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Ancillary relief

Distribution of matrimonial asset,


maintenance
Distribution of matrimonial
assets
Jurisdiction and power of court
Section 76:
- when granting a decree of divorce
- or judicial separation
Case : Ong Ah Mai v Ling Pooi Ming 1984
Wife applied for custody of her 2 children,
maintenance for herself and division of the
matrimonial property. There was no divorce
pending. Ct held that as far as maintenance and
custody the court can hear them but not division
of matrimonial assets unless there is an
application for divorce.

Power of court
1. order the division of the assets
2. sale of any such assets and division of
proceeds of sale
Meaning of matrimonial assets
Case Wachtel v Wachtel
The meaning family assets refers to the things
acquired by one or both parties with intention
they should be continuing provision for them and
their children and used for the benefit of the
family as a whole. It will include capital assets
such the matrimonial home and the furniture in
it, and revenue producing assets such as the
earning power of the husband and wife.
Matrimonial assets
Money,
Land,
Houses
Jewellery
Shares
Cars
Furniture

Matrimonial asset
Bank account
- common pool account or joint account
- beneficial joint interest in the amount
and purchase made
Matrimonial home
-usually the only assets .
- look at who acquires
- when is it acquired
- who contributed for down payment and
amount of contribution
- under whose name is it registered
- the value at the time of divorce
Guide line on division
Section 76(2) Court shall have regards to:-
1.the extent of the contribution made by
each party in money, property or work
towards acquiring the assets
2. any debts owing by either party which
was contracted for their joint benefit
3. the needs of minor children if any

Contribution
Direct cash contribution to the deposit or mortgage
repayment is sufficient contribution
Indirect contribution
- spouse must show that her contribution is referable to
the acquisition of property in question.
-contribution the wife makes to the housekeeping
expenses frees the husbands income so that he can pay
the mortgage and without the wife contribution the
husband would not be able to buy the house
- contribution was substantial
Home improvement
Contribution in money or moneys worth to improve the
property will be taken into account.
Contribution must be substantial in nature and have the
effect of increasing the value of the property
It must be an improvement and not merely on
maintenance of property.
Take the value of property prior to improvement,
calculate the increase in value brought by the
improvement and enlarge the share of the improving
spouse.
Case; Griffiths v Griffiths 1973
Home improvement
DIY
Pettitt v Pettitt
Continued mortgage repayment
If the parties separates and one party
continue to pay the mortgage payment,
then the court will provide credit to this
party

Property acquired by joint effort
Section 76(1)
Equality of division

Property acquired by sole effort
Section 76(3)
- division of assets
- sale and divides proceed of sale
Guideline on division section 76(4)
- a) extent of contribution to the welfare of
the family by looking after the home or
caring for the family
B) the need of minor children

the percentage of division
Ct divide assets or order sale and divide assets.
The party who acquires the assets get a greater
proportion.
Thus usually 1/3
Case ; Lee Yu Lan v Lim Thain Chye 1984
Parties married 26 years. Matrimonial home bought by H
in 1969. H had relationship with another woman in 1980.
H sold the house for RM191000.00 W wanted a share in
the matrimonial home. Her contribution in kind. Court
awarded her RM60000.00. 1/3 of the purchase price.
Lump sum payment
Re Heng Peng Hoo & Another
Marriage dissolve on joint petition.
W asked for distribution of matrimonial
assets. Court ordered lump sum RM
10000.
Maintenance for spouse
Jurisdiction of court to order man to pay maintenance to wife
.section 77
-. Maintenance pending suit
- amount enough to maintain wife and children at subsistence level
- payment to start not earlier than the date of the petition and ending
with the date of determination of the suit.
- when granting or subsequent to the grant the decree of divorce or
judicial separation
- if after decree presuming her to be dead she is found to be alive.
Correspondence power to order woman to pay maintenance to
husband. Section 77 (2)
- husband must be incapacitated, wholly or partially from earning a
livelihood by reasons of mental or physical injury or ill health and
having regards to means it is reasonable so to order.
Types of maintenance
Lump sum payment
Section 80
Periodical payment
Monthly or weekly
Security for maintenance
Section 79

Assessment of maintenance
Based on the means and needs of the
party regardless the proportion bears to
the income of the husband or wife.
But shall have regard to the degree of
responsibility which the court apportion to
each party for the breakdown of the
marriage.
Case Goh Kim Hwa 1986
Divorce on ground of desertion.1983 W applied
for maintenance. H argued that that W let the
matrimonial home to marry another man. She
was the sole cause of the breakdown of the
marriage. Must she be entitle for maintenance.
Ct said no adultery is alleged in the petition for
divorce. Both party are to be blame for the
breakdown of marriage.The Ct ordered
maintenance for the wife RM500.
When will it ceased?
Section 81
Section 82
Additional
Variation of maintenance section 84
Maintenance inalienable section 85
Recovery of arrears Section 86
- when to recover
- when it will be lost
Special power of court
Section 102