Alimony is one of the most important issues and terms in a divorce, especially when a spouse and children need alimony to support themselves.
In this article, we will discuss what alimony is as well as the types of alimony, how it is calculated, and what to do if the other party refuses to pay alimony based on a judgment.
Meaning and types of alimony
Alimony is a financial obligation or money paid by one party to another. The purpose of this is to ensure that the divorced spouse and children can maintain their lives after the divorce. Alimony is usually ordered by a court in a divorce proceeding.
The marriage and divorce law in Malaysia is the Law Reform (Marriage and Divorce) Act 1976 (‘LRA’). There are two types of alimony, namely spousal support and child support. Both of these are explained further below.
Spousal support
Under the law, as part of the divorce formalities and processes in Malaysia, the High Court of Malaya can order one partner to pay such alimony to the other during and after the divorce proceedings.
Even if no divorce proceedings have been initiated, according to our country's law, the Married Women and Children (Maintenance) Act 1950, the court can order a man to pay alimony to his wife who is unable to maintain her life.
This fee is usually paid by the husband to his wife. However, if the husband is unable to earn income due to health problems, the court may also order the wife to pay the husband if it considers that it is reasonable to do so, taking into account the wife's financial capabilities.
Calculation of Alimony in Malaysia
In a joint divorce petition where both parties agree to the terms of the divorce, the partners can discuss who will pay alimony and how much. However, if they cannot agree, then in an unilateral divorce application, the court will consider several factors to determine the amount, such as:
Financial status of husband or wife: occupation and salary or income of both parties
Needs of both parties: reasonable monthly expenses for food, clothing, housing and transportation
Responsibilities and causes of marriage breakdown
Courts tend to maintain the couple's standard of living during the marriage. Therefore, if there was a habit of paying such fees or monthly allowances during the marriage, the client can make a strong argument through a divorce lawyer that an equal share of the money should be paid to maintain the standard of living.
Spousal Support, Durations and Changes
Depending on the court order, such fees can be paid monthly or as a lump sum. In addition, one party has the right to apply to the court to order the other party to transfer its property to a trustee and to use the income of the trust property to pay such expenses.
Unless a judgment provides to the contrary, the obligation to pay such fees end upon the death of one spouse or the remarriage or adultery of the spouse receiving alimony.
In certain circumstances, the parties may apply to vary the alimony order, in particular to cease or reduce the amount. A party may apply through a law firm when he is able to prove or produce evidence:
The order was made based on a misrepresentation or error of fact
Significant change in circumstances (such as loss of source of income or increase in monthly expenses)
Child support
Children are children born in marriage under the age of 18. According to the law, parents have the responsibility and obligation to support and raise their children by providing accommodation, food, clothing and education.
Food does not have to be expensive or nutritious, as long as it is reasonable and sufficient for the child's development.
Powers of the Court and Amount of Maintenance
When a father neglects to raise a child, the court can always order him to pay maintenance to the child.
In addition, the court has the power to order the mother to pay child maintenance if it considers it reasonable after considering the mother's financial situation. Some of the factors that the court considers when deciding the amount are:
The financial situation of the parents: the income, earning ability of the parents and assets such as the house and other properties
The financial needs and expenses of the children: such as food, education, tuition fees and additional expenses (such as when the child suffers from any physical or mental disability)
The living standard of the family members before the breakdown of the marriage.
Child Maintenance, Durations and Changes
Typically, child support is paid monthly into the bank account of the other parent who has custody of the child. In addition, one parent can apply to the court to order the other parent to transfer his or her property to a trustee and then use the income from the trust property to pay alimony.
Unless the maintenance order provides otherwise, a parent's obligation to support a child ends when the child reaches 18 years of age or, if the child has a mental or physical disability or is in higher education, until the disability or higher education ends.
In certain circumstances, parents can apply to vary the maintenance order, specifically to stop or reduce the amount. Any parent can apply under the following circumstances when he is able to provide evidence that: The order was made based on a misrepresentation or error of fact A significant change in circumstances (such as loss of source of income or increase in monthly expenses)
Non-payment and enforcement methods
If the other spouse, including the ex-husband and ex-wife, refuses or stops paying alimony, that partner can appoint a Malaysia divorce lawyer to take the following approaches:
Judgment debtor summons (also known as 'judgment debtor summons'): Under the Divorce And Matrimonial Proceedings Rules 1980, a party can apply to the court to require the defaulting spouse, alleged to be the judgment debtor, to appear in court and review their ability to pay.
The debtor must show his income and assets to the court. After examining the judgment debtor, the court can order him to pay the amount owed in a lump sum or in installments.
Contempt of Court: If the judgment debtor refuses to appear or pay even after being ordered by the court, the other party can apply for contempt of court.
The court will summon the judgment debtor to ask him why he has not paid despite being ordered to pay. If he cannot provide a good explanation, then the court can sentence him to jail for contempt of court.
Garnishment of Income Order: If the judgment debtor is employed, the other spouse may apply for a garnishment of income order under the Married Women and Children (Enforcement of Maintenance) Act 1968.
According to the order, the court shall pay alimony by deducting a portion of the judgment debtor's salary after taking into account the debtor's monthly expenses. The scope of garnishable amounts is limited only to the judgment debtor’s income.
However, an income garnishment order will no longer be effective if:
(a) When there is a warrant ordering unpaid alimony as a penalty.
(b) An order where a judgment debtor is sentenced to imprisonment for failure to comply with the order
(c) After revoking the order.
If the party is dissatisfied with the court's order, he or she may appeal to a higher court, such as the Court of Appeal.
Conclusion
During and after a marriage, some spouses may require alimony to maintain and cover monthly expenses. Therefore, it is also important to ensure that the amount is reasonable and paid promptly. If you have any questions and are looking for a KL law firm for professional advice, please contact us. Our team is here to help.
