离婚: 临时赡养费 [2019] MLJU 714

1. 丈夫和太太于01/08/2000结婚，并有2名孩子。太太原本是一名兽医，但在2008年生下长女后，太太就在家当全职家庭主妇。之后由于双方的分歧以及家庭暴力因素，太太和两名孩子于13/05/2018离开他们居住的家。
2. 丈夫在04.09.2018提出离婚申请。太太在离婚程序当中，提出申请临时赡养费，要求丈夫必须支付她每月RM60,000.00的赡养费以及两名孩子每月RM21,000.00的抚养费。她在申请里列出了自己的开销。
3. 丈夫在法庭上证明他的平均月收入约为RM7000.00-RM8000.00(他附上了2017年和2016年的所得税评估以及收入的银行存款单)。这些收入主要用于住所，太太和孩子们的开销。其他额外开销包括海外度假和生日庆祝活动等其他费用都是用丈夫的信用卡支付，而这些每月的信用卡费用则由丈夫的父亲缴还。丈夫之前也提供了附属信用卡给太太，唯当太太报假案称他虐待了孩子之后，便取消了这些信用卡。
4. 他在法庭上也表示太太所谓的每月开销被严重夸大了，所以因能力所及的关系，他只能负担太太每个月RM1000.00和每个孩子RM1000.00的抚养费。他同时也强调，太太具有兽医的资格，可以随时寻找工作。
5. 丈夫也引用案例说明法庭曾判决丈夫的父母地位不应在赡养费申请中当成考量的因素，因为丈夫父亲的财富不得用来确定丈夫收入的基础。
6. 法庭最后在在判词中表示丈夫在庭上能提供证据以支持他的财务状况，而与太太相比，后者却只列出了她的开销但无法提供证据证明为何她需要如此高的赡养费。若要公平合理的处理赡养费问题，法庭必须以每个案件的事实、证据和情况来决定赡养费的安排。
7. 最终基于丈夫所提供的所得税申报表和工资单，显示太太要求的每月RM60,000.00以及两名孩子每月RM21,000.00的抚养费数额过高和不实际，因此法庭裁决丈夫需要支付孩子所有教育费用，包括他们就读的目前学校的费用，以及支付太太每月RM2000.00，和每个孩子RM1500.00的抚养费直到法庭在离婚案的最后判决。

*此案的详细案情，请阅读以下的英文版本。太太不满此判决，将此案件上诉至上诉庭。在上诉庭，双方私下达成协议，因此此案没有上诉结果。

*详细的案件，请阅读以下的英文版本。

1. The Petitioner Husband (“PH”) and Respondent Wife (“RW”) were legally married on 08.01.2000 (married for 18 years+) and are blessed with 2 children (“the said children”).
2. RW is a qualified Veterinarian but had opted (disputed by both PH and RW) to be a stay home mother and a housewife since 2008 after giving birth to their eldest daughter.
3. Over some disagreement/alleged domestic abuse, RW and the said children left the matrimonial home on 13.05.2018.
4. On 04.09.2018, PH filed a single divorce petition against RW. Pending the hearing of the said divorce petition, RW had filed an application (Notis Niat – Enclosure 25), for maintenance of RM60,000.00 a month for her and maintenance of RM21,000.00 a month for the said children. She listed down her expenses in her affidavit in support.
5. PH submitted that:

• • his monthly income on average is about RM7,000.00 – 8,000.00 (he enclosed his E-B Income Tax Assessment 2017 and 2016 and bank in slip for his income) which is utilised mostly on the maintenance of the matrimonial home and the upkeep of RW and the said children.
  • he was the one who pays for groceries of about RM3,500.00 a month and the one paying the maid’s salary.
  • Any extra expenses were paid for using PH’s credit cards where the monthly repayment was paid by his father. The children’s school fees, extracurricular activities and the Private Learning Assistant for Christian was also paid for by his father.
  • he had provided RW with a few supplementary credit cards which he had cancelled after RW made a false police report alleging that he had abused the said children.
  • the alleged monthly expenses by PW are grossly exaggerated especially for the meals eaten outside as they rarely ate meals outside on weekdays. They used to eat out only on weekends and that too usually with PH’s parents.
  • he can only afford to pay a monthly maintenance of RM 1,000.00 for RW and RM1,500.00 for each child which is a reasonable amount of maintenance as it is within his means.
  • in the event the said amount is insufficient then RW being an able-bodied person with impressive academic qualification (veterinarian) could always seek employment again. In any event she can always supplement any potential shortfall from the savings that she had accumulated over the years and by working for a good 15 gainful years.
  • in the case of GGC v CCC & Anor (2016) 1 LNS 885 the Judge said:“At trial, the Petitioner made extensive reference and allegation on the wealth of Respondent’s father and the family Company. However, the status of the husband’s parents should not be an issue in an application for maintenance. In the case of Ananda Dharmalingam v Chantella Honeybee…the Petitioner’s father’s station in life cannot be ascribed to the Petitioner”.
  • none of his father’s wealth or the additional expenses that his father paid for prior to 13.04.2018 can be ascribed to or contributed to form part of the basis in determining his means.

6. PW submitted that:

• • Rule 61 of the Divorce and Matrimonial Proceedings Rules 1980 (“DMPR”) places a mandatory obligation on the part of PH to make full disclosure of his property and income for the court’s assessment.
  • in the case of Leow Kooi Wah v Philip Ng Kok Seng & Anor [1997] 3 MLJ 133, PH had failed to provide a full and frank disclosure of the full particulars of his assets and income.
  • if it is true what he claims then all his income (RM7,000) would be used for the maintenance of the matrimonial house, children, maid, food and RW, leaving nothing left at all for his own personal expenditure and this is highly improbable unless he has an undeclared secondary source of income. It is evident from his lifestyle that he has alternative sources of funds which are readily available to him.
  • the case of Ng Lean Huat v. Lim Joo Khim [1993] 3 CLJ 64 was referred in support of RW’s contention that PH has been untruthful about his financial position.
  • RW argued that the claim by PH that his father bears other family expenses cannot hold since no evidence had been adduced to support such claim. PH had provided RW with 6 supplementary credit cards but does not exhibit even a single credit card statement to show RW’s monthly expenditures. PH’s bare allegations are unsupported by any documentary evidence which he can easily provide but elected not to.
  • RW argued that PH merely exhibited his UOB statements for December – November 2018 and LHDN statements for the years 2016 and 2017. In the year 2017, the PH claimed to have only made an annual income of RM132,217.00 while in the year 2016, he made measly RM31,131.00. It is implausible that the PH has been truthful in his declarations given the lavish lifestyle he had admittedly provided for the family and submit for the court to draw an adverse inference against him.

7. The trite position of maintenance under Section 77 (1) and Section 78 of the Act can be surmised as follows:

• • Section 77 (1) and section 77(2) of the Act empowers the court to order payment of maintenance against the husband for the benefit of the wife or vice versa;
  • In doing so, regard would have to be given to section 78 of the Act;
  • In determining the issue of maintenance, the court shall appraise the situation on the means (affordability) and needs of the parties;
  • Regardless of the proportion such maintenance bears to the income of the affected party; and
  • Regard shall be given to the degree of responsibility to be apportioned to each party for the breakdown of the marriage.

8. In Sivajothi a/p K Suppiah v Kunathasan a/l Chelliah [2006] 3 MLJ 184, the court looks to the nature of maintenance as a “form of material provision that will enable an adult to live a normal life”, within the means and affordability of the affected party.
9. It is trite that he who alleges must prove. The court cannot and will not decide anchored of speculation, conjectures or estimations.
10. The RC 2012 encapsulate the necessary mechanism (discovery) in order to procure evidence to support the argument and it is the duty of parties to elect the way in which to utilize those provisions in order to support their arguments before the court. In the present case, apart from making bare allegations and statements, the parties did not seek the relevant provisions of the RC 2012 in order to elicit the required evidence in an endeavour to discharge the burden of proof. In consequence thereof what is asserted without evidence can be dismissed without evidence.
11. Looking at the arguments of the parties, I hold that RW had failed to adduce the required proof to substantiate the relevance and need of the alleged expenses.
12. PH has submitted exhibits to support his averment of his dire financial standing as compared to the RW who had only tabled her expenses without any justification for claiming such high maintenance. RW was not able to show why she is not able and/or not in a position to work with such high qualification.
13. In Leow Kooi Wah v Philip Ng Kok Seng [1997] 3 MLJ 133, the court held that in quantifying the maintenance payable, the court is required by section 78 of the Act to base its assessment on the means and needs of the parties, regardless of the proportion such maintenance bears to the parties’ income but having regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.
14. In Choong Yee Fong v Ooi Seng Keat [2006] 1 MLJ 79 the court held that as for interim monthly maintenance, it was established that the petitioner who was 41 years of age, able bodied and until her alleged unemployment in 2001 was earning a salary of RM1,800 per month certainly has earning potential with relevant past working experience which help enhance her earning power in the market work force. The petitioner had the means within the contemplation of s 78 of the Act, to be self-sufficient and self-reliant to which her claim for maintenance to support herself must necessarily fail.”

15. It is to be noted too that the amount of RM217,029.37 on luxury goods purchased allegedly by PH are based on a collection of bills since 2000 which is not reasonable to claim, “to maintain the living style which RW is accustomed to”. The law presupposes the legal position that it is legally obligatory on the part of the husband to maintain his spouse or former spouse and to this end the law allows the said spouse to apply to court for an order for maintenance against the husband for which he would be responsible to maintain her in compliance with the requirements of the law. The law envisages the requirement to duly consider the means and the reasonable needs of the parties. The present application for determination is for an interim maintenance order which the law envisage or allows the court to make as a bridging measure pending the final determination of the divorce petition.
16. The issue of a fair and reasonable maintenance must be determined by reference to the facts, evidence and circumstances of each case. In Chaw Anui v Tan Kim Chai [2004] 4 MLJ 272, the court considered the following factors: (1) devotion of the wife; (2) the unlikelihood of the wife to be gainfully employed; (3) the wife’s health and medical needs; (4) the husband financial means; (5) the living standard of the wife; and (6) the means and the needs of the parties. In the present case, it is my considered view that the claim for maintenance pending the final determination of the divorce petition is to enable parties to maintain continuity of a normal life but at the same time the amount claim has to be reasonable and will not cause hardship to the other party.
17. The Court hold that the quantum of maintenance asked for by RW of RM60,000.00 and RM21,000.00 a month is too exorbitant and unrealistic considering the earning capacity of PH at RM7,000.00-RM8,000.00 per month which is supported by his income tax return and salary slips.
18. The Court ordered that PH is to bear all education cost for the said children and the cost of the present school they are attending to and ordered that PH is to pay RM2,000.00 for RW and RM1,500.00 for each child which the amount is fair and reasonable pending the final determination of the divorce petition.

Source: Mark Sia Eng Joo (L) v Ong Wei Wei (P) (Lim Poh Tin (P), third party) [2019] MLJU 714

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