- This is an application for Declaratory Orders pursuant to Enclosure 60 by the Respondent for the following:
(a) A Declaration that a property that is being held under the Title HS(D) 5608, Lot. 8199 Kluang Sub District, in the State of Johore and has the address no.78 Jalan Koko, Lian Seng Garden, 86000 Kluang, Johore as the matrimonial home of the Deceased and the Respondent.
(b) A Declaration that the Respondent has ½ share of the property which is the matrimonial home of the Deceased and the Respondent.
(c) A Declaration that the District Land and Mineral Office to enter the name of the Respondent as the owner of ½ share of the property.
(d) The cost of the application is to be borne by the estate.
(e) Any other Order that the Court deems fit and just.
- The Applicants are the brother and sister-in-law of the Deceased Ananthan a/l Ganesan.
- The impugned property that has the address no. 78 Jalan Koko, Lian Seng Garden, 86000 Kluang, Johore, was bought by the Deceased’s father in 1979 and subsequently transferred to the Deceased’s mother and the Deceased’s elder brother (Soundirapandian).
- At the time the Deceased’s father earned a living through his restaurant business and he paid the instalments from the profits of the restaurant business.
- In 1984, the Deceased’s father requested Soundirapandian to pay off the debts in the Deceased’s father name. Soundirapandian took a refinancing loan from Bank Bumiputra Malaysia Berhad and paid off his father’s debt. When the Deceased’s father died on 1986, Soundirapandian paid the loan instalments from the profit of the restaurant business.
- Later in 1990, the Deceased took up a job in Singapore and paid off the remainder of the loan from his salary. The loan was fully paid in 1996 by the Deceased and his siblings decided that the property should be transferred to him totally as he paid off most parts of the loan. Further he took care of his mother and younger sister.
- The Deceased married the Respondent on 12 October 1998 and the marriage produces 3 children (one boy and 2 girls).
- However, the Respondent filed for Judicial Separation in the Muar High Court on 30 March 2016 and the Deceased and the Respondent were granted a Decree of Judicial Separation.
- The Deceased was ordered to pay maintenance to the Respondent and the Children. No order in respect of any matrimonial property was ever given.
- The Deceased passed away on 24 May 2018 in Kluang, Johore leaving a Last Will and Testament (“the said Will”) dated 15 December 2017.
- Pursuant to the said Will, the Applicants were named as the Joint Executors and Trustees of the Deceased’s Estate (“the Estate”). The Beneficiaries named in the said Will are the 3 Children of the Marriage only.
- The application to obtain the Grant of Probate was filed at the Muar High Court on 26 July 2018. The Respondent applied to intervene and was granted the Order to intervene in the action, on 19 February 2019. This application pursuant to Enclosure 60 was filed on 5 March 2020.
THE ISSUES IN THIS APPLICATION PURSUANT TO ENCLOSURE 60.
- The issues are:
i. Whether the said property is a matrimonial property.
ii. Whether the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) override the Probate and Administration Act 1959 and the Wills Act 1959.
iii. Whether a wife under the Decree of Judicial Separation is entitled to the property of a Deceased husband when there is a valid Last Will and Testament.
iv. Whether Section 76 LRA applies. v. Whether the Respondent succeeded in proving her claim to the impugned property.
i.Whether the said property is a matrimonial property
- According to an article “DIVISION OF MATRIMONIAL PROPERTY IN MALAYSIA: THE LEGAL HISTORICAL PERSPECTIVE. SEJARAH:” by IBRAHIM, Norliah; ABDUL HAK, Nora. Journal of the Department of History, [S.I.], v. 15, n. 15, Nov. 2017. ISSN 2756-8253., “Matrimonial property under the Malaysian family law refers to the property that is jointly acquired by husband and wife during the marriage.”
- Duhaime’s Law Dictionary defined “matrimonial property” as “Property owned by one or both of two persons who are married to one another which, upon the application of one of the spouses to a court, is subject to division between them.”
- In Malaysia the law governing non-Muslim marriage and divorce matters and any matter incidental thereto is the Act. In respect of matrimonial property, it is Section 76 of the Act which stipulates as follows:
76 Power for court to order division of matrimonial assets
(1) The court shall have power, when granting a decree of divorce or judicial Separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.
(2) In exercising the power conferred by subsection (1) the court shall have regard to-
(a) 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;
(aa) 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;
(b) any debts owing by either party which were contracted for their joint benefit;
(c) the needs of the minor children, if any, of the marriage;
(d) the duration of the marriage,
and subject to those considerations, the court shall incline towards equality of division.
(3) (Deleted by Act A1546:s.6)
(4) (Deleted by Act A1546.S.6)
(5) For the purposes of this section, references to assets acquired during a 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.
- The definitions of “matrimonial property” are therefore either:
(i)”any assets acquired by married couple during the marriage” or
(ii)”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.”
- These are the 2 different parts in the definition of what constitute “Matrimonial Property”.
- The 1st type is quite straightforward i.e.
(a)The man and woman entered into a marriage lawfully.
(b)During the subsistence of such a marriage, they acquired the property.
(c)The property must be acquired after the entry into the marriage and not before.
(d)The contribution is in form of money or tangible assets of value or in the case of non-monetary and / or non-valuable contribution, it is contributed in the well-being of the marriage and includes (but not limited to) acts of love and affection, support, care or other means that makes the marriage workable.
- Under the 2nd definition, the matrimonial property is one where:
(a)The property acquired fully before the entry of marriage by parties.
(b)The party that did not contribute in the acquisition of the property, contributed in the improvement of the property.
(c)The improvement is both substantial and quantifiable, considering the facts and circumstances of the marriage.
(d)The onus and burden of proving substantial improvement is on the party that did not contribute in the acquisition of the property.
- Having considered the facts that the impugned property was fully acquired before the marriage of the Deceased and the Respondent, the impugned property cannot fall under the 1st limb. I shall deal with the 2nd definition under a separate heading below.
ii Whether the LRA override the Probate and Administration Act 1959 and the Wills Act 1959
- The LRA is an Act to provide for monogamous marriages and the solemnisation and registration of such marriages; to amend and consolidate the law relating to divorce; and to provide for matters incidental thereto. It is not a law that regulates succession.
- The Primary Laws that regulate succession (for non-Muslims in Malaysia) are
(a)Probate and Administration Act 1959, which is an Act relating to probate and letters of administration.
(b)Wills Act 1959 which is an Act relating to the law on wills.
- The property of a Deceased husband (as in the case of subsisting marriage at the time of death) is governed by the Laws governing succession. However, in the case of matrimonial property, if successfully proven as such, the property shall be divided by the Court in proportion having regards to factors in Section 76(2).
- The property that was successfully proved to be matrimonial property and apportioned accordingly, shall be the property of the surviving spouse and the remaining portion shall be divided according to the laws of succession whether or not, the surviving spouse is entitled to any part of that remaining portion. This is because the surviving spouse portion is not part of the Estate of the Deceased and hence is not subject to the Laws of Succession.
- The remaining part of the property which now becomes the Estate of the Deceased may be bequeath by will by virtue of Section 3, Wills Act 1959 which reads “Except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner hereinafter required, all property which he owns or to which he is entitled either at law or in equity at the time of his death notwithstanding that he may have become entitled to the same subsequently to the execution of the will.”
- Hence, it is the view of this Court, for non-Muslims, a valid Last Will and Testament shall override any other claims in respect of the Estate for the purpose of succession.
iii. Whether a wife under the Decree for Judicial Separation is entitled to the property of a Deceased husband when there is valid Last Will and Testament
- “Judicial Separation” is a Court Decree that makes it shall no longer be obligatory for the petitioner to cohabit with the respondent. The conditions-precedent for a Decree for Judicial Separation are as follows:
(a)The marriage is registered or deemed to be registered under the LRA;
(b)The marriage was monogamous; and
(c)Both parties to the marriage reside in Malaysia at the time of the commencement of proceedings.
- In AJS v. RIS & ANOR  4 CLJ 170, the court held:
“ Unlike a decree of divorce, the pronouncement by this court of a decree of Judicial Separation does not legally dissolve a marriage. Once a decree of Judicial Separation is granted, the petitioner is no longer obliged to cohabit with the respondent (Section 64(2) of the LRA). To dissolve the marriage after the granting of a decree of Judicial Separation, the petitioner would then have to present a petition for divorce. Section 65(1) of the LRA expressly states the fact that a petitioner had been granted a decree of judicial petition will not bar the petitioner from presenting a petition for divorce or a court from pronouncing a decree of divorce. Pursuant to s. 65(2) of the LRA, the court may treat the decree of Judicial Separation as sufficient proof of the adultery, desertion, or other ground on which it was granted.”
- The grounds for granting a Decree of Judicial Separation is found in Section 54 of the LRA which are:
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
- The Act still recognises the marriage as subsisting after a Decree of Judicial Separation has been granted and hence this recognition entails the rights and obligations are still governed by the marriage except where the law provides otherwise (such as it shall no longer be obligatory for the petitioner to cohabit with the respondent).
- In Enclosure 60, I found the attack is mounted on the validity of the Last Will and Testament of the Deceased Husband who died on 24 May 2018 in Kluang, Johore. The solicitor who drafted and attested to the Will along with another solicitor who became the witness to the Will are found in the Enclosure 5 and 6. The Respondent apart from alleging that the Last Will and Testament of the Deceased is invalid, null and void, provides no proof. The Court accepted the Last Will and Testament of the Deceased as valid and of full legal effect (Probate was granted).
- I found no further complaint on this issue and hence I take it there is no more issue on this. Further, the previous Court Order (Probate) was to recognise the Last Will and Testament of the Deceased Husband. I have no reason to depart from the Order.
iv. Whether Section 76 Law Reform (Marriage and Divorce) Act 1976 applies
- In MANOKARAM SUBRAMANIAM v. RANJID KAUR NATA SINGH  6 CLJ 209, where the appellant’s appeal against the decision of the Court of Appeal dismissing appellant’s appeal against the High Court order granting leave to the respondent to proceed with her application for ancillary reliefs. The single issue of law requiring determination was whether leave of the court could be granted to a party in a petition to proceed with a claim for property division under Section 76 and/or under any provision of the LRA (‘Act’) after decree nisi has been made absolute. The High Court judge was of the view that under the provisions of the Act, she was vested with the power and/or jurisdiction to entertain the application made by the respondent, and she proceeded to make the order in favour of the respondent. The Federal Court ruled that, inter alia,
 I feel obliged to make these comments because the courts had been repeatedly accused of being unfair to parties when in fact parties themselves have failed to file in proper documents, make proper applications, and to do so within the time provided by law. It is not as if the lawyer concerned had interpreted the law differently. If there are authorities that support the respondent’s actions perhaps the court could be sympathetic with her. The result of all these oversight is injustice to the client.
 So all in all, the respondent did not protect her rights well. I do not like to comment who was at fault.
 I agree with my learned brother Arifin FCJ that the duty of the court is to interpret and apply the law. In this case the words used in Section 76(1) and 76(3) are clear i.e., an order for division of matrimonial asset is limited to the time when granting a decree of divorce or Judicial Separation and not at a later stage. I am very sure that this is the interpretation that is to be given to Section 76. Even Singapore had to amend their Women’s Charter (see news. 112 of the Singapore Women’s Charter) to enable that ancillary reliefs could be made at any time subsequent to the grant of a judgment of divorce.
 In conclusion, I have this to say. I sympathise with the respondent but the law is the law. In CHAI SAU YIN V. KOK SENG FATT  1 LNS 25 Thompson LP said “This, however, is a court of law and not a court of morals and it is on that basis that the case must be decided.” That case was in respect of the Moneylenders Ordinance.”
- I shall not repeat the facts that I set out earlier but suffice that I say, Section 76 of the LRA applies in our instant case.
- This application has been made at this stage which is 4 years since the Decree of Judicial Separation that was granted on 30 March 2016. There is nothing much this Court can do. This is a High Court that is bound to follow the Federal Court’s ruling and the ruling clearly states “an order for division of matrimonial asset is limited to the time when granting a decree of divorce or Judicial Separation and not at a later stage.”
- For this reason alone, the application pursuant to Enclosure 60 should be dismissed.
v. Whether the Respondent succeeded in proving her claim to the impugned property
- The Respondent averred that she spent money for the religious observances during bereavement and that she contributed RM250-00 a month to the Deceased to pay a loan for the purpose of extending the back portion of the house while she was staying at the impugned property.
- This was denied by the one Thanga Raja a/l Subramanian who affirmed an affidavit (Enclosure 18) that the Respondent had asked for receipts although she did not pay for the funeral services that were being carried out for the Deceased. On the contrary, it was the 1st Applicant that asked for the funeral services and paid them accordingly. I found that the Respondent lied in her affidavit (Enclosure 20) that she paid for the funeral services of the Deceased.
- I perused over the affidavits of the Respondent as per Enclosure 68, 69 and 70 where the Respondent averred that she spent money on the living expenses while the Deceased used his money for the renovation and improvement of the impugned property. I found no receipts or other documentary proof to support these averments. It is challenged by the Applicants and they put the Respondent on strict proof. 装修费用。没有办法提出证据
- It must be noted that under the 2nd definition of the matrimonial home it has to be “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.”
- The 1st definition is where the property was acquired during the subsistence of the marriage and the contribution of either spouse can be both tangible and non-tangible. The contribution can either be in the form of money or tangible assets of value OR in the case of non-monetary and / or non-valuable contribution, it is contributed in the well-being of the marriage and includes (but not limited to) acts of love and affection, support, care or other means that makes the marriage workable.
- The 2nd definition is obviously different from the 1st definition of matrimonial property which does not require actual monetary or valuable contribution because under the 2nd definition the contribution (of the non- acquiring spouse) in the improvement of the property must be both substantial and quantifiable and the burden is on that non-acquiring spouse. In other words, under the 2 nd definition, acts of love and kindness or care for the family is insufficient for the purpose of claiming the impugned property as matrimonial property.
- Since it must fall under the 2nd definition of the definition of the “matrimonial property” which is “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.”
- No details of the alleged loan nor the payment of the loan or that the Respondent actually obtained money (apart from her husband, the Deceased) and gave that money to the Deceased for either repayment of the loan or buying of materials for the alleged renovations of improvement. 没有提出证据
- The burden is on the party that claims the property have been substantially improved (See: Section 101 Evidence Act 1950, SELVADURAY V. CHINNIAH  MLJ 253, THE CARBON CO SDN BHD & ANOR V. NG LEE HOON (CONDUCTING UNDER ‘FOREST WOOD FLOORING’)  4 MLJ 791).
- In BALAKRISHNAN A/L KALIAPPAN V. SHAMEENA A/P NATHESAN 2019  7 CLJ 762;  MLJU 288, the Court of Appeal had distinguished the meaning of matrimonial home and matrimonial assets as follows:
“Entitlement and division of the matrimonial home
 We have intentionally use the words ‘matrimonial home’ and not “matrimonial property or asset” to describe this house which was registered under the wife’s name and bought vide a sale and purchase agreement dated 4/3/2009 from… which was 2 years before the marriage was registered. This is simply because a matrimonial home may not necessarily be a matrimonial property or asset which the court has the power to order division of under section 76(1) of the LRA in that a place where the parties cohabitated after the marriage may not be in their names, either solely or jointly but could be one which belongs to either of their respective families or even rented…..
 It is of course specifically provided under section 76(5) of the LRA that assets acquired during a marriage includes the ones acquired before the marriage by one party but which “have been substantially improved during the marriage by the other party or by their joint efforts…”
- In YAP YEN PIOW V. HEE WEE ENG  1 MLRA 389, the Court of Appeal said joint efforts need not necessarily be in monetary terms but should include consideration in kind. When it relates to matrimonial property (or home), i.e., the house (one or several) and all movable and immovable assets in the house or having nexus to the house, such as a car, etc. which is meant to be used by the family, the courts have generally acknowledged that it falls under matrimonial property which will fall under Section 76(1) of the LRA, provided it was acquired by the joint efforts of the spouses though one spouse may not have contributed in cash but the consideration may have been in kind.
- The averments of the Respondent were that she contributed the betterment of the said properly which was denied by the Applicant. The burden is on the Respondent to support her claim. Apart from bare averments in her affidavit, no proof was offered.
- After finding that she lied in her earlier affidavits in respect of the expenses on funeral services and religious observances, I have my reservations on the Respondent’s averments unless adequate proof is offered and I found nothing of the sort proven before this Court. As such, I find that the Respondent failed to prove her claim that the impugned property is a matrimonial property that she has a claim to.
- Assuming that, for the sake of the arguments the Respondent succeeded in proving her case, by the authority of MANOKARAM SUBRAMANIAM v. RANJID KAUR NATA SINGH  6 CLJ 209, the Respondent is barred from claiming the impugned property as matrimonial property, a little too late in the day.
- For the reasons aforesaid, I dismissed the Respondent’s claim pursuant to Enclosure 60 with cost.
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