Wednesday, February 2, 2011

Family Law 2005 Q(1)(a)

modified 02.02.2011

Nathan and Mei are married and they have a child who is still a minor. One day, Mei meets Ali and begins to learn about Islam. A year later Mei converts to Islam and a few months after that Mei marries Ali. Mei wishes to know the legal position of her marriage with Nathan and how she can obtain maintenance for and guardianship of her child.

What is status of Mei’s marriage. According to s.51 of the LRA only the non converting party may apply for divorce. Thus, even though Mei has converted into Islam, she has no right under the LRA to apply for divorce. In Ng Siew Piau v Abd Wahib Abu Hassan, the court held that only the non-converting party may petition for a divorce and the converting party cannot seek a decree of divorce on the grounds of his/her conversion. Therefore until and unless Nathan applies for divorce, the civil marriage between them will stand valid.

It is a common law duty that a husband must maintenance his wife (Raquiza v Raquiza). Since Mei cannot apply for divorce, she cannot rely on The Law Of Reform (Marriage and Divorce) Act 1976 for maintenance as it is not applicable.  However, she can claim maintenance based on the Married Women and Children (Maintenance) Act 1950 (MWA), where s. 3(1) provides that the Court may order a man who has neglected/refused to support his wife to provide monthly allowance for the purpose of supporting, if the wife unable to support herself. Further, the earning capacity of the wife will be taken into consideration in awarding maintenance (Thevathasen v Thevathasen). The court also can order payment of arrears of maintenance for not more than 12 months (Amrick Lall) and such payment of alimony is not a property (Gangaharan).  However, in awarding the maintenance, the court will look into the issue who contributed to the divorce and to what extend. Nonetheless, s. 5(2) MWA provides that no wife shall be entitled to receive an allowance from her husband if she lives in adultery. Since Mei is the sole reason for the breakdown of the marriage and she had married Ali, she would be entitled for maintenance.

Can Mei claim maintenance for her child. It is a settled law that the father has a duty to maintain the standard of living of his child had enjoyed in the past and during the subsistence of the marriage (Sivajothi a/p K Suppiah v Kunatharan).  Section 3(2) MWA provides that the Court may order a man who has neglected/refused to support his child to provide monthly allowance for the purpose of supporting, if the child unable to support themselves. Child under MWA referred to legitimate and illegitimate child as well. Further, the maintenance for the child will be paid until the child attained the age of majority (Kulasingam v Rasammah) and the age of majority as provided in the Majority Age Act 1971 is 18.

Guardian is the person to take care of the child and ‘he’ is also responsible to maintain the child’s health, welfare and education (Foo Kok Soon v Leong Rosalina). Section 11 of the Guardianship of Infant Act, 1961, provides that a judge in exercising his power conferred under the Act, shall have regard to the welfare of the infant and also wishes of the parents. In Kanagalingam v Kanagarah, it was held that whilst it is incumbent upon the judge to consider the wishes of parent/s as the case may be, the paramount consideration shall be primarily be the welfare of the infant. Welfare of the child, weight more than other factors (Mahabir Prasad v Mahabir Prasad).

In deciding on the issues of guardianship, the court will consider factors such as the welfare, religion, moral, the circumstance of the house and the character of the parties. The court held that an infant of tender age should remain with his mother for a period of nurture, and for a natural mother’s love, care and affection. Further, it is the view of the court that should a change of custody takes place it might unsettle the mind of the child and it might develop a permanent emotional scar in the child (Masam v Salina Saropa & Anor). Therefore, Mei would be successful in obtaining guardianship of her child. However, Nathan would be conferred with right to access, to enable him to visit the child in a specified time (Foo Kok Soon v Leong Rosalina).

            Thus based on the above, Mei civil marriage with Nathan is still valid until Nathan get a divorce and she can obtain maintenance and guardianship for her child. However, maintenance for her will be refused by the court. Advised accordingly.

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