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Division of Matrimonial Assets

- Governed by S.76 of the LRA 1976


- Joint effort [S.76 (1)] ; Sole effort [S.76 (3)]
The party by whose effort the assets were acquired shall receive a greater proportion.
- S.76 (5): Include assets owned before the marriage by one party which have been
substantially improved during the marriage by the other party of by their joint efforts.
In exercising its power, the court must have regard to the extent of the contributions made by
each party in money, property or work towards the acquiring of the assets; any debts
owing by either party which were contracted for their joint benefit; the needs of the
minor children, if any, of the marriage, and subject to those considerations, the court will
incline towards equality of division.
In exercising power in dividing the matrimonial assets, the court must have regard to:
(1) the extent of the contributions made by the other party who did not acquire the assets to
the welfare of the family by looking after the home or caring for the family;
(2) the needs of the minor children, if any, of the marriage;
It is essential for the court to make a finding of fact on the question of whether the assets
were acquired by the parties during the marriage by their joint efforts or by the sole effort of
one party.
Assets that are acquired during marriage by their joint efforts should be divided equally
between the husband and wife subject to the extent of contribution made towards the
acquiring of the assets. If the finding is that the said assets were acquired through the sole
efforts of one party it is mandatory that the court must give a greater proportion of the
property to him.
Cases:
Lee Yu Lan v Lim Thain Chye [1984] 1 MLJ 56
Facts:
In this case, the wife claimed that she had contributed to the matrimonial home by 'caring and
rearing the children at home' and 'other general duties attendant' to her 'housewifely' duty.
The house was bought by the husband and he had sold it for RM191,000 of which RM41,000
was paid by the purchaser to the husband as deposit.
Held:
The court considered the debts the husband had to pay, the possibility of creditors pressing
for payment for some of his liabilities, and the court's proposal to make an order for
maintenance for the wife.

With regards to the contributions that the wife has done to the matrimonial home, the court
decided that she be given RM60,000, which was about 1/3 of the full purchase price of
RM191,000.
Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 863, CA
Facts:
The petitioner (husband), a Malaysian and Respondent, an Indonesian were married in UK in
1980. After 6 years of marriage, the husband petitioned for divorce. While assessing the
amount of maintenance, the court will take into account the amount of maintenance the
husband should pay to the wife depending on the means and needs of the parties, taking into
account the standard of living of the parties which they enjoyed during the marriage.
In this case, the Husband contended that there was no proof that the wife has substantially
improved or contributed in any way whatsoever to substantial improvement of the property
during the marriage as provided under S.76 (5). The wife on the other hand gave evidence
that her salary was used towards the upkeep of the household as well as to buy groceries. It
was held that the wifes contribution of her salary towards upkeep of the household and to
buy groceries justified a share in the matrimonial home even though she had not contributed
financially to the property.
Held:
In deciding the amount of maintenance that should be paid by the husband, the court regarded
the duration of the marriage, whether there were any children of the marriage, the age of the
parties, whether the husband had financially supported the wife during of their marriage, the
parties earning capabilities and whether the divorce would have affected the husbands
position financially.
The court ordered the property to be regarded as matrimonial property and the wife was
awarded one-half of the net value of the said property.

Lim Tin v Yap Mooi Hee [2012] 4 MLJ 356, CA


Facts:
In this case, the wife had not contributed directly towards the purchase, renovation and
instalments of the home but she had contributed to the running of the home and the caring of
two children.
Held:
In the light of S.76, the Court was of the view that the wife should not be denied half of her
share in the matrimonial property as she had no doubt contributed to the running of the
home and the caring of the two children. She was also entitled to a quarter of the husbands
EPF.

Ng Bee Lee v Liew Kam Cheong [2010] 6 MLJ 858, HC

Facts:
In this case, the facts clearly indicated that that the respondent never lived with the appellant
and the two children in the Kemensah property. As such, the Judge concluded that the
Kemensah property was not a matrimonial home of the respondent and the appellant.
However, Kemensah property was considered as matrimonial asset since it was an asset
acquired during the marriage of the parties.
The respondent claimed that the Kemensah property was acquired by his sole effort thus the
relevant provision that is applicable would be s.76(3) and not s.76(1) of the LRA (s.76(1) of
the LRA covers the division of matrimonial assets acquired by the joint efforts of both
parties).
Held:
It was held that there was no dispute as to the maintenance of the children as the two
children of the marriage are now above 18 years of age, being 22 years and 19 years old
respectively and are no longer minor children. Hence, since s.76 (4)(b) of the LRA would
not be relevant here, the court only has to consider s 76(4)(a) in dividing the
matrimonial assets.
With regards to the division of matrimonial property, the Judge decided that a just division of
the Kemensah property, ie 65% of it, to be given to the respondent because he had
contributed to nearly all of the purchase price of the property. The appellant did look
after the home and care for the family since she was a full time housewife and she was then
being awarded 35% of the Kemensah property for whatever she had contributed to the
welfare of her family, by looking after the home or caring for the family.
This division of the Kemensah property is consistent with the principle stated in s 76(4) of the
LRA which provides that 'in any case the party by whose effort the assets were acquired shall
receive a greater proportion'.

Lim Bee Cheng v Christopher Lee Joo Peng [1997] 4 MLJ 35; [1996] 2 CLJ 697, HC
Facts:
In this case, the respondent husband bought the house and put the petitioner wife's name as a
co-owner.
Held:
Strictly in accordance with the requirements under s.76(4), it would follow that the husband
should receive a greater proportion of the share or proceeds of the sale.
In deciding based on the facts and circumstances of the current case, the court holds that the
petitioner's share of the proceeds be limited to no more than one-third undivided share of
the said property or of the proceeds of sale.
However, further considering the Petitioners attempt in saving the property from
auctioners hammer, the said property was to be divided between respondent and
appellant equally.

Retnam a/l Suppan v Kamala a/p Ponnampalam [2011] 8 MLJ 722, HC


Facts:
In this case, the petitioner alleged that the matrimonial home had been purchased and paid for
solely by him, without any contribution by the wife, and that he had maintained the said
home and paid for all the expenses. The respondent alleged that she had been working prior
to the marriage and that she had stopped working at the petitioner's request to take care of the
home and family. The respondent further alleged that she had contributed RM1,000 in cash
towards part payment of the deposit for the purchase of the house.
Held:
In the light of the above and after due consideration to all the facts and circumstances, it was
manifestly clear that the wife had contributed to the welfare of the family and home by
rendering domestic services to her husband for the ten years they were together and taking
care of the two children till they reached adulthood.
The wife was therefore entitled under s.76(4) of the LRA 1976 to her fair share of the
matrimonial home. The Court made an order that the matrimonial home be sold and 1/3 of
the proceeds from the sale to be given to the wife. If the husband was reluctant to sell the
house and desired it to be inherited to his son, he could still do so with the consent of the wife
but he has to have the home valued by an authorised valuer and 1/3 of the value in cash must
be given to her.
Chan Beng Tiow v Kok Mei Mooi [2005] 3 MLJ 719, CA
Facts:
The appellant filed a petition for his marriage with his wife, the respondent, be dissolved. The
appellant was ordered by the court to, inter alia, pay to the respondent a monthly
maintenance of RM500 and to transfer 40% interest of the matrimonial home ('the property')
to the respondent. The appellant, being dissatisfied with the decision of the learned judge
appealed to this court. The learned counsel for the appellant contended that the judge decided
to apportion 40% of the matrimonial home to the respondent based on the long years of
marriage of 23 years.
Held:
From the Courts findings, the appellant seems to be willing to transfer 50% of the said
property to the respondent. Be that as it may, the evidence showed that the respondent has
looked after the said property since the parties were married. The burden of caring for
the family, including at certain times, her parents-in-law fell upon the respondent.
The extent of her contributions she made to the welfare of the family by looking after
the said property and caring for the family and at times looking after her parents-in-law
would surely entitle her to receive a proportion of the said property. The learned judge
has ordered that the appellant transfer 40% interest in the said property.

Maintenance of child above 18 years old


Section 95: the duration of a maintenance order shall be until the child attains the age of 18
years or where the child is under physical or mental disability, on the ceasing of such
disability, whichever is the later.
Karunairajah v Punitharubiyai [2004] 2 MLJ 401, FC
Facts: The husband (after the process of divorce) was ordered by the High Court to pay
maintenance of his children. However he stopped the payments of maintenance for the eldest
child on the ground that she had reached the age of 18 years. The wife appeal at COA for an
order for the husband to continue the payment for their daughter to pursue her tertiary
education.
Held:
COA accordingly varied the earlier consent order by extending the maintenance payment
beyond the age of 18 years.
Federal Court allowed the husband appeal to be relieved from the payment of maintenance to
his children by relying on section 95 of LRA.

Ching Seng Woah v Lim Shook Lin [1997] 1 MLJ 109


Facts:
The father of a child has neglected over the order of the High Court to pay maintenance for
his 2 daughters for their tertiary education.
Held:
The Judge dismissed the fathers application on the ground that the father has took oath that
he would benefit his children until they obtain their first degree. The court relied on the
doctrine of the law that a person cannot be permitted to reprobate what he has approbated.
(the financial disability should be included within the exceptions of the provision on
maintenance under the LRA)
The court observed that in appropriate cases, involuntary financial dependence constitutes a
physical disability under S.95 of the LRA.