Spousal maintenance, or alimony, has long been a crucial aspect of divorce settlements, ensuring financial support for the economically weaker spouse. Traditionally, it was the husband who provided maintenance to his former wife. However, as gender roles evolve and more women achieve financial independence, the necessity and fairness of spousal maintenance have come under scrutiny. In Malaysia, the courts carefully consider the financial circumstances of both parties and their contributions to the breakdown of the marriage before awarding maintenance. This article explores the modern challenges faced, particularly by fathers, in resisting spousal maintenance claims
A. WHAT IS SPOUSAL MAINTENANCE
1. In the days of old, men were the sole breadwinners of the family whilst the women housewives taking care of the household. This left the women in a predicament and heavily reliant on their husband to provide for them, leaving them susceptible to hardship in the event that the Husband files for a divorce. What then? Well, to circumvent the situation and to ease the financial hardship that would befall single mothers or wives at that time, Spousal Maintenance, or better none as alimony, was introduced. Spousal maintenance is a form of monies paid by the husband or former husband to the wife or former wife to allow her to enjoy the same standard of living as she had during the course of the marriage. This was the whole idea behind the provision for spousal maintenance whilst the Law Reform (Marriage and Divorce) Act 1976 was drafted.
2. Spousal Maintenance is governed under S.77(1) of the Law Reform (Marriage and Divorce) Act 1976 (hereinafter referred to as “LRA”) which enables the Court to exercise its discretion to order a man to pay maintenance to his wife or former wife. This provision is wholly discretionary as the word 'may' which is indicative that the Court has the discretion in determining if, at all, the Petitioner is entitled to maintenance from the Respondent. There is no automatic right for a woman to claim maintenance from her husband This is held in the case of GOS v GOW [2023] 1 LNS 128 and PLOT TWIST, men are also entitled to be paid maintenance by his wife or former wife IF the he can satisfy the Court that he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the Court is satisfied that having regard to her means it is reasonable so to order.
B. HOW IS SPOUSAL MAINTENANCE ASSESSED
3. Spousal maintenance is assessed based on the means and needs of the parties. S. 78 LRA provides that the Court, in determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. Essentially what this means is that the Court in delivering an Order ought to consider and ensure that the spouse who needs support, gets it. This is however based on the financial situation of each party and their role in the breakdown of marriage. It is not an absolute right as mentioned above but based on fairness and not just about splitting things based on income alone as often done in Hollywood.
3.1. The Court, in applying the means and needs test, would look at the needs of the parties and not their wants. In essence, if you want if but don’t need it, you don’t get it. This was the principle applied in the case of CSM v TCC [2023] 3 CLJ 403.
C. THE BLURRED LINE BETWEEN SPOUSAL MAINTENANCE AND MAINTENANCE FOR THE CHILDREN
4. The distinction between spousal is in the name itself, i.e., the former is for the spouse and the latter, for the Children (if any). Maintenance for Children is to allow parent having Custody of the Children to provide for their basic needs such as daily sustenance, education, healthcare and etc. It is to place a child in a situation he or she was enjoying prior to the breakdown of marriage.
5. Maintenance for the Children is provided under S.92 LRA which provides that it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children. The Key words to this provision is “a parent” and “his or her”. This is indicative that both a mother and a father must provide for their children. It is not the sole duty of the father. This can be seen in the case of NG PING PING (P) v CHONG KOK KEONG (L) [2020] 1 LNS 44 where the Court held that S. 92 LRA makes it clear that the duty to maintain children is not the exclusive prerogative of the father of the child, and upon the dissolution of the marriage, the husband does not become a worker bee and the wife merely a queen bee.
6. Sounds straightforward? How is the line Blurred? Well, often times, an estranged spouse would claim an exorbitant amount under the limb of “Child Maintenance” to persuade the Court to award a high sum for Child Maintenance when in actuality, the sum needed to maintain the Child would be far lesser.
6.1. For example, during the course of the marriage, a child would eat mackerel and wear clothes from H&M. However, upon the breakdown of the marriage, you would find that the Child would astonishingly begin to eat organic salmon and shop at Tommy Hilfiger. I mean a 10-year-old don’t need a watch from Tissot or Tag Huer. A G-shock would suffice.
7. When lines get blurred, the person being ordered to pay the maintenance would feel the pinch. The most common question with regards to maintenance fathers ask us when faced with an impending divorce is “How would I know if the money is going for my Child?”. Our answer would always be “You won’t know. It is for your wife or ex – wife to use it at her discretion.” What then? Well, that is why record keeping is vital in divorce proceedings as such evidence would be vital in mitigating the amount of maintenance payable.
D. CONCLUSION
8. In modern Malaysia, the traditional roles of husbands and wives have evolved, with more women becoming financially independent and pursuing successful careers. This shift has impacted the way courts approach spousal maintenance. The notion that a husband automatically bears the financial burden post-divorce is steadily changing, with judges exercising discretion based on the unique circumstances of each case.
9. As gender roles continue to blur, the future of spousal maintenance may see further transformations, reflecting a more balanced financial responsibility between spouses. Ultimately, the court’s role is to ensure fairness—supporting the spouse in need while acknowledging the changing dynamics of marriage and family life. Spousal maintenance is not an entitlement but a legal tool that adapts to the realities of modern relationships.
This article is prepared by Vhimall Murugesan