New ERA: EQUALITY OF ASSET DIVISION
Dato' Fion Wong had voiced her opinion in Asian Legal Business, September 2017 issue, on what to expect in division of matrimonial assets after the Law Reform (Marriage & Divorce) Act 1976 receives its face-lift from Law Reform (Marriage & Divorce) (Amendment) Act 2017, which has now comes into operation on 15.12.2018
NOTE: The article was written and published on September 2017 before the Law Reform (Marriage & Divorce) (Amendment) Act 2017 comes into operation on 15.12.2018
Find the full article below.
The legislation that regulates and governs non-Muslim marriages and divorces in Malaysia is the Law Reform (Marriage and Divorce) Act 1976 (Act 164) (“ known as the LRA”).
The LRA 1976 has been left almost untouched (except for few minor amendments) since it was enacted for more than 3 decades ago, and is waiting eagerly to received its new significant face-lift after the Parliament passed the Law Reform (Marriage & Divorce) Bill 2017 (“the 2017 Bill”) on 10.8.2017. This 2017 Bill is the reborn of the Law Reform (Marriage & Divorce) Bill 2016 (“the 2016 Bill”) after the 2016 Bill was withdrawn to abandon the anticipated of restricting unilateral conversion of a child’s religion, promised by the Government in 2009. Despite its abandonement, the 2017 Bill in fact pushes the LRA to adapt to the revolving of the Malaysia society as the 2017 Bill made significant amendment to s.76 of the LRA; ‘Powers of Court to Order Division of Matrimonial Assets.'
Under the LRA 1976, if the matrimonial assets were acquired by the sole effort of one spouse, the court may divide the assets in such proportions as it thinks reasonable but in any case the spouse by whose the assets were acquired shall receive greater proportion. This position has been depriving the rights and entitlement of the spouse who did not contributed directly to the acquisition of the property but who may have contributed to the family expenses or by looking after the home and family. It is also to be noted that the LRA 1976 (prior amendment) does not require the Court to consider the duration of the marriage. Hence if the contribution of a spouse over the years he/she has committed to the family is not required to be taken into account by the Court, despite several Judges have been seen to have taken this into consideration.
As such the 2017 Bill will revamp the present LRA to enable the courts to recognise and respond to such situations by having regard to duration of the marriage, payment of expenses for the benefit of the family and by looking after the home or caring for the family which is similar to s.112 of Women Charter in Singapore (“the WC”). However, the significant difference is that the 2017 Bill expressly spelt out further that the court shall incline towards equality of division whilst in Singapore, the court is to give just and equitable division.
...PUT BOTH SPOUSES IN THE SAME POSITION AND WILL NOT CREATE ANY BIAS IN FAVOUR OF THE MONEY-EARNER AGAINST THE HOME MAKER
Equality of division adopted in the 2017 Bill will deliver fairness which put both spouses in the same position and will not create any bias in favour of the money-earner against the home-maker. Fairness requires that there should be no prejudice or advantage created to either spouse when their contribution decides division of the matrimonial assets. This framework will require equality to be departed only if there is good reason by having regard to the circumstances stated in s.76(2) i.e. short duration of marriage, or needs of minor children.
The concept of equality in Malaysia does not give the Court to embark on a flexibility approach as in Singapore or United Kingdom. A broad discretionary jurisdiction though have the merit of flexibility but will not be satisfactory if judiciary (the Judges) is seen to have involved in law making process which go against principle of separation of powers, and most importantly in the expense of fairness when the law is no longer certain and predictable.
It is expected that the equality concept in the Malaysia framework provided by the 2017 Bill will produce a more predictable and consistent outcome. Despite the abandonment of restriction in unilateral conversion of a child’s religion, the 2017 Bill should still be celebrated for it is to place the LRA in tune with the modern society perceptions of fairness.