During our last session, we have introduced the topic of uncontested divorce where the parties agreed to divorce by way of mutual consensus (i.e. joint petition). Today we wish to delve into the issue that whether the party(ies) can apply to vary / amend the terms of the court order (i.e. amending the Order) once the Court has granted the parties a divorce order in respect of spousal maintenance and/or custody or maintenance of a child? The simple answer will be possible and we will discuss further in the following question and answer basis.

A.        CAN THE PARTIES AGREE TO VARY THE TERMS OF MAINTENANCE IN DIVORCE ORDER?

1.         Yes. The parties may apply to the Court to vary the Maintenance Order after an Order for Maintenance is granted by the Court in the event that the parties agreed mutually to vary the terms of the said Order.

B.        CAN EITHER PARTY APPLIES TO THE COURT TO VARY THE TERMS OF THE ORDER FOR MAINTENANCE?

2.         Yes. Pursuant to Section 82 and 83 Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”), the Court may vary the terms of the Decree Nisi in respect of the order of maintenance on the condition that such order is made based on misrepresentation, mistake of fact, or there is material change in the circumstances. Similarly, the Court may also vary the custody or maintenance of a child under the aforesaid circumstances under Section 96 and 97 of LRA 1976.

C.        WHAT IS THE CONSIDERATION OF THE COURT IF THE PARTY WISHES TO VARY THE ORDER FOR CUSTODY OR MAINTENANCE OF A CHILD?

3.         Under Section 88 (1), (2), (3) and (4) of LRA 1976, it is stated that the paramount consideration of the Court in deciding the issue of child custody shall be the welfare of the child (if there is more than 1 child, their welfare shall be considered independently). The Court will take into account the wishes of the parents and the wishes of the child (if he/she is of the age that able to express independent opinion). Generally, for a child below the age of seven years, the custody or maintenance of a child will be given to the child’s mother, unless there is evidence to the contrary.

4.         In Federal Court case of Mahabir Prasad v. Mahabir Prasad [1982] 1 MLJ 189, Raja Azlan Shah Chief Justice (as he then was) has stipulated the guidelines as follows:-

            “The question for my determination now is: who should get the custody of the children — the plaintiff father or the defendant mother? It is well established that in an application for the custody of a child the court will in exercising its discretion regard the welfare of the child concerned as the first and paramount consideration. It is equally established that this does not mean that the court will not take other relevant factors into consideration. Indeed in order to decide on the question of the welfare of an infant as of paramount importance it is necessary to take into account such matters as the conduct of the parties, their financial and social status, the sex and age of the child, his wishes as far as they can be ascertained depending on the age of the child, the confidential reports which a social welfare officer may put up and whether in the long run it would be in the greater interest, welfare and happiness of the child to be with one parent rather than with the other. But always it is the welfare of the child which is of paramount importance.”

5.         In the High Court case of Khoo Cheng Nee v. Lubin Pau Sing [1996] 4 MLJ 171, Abdul Wahab Patail Judicial Commissioner (as he then was) held that:-

“The starting point is, therefore, that it is undesirable to disturb the life of a child by changes of custody. A party seeking an order for custody away from their current arrangements must therefore show that what he or she offers benefits the welfare of the children better. The court must evaluate whether the improvement to the welfare of the child is sufficient to justify disturbing the life of the child by that change of custody. It has to be shown there will be positive advantages accruing for the welfare of the children by that change. Those advantages must be real and not merely promissory or speculative.…

To summarize, for guidance in similar applications, the court will normally favour the parent who will best maintain stability in the child’s surroundings. There is no set standard as to what constitutes ‘stability’, but a judge looks for continuity in a child’s life. To the degree possible, a judge will try to maintain continuity in, for example, a child’s school, community and religious ties.

A court gives the ‘best interests of the welfare’ of the child the highest priority. What the best interests of the child are in a given situation depends upon many factors, including:

(1) the child’s age, gender, mental and physical health;

(2) mental and physical health of parents;

(3) lifestyle and other social factors of the parents, including whether the child is exposed, for example, to second-hand smoke and whether there is any history of child abuse;

(4) the love and emotional ties between the parent and the child, as well as the parent’s ability to give the child guidance;

(5) the parent’s ability to provide the child with food, shelter, clothing and medical care;

(6) the child’s established living pattern (school, home, community, religious institution);

(7) the quality of school – particularly important when one parent wishes to move; and

(8) the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

It is to the best interests of welfare of the children that the state of feuding between the parents must cease. There shall be no bad-mouthing of one parent by the other to the children. There shall be no hiding of the children from the other parent. The children’s relationship with each parent must be allowed to grow naturally, better still fostered by one parent for the other.”

In conclusion, the Courts of Malaysia have delivered a clear message that it is not an easy task to vary the terms of a court order in respect of spousal maintenance or for the maintenance or custody of a child. It is the burden and responsibility of the applicant to prove the necessity to vary the said Court Order. It is to be reminded that the divorced parents should always consider the child’s welfare as their prime consideration before making any decision. The parents should nurture their child with love and care throughout the child development stage ensuring the child’s wellbeing and mental health is properly taken care of.

From the abovementioned, in the event you have any inquiry or require legal assistance, please do not hesitate to contact us at +6011-5657 1350 and reach us via email at lowzhigeneral@gmail.com.

Written By: Low Chee Hau, Melvin

Edited By: Yap Jian Zhi, Nicholas

Note: This article does not constitute legal advice in any case. The facts in each and every case will differ and you can contact us for complimentary legal advice.