离婚后: 女方修改赡养费+抚养费(失败)[2020] MLJU 254

经过法庭的听审，高庭在29.03.2019裁决，双方获得孩子(当时14岁)的共同抚养权(custody)，女方则获得孩子的监护权(cara and control)。另外，男方需支付女方如下的费用：
- 每个月支付RM1000为孩子的抚养费；
- 将银行户口里一半的储蓄，以及4家公司(Samalega Sdn Bhd; Chemie Alliance Sdn Bhd; Alliance 2U Sdn Bhd; ( Emballage Alliance Sdn Bhd)的股权转让给女方；
- 将公积金的25%以信托方式做为孩子的赡养费和教育费；和
- 承担孩子的所有教育费用，直至孩子完成高等教育。
双方各不满高庭判决，都上诉高庭判决到上诉庭。
在上诉的当儿，女方在高庭判决不到一个月后，在26.04.2019通过法庭，申请修改妻子赡养费和孩子抚养费的数额，即使妻子的赡养费从没有变成RM5280.00和孩子的抚养费从RM1000.00变成RM5388.00。女方表示她没有在当初申请妻子赡养费，原因是她当时还有在工作。然而她在2017年时被辞退，一直没有工作；而且她必须搬离婚姻产业，所以有了居住开销。这导致如今每个月RM1000的孩子抚养费并不足以支付孩子的生活费和教育费。
男方在法庭上对女方的申请做出反对。男方指出，女方实际上是在2017年失业；但她却在2019年4月获得离婚庭令后，才提出修改赡养费的申请，而不是在离婚程序的过程中就申请赡养费(2017年失业时，离婚程序还在进行中)。女方目前的申请，明显存在过度的拖延(inordinate delay)。她在当初法庭审讯期间离婚时，丝毫没有提出有关失业和需要赡养费；她只是在审讯结束并获得离婚庭令后，才以提出申请。
另外，男方也指出女方所提及的赡养费事项实际上和孩子的抚养费重叠。而且男方目前面临身体状况的问题 (2017年被诊断出患有肝病)。再者，他指本身已经在承担3个孩子的教育费用，其中2个已超过18岁，在读大学。
根据1976年婚姻与离婚改革法令96条文，在特殊情况下，法庭有权利在任何时候撤销或者更改当初的庭令。这些情况包括法庭相信当初的庭令是在被误导或错误的情况下作出的，或者现在的情况有了很大的改变 (where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances)。
法庭首先驳回了女方要求修改孩子抚养费的申请。对于女方表示自从失业后，生活出现了改变；导致每个月RM1000的抚养费不再足以支付孩子的生活和教育费，法庭指这些变化都发生在当初离婚的庭审之前。女方当时并没有在离婚审讯开始前，要求修改当初谈好的孩子抚养费金额；而却在离婚判决审判不到一个月的时间，就申请要求修改。离婚判决后至申请的那段时间(2019年)，女方必须提出证据，证明”目前的情况起了跟大的变化”，但是女方在这个申请里提出的理由(发生在2017年)，却不是+无法证明他们目前的情况是有了很大的改变 (The Petitioner failed to show this Court that there was any change in circumstances)。
至于妻子赡养费的申请，女方当初完全没有在离婚申请时要求获得赡养费。之后她申请修改请愿书，包括在提交审判前寻求获得赡养费；然而被当时的法院驳回了她的申请。她也没有对此提出上诉。她随后也没有根据 Divorce and Matrimonial Proceedings Rules 1980第56(2)(a)的规则，在离婚审讯的审判之前或期间的任何时间申来提交赡养费的申请。
另外，女方也没有服从法庭的“游戏规矩”，即使申请修改赡养费，男女方必须提交他们的自己拥有财产和收入的详情，男方提交了，但是女方没有。因此这个申请有瑕疵，法庭无法考量她的经济状况，做出对双方公平的裁决。这也是导致法庭驳回女方申请的理由之一(Without such disclosure of the parties’ respective properties and income, it is impossible for this Court to make a fair and reasonable assessment of what are the “means and needs” of the parties)。
法庭也表示，由于女方也在上诉赡养费的判决，上诉庭还没有审判，所以女方这个申请是过早了。这是因为，如果法庭(高庭)批准了女方的申请，允许修改赡养费，但是上诉庭又维持原来的RM1000.00为抚养费，那么整个状况又打回原形；如果上诉庭允许了上诉，但是数额与修改的数额又不一样，那又如何呢？
法庭因此驳回女方要求修改赡养费+抚养费的申请。法庭有注明，女方可以重组她的申请+等上诉庭判决后，再来申请，也不迟。

详细的案情和判决，请阅读以下的英文版文章。

**在后来，双方在上诉庭的上诉都被驳回，上诉庭维持高庭的判决。女方在07/2021再次申请修改赡养费+抚养费。小编读完了此案例，但还没有时间写，请大家稍等…等等~**

INTRODUCTION

On the Petitioner’s wife petition for divorce under section 53 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”), this Court granted a Decree Nisi on 29.3.2019 after full trial.
In the Decree Nisi, this Court granted joint-custody of the youngest child of the marriage, Lee Guo-Yi (who was 14 years old at the date of trial) to both the Petitioner and the Respondent and care and control of the child to the Petitioner, with access to the Respondent on the days and times detailed in the Decree Nisi. Further, the Court ordered that the Respondent:

(a) pay the Petitioner child maintenance for Lee Guo-Yi in the sum of RM1,000 per month;

(b) transfer to the Petitioner:

(i) the percentage stated in Decree Nisi (“stated percentage”) of the Respondent’s shares in the (a) Samalega Sdn Bhd; (b) Chemie Alliance Sdn Bhd; (c) Alliance 2U Sdn Bhd; (d) Emballage Alliance Sdn Bhd; and (e) Décor Alliance Sdn Bhd (the “said Companies”); and

(ii) half (1/2) of the amount in his Public Bank Berhad account.

(c) hold 25% of the amount in his Employee Provident Fund (EPF) account on trust for the maintenance and education expenses of the child of the marriage, Lee Guo-Yi;

(d) bear all the costs of Lee Guo-Yi’s education costs until the completion of the child’s higher / tertiary education / training.

Both the Petitioner and the Respondents filed Notices of Appeal to the Court of Appeal on 25.4.2019 and 26.4.2019 respectively, against the orders in the Decree Nisi.
On 26.4.2019, the Petitioner wife filed an application in Enclosure 69 for ancillary relief for wife maintenance and for a variation of the amount of child maintenance granted in the Decree Nisi.
The Decree Nisi was made absolute on 31.5.2019.

ENCLOSURE 69

At the conclusion of the hearing of Enclosure 69 on 5.9.2019, for the reasons set-out in this Judgment, this Court dismissed the Petitioner wife’s application for ancillary relief and for variation of the child maintenance.

THE PETITIONER’S CASE

The Petitioner’ case is that she did not apply for wife maintenance in the petition for divorce because she was working and earning the sum of RM9,400,00 per month, which she says was sufficient for her. However, her employment was terminated in December 2017 and in April 2018 she applied to amend the petition. Her application to amend the petition was dismissed by this Court. She did not appeal the dismissal.
In Enclosure 69, the Petitioner prays that the Respondent pay her wife maintenance of RM5,280.00 per month from 1.1.2019 pursuant to section 77 (1)(b) of the LRA.
Although she had prayed for child maintenance in the sum of RM1,000 per month for Lee Guo-Yi in the petition for divorce and the Court in the Decree Nisi had granted the amount she had prayed for, she is now applying to vary the child maintenance for Lee Guo-Yi from the RM1,000 per month ordered in the Decree Nisi to RM5,388.00 per month from 1.1.2018.
The Petitioner avers that at the time she had filed the divorce petition she was gainfully employed and both she and the child were living in the matrimonial home; hence why she did not ask for wife maintenance and only asked for the sum of RM1,000 per month as child maintenance for Lee Guo-Yi. However, both she and the child left the matrimonial home in October 2017 and her employment was terminated in December 2017. She says that the sum of RM1,000 per month is insufficient for the child’s cost of living and education.

THE RESPONDENT’S CASE

The Respondent opposes the Petitioner’s application for wife maintenance on the ground that there has been inordinate delay by the Petitioner in filing the application. She had lost her job in December 2017 but only filed the application for maintenance in April 2019 after the Decree Nisi was granted.
The Respondent submits that the word “may” in section 77(1) of the LRA shows that the power of this Court in ordering a man to pay maintenance to his wife or former wife is discretionary and is dependent on the facts and circumstances of each case. Learned counsel submits that in this case there has been inordinate delay in that (i) the Petitioner did not appeal this Court decision to dismiss her application to amend the petition in May 2018; (ii) the Petitioner did not apply for wife maintenance prior to first date of trial; (iii) she did not raise any issues on wife maintenance during the trial; and (iv) she only filed the application for wife maintenance after the trial had concluded and the Decree Nisi granted.
Learned counsel for the Respondent further argues that that the application is res judicata since the issues relating to wife maintenance had been raised, determined and disposed-off during her application to amend the divorce petition.
Additionally, the Respondent contends that the amount claimed by the Petitioner as wife maintenance is excessive and unjustified and that the wife maintenance and child maintenance claimed by the Petitioner are overlapping, where in certain instances the same receipt is used to justify both claims. The Respondent also claims that he does not have the means to pay wife maintenance taking into account his age and the fact that he had been diagnosed with liver disease in 2017, which requires lifelong medical check-up; and the fact that he has to bear the education expenses for all 3 of their children, including the older 2 who are above 18 years but are currently in tertiary education.
The Respondent further submits that the Petitioner had failed, refused and/or neglected to disclose any particulars of her assets as required under Rule 61(3) of the Divorce and Matrimonial Proceedings Rules 1980 (“DMP Rules”). Rule 61(2) of the DMP Rules requires a respondent or petitioner when served with a Notice in Form 11 or Form 13 in respect of an application for ancillary relief, to file an affidavit in answer to the application containing full particulars of his property and income within 14 days after the service of the Notice. Rule 61(3) of the DMP Rules requires the applicant to file an affidavit in reply containing full particulars of her property and income within 14 days of service of the Respondent’s affidavit under Rule 61(2).
The Petitioner in this instant case did not file such affidavit disclosing her property and income and had accordingly failed to make a full and frank disclosure of her assets in the application in Enclosure 69. The Respondent avers his affidavit in reply that the Petitioner had received half of the proceeds of sale of three properties known as Bayu Puteri, Verdana @ North Kiara and Villa Manja but she failed to disclose such fact.
As regards the Petitioner’s application to vary the child maintenance, the Respondent submits that the Petitioner has not provided any evidence of material change after the granting of the Decree Nisi to justify a variation of the order as required under section 96 of the LRA.

ANALYSIS

(a) Variation of an Order for Child Maintenance

Section 96 of the LRA provides that: “The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.”
It is clear from section 96 of the LRA that in order for the Court to vary any order for the maintenance of a child, the Court must be satisfied that the order was

(i) based on any misrepresentation or mistake of fact; or

(ii) there has been a material change of circumstances.

The Petitioner cites as authority to support her application, the case of Sivajothi K Suppiah v Kunathasan Chelliah [2006] 5 CLJ 318:

“[10] The meaning of the section is plain and very clear. It is apparent that under s. 96, in so far as it relates to the case at hand, there must be a material change in the circumstance in order for the court to vary or rescind any order for maintenance. The section says any “material change” and not simply “change”. There is no ambiguity whatsoever. It means a change in an essential part. In considering whether there has been any “material change” within the meaning of this section regard must be had to all the relevant circumstances, including, in the context of the present case, the judgment of Faiza Tamby Chik J. On a proper construction, the requirement in this section does impose a legal obligation on the defendant to prove on the balance of probability that there had been a material change in the circumstances as at 24 August 2001. There is no requirement at all for the plaintiff to disprove anything.”

In Sivajothi, the Johor Bahru High Court dismissed the defendant’s application because the Court found that there had been no material change, as opposed to just change, in the defendant’s income from the order for maintenance in 1999 to the date of the application to vary said the order.
In this instant case, the change that the Petitioner is relying on to support her application for variation of the sum of child maintenance payable in the Decree Nisi, is the change between the date of the filing of the petition for divorce in October 2016 and the end of 2017, i.e. when she moved out of the matrimonial home and lost her employment. Both these changes happened prior to the trial and were ventilated during the trial before this Court.
Notwithstanding the change in circumstances between the filing of the petition and the trial, the Petitioner did not seek to amend the amount of child maintenance prayed for Lee Guo-Yi in the petition, prior to the commencement of trial.
This Court at the conclusion of the trial had ordered the Respondent to pay the Petitioner the sum of RM1,000 per month that she had prayed as child maintenance for Lee Guo-Yi. He was also ordered to bear all of Lee Guo Yi’s education expenses until the child completes his higher or tertiary education / training, and to hold 25% of the amount in his EPF account on trust for Lee Guo-Yi’s maintenance and education expenses.
The facts show that nothing had changed between the date the Decree Nisi was granted on 29.3.2019 and when the Petitioner filed the application for variation of the child maintenance order less than a month later on 26.4.2019.
The Petitioner failed to show this Court that there was any change in circumstances, let alone “material change”, which section 96 of the LRA and as held in Sivajothi is necessary for this Court to vary the amount of child maintenance payable in the Decree Nisi.
For this reason, the Petitioner’s application to vary the amount of child maintenance payable by the Respondent in the Decree Nisi is dismissed.

(b) Application for Wife Maintenance

Section 77(1) of the LRA empowers the Court to order maintenance of a wife or ex-wife. Section 77(1) reads as follows:

“77. Power of Court to order maintenance of spouse

(1) The court may order a man to pay maintenance to his wife or former wife-

(a) during the course of any matrimonial proceedings;

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

Rule 56(1)(c) of the DMP Rules provides that any application by a petitioner for wife maintenance order under section 77 of the LRA, shall be made in the petition.
Rule 56(2)(a) of the DMP Rules expressly states that an application for ancillary relief which should have been made in a petition or answer may be made subsequently, with the leave of court either (i) by notice in Form 11 or (ii) at trial. Rule 56 of the DMP reads as follows:

“56. Application by petitioner or respondent for ancillary relief

(1) Any application by a petitioner, or by a respondent who files an answer claiming relief, for —

(a) an order for maintenance pending suit;

(b) a property division order, under section 76 of the Act; or

(2) Notwithstanding paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently —

(a) by leave of the court, either by notice in Form 11 or at the trial; or

(b) where the parties are agreed upon the terms of the proposed order, without leave by notice in Form 11.

(3) An application by a petitioner or respondent for ancillary relief, not being an application which is required to be made in the petition or answer shall be made by notice in Form 11.”

In this instant case, the Petitioner did not seek for wife maintenance in the petition for divorce. She then applied to amend the petition to include a prayer for wife maintenance two years after filing the petition and just prior to trial. This Court dismissed her application to amend the petition. She did not appeal the decision. She also did not seek this Court’s leave under Rule 56(2)(a) of the DMP Rules to file an application for wife maintenance by way of a Notice of Application for Ancillary Relief in Form 11 any time prior to or during the trial.
Pursuant to Rule 56 of the DMP Rules, the Petitioner should have made her application for wife maintenance in the divorce petition. When this Court dismissed her application to amend the divorce petition, she could have applied for leave of Court to either apply for wife maintenance by filing the Notice of Application for Ancillary Relief in Form 11 or during the trial under Rule 56(2)(a) of the DMP Rules. She did not apply for leave of Court to do either.
It was only after the Decree Nisi was granted did the Petitioner apply in Enclosure 69 for wife maintenance under section 77(1)(b) of the LRA.
Although the Courts are empowered under the LRA to order a man to pay maintenance to his ex-wife after the granting of the decree of divorce, the LRA stipulates that the Petitioner must comply with the DMP Rules when making such application.
The applicable rules under the DMP Rules are:

(i) under Rule 56(2)(a), the Petitioner must seek leave of Court before applying for the maintenance by the Notice of Application in Form 11;

(ii) after she has obtained the leave of Court, she must then file the Notice of Application in Form 11 and serve it on the Respondent; and

(iii) after the Respondent has served an affidavit with full particulars of his property and income, the Petitioner must pursuant Rule 61(3) file an affidavit in reply containing full particulars of her property and income.

However, in this instant case, the Petitioner did not comply with the rules stipulated in the DMP Rules in making the application in Enclosure 69. First, she failed to seek this Court’s leave prior to filing the Notice of Application for Ancillary Relief in Enclosure 69. She proceeded to file her application in Enclosure 69 without seeking for and obtaining the Court’s leave. Secondly, the Notice of Application she had filed in Enclosure 69 does not conform with the statutory Form 11 of the DMP Rules. Thirdly, she did not file an affidavit in reply disclosing full particulars of her property and income.
The affidavits disclosing the ex-husband’s and ex-wife’s properties and incomes under Rule 61 are necessary in order for this Court to make an assessment of the amount of maintenance payable. Section 78 of the LRA stipulates that in determining the amount of maintenance to be paid to a spouse or ex-spouse this Court “shall base its assessment primarily on the means and needs of the parties”. Without such disclosure of the parties’ respective properties and income, it is impossible for this Court to make a fair and reasonable assessment of what are the “means and needs” of the parties.
Furthermore, both the Petitioner and the Respondent had appealed against this Court’s decision in the Decree Nisi and both appeals are pending hearing and decision of the Court of Appeal. Until the appeals are fully disposed off, this Court is not able to ascertain what are the means and needs of the parties. Each party’s means and needs will very much depend on the Court of Appeal’s decision or the Federal Court’s decision, as the case may be. It will depend on whether the appellate court will dismiss the appeals or will allow the appeals and set aside or vary the orders in the Decree Nisi, particularly the orders relating to the division of properties including the transfer of monies from the Respondent’s bank account and the transfer of the said percentages of shares in the said Companies to the Petitioner. If the Court decides to vary the orders in the Decree Nisi, what would the variation be? The Court of Appeal’s decision or Federal Court’s decision, as the case may be, will have a direct bearing on the means and the needs of each of the parties. The Petitioner’s application for wife maintenance is, therefore, premature. She should have waited for the Court of Appeal (or the Federal Court, as the case may be) to decide on both appeals before making the application in Enclosure 69.
Accordingly, by reason of the Petitioner’s failure to seek this Court’s leave prior to filing the application for wife maintenance and for her non-compliance with the DMP Rules, in particular Rule 56(2)(a) and Rule 61(3), and the fact that the orders in the Decree Nisi have been appealed to the Court of Appeal and are pending the appellate court’s decision, this Court is unable to exercise its discretion under section 77(1)(b) of the LRA to order the Respondent to pay maintenance to the Petitioner at this stage.
Nevertheless, by reason of the provisions in the LRA which empowers the Courts to make subsequent orders for maintenance of wives and ex-wives and to vary or rescind any subsisting orders for maintenance “at any time and from to time to time”, the Petitioner may make another application for wife maintenance after the Court of Appeal, or the Federal Court, as the case may be, has made its decision on the appeals to the order in the Decree Nisi. However, she should not repeat the mistakes she made in Enclosure 69. Prior to making such an application, she must first apply for the High Court’s leave. Only after the Court has given its leave, can she make the application by filing the Notice of Application for Ancillary Relief in Form 11. As Form 11 is a statutory form, she must ensure that the Notice of Application filed complies with Form 11. She must also comply with the requirements for disclosure of her properties and income in the DMP Rules by filing an affidavit in reply with the necessary information.
Additionally, she can re-apply for a variation of the subsisting order of child maintenance in the Decree Nisi. However, before making such application, she should take cognisance of the law that under the LRA the Courts may only make an order to vary a subsisting order for child maintenance, if it is satisfied that there has been a material change in circumstances since the granting of the Decree Nisi.

DECISION

For the reasons above, the Petitioner’s application for a variation of the amount of child maintenance in the Decree Nisi and for wife maintenance in Enclosure 69 are dismissed.
There is no order as to costs.

**Both appeals against the orders in the Decree Nisi were dismissed in Court of Appeal. No further appeals by the Petitioner and the Respondent.

Source: Wong Chong Kiew v Lee Hock Seng [2020] MLJU 254. High Court Kuala Lumpur. Faizah Jamaludin J.

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#如果在petition没有申请maintenance，可以引用notice of application申请 ancillary relief，申请赡养费。

#如果在离婚申请里没有申请赡养费，可以引用notice of application以ancillary relief，申请赡养费。

#rules of filing ancillary relief #non-compliance of the rules #technical non-compliance #requirement for application for ancillary relief #requirement of filing ancillary relief #技术上问题