Maintenance Matters: How Much Do I Have To Pay?

In any divorce or judicial separation, maintenance is an issue that will need to be addressed. In Malaysia, while the law allows for husbands to be maintained by their wives, it is more often the scenario that the husband is the one maintaining the wife. We often get questions such as “Can I claim for maintenance from my husband?” or “How much do I have to pay my ex-wife monthly?”

It must be remembered that the Court has discretionary power to award maintenance. Section 77(1) LRA 1976 provides that “the court may order a man to pay maintenance…”. The usage of the word “may” means that the Court can even decide not to grant any maintenance at all.

This was the case in Low Nam Hui v Siew Chin [1994] 1 MLJ 129 where the wife’s application for maintenance for herself was dismissed as, inter alia, she had more than adequate financial resources and she  did not need the husband’s maintenance (she was able to support herself well by her own financial means for the preceding 5 years). Similarly, in GGC v CCC & Anor [2016] MLJU 377, the High Court made no order as to maintenance of the wife as she was working and earning a reasonable income to support herself.

More recently, in the case of ICO v AKU [2023] 10 MLJ 480 where the marriage only lasted 2 years and the wife was found responsible for the breakdown of the marriage, the High Court dismissed her claim for maintenance and held that “…there is no hard and fast rule that a man must maintain his wife or former wife… there is no automatic right for a woman to claim maintenance from her husband, especially if she is capable of earning and supporting herself.”

In the event the Court sees it fit to order for the maintenance of a spouse, the next question would be: How much will one have to pay? The short answer is that in every case, the amount will differ.

Section 78 LRA 1976 provides the law on the assessment of maintenance (or in other words, the considerations of the Court in arriving at the quantum of maintenance to award).

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.

In the case of CSM v TCC [2023] 9 MLJ 116, the parties were wealthy with assets amounting to more than a quarter billion Ringgit Malaysia. The Court held that in determining the amount of spousal maintenance payable, “this court must take into account not just the means of the husband and the needs of the wife. It must also take into account the means of the wife and the needs of the husband.” In that case, the High Court ordered the husband to maintain his wife at RM20,000.00 per month.

In Tay Chong Yew & Anor v Onn Kim Muah [2016] MLJU 1720, the Court of Appeal reduced the amount of maintenance payable from RM4,000.00 to RM2,000.00 after taking into consideration, inter alia, the husband’s financial position and the fact that he could not be gainfully employed after being severely disabled by a major stroke. The Court of Appeal held that the following would be taken into account in assessing the means and needs of parties:

“In assessing the means and needs of the parties the Court has always had regard to the duration of the marriage, whether there were any children of the marriage, the age of the parties, whether the husband/1^st Appellant had financially supported the wife during the duration of their marriage, the parties earning capabilities and whether the divorce would have affected the 1^st Appellant/husband’s position financially.

Finally, what about husbands? Can husbands apply for maintenance from their wives? This may come as a surprise to some but the answer is: Yes. Spousal maintenance for husbands is provided for under Section 77(2) LRA 1976 which sets out that the Court has the power to order a woman to pay maintenance to her husband or former husband. However, there are  prerequisites that need to be fulfilled.

The Court may order for a wife to pay maintenance to her husband “where 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.” And in relation to the quantum, the amount of maintenance ordered will ultimately depend on the facts of the case.

Should you or someone you know require any assistance  concerning maintenance or other family-related matters, please contact Rene Yap at Thomas Philip.