AMENDMENT OF CHILD MAINTENANCE AFTER DIVORCE





Once a divorce has been finalised, an order pertaining to child maintenance that was mutually consented or made by the Court can be amended by either parent, at any stage.


We live in a time where an unprecedented and unfortunate pandemic has impacted businesses and their employees. If you have personally suffered from major financial setbacks due to the outbreak of Covid-19 and you continue to bear the expenses of paying child maintenance every month, or on the other hand, if you are the custodial parent who requires additional pecuniary assistance for your children, what can you do?


A possible solution is to make an application for Variation of Maintenance Order


SITUATIONS THAT JUSTIFY THE VARIATION OF A CHILD MAINTENANCE ORDER:


Firstly, the principles guiding a Court in deciding whether to vary a maintenance order is essentially the same as when the Court decides on a fresh maintenance application. The Court has a wide discretion to consider all the circumstances of a case[1] and consider the reasonableness of the claims. The difference now is that the Court will investigate the applicant’s new circumstances and compare it with the applicant’s circumstances when the original maintenance order was made.


Secondly, the evidential burden lies on the applicant to satisfy the Court on a balance of probabilities and thus, the individual making the application to vary the maintenance order must ascertain that there is a material change of circumstances that warrants a change and present the necessary evidence (e.g.: documentary evidence, bank statements, pay slips, etc) before the Court exercises its discretion.


Moving on, this article will highlight two potential grounds that could warrant the variation of a maintenance order.


a) Material changes in circumstances

b) Reasonable and in interest of the children’s welfare


a) Material changes in circumstances


The party making application to vary child maintenance order must prove to the Court that there is material change in circumstances such as changes in earning capacity. An example of such material changes in circumstances include, when the person who contributes to the child’s maintenance is faced with reduction or loss of income. On the other hand, if the person who contributes to the child’s maintenance has sufficiently better earning capacity in terms of job promotion, business expansion and or any other facts, this may be deemed as a material change in circumstances.


For example, if the father who is the sole breadwinner of the family runs a small business and makes RM2,000 monthly contribution to a child, but 5 years later, his business has expanded and the father was able to move into a large bungalow and own luxury cars, it is also justified that such change in earning capacity may warrant a variation.


Similarly, in the case of YWS v LZT [2020][2] although the Court opined that the reduction of income is insufficient to constitute a ‘material change of circumstances’, the fact that the wife had a windfall gain - unexpected gain from the sale of the matrimonial properties, had amounted to a material change of circumstances.


Another example of material change in circumstances may include when a parent remarries, which in turn may affect the financial provision or requirements of the child. In this case, if the father is the sole bread winner and the mother is a housewife with no income, the mother remarries and moves in with a new husband, this may be deemed as a material change in circumstances.


As such, The Court would typically consider the financial standing of both parents and the needs of the children accordingly.


b) Reasonable and in interest of the child’s welfare


If amendment to the children’s maintenance is deemed necessary on the ground that it is reasonable and for the welfare of the children, the Court will most likely grant variation under such situation.


There may be situations where just expenses are necessary but was not taken into account during the drafting of the Children Maintenance Order, or that the living expenses of the children had increased due to the age and the needs of the children, such as education and school curriculum entailments.


The Court may grant a Variation of Maintenance Order for the betterment of the children’s welfare. For instance, if a child is diagnosed with a medical concern or condition, the custodial parent may make an application to increase the monetary contribution to support the child’s medical needs. Another example is if the child requires special education needs that was previously not known to either parent or the Court, the Court will take such change in circumstances into consideration. With sufficient supporting evidence, the Court is highly likely to grant the Variation.


EVIDENTIAL BURDEN LIES ON THE APPLICANT


However, as mentioned previously, the parent making such application must make sure to present the necessary evidence at Court.


In the case of Karen Young v Ng Tia Ching [2018][3]: -


i. Wherefore the applicant wife had made an application to vary the maintenance order (an increase of monthly stipend) citing that the child in question is dyslexic and requires more attention in school.


ii. In view of such alleged circumstances, she claimed that she enrolled her child into an international school for a better educational experience.


iii. Here, the Court denied the application for Variation and amongst the main reason for such decision is because there was a lack of psychological report to prove that the child was dyslexic.


Likewise in the case of YCC v. LSY [2007][4] where an application by the husband petitioner for leave to vary or rescind the terms of several orders in a divorce order was denied by the High Court.


i. According to the husband’s counsel, the husband was in dire financial straits.


ii. However, the Court found the husband's assertion about his present financial status equivocal and unconvincing.


iii. The Court held that whether he is in a financial dire strait depends on his earnings and sources of income and how his other businesses are doing; what his other liabilities are, and what other assets and investments he owns, not only in Malaysia but elsewhere.


As such, the Court found that no genuine attempt has been made by the husband to disclose to the Court his true financial position.


Contrary, in the case of Chua Chwee Thiam v. Annie Lim [1989][5] wherein the applicant husband in praying for Variation of the children’s maintenance order, argued on his material changes of his financial circumstantial. The Court was convinced due to the following facts: -


i. The husband was 'financially stretched', alleging that at the time he agreed to the maintenance agreement, his business was doing well, but subsequently his company was in dire financial straits.


ii. In his affidavit, the husband itemised his total indebtedness.


iii. He also produced evidence that his three credit cards were cancelled and that he was unable to pay his tax arrears, and that his company was placed in receivership.


In the circumstances disclosed in the case above, the Court was satisfied that the husband had produced enough evidence to show that there was a material adverse change in the husband's financial circumstances and granted his application.


CONCLUSION:


To conclude, Courts are likely to grant a Variation of Maintenance Order in the interest of the children’s welfare provided that the Applicant can provide sufficient evidence that supports that such Variation is for the betterment of the child’s interest and welfare. Court’s decision on Variation would differ on a case-to-case[6] basis subject to representations and supporting evidence provided at the time of such application.

[1] Section 83 of the Law Reform (Marriage and Divorce) Act 1976 [2] YWS v LZT [2020] 1 LNS 1950 [3] Karen Young v Ng Tia Ching [2018] 5 CLJ 716 [4] YCC v. LSY [2007] 7 CLJ 207 [5] Chua Chwee Thiam v. Annie Lim [1989] 2 CLJ 535 [6] Navarajan a/l Subramaniam v Rajeswary a/p Muniandy [2019] MLJU 715


Authored by Charumathy Nair


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