Child Maintenance in Malaysia

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Ever wonder who bears the responsibility for the maintenance of a child after divorce and the extent of a child maintenance order? Here is a general guideline on child maintenance in a civil law divorce proceedings.

Child maintenance is one of the thorny issues in civil law divorce proceedings. Matters relating to child maintenance in a civil law divorce proceedings is governed under the Married Women & Children Maintenance Act 1950 (“MWCMA”) and the Law Reform (Marriage & Divorce) Act 1976 (“LRA”).

Child maintenance, under section 92 of the LRA means the provision of “accommodation, clothing, food and education as may be reasonable having regard [the parent’s] means and station in life or by paying the cost thereof”.  

Definition of a “Child”

In a civil divorce proceeding, a child is defined as an individual who is below 18 years of age[1] and is “a child of both parties to the marriage in question or a child of one party to the marriage accepted as one of the family by the other party[2]. This definition includes illegitimate children[3] and adopted children[4] .

Who is Responsible for Child Maintenance?

Generally, section 92 of the LRA places the responsibility of maintaining a child on either parents. However, section 93 provides that it will become the duty of the father to maintain a child[5]:

  1. If he refused or neglected reasonably to provide for the child;
  2. If he deserted his wife and child;
  3. During the determination of a divorce proceeding;
  4. When making or subsequent to making an order to place the child in the custody of another.

Section 93 also empowers the court to order the mother to contribute towards the maintenance of the child if the court is satisfied that the mother is able to do so[6] . The court noted that while it is the father’s responsibility to provide maintenance to the child[7] , the mother also has a duty to provide maintenance to the child but such duty is secondary to that of the father’s responsibilities[8].

When does a Child Maintenance Order Expires?

While MWCMA does not specifically mention as to when a child maintenance order expires, the LRA states that such order shall expire once the child attains 18 years of age or or where the child is under physical or mental disability, on the ceasing of such disability, whichever is the later[9] .

Although there are some older cases to suggest that a child maintenance order does not expire until a child graduates from tertiary education[10] , the federal court case of Kanurairajah A/L Rasiah v Punithambigai A/P Ponniah[11] held that the wording in Section 95 of the LRA should be taken in its plain and literal meaning, i.e. financial dependence is not a form of physical disability and therefore a person cannot be responsible for the maintenance of the child’s tertiary education after the child attains the age of 18.

Calculation of Child Maintenance

There is no clear guidelines on the calculation child maintenance to date. The court will usually determine the amount of maintenance based on the facts of each case presented. However, the court will not make an order for maintenance that would end up causing hardship to the person whom the order is made[12] .

In making an order for maintenance, the court takes into consideration the amount of maintenance necessary for the child’s upbringing and living rather than claims that are accessory or frivolous to the child’s maintenance[13] .

Conclusion

It is advisable for both the child’s parents to come to a consensus as to the amount needed for the child’s maintenance prior to a matrimonial proceeding so as to avoid unnecessary complications and disputes arising from a subsequent child maintenance order.


[1] Section 2, Age of Majority Act 1971, Section 95 and Law Reform (Marriage and Divorce) Act 1976
[2] Section 2, Law Reform (Marriage and Divorce) Act 197
[3] Section 2, Law Reform (Marriage and Divorce) Act 1976 and Section 3 (1), Married Women & Children Maintenance Act 1950
[4] Section 2, Law Reform (Marriage and Divorce) Act 1976
[5] Section 93 (1), Law Reform (Marriage and Divorce) Act 1976
[6] Section 93 (2), Ibid
[7] Sivajothi A/P Suppiah v Kunathasan A/L Chelliah [2000] 6 MLJ 48, Lau Hui Sing v Wong Chuo Yong [2008] 5 MLJ 846, Teo Ai Teg v Yeo Khee Hong [2009] 9 MLJ 721 etc
[8] Perkunan A/L Achulingam v Kalaiyarasy A/P Periasamy [2004] 6 MLJ 249
[9] Section 95, Law Reform (Marriage and Divorce) Act 1976
[10] Ching Seng Woah v Lim Shook Lin [1997] 1 MLJ 109
[11] [2004] 2 MLJ 401
[12] Karen Young v Ng Tia Ching [2018] 11 MLJ 377
[13] Ibid.

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