离婚：抚养权(归父亲)+赡养费+产业分配 [2020] 7 MLJ 437

丈夫在法庭要求解除婚姻关系，并争取两个孩子(女儿11岁，儿子4岁)的抚养权。

1. 女方指责丈夫和另一女同事有染；造成上司指示丈夫离职，并影响丈夫的工作。但女方根本没有证据证明丈夫通奸，反之女同事为此事，入禀法庭告女方诽谤。
2. 由于她在酒吧和卡拉OK场所工作，因此经常喝醉。她有情绪病，无法控制情绪，时常殴打女儿。
3. 1976年婚姻与离婚改革法令第88条文说明，法庭在裁决抚养权时，必须首先考虑到小孩的福利。小孩的身心灵发展也必须被考虑, 同时小孩本身的情感发展也不容忽视。 （Re KO (an infant) [1990] 1 MLJ 494 ）
4. 孩子目前跟男方一起生活，法庭也认为女方不适合拥有两个孩子的抚养权。虽然法律有假设性定规律，声明7岁以下的小孩的抚养权是归于妈妈，由于女方经常虐待孩子，也过于着重事业，法庭在考量到孩子的福利后，将孩子抚养权归男方。女方可获得儿子的探视权，至于女儿的探视权则由女儿自行决定是否愿意见女方。这意味着，如果女儿永远不想见妈妈，妈妈都没有机会行驶她的探视权。
5. 婚姻财产分为两种：
   • 双方婚后共同努力获得的财产
   • 结婚前一方获取的产业，婚后双方共同努力（金钱或非金钱上的奉献）去经营，也可被视为婚姻财产。第二种的婚姻财产需要当事人提出金钱或非金钱上的贡献的证据。
6. 男方在婚后买了一个房子。女方要求售出此房子，卖价并分为二。女方声称有在购买房子中做出金钱上的贡献。但是，在法庭上，女方没有拿出任何证据证明她的金钱贡献。女方甚至没有办法记得房子的资料和地点。
7. 男方的妈妈有间房子，男方女方和小孩都在那边住了一段日子。女方表示她有为男方妈妈的家做出奉献，如不时的支水电费和管理费。 她要求出售该产业，售出的钱，要分配给她。法庭指出管理费和水电费的费用，不属于实际的奉献，因此驳回了女方的申请。
8. 至于赡养费的安排，法庭表示太太在赡养费的申请方面显得漫不经心，并没有认真争取。她没有提供任何证据显示丈夫的收入，只是要求丈夫支付她RM30,000.00作为一次性的赡养费。法庭有提起太太有自己的收入，暗示说法庭也不会批准她赡养费的申请。
9. 但是，丈夫自己同意支付RM30,000.00作为一次性的赡养费，只是他要求通过分期付款的方式来支付。丈夫是一名厨师，每月收入约RM3,000.00。他的收入刚好足够提供两个孩子的生活需求，太太本也身有自己的收入，可以以此为生。法庭因此批准丈夫要求分期付款的申请。

*详细的案情和判决，请阅读以下英文版的文章

1. The petitioner, the husband of the respondent, petitioned for divorce of a marriage of 11 years and the custody of the two children of the marriage (‘A’ and ‘B’). A is a girl aged 11 years and B is a boy aged 4 years. The parties have been staying apart since 2017. The parties accept that the marriage has irretrievably broken down. They lay blame on each other for the break down. Both state that the behaviour of each other is such that the petitioner or the respondent cannot reasonably be expected to stay with the other. Apart from the above the respondent’s principal reason is on the ground of adultery on part of the petitioner. 互相指责对方的不是

FINDING ON BREAK DOWN OF MARRIAGE

2. After a careful examination of the evidence and having heard and seen the demeanour of both parties I arrive at the conclusion that the marriage has irretrievably broken down. I find that it was the respondent’s behaviour that is almost wholly responsible for the break-down of the marriage. I find that the behaviour was such that the petitioner cannot be reasonably expected to stay with the respondent. The respondent had no qualm of creating a scene and embarrassing people. She turned up at his former place of work accusing him and one of his colleague of having an affair. The respondent did this a few times until his employer had to ask the petitioner to leave his job. As a result, the petitioner was unemployed for a few months. The petitioner denied having the affair. The allegation of adultery has also not been proved. It is merely a bare allegation made by the respondent. The party alleged to having an affair with the petitioner has since sued the respondent for defamation.
3. The evidence shows that the respondent is a highly strung person with a short temper that has erupted in bouts of violence which has been directed to the children especially, to towards A, and the petitioner. She is also unable to control her emotions and actions especially when she comes home drunk from work and is unable to take the noise of the children playing. She always complains that the children give her headaches. It is during this time that her anger is channelled to the children and the petitioner and wants them out of the house. The respondent has also asked the petitioner to take the children to his mother’s house as she wants to go to work. The undisputed evidence shows that the respondent in one of her drunken episodes threatened to kill herself. She threatened to jump of the building in which her father’s house situates. She has taken to caning and beating the children. The evidence shows that her beatings have left marks on her daughter until the school authorities had to call the petitioner and raise the issue with him. The respondent denies that her daughter is suffering psychiatric trauma and denies knowing that her daughter is being treated for the same at the Penang General Hospital. After having considered the evidence as a whole I am satisfied that the respondent is the cause of her daughter’s psychiatric condition.
4. The petitioner has done all he could to keep the marriage together. He even moved out of the matrimonial home which is his mother’s house and moved into his father-in-law’s house. He stayed in his father-in-law’s house for seven years until 2017 when it became intolerable to live with the respondent and moved back to his mother’s house with the children. The petitioner was not happy with the respondent’s job at karaoke places and bars which keeps her away from 8pm–4am and from which she frequently comes home drunk. The petitioner was not happy with this situation but the respondent couldn’t care less for the petitioner’s feelings on the matter. My distinct impression of the respondent is that she is a strong willed person used to having her way and would easily lose her temper with anyone who crossed her.
5. I am satisfied that the incessant quarrels that the parties had were due to the respondent’s attitude and behaviour which was usually violent. The petitioner is unable to accept the beatings the children receive at the hands of the respondent, the job that the respondent keeps and the drunken state of the respondent. The marriage is certainly beyond saving and I hereby make an order dissolving the same.

CUSTODY OF THE CHILDREN

6. A is presently schooling and B is in pre-school. Both children are residing with the petitioner at his mother’s home since 2017. They are being taken care of the petitioner, his parents aged 68 years and 62 years and his three sisters aged 42 years, 40 years and 38 years respectively. The respondent continued to stay at the father’s house and recently taken up an apartment and is living alone. She continues to work nights till the early hours of the morning. The respondent says that she wants custody of both the children or alternatively custody of B.
7. In considering the question of custody of the children, I had in mind the following principles and provisions of law concerning welfare of the children and wishes of the parents:

(a) sub-Section (2) of s 88 of the Law Reform (Marriage and Divorce) Act 1976 (‘the LRA’) provides that the welfare of the child is the paramount consideration. The welfare of the children prevails over the wishes of the parents unless it can be shown that the wishes are in line with the welfare of the children. It is trite that parental rights are overridden if they conflict with the welfare of the children (see Viran a/l Nagapan v Deepa a/p Subramaniam and other appeals [2016] 1 MLJ 585; [2016] 2 CLJ 505 and Teh Eng Kim v Yew Peng Siong [1977] 1 MLJ 234);

(b) the court has to take into account all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other relevant circumstances and weigh them to determine the course to be followed is that which is most in the interest of the child’s welfare (see the passage in J v C [1970] AC 668 at p 710 which was accepted in Re KO (an infant) [1990] 1 MLJ 494 by Edgar Joseph Jr J); and

(c) the welfare of the child takes precedence over the claims of the unimpeachable parent and the justice of the case as between the parents (see Re K (minors) [1977] Fam 179).

8. I had also considered the question of the wishes of the children. The wishes of the children are usually determined by interviewing the children. Section 88(2) of the LRA provides a limitation in that the child is of an age to express an independent opinion. In this case, I have found that the respondent is the cause of the A’s psychiatric condition and it is not safe for the child to be in the respondent’s custody. Thus an interview with A is not necessary in the circumstances. In Teh Eng Kim the Federal Court accepted that a child aged five was not expected to have an independent opinion on such a matter. I hold that B is not of an age to express an independent opinion on what his wishes are.
9. I also considered the 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 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.
10. Finally, where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently (Section 88(4) of the LRA).
11. With the above matters as the backdrop, it is my considered view having taken into account the prevailing circumstances of this case that the children should be placed under the custody, care and control of the petitioner. The evidence reveals that the respondent is a person who has pursued her own interest and career to the detriment of her children and it does not appear that she would change to accommodate the growing needs of her children. She still chooses to work at the places that have many vices, one of which is drinking. She keeps very late hours and is not be around or too exhausted to look after the children. The children are growing children and need a stable, warm and comfortable environment which is presently being provided by the petitioner. The respondent is a violent person with a temper and emotions that are not conducive for the well-being and welfare of the children. A is absolutely terrified of the respondent. She has received severe beatings at the hand of the respondent which has left marks on her body. At her father’s house there were occasions where the respondent had locked A out of the bedroom and refused her meals. The violent behaviour towards A has caused the child to suffer mentally and resulted in her receiving treatment from the Penang General Hospital. A becomes very nervous and apprehensive during the respondent’s access visits.
12. With the petitioner, both the growing children have the warmth, stability and security of a family life in a stress-free environment where they are allowed to interact with others, their relatives, who are at hand to attend to their needs and provide strong family support. I find that the children are now in a stable environment of family life and school. It would be very disruptive to separate the children from one another as well as the family environment that they are in now. It would be against the welfare of both or one the children to be in the custody of the respondent. In addition, the father had always taken care of the children financially although earning a meagre salary of RM3,000 a month. The respondent on the other hand has not done so when she began working again. In my view giving custody of the children or even B to the respondent, given that she still keeps late hours at an establishment where alcohol is available, would be very risky and an irresponsible act given her behaviour and temper.
13. I have considered all the relevant facts, the relationships, risks, choices and wishes of the parents. I am of the considered view that the proper order to make in the circumstances is to grant custody to the petitioner with access to the respondent on weekends to B only. Access to A is granted only if A consents to seeing the respondents.

THE DIVISION OF MATRIMONIAL PROPERTY

14. The respondent is seeking an order for the sale of the matrimonial properties and the proceeds to be divided equally between the parties. In her submission the respondent has identified that the property purchased on 20 June 2016 during the marriage and which is under construction to be sold and the proceeds divided under Section 76 of the LRA 1976. The respondent claims to have contributed towards the deposit and/or purchase price of the said property which is purchased on loan taken from a financial institution.
15. In addition the respondent identified the petitioner’s mother’s house, No 9–11–10 Lintang Macallum Dua, Georgetown in which the petitioner and the children of the marriage live as the matrimonial home and says that she has contributed towards the payment of maintenance fees, payment of electricity and water bills and other utilities from time to time. She also asks that this property be sold and the proceeds divided under s 76.
16. It is clear that a matrimonial home may not necessarily be a matrimonial property or asset which the court has the power to order division of under sub-Section (1) of s 76 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. The party seeking division of property under Section 76 of the LRA must come within the ambit of one of its provisions to trigger the application of the section.
17. The Court of Appeal in Yap Yen Piow v Hee Wee Eng [2017] 1 MLJ 17 has explained the division of property acquired during the subsistence of marriage under Section 76 of the LRA through the classification of matrimonial and non-matrimonial property. Matrimonial property relates to property acquired by joint efforts of the spouse while non-matrimonial property relates to property acquired through the sole effort of one spouse or property acquired before the marriage. The court explained the position as follows:

(a) any assets acquired by joint efforts which we have classified as matrimonial property. In this category, the court has an obligation to divide the assets (Section 76(1) of the LRA);

(b) any assets acquired by one party by sole effort which we classify as non-matrimonial property. In this category, the court is not obliged to divide but may do so (Section 76(3) of the LRA); and

(c) assets which were acquired before the marriage, but has been substantially improved by the other party or by their joint efforts. In this category, if there is no substantial improvement, the property is not subjected to division at all. In addition, if the property has been acquired before the marriage and subjected to a loan, the said property may not fall in that category (Section 76(5) of the LRA).

18. In the light of the principles established in Yap Yen Piow, it is clear that the property acquired in 2016 could fall within the ambit of Section 76(1) of the LRA if the allegations therein are proven by the respondent. However, there is no evidence that the respondent has contributed towards the deposit and/or purchase price of the said property where 90 percent is made up of a loan taken. There is no evidence as to who has taken the loan and the repayment of the loan. The respondent could not even identify the property and where it is situated.
19. On the other hand, on the principles established in Yap Yen Piow it is clear that the property No 9–11–10 of Lintang Macallum Dua is acquired before marriage and no substantial improvement was done on the property by the respondent. In my view payment of maintenance fees, electricity and water bills and other utilities does not fall within the ambit of ‘substantial improvement’. The property is therefore not subject to division at all.
20. In the circumstances I do not make any order in respect of these properties.

MAINTENANCE

21. The respondent has chosen not to file any reply or pleadings in this petition. I agree with counsel that the respondent has taken a somewhat lackadaisical attitude to this case and has not shown any seriousness in pursuing this case. The demands for maintenance are an afterthought. She has not produced any evidence to show the earnings of the petitioner but makes a demand that the petitioner pays a lump sum of RM30,000 as a clean break. I believe the evidence of the plaintiff that he is working as a cook in a food court earning approximately RM3,000 a month. He is providing the maintenance and financial needs of the both children. The income is just sufficient for his and the needs of his children. In her submissions the plaintiff says that she left the matrimonial home on account of the petitioner’s affair with another woman, an allegation that merely remains an allegation, as it is not proven. The respondent has an income of her own on which she could live on.
22. The petitioner has agreed to pay the respondent a sum of RM30,000, interest free, as a lump sum payment. He has asked that the payment be made by way of instalments. Considering his financial affairs, I find the offer very fair and reasonable.

CONCLUSION

23. In view of the above, I make the following orders:

(a) the marriage of the petitioner and respondent is dissolved;

(b) the petitioner is granted custody, care and control of A and B, the two children of the marriage;

(c) access is granted to the respondent on weekends to B only. Access to A is granted only if A consents to seeing the respondent;

(d) the petitioner pays the respondent RM30,000, interest free, by way of instalments of RM500 a month until full realisation; and

(e) there is no order as to costs.

Source: Khoo Boon Chin v Alice Tan Ling Mei [2020] 7 MLJ 437. High Court Pulau Pinang. Amarjeet Singh JC.

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