her the opportunity to be closer to her aging mother.
13. She set out her financial needs which amounted to RM20,000.00 per month as follows and which she said is within the financial means of the Respondent:-

14. Before 2007, the Petitioner was paid RM7,800.00 per month and this was sufficient to maintain her. She has not explained why she now needs RM20,000.00 per month. The Petitioner is 60 years old. The children have grown up and no longer staying with her. If she moves to Kuala Lumpur, she does not require a big house or apartment. At her age she does not eat and drink a lot and does not need to spend every month RM2,000.00 on household and toiletries, RM1,000.00 on recreation, RM3,000.00 on travels, RM1,000.00 on personal attire and so on. The Petitioner has not produced any receipts or documents on her present consumptions and spending in Labuan to support her averments that she needs RM20,000.00 per month either in Labuan or in Kuala Lumpur. The Petitioner was awarded interim maintenance of RM3,000.00 per month in 2009 and she has not complained that she was not able to maintain herself on this sum, although for the time being she does not have to pay any rental which she may have to in future. #太太要求赡养费20千。法庭考量太太60岁了，孩子没有跟她住在一起，所以不需要住大房子。根据她的年龄，她每个月不需要餐餐大鱼大肉和花费数额2千家务开销，1千消遣费，3千车马费，1千衣服装束费，等等。太太也没有提出单据或文件证明她一直的生活开销需要20千。没有证据振明太太需要的数额 #没有证据证明太太需要的开销 #没有证据证明开销 #太太不需要住大房子#依照太太的年纪，太太不需要花如此的数额 #太太不需要花如此的开销
15. As the Petitioner had been paid RM7,800.00 per month for many years, she will have some savings. The evidence showed that she was able to help Dilshan pay some of her debts. The Petitioner has not disclosed how much savings she has as this is a factor which the court will also take into consideration in assessing the means and needs of the parties in determining maintenance. The Petitioner still has 175,000 shares in the company Sportmart Sdn Bhd and 100,000 shares in the company Sportline Sdn Bhd. Both parties have not stated whether the companies are or have been paying any dividend over the years. If necessary, the Petitioner can sell her shares in the companies to either the Respondent or Avtar or someone else. From the evidence adduced, the Respondent does not own any shares in Ararat Sports and Souvenirs Sdn Bhd. #太太要求赡养费20千。丈夫和太太有两家公司，双方都是股东。太太只是早上处理公司事务，之后就回家照顾小孩。法庭考量公司多年来有发给她RM7800的薪水, 太太应该拥有足够的储息。法庭也考量太太是公司的股东，她可以将股份出售套现。#太太有自己的储息 #太太的储息也是计算赡养费的因素之一 #太太在公司是股东 #没有证据提出公司有没有分股 #公司有分红 #可以卖公司的股份
16. The Respondent has exhibited his declared income for 2008 which was RM117,521.00 and for 2009 which was RM72,000.00. His incomes included income from Sportmart Sdn Bhd and rental income from the properties in Labuan. He said that he is semi-retired and the business is being managed by Avtar. He has transferred the majority of his shares in Sportmart Sdn Bhd to Avtar, apparently in 2009. He now owns 70,000 shares only in the company. He said the company has bank loans amounting to RM4,080,000.00. He said that he does not have the income nor the means to pay maintenance in the sum of RM20,000.00 as prayed for by the Petitioner which he said in any event is excessive and unreasonable in the circumstances. #丈夫的收入 #报的收入 #半退休 #欠银行钱 #没有收入 #没有能力付赡养费 #要求过高
17. After considering the facts and circumstances of this case, in accordance to Section 78 of the Act, I assess maintenance at RM4,500.00 per month.

Matrimonial Assets

18. In respect of the division of matrimonial assets, the Act distinguishes between assets acquired by them during the marriage by their joint efforts and assets acquired during marriage by the sole effort of one party to the marriage. In respect of the first category, Section 76(1) provides that the court shall have regard:

(a) to the extent of the contributions made by each party in money, property or works towards acquiring the assets;

(b) any debts owing by either party which were contracted for their joint benefits;

(c) the needs of the minor children if any of the marriage, and subject to those considerations the court shall incline towards equality of division.

Section 76(4) provides that the court shall have regard to

(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 of the marriage, and subject to those considerations the court may divide the assets 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.

Section 76(5): Assets acquired during marriage include 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. 婚姻产业包括结婚前一方拥有的产业，只有另一方在婚姻期间对此产业做出了贡献或付出。

19. The property TG207505520 was transferred to the Respondent by his father in 1969, before they were married. It is not an asset acquired during marriage by their joint efforts nor is it an asset acquired during marriage by the sole effort of one party to the marriage. Although it is included as an asset acquired during marriage pursuant to Section 76(5), the Petitioner did not testify nor lead any evidence that this property has been substantially improved by her or by their joint efforts during the marriage. #婚前产业 #太太没有证据证明对婚前产业的付出和改进
20. The Respondent acquired the property TG207505280 in 1984 with bank financing. This property was acquired during marriage with the earnings from the company which was owned by them and both of them were then working with the company. This was a matrimonial asset jointly acquired by them during marriage. #共同产业 #共同婚姻产业
21. As for the other two properties, the Respondent said that these are subdivided from a parcel of land belonging to his father which he had inherited together with his two brothers in 1966. In 1980 he built the matrimonial house on TL207536445. This is the house that the Petitioner has been staying in since then. The Respondent said that his mother’s house is built on TL207536472. There was no evidence led by the Petitioner to contradict this. He has transferred TL207536445 to Avtar and Dilshan on 3.8.2007 and on 19.11.2009. He has also transferred TL207536472 to Avtar and Dilshan in 2007 and 2009. #TL207536445是丈夫的父亲所留下给丈夫和他的兄弟的地。丈夫在这块地上面起了一间房子，这间房子是丈夫和太太一起居住的房子。
22. It is clear that the Respondent had transferred these two properties to Avtar and Dilshan after the marriage had broken down and the parties were contemplating divorce proceedings. It was an apparent attempt by the Respondent to deny the Petitioner of her shares in these properties. In any event, in respect of TL207536445 which is the matrimonial home, the transfer being within three years of the date of the Petition is caught by Section 102(1) of the Act. #根据婚姻法令第102条文，如果在离婚程序的3年内，任何一方恶意为了避免把婚姻产业分给另外一方，把婚姻产业转名，法庭有权利宣判其转名无效。#3年内转名 #有意图转名 #恶意转名
23. From the evidence, over the years, there is no doubt that the main source of income for the family is from Sportmart Sdn Bhd which is the family business. Over the years they had paid themselves well from the earnings of this company. The Petitioner’s monthly income of RM7,800.00 over the years was paid by the company. As the Respondent has testified, the property TG-207505280 although registered in his name is currently charged to Public Bank for RM2,700,000.00 as working capital for the company. The property TG207505520 which is registered in his name is also charged to Public Bank for working capital for the company. It is apparent that the line as to what are owned by the Respondent and what are owned by the companies are blurred. The family, in particular the Respondent, has over the years used the companies to fund his acquisition of properties and to maintain their standard of living. The Respondent has chosen not to produce the up-to-date accounts of the companies for the trial.
24. As the properties TL207505280 and TL207536445 are matrimonial assets, in accordance to the provisions of Section 76 of the Act, I allow the Petitioner’s application in terms of prayer 4 in respect of these 2 properties only i.e these 2 properties shall be valued by a qualified valuer to be agreed by the parties and after deduction of any redemption sums due to any financial institutions, the balance thereof (if any) shall be divided equally between the Petitioner and the Respondent. The Respondent shall pay the costs of the valuation. And I so order. 根据离婚法令第76条文，此房子属于婚姻产业，房子应该被双方同意的估价师估价，扣除银行贷款，剩下的余款(如有)，双方平分。男方负责其估价费用。
25. As the Petitioner owns shares in Sportmart Sdn Bhd and Sportline Sdn Bhd, I make no order regarding these 2 companies in terms of prayer 4(a).
26. I also make the following orders:

(1) that the marriage between the Petitioner and the Respondent be dissolved;

(2) the Respondent shall pay the Petitioner maintenance of RM4,500.00 per month from 1.3.2011; and

(3) the Respondent shall transfer or caused to be transferred the BMW vehicle bearing registration number LA77 to the Petitioner.

(4) Costs of these proceedings to be paid by the Respondent to the Petitioner, if not agreed to be taxed.

Source: Amir Jeet Kaur a/p Bahan Singh Chand v Dilbagh Singh [2011] MLJU 154. High Court Kota Kinabalu. Stephen Chung Hian Guan J.

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