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SINGLE AGAIN: Civil Law

Breaking Up Is Hard To Do


IT’S the biggest day of your life. You place the ring on your significant other’s finger, look deeply into each other’s eyes and solemnly swear to love and care for one another until death.

Alas, before you know it, the name-calling and abuse starts, and you find yourself heading for a divorce! A marriage is not easy. Advocate and solicitor S.K. Lim, who has been handling divorce cases for 13 years, finds she has more cases to handle during an economic crisis.

“Among my clients, 90% of them seek a divorce because of financial problems,” she says. Because of the high cost and implications involved, especially when it involves children, Lim says she usually advises potential clients to resolve the matter out of court with the help of third parties. Other than the emotional pain, and the effect on the children, a divorce puts a serious strain on one’s finances and results in a drop in standard of living for all parties, unless one is very rich. It is mostly the middle class – not the ultra rich, or poor – who see her.

First, there is issue of the legal fees. A joint petition (where both parties mutually consent) can set one back by between RM5,000 and RM8,000. A unilateral or a single petition (where one party contests the divorce) can go up to RM40,000 or more, says Kuala Lumpur-based advocate and solicitor Dinesh Kanavaji, who practices family law.

“Because it’s being contested, single petitions tend to be more complicated and take longer to settle,” Dinesh adds.

The matrimonial home

In a joint petition, both parties would generally have talked about the financial implications before heading to a lawyer’s office. In a single petition, either party can make an application for the division, or transfer, of the property.

If the property is acquired by joint effort, the court may divide the property as it deems reasonable after considering the contributions made by each party.

If the property is purchased in joint names, the property may be split evenly. If it is only in the husband’s name, the courts may give up to a third of it to the wife because she has the right to claim in court that she helped to enhance the home. This, says divorce lawyer C.T. Tan, is usually disputed.

If the wife wants the matrimonial home, she could suggest his two-third share be given to her in trust for the children if they are below 18.

“This depends on the generosity of the husband. Or she can buy over his share,” says Tan.

The court will consider the welfare of the children, both the parties involved and their contribution to the home, when making a decision on the division.

Says Tan: “There will be one party who will have to leave the house and buy another. The courts will also consider the financial position of the husband when making a decision on the children’s maintenance and alimony if he is the one who will have to leave the matrimonial home,” says Tan.

If there is a second property, although not jointly held, the wife will still be entitled to a portion as decided by the courts.

“The rationale is that, if the man had not bought the property, he would have more money and his wife can make a claim on a portion of that savings/earnings. Since he has bought the property, and although it is not purchased jointly, she is entitled to a portion. If there is a third house, she continues to be entitled to a share of it,” says Tan.

Alimony, child maintenance and custody

If the wife is working, the judge will not grant her alimony. She can request but it is at the discretion of the courts. If she is unemployed, the father has an obligation to provide for her until the child attains the age of 18 and is deemed old enough to be the sole breadwinner, says Dinesh.

If a child is seven or below, the custodianship belongs to the mother. For girls above seven, the judge may still grant custody to the mother. The court will decide the custodianship after considering the child’s welfare, the wishes of both spouses and if child is eight and above, his or her wishes.

Generally, the father bears the upkeep of the children and both parties may include a yearly or three-yearly review in the petition because the needs of the children vary as they grow older. Likewise, the financial standing of the parents.

Child support includes monthly payments for food, shelter, clothing, education and medical, Dinesh says. Maintenance continues until the child attains the legal age of 18.

The amount to be allocated for the maintenance of the child depends on the lifestyle of the parents, he says.

“Every family has a different lifestyle. For example, if the husband makes an average income of RM3,000 to RM4,000 a month, the judge may allocate 20% of his salary for monthly maintenance, after deducting all of his monthly expenditure.” Dinesh adds that if there was more than one child, the allocation could be broken up equally for the kids.

“If the man is unemployed, he is obligated to find a job to be able to provide maintenance,” he says.

The 20% is the maximum a wife can demand although there have been cases, out of generosity of the father, he wants to pay more. There is no minimum level, she says. In the case of a unilateral petition, fighting for maintenance tend to be a more acrimonious battle.

“Problems arise when the mother wants the maximum and the father wants the minimum (maintenance),” Dinesh says.

Getting help

The length of a divorce petition varies depending on factors such as the date of hearing granted by the court, the complexity of the case and the time needed for both parties to reach a settlement.

“In a joint petition, it could take three months. In the case of a single petition, it may take six months to two years,” says Dinesh.

Under Muslim (or Syariah) Law, divorce will include maintenance for the wife and children, matrimonial assets and accommodation rights. The financial implications are just as strenuous. Those who do not have the financial means to fund their divorce can seek help through the Legal Aid Centre, which is run by the Malaysian Bar Council.

Alternatively, one could also seek recourse via the Legal Aid Bureau, a governmental body under the Prime Minister’s Department that provides legal advice and help to the public. There are certain criteria to satisfy in order to qualify for these services.

In Britain, due to the high cost involved, couples are opting to co-habit. “It’s come to a point that the law (in Britain) recognises the rights of the unmarried woman (otherwise known as the common law wife), meaning that in the event of a separation the man will still need to provide maintenance for the woman and child. However, the financial implications are considerably less than going through a divorce,” says Dinesh. Financial planner Leong Foo Weng advises separating parties to ‘count the cost’.

“The parties involved can be so emotionally detached they just want it over and done with, without considering the potential impact on their finances. It’s of course more difficult when there are children involved,” he says, adding that many women take the concept of alimony for granted.

“Getting alimony can be a challenge. The male spouse may be unemployed and could take a while to get a job. He may even refuse to pay. To protect the welfare of the children, one could set up a trust fund so that the money does not get touched. It would be best if the wife can secure some money up front for this purpose and not have to worry about payment that may or may not come later.”

Leong, who has advised married couples before, believes that even on the brink of divorce, a marriage can be saved. A divorce has financial implications and holds life-long emotional consequences. It is not a personal triumph.

“Nothing is too late. But if they do want to go ahead with it (divorce), they should make rational decisions and realise the impact of those decisions,” he says.

Source: Article by Thean Lee Cheng and Eugene Mahalingam from the Star Online, 5 September 2009

 

 





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