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Ancillary relief
Distribution of matrimonial asset,
maintenance
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Distribution of matrimonial
assets
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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 thematrimonial property. There was no divorcepending. Ct held that as far as maintenance and
custody the court can hear them but not divisionof matrimonial assets unless there is anapplication for divorce.
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Power of court
1. order the division of the assets
2. sale of any such assets and division of
proceeds of sale
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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 andtheir 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 theearning power of the husband and wife.
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Matrimonial assets
Money,
Land,
Houses Jewellery
Shares
Cars Furniture
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Matrimonial asset
Bank account
- common pool account or joint account
- beneficial joint interest in the amountand purchase made
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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
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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
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Contribution
Direct cash contribution to the deposit or mortgagerepayment 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 paythe mortgage and without the wife contribution thehusband would not be able to buy the house
- contribution was substantial
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Home improvement
Contribution in money or moneys worth to improve theproperty will be taken into account.
Contribution must be substantial in nature and have theeffect of increasing the value of the property
It must be an improvement and not merely onmaintenance of property.
Take the value of property prior to improvement,calculate the increase in value brought by theimprovement and enlarge the share of the improvingspouse.
Case; Griffiths v Griffiths 1973
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Home improvement
DIY
Pettitt v Pettitt
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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
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Property acquired by joint effort
Section 76(1)
Equality of division
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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 orcaring for the family
B) the need of minor children
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the percentage of division
Ct divide assets or order sale and divide assets.
The party who acquires the assets get a greaterproportion.
Thus usually 1/3
Case ; Lee Yu Lan v Lim Thain Chye 1984
Parties married 26 years. Matrimonial home bought by Hin 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. Courtawarded her RM60000.00. 1/3 of the purchase price.
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Lump sum payment
Re Heng Peng Hoo & Another
Marriage dissolve on joint petition.
W asked for distribution of matrimonialassets. Court ordered lump sum RM
10000.
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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 orjudicial separation
- if after decree presuming her to be dead she is found to be alive.
Correspondence power to order woman to pay maintenance tohusband. Section 77 (2)
- husband must be incapacitated, wholly or partially from earning alivelihood by reasons of mental or physical injury or ill health andhaving regards to means it is reasonable so to order.
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Types of maintenance
Lump sum payment
Section 80
Periodical payment Monthly or weekly
Security for maintenance
Section 79
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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.
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When will it ceased?
Section 81
Section 82
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Additional
Variation of maintenance section 84
Maintenance inalienable section 85
Recovery of arrears Section 86 - when to recover
- when it will be lost
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Special power of court
Section 102