离婚: 探视权+教育费+婚姻产业+买车+通奸 [2020] MLJU 2016

妻子在法庭上要求：
- 获得孩子的抚养权，丈夫则能在公共场合探视孩子，但不能带孩子过夜；
- 丈夫一次性支付她RM2,280,943的赡养费，以及另外的一笔RM 669,377作为孩子的大学教育费；
- 丈夫必须将他在槟城的联名公寓，转让给他的1/2给她；
- 丈夫需支付她RM70,000作为买车的费用；和
- 由于丈夫婚内出轨，第三者必须支付她的婚姻损害赔偿。
法庭批准了妻子的部分要求。法庭指示丈夫需要支付妻子RM40,000来买车。法庭命令双方以市场价值出售有关公寓，再平分所得的收益。
法庭也驳回了妻子要求第三者对她做出赔偿的诉求。法庭认为，第三者是在他们的婚姻关系破裂，无法挽回之后才与男方发展男女关系。他们夫妻俩从2013年开始住在不同的房间里，虽然仍然同居，但是是出于分居的状况。而第三者是在2014年才开始与男方交往。
法庭也认为妻子本身也接受了丈夫与第三者的关系。这是因为妻子早在2014年就察觉两人在一起，却没有采取行动；直到2017年才做出上述的离婚申请。Under cross examination the petitioner admits that despite knowing the fact of the petitioner and the co-respondent being in a relationship she could still live with the respondent. It was only in 2017 that she could not live with the respondent (both of the them were no longer living together at this point of time).
由于丈夫现在正与第三者同居，法庭也认为丈夫的确不适合与孩子过夜；尽管丈夫对此安排不满。
至于赡养费方面，赡养费主要是让伴侣能维持在婚姻期间的生活水平；当然也必须取决于另一半的收入能力和财务状况。法庭考虑到丈夫已经将近70岁，以及和第三者育有一名儿子。妻子的要求不符合丈夫现在的状况。由于丈夫年事已高，法庭考虑男方或许失去工作、健康或许出状况，因此不适合每个月给妻子赡养费，一次过的赡养费对双方都有好处，丈夫目前拥有足够现金一次性付给妻子。Based on those deliberations this Court grants maintenance at the rate of RM5,000.00 per month for duration of 7 years adding to a total of RM 420,000.00 with the payment to made in a lump sum
至于妻子要求的孩子教育费，由于丈夫的的高龄，以及不稳定的工作能力；法庭指示丈夫一次性支付RM150,000.00为孩子的大学教育费用。

详细的案情和判决，请阅读以下的英文版文章。

The divorce proceeding filed by the petitioner against the respondent is to seek these reliefs:

(a) That the marriage between the petitioner and the respondent be dissolved.

(b) That the petitioner shall have sole custody, care and control of her child Sean Ryan Driscoll (Sean).

(c) The respondent shall have reasonable access to the child at No. 1A-3-3, Tanjung Bungah, Pulau Pinang and in public areas.

(d) That the respondent do pay a lump sum payment of RM 2,280,943.00 as maintenance for the petitioner and the child including the costs of education.

(e) That the respondent do pay the costs of the child’s university education amounting to GBP 121,000.00 which is equivalent to RM 669,377.00 .

(f) That the respondent transfers his half share in the condominium situated at No. 1A-3-3, Tanjung Bungah, Pulau Pinang (the property) to the petitioner.

(g) That the respondent do give the petitioner a sum of RM 70,000.00 to purchase a vehicle for the petitioner and the child’s use.

(h) That the respondent do pay the petitioner a sum amounting to RM 503,280.00 as loss of the petitioner’s income for a period of 9 years when the petitioner terminated her employment in Jakarta to follow the respondent to Malaysia.

(i) That the respondent shall apply and obtain visa requirements for the petitioner and the child so that they are able to stay in Malaysia.

(j) Any other reliefs deemed fit by the honourable Court.

(k) Costs of this proceedings being borne by the respondent.

The claim against the co-respondent is for the sum of RM 400,000.00 for damages.

After a hearing in which only the petitioner and the respondent gave evidence, this Court made these decisions:

(a) Divorce is granted with decree absolute being in 1 month from the decree nisi with this period being agreed to by the parties.

(b) Custody, care and control of Sean is granted to the petitioner with this arrangement being agreed upon by the respondent. Reasonable access is granted to the respondent without overnight access.

(d) The claim for loss of income of RM 503,280.00 of the petitioner is withdrawn.

(e) Due to the divorce being granted the respondent does not bear the responsibility to apply and obtain visas for the petitioner and Sean.

(f) The property is sold with the proceeds being divided equally between the parties.

(g) RM 412,000.00 from the education fund is to be used for Sean’s educational fees.

(h) RM 162,000.00 is granted for Sean’s maintenance based on the figure of RM1,500.00 per month until he reaches the age of 18 which would be in 9 year’s time.

(i) For the petitioner, RM 420,000.00 as maintenance is awarded on the basis of RM 5,000.00 per month for 7 years.

(j) An award of RM 150,000.00 is made to fund Sean’s university education.

The claim against the co-respondent is dismissed.

The petitioner has filed an appeal against these decisions:

(i) The property having to be sold with the proceeds being divided equally between the parties.

(ii) The dismissal of the claim against the co-respondent.

The respondent filed his own appeal against these decisions:

(i) Reasonable access of the respondent to Sean without overnight access.

(ii) The lump sum of RM 420,000.00 granted to the petitioner as maintenance.

(iii) RM 150,000.00 as a lump sum awarded for Sean’s university education.

(iv) Costs of RM 20,000.00 granted to the petitioner.

The Judgment hereby written is to provide the reasons for the specific decisions that are being appealed against.

Facts of the case

Both the parties are non-citizens of Malaysia with the petitioner aged 48 and the respondent aged 66 at the commencement of trial. The petitioner is an Indonesian citizen born in Jakarta. She was brought up, lived and worked in Jakarta until she met the respondent. Having followed the respondent to Malaysia and then marrying him, she now resides in Penang under an Immigration Multiple Entry Visa (Dependant’s visa). The respondent meanwhile, is a British citizen who resides in Penang under a Malaysian Employment Pass.
The petitioner was living in Jakarta being gainfully employed as a Senior Buyer at Nestle Indonesia at the time when she met the respondent and had been working for 13 years and 7 months from 16.6.1995 until 24.12.2008 with an income of approximately RM4,660.00 per month when converted to our Malaysian currency.
After a period of dating and being wooed by the respondent, it was decided by the petitioner to resign from her post to follow the respondent to stay in Penang with the respondent. They ended up getting married with the marriage being registered on 05.06.2009 at the National Registration Department in Penang.
The respondent enjoys employment as the Chief Executive Officer at Maestro Swiss Management Services Sdn Bhd that operates an office at Butterworth, Penang.
The couple is blessed with a son, Sean Ryan Driscoll who was born on 27.02.2010, now aged 9 at the time of trial. They have a matrimonial property bearing the address No. 1A-3-3, Tanjung Bungah, Penang which was purchased on 01.11.2011 with the property registered in the name of both the petitioner and the respondent and now is the residence of the petitioner and Sean.
Both the petitioner and the respondent decided that Sean should receive his education at an international school and they chose Dalat International School to be the educational place of choice for Sean’s education.
It is the averment of the petitioner that in August 2014, it was found out by the petitioner that the respondent was carrying out an affair with the named co-respondent, a married woman. Upon being confronted by the petitioner, the respondent admitted to the affair and in October 2014 the respondent left the matrimonial home to stay in Kuala Lumpur and since December 2014 has been living with the co-respondent.

Petitioner’s Appeal

(i) Sale of the property with the proceeds being divided equally.

The petitioner in the divorce petition claims for the full share of the matrimonial property which is registered in both the name of the petitioner and the respondent. It is an undisputed fact that the said matrimonial property is paid solely by the respondent with him agreeing from the outset that the petitioner would be having half (1/2) share of the matrimonial property.
It is to be observed that the petitioner, respondent and Sean are not Malaysia citizens and have no permanent resident status in Malaysia hence there certainly is no certainty that either party will remain here in this country in the future. Furthermore, in her evidence the petitioner herself has stated that Sean will be given an education outside of Malaysia upon the completion of his secondary education.
The respondent currently stays in a rented accommodation and the petitioner herself was living in a rented accommodation with the respondent before their marriage hence such an arrangement would not be foreign to them both in the event that the property is sold. Given these facts, it is the considered opinion of this Court and thus orders that the most feasible option would be for the matrimonial property to be sold at the prevailing market value with the proceeds of the sale to be divided equally between the petitioner and the respondent. This would be the fairest outcome for both parties as the matrimonial asset is meant to be for the benefit of both the petitioner and the respondent.

(ii) Dismissal of the claim against the co-respondent

It is averred by the petitioner that the co-respondent is responsible for the breakdown of the marriage between the petitioner and the respondent with this claim being denied by the co-respondent who is represented by the same solicitors as the respondent.
It is the observation of this Court that the respondent and the co-respondent only began having a relationship after the marriage of the petitioner and the respondent had broken down irretrievably. They had drifted apart since 2013 to the extent that both of them had been living in different rooms with separate living arrangements and essentially were living their lives in separation though still under the same roof. This situation existed for well over a year before the respondent and the co-respondent started their relationship in December 2014.
From the facts prevalent, there is also an element of the petitioner condoning to the relationship between the petitioner and the co-respondent. This is gathered from the fact that the petitioner came to realise about the relationship since August 2014 and yet this petition is only filed in September 2017. Under cross examination the petitioner admits that despite knowing the fact of the petitioner and the co-respondent being in a relationship she could still live with the respondent. It was only in 2017 that she could not live with the respondent (both of the them were no longer living together at this point of time).
The petitioner was actually willing to forgive the respondent and continued living with him.

Q: In fact I’m gonna put this to you, at all material times, you were willing to condone, you were willing and able to condone, you understand the word condone? You were willing and able to forgive the so-called adulterous relationship and continue to live with the respondent. Would that be correct?

A: With the condition that the respondent returns to me and stop the relationship with the co-respondent.

Q: Basically, adulterous relationship you are prepared to forgive and let go provided he comes back and stops going to see her, right?

A: Stop having relationship with the co-respondent, yes.

Q: So, basically this is not something that you cannot live with, It’s something that you can actually forgive, correct?

A: With condition.

Based on the decision in Karen Cheong Yuen Yee v Phua Cheng Chuen [2004] 7 CLJ 102, this constitutes that the respondent condones the action and relationship of the respondent. The precedent observes:

“The petitioner’s testimony while under cross examination that after the alleged “adultery” she continued to have marital relationship with the respondent and continued to have such relationship after they have moved into the condo in December 2000. Further, the learned counsel for the petitioner has impliedly admitted that there was condonation on the part of the petitioner…

It is clear that the petitioner has condoned adultery if there is genuinely one. After hearing the oral evidence of both parties on the ground of adultery. I came to the conclusion that the petitioner in this matter has failed to discharge the onus.”

It is the finding of this Court that the petitioner has condoned the adultery even if there was one. However, the burden of proving the adultery having caused the breakdown of the marriage rests on the petitioner and has failed to be discharged.
In Choong Yee Fong v Ooi Seng Keat [2006] 1 MLJ 791 it was held: “The petitioner must prove to the satisfaction of the court beyond reasonable doubt that the respondent had committed adultery and it is due to the alleged adulterous relationship which led to the breakdown if the marriage…”
Based on the deliberation that the adultery has not been proved beyond reasonable doubt with the breakdown of the marriage being due to the parties drifting apart even before the relationship of the respondent and the co-respondent, the relief prayed against the co-respondent is hereby dismissed.

Respondent’s appeal

(i) Reasonable access with no overnight stay

The respondent prays that the respondent be given reasonable access with mandatory overnight access once a month from Friday 6 pm until Sunday 6 pm to the son, Sean at any location.
It is observed that the petitioner has never denied the respondent access to the child even after the affair has been discovered by the petitioner and this Court thus grants reasonable access to the respondent towards Sean. However it is a fact that the respondent stays with the co-respondent and it is apparent from the various emails between the petitioner and the respondent that the relationship between the respondent and the co-respondent is rather tumultuous (fierce) with episodes of quite violent disagreements. This Court based on this fact is concerned about the welfare and safety of Sean given these episodes and also the bad blood between the petitioner and the co[1]respondent that could affect Sean that can surface at any time. Based on these considerations, this Court thinks it would be a wise option for Sean not to have overnight stays with the respondent. The Court hence orders for the respondent to have reasonable access to Sean without overnight stay.

(ii) Maintenance of the wife

The appeal is against the award of maintenance to the sum of RM 420,000.00 to the wife on the basis of RM 5,000.00 for 7 years.
Section 77(1) LRA 1976 provides:

The court may order a man to pay maintenance to his wife or former:

“(a) During the course of any matrimonial proceedings

(b) When granting of subsequent to the grant of a decree of divorce or judicial separation

Section 78 LRA 1976 gives guidance to the Court by stating: In determining the amount of maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, 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 maybe, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.
In determining the means of the parties this Court has to take into account the income and assets of the respondent and the fact that the petitioner is not working and the difficulty in finding employment due to her status in this country. In determining the needs of the party claiming maintenance it should be taken into account the lifestyle that the petitioner was accustomed to prior to the divorce proceeding. In Parkunan Achulingam v Kalaiyarasy Periasamy (2004) 7 CLJ 175 it was stated:

“The term ‘maintenance’ used in ss.77 and 92 of the LRA aforesaid, should be construed widely as it signifies any form of material provision that will enable the wife and children to be placed in a position to enjoy the same standard of living as they did during the existence of the marriage. In the case of Re Borthwick (Deceased), Borthwick v Beauvais [1949] Ch 395 at p. 401, Harman J held;

It is said that maintenance is the only thing you can look at. What does that mean? It does not mean that you can only give the dependant just enough to put a little jam on his bread and butter. It has already been held that what is reasonable for one may not be reasonable for another. It must depend on the circumstances of the case. It certainly depends to some extent on the circumstances of the widow, but I think it may also depend on the circumstances of the testator, that is to say, whether he died a rich man or no, because a rich man may be supposed to have made better provision for his wife’s maintenance than a poor one. Maintenance does not only mean the food she puts in her mouth it means the clothes on her back, the house in which she lives, and the money which she has in her pocket, all of which vary according to the means of the man who leaves a wife behind him. I think that must be so. Maintenance cannot mean only a mere subsistence.

In the Supreme Court of Victoria’s case of Lumsden v Lumsden [1963] 5 FLR 388 the Court held:

In the second place in awarding maintenance the court endeavours, subject to the husband’s financial position to enjoy the same standard of living as she did during the marriage.

I am of the opinion that in considering what amount of maintenance the petitioner husband should pay to the respondent wife as maintenance for herself and the children, we must consider the means and needs of the parties, taking into account the standard of living of the parties…”

In Sivajothi a/p K Suppiah v Kunathasan a/I Chettiah (2000) 3 CLJ 175 it was held:

“In the Supreme Court case of Victoria in C. v C. (1962) 4 FLR 461, the judges unanimously held that:

The word ‘maintenance’ has a wide meaning. In Acworth v Acworth (3) Scott LJ said: “…Maintenance’ is a very wide word, and in my view it should be read as covering everything which a wife may in reason want to do with the income which she enjoys.”

In this case the respondent is most definitely a man of substantial means with him being employed as a Chief Executive Officer at Maestro Swiss Manegement Services Sdn Bhd earning the handsome salary of RM26,500.00 per month. Apart from the salary, the respondent has various investments that entitle the respondent to benefits and dividends. He also has rather enormous savings in 11 fixed deposits at Hongkong and Shanghai Corporation.
The respondent also maintains 9 overseas bank accounts at Barclays United Kingdom and HSBC United Kingdom. The total net worth of the respondent is RM5,772,313.83 (with interest and dividend still accruing) with no contradicting evidence produced by the respondent are as follows:

(a) Total investment schemes – RM453,978.90

(b) Total amount in Barclays accounts – RM3,452,305.75

(d) Total amount in HSBC accounts UK – RM1,370,392.70

From the evidence in court the petitioner was given RM950.00 per week as her personal allowance which total RM3,800.00 per month and she also used a supplementary credit card besides the weekly allowance given. The petitioner seeks relief on the basis of RM 8,333.33 per month which would add up to RM100,000.00 per year.
The Court has made a separate order for maintenance of Sean to the total sum of RM 62,000.00 to be paid in a lump sum which is not appealed against. The appeal by the respondent is only as regards the award of maintenance to the petitioner which is a lump sum of RM420,000.00
It is settled law that the petitioner is entitled to maintenance. However, the Court is entitled to peruse and analyse whether the amount prayed for is justifiable and whether the sum is proven on a balance of probability. Under cross examination this Court finds that the figure of RM 8,333.33 failed to be explained and justified by the petitioner. The figure that the petitioner could justify is RM5,000.00 and this is used as the basis of this Court’s award for maintenance.
The respondent herein is definitely a more than well to do individual in terms of his finances. However, this Court should not disregard the fact that the respondent’s financial background is very much savings for his financial security with him having also a young son with the co-respondent. Since he is nearing the age of 70 the respondent does not have many more years of working life and lacks potential in terms of future earnings. The mere fact that he is well off does not entitle the Court to disregard those permutations (fundamental changes) and his future life in making him liable to pay maintenance to the petitioner. Furthermore, his savings do not amount to being so hugely substantial when converted to British pounds.
This Court however concurs with the petitioner that the maintenance payment should be a lump due to the fact that the respondent is 66 years old since an arrangement for payment on a monthly basis would be jeopardised should anything happen to the respondent healthwise. This Court is satisfied that the respondent can well afford payment in a lump sum amount.
Based on those deliberations this Court grants maintenance at the rate of RM5,000.00 per month for duration of 7 years adding to a total of RM 420,000.00 with the payment to made in a lump sum.

(iii) Sean’s university education fund

The petitioner seeks the total sum of RM669,377.00 for Sean’s education but in the submission is willing to take into account and deduct the sum of RM412,000.00 which is the fund readied for Sean’s education and thus prays for RM257,377.00 as the university fund. The respondent meanwhile in the Answer to the Petition of Divorce of Respondent admits to the willingness to pay for Sean’s university without naming a figure for the same.
The Law Reform (Marriage and Divorce) Act has been amended in 2017 to include provision for “further or higher education”. It is essentially argued by the respondent that due to Sean being only 9, it is too early to talk about him entering university and the duty to provide for such step in his life has not arisen.
Section 95 of the Amended LRA states: “Duration of orders for custody and maintenance. Except where an order for custody or maintenance of a child is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, or is pursuing further or higher education or training, on the ceasing of such disability or completion of such further or higher education or training, whichever is the later.”
The emails dated 08.10.2014 and 09.10.2014 show the willingness of the respondent to set aside a sum of money for Sean’s university education despite his protestations whilst giving evidence in court.
Based on the framing of Section 95 of the Amended LRA and the emails mentioned this Court finds it apt and legally correct to grant the relief as prayed by the petitioner. There is now a duty imposed by law to make a provision financially for university education unless the child is incapacitated mentally and physically from pursuing tertiary education.
Given the fact that the respondent has made a promise as stated in the emails and given his advanced age of 66 with uncertainty pertaining to his life expectancy and ability for future further work, this Court grants the sum of RM 150,000.00 for Sean’s university education to be paid in a lump sum.

(iv)Costs

It is a settled principle of law that costs should be awarded based very much on the discretion of the Court depending on the complexity of the case, the length of trial and number of witnesses and a few other factors already deliberated in many precedents. Upon this Court delivering its decision, the petitioner herein asked for the sum of RM 40,000.00 to be awarded whilst the respondent countered with the sum of RM 15,000.00.
This Court bearing in mind the settled principles of law awards RM 20,000.00 to the petitioner which the Court considers to be a very fair and reasonable sum which actually is only slightly higher than the figure submitted by the respondent.

Source: Veny Purnama v John Andrew Driscoll & Anor [2020] MLJU 2016. High Court Penang. Azmi Abdullah J.

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