Legal Update 7 of 2017

Family Law – Whether the appeal by the husband in relation to access to the child and distribution of matrimonial property oppressive.

CASE:  Sargunan Gurusamy v. Jivaranee Nagarathnam [2016] 1 LNS 1487 CA

·         BRIEF FACTS


·    The petitioner (husband) and respondent (wife) were married in 2003. They hadone child in 2005 (age at the time of suit was 11 years and current age is 13 years old).

·     The husband filed the petition for divorce in 2014 on the grounds that both parties have been separated for more than 2 years (26.12.2010).

·    The husband alleged that the wife left the matrimonial home and deserted himand their child.

·     On 18.8.2015, both parties requested that the Court call for a report by the Welfare Officer pursuant to s. 10 of the Law Reform (Marriage & Divorce) Act 1976.

·     The Welfare Report made by Puan Anies Suzana Azhan stated that the child showed signs of happiness when he is with his father and his paternal grandparents who are currently looking after him.

·   The welfare officer noted that he showed signs of unhappiness when she suggested that she intended to bring him to meet his mother. The child further informed that he had met his mother about 3 times for the last 5 years.

·       The husband contended the following;

o    The wife had abandoned the child when the son was just 6 years old and never bothered to seek a court order for custody of or access to the child. Thus, the son now has a deep-rooted sense of hostility towards the wife.

o    The access period of 8 hours every fortnight is excessive bearing in mind the child's refusal/reluctance to see his mother or go out with her.

o    The only contribution proved by the wife for the purchase of the matrimonial home was less than 10% of the purchase price of the house and that she had not contributed towards payment of the housing loan installments.

·         The wife in the High Court contended:

o    Care and custody of the child with reasonable access to the husband (her counsel also informed the court that she wanted joint custody of the child).

o    That her share of the matrimonial home is purchased by the husband at market value. If he refuses, then the matrimonial home be sold and the proceeds of sale be divided equally between the parties after settling the outstanding loan;

o    Maintenance for the child in the event custody is given to her.

·         The High Court held the following;

o    The husband’s excuse for limiting the time and frequency of access to the child is that the child is hostile to the wife and does not want to see her.

o    The wife, however, is ever willing to have access to the child on every alternate Saturday from 10 am - 6 pm as she wants to reconnect the lost years with her child as a result of the acrimonious relationship between her and the husband.

o    There could be some truth in the wife’s averment that the child’s hostility is caused by the circumstances in the husband's home where the child is staying.

o    As it may take time for the wife to win the heart of the child, every alternate Saturday is appropriate where the period in between is not too long.

o    The husband should encourage the child to bond with his mother and not place respondent barriers between preventing him from obtaining the mother's love.

o   As for the matrimonial home, the court noted that the wife had contributed to the down payment of the property and had taken loans to finance the renovation of the house.

o     Thus, it did not matter that she did not subsequently contribute to the monthly installments towards the housing loan.

o    The wife is the registered owner of the equal undivided share of the matrimonial home with the husband. In the best interest of both parties, the property is to be sold to a third party or by one party to another at market price, and the proceeds to be divided equally.

·      The present appeal is by the husband who is dissatisfied with the decision of the High Court Judge who has allowed his claim in part.

DECISION: Husband’s Appeal Dismissed

·   In dealing with the issue of access and matrimonial property, the Court considered the following:

o    The wife was abused and literally forced to leave the matrimonial home.

o    The husband refused to return to the wife her personal documents including the loan documents.

o    The husband admitted that the wife had breastfed their child for 6 months (despite the husband’s allegation she did absolutely nothing else for their child thereafter).

·       Custody is often given to the mother but in the instant case, the wife had only requested access.

·      Thus, the appellate court takes the view that the order of access should not be a subject matter of appellate intervention.

·      On the issue of division of matrimonial property, the law obliges the court to order equal division when the property is in the joint name despite one spouse contributing more than the other spouse (Section 76(i) Law Reform (Marriage and Divorce) Act 1976; Yap Yen Piow v. Hee Wee Eng (2015)). 

·       Hence, the appeal is dismissed with costs of RM10,000.00 to the wife. 

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