Key Components of Child Custody in Malaysia

In a Malaysian divorce proceeding, the court has the authority to decide on:

• Guardianship: Who has the legal responsibility for the child, particularly in situations where the parents are unable to fulfill their roles due to various reasons such as death, incapacity, or other significant circumstances.
• Custody: Who has the right to make major decisions about the child’s upbringing.
• Care and Control: Who the child will live with on a daily basis.
• Access: How and when the non-custodial parent will spend time with the child.

The Power of Custody

Custody isn’t just a legal term; it’s a profound responsibility and privilege. The spouse granted custody can make crucial decisions regarding the child’s:

1. Day-to-day living arrangements, clothing, and food.
2. Supervision and social interactions.
3. Educational choices and schooling.
4. Religious upbringing.
5. Management of the child’s property.
6. Legal representation in court.
7. Consent to the child’s marriage.
8. Approval for medical treatments and procedures.

The Law Reform (Marriage and Divorce) Act 1976, Section 88:

• By default, children under seven are usually placed in the mother’s custody. This presumption recognizes the mother’s traditional role in nurturing young children.

Exceptions to the Rule:

• This presumption can be rebutted if the mother is found unsuitable. The court holds the power to assign custody to either parent, and in exceptional circumstances, to a relative or another more suitable guardian.

The Overriding Principle: Welfare of the Child

Before any custody decision is made, the court’s guiding principle is the welfare of the child. This isn’t just a consideration—it’s the paramount concern. Every ruling aims to enhance the child’s well-being, considering:

1. The Child’s Wishes: If mature enough, the child’s preferences are taken into account.
2. The Parents’ Wishes: Both parents’ desires are considered to find a balanced solution.
3. Consequences of Custody: How custody decisions will impact the child’s future.
4. Needs of the Child:
   • Physical, mental, emotional, and educational needs: Ensuring the child’s overall development.
   • Sibling Relationships: Courts prefer not to separate siblings to maintain family bonds.
   • Emotional Bonds: Custody often goes to the parent with whom the child shares a stronger emotional connection.
   • Maintaining Stability: Courts are inclined to maintain the current living situation if it benefits the child.
   • Gender Considerations: Sometimes, girls are placed with their mothers due to physiological needs.
5. Child’s Background: Age, gender, and cultural background.
6. Trauma: Any history of physical or emotional trauma.
7. Parental Capability: The ability of parents to provide stable housing, financial security, and adequate time for the child.

The Right to Access

Access isn’t just a legal right; it’s a vital part of the child’s life. No parent can be unjustly denied the opportunity to visit and maintain a relationship with their child. Even in cases of past violence, supervised access ensures that the child can safely maintain contact with both parents. Clear, structured visitation schedules help prevent conflicts and ensure consistency.

In Conclusion: The Malaysian courts approach custody with a blend of compassion and strict legal guidelines, always prioritizing the child’s welfare above all. Each decision is crafted to ensure the child’s well-being, stability, and happiness, reflecting the court’s deep commitment to nurturing the next generation, even amidst the turbulence of divorce.

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Nullity refers to the legal status of a marriage being declared invalid or void. In essence, it means that the marriage never legally existed from the outset. There are various reasons why a marriage might be deemed null and void, such as one or both parties being already married, the parties being underage, or the marriage being incestuous or bigamous.

Understanding nullity is crucial in legal contexts, particularly when individuals seek to dissolve marriages that are fundamentally flawed or legally impermissible. It’s distinct from divorce, which is the legal dissolution of a valid marriage. Nullity proceedings essentially declare that the marriage was invalid from the beginning, as opposed to ending a legally recognized union.

In nullity cases, the court examines the circumstances surrounding the marriage to determine whether it meets the legal criteria for nullity. If so, the court issues a decree of nullity, which legally declares the marriage null and void. This declaration has significant implications for both parties, as it essentially erases the legal existence of the marriage and can impact matters such as property rights, financial obligations, and parental responsibilities.

Understanding Nullity of Marriage: Void and Voidable Marriages

Explore the distinctions between void and voidable marriages under the law, ensuring clarity in legal proceedings.

Section 69 of the Law Reform (Marriage and Divorce) Act 1976:
Void Marriages

In certain circumstances, a marriage is automatically considered void without needing to apply for nullity:

1. One party is already married.
2. The male is under 18 years old, or the female is under 16 years old.
3. The marriage involves incest.
4. The parties are not a male and a female.

Section 70 of the Law Reform (Marriage and Divorce) Act 1976:
Voidable Marriages

A petitioner can apply for nullity in specific situations where the marriage is voidable:

1. The couple cannot consummate the marriage due to physical incapacity.
2. One spouse refuses to consummate the marriage.
3. There was no valid consent to the marriage due to lack of clear understanding, duress, mistaken identity, or one party being declared mentally disordered under the Mentally Disordered Persons Act 1952.
4. One party has a sexually transmitted disease.
5. The wife was pregnant by another man at the time of marriage.

Legal Proceedings

Upon filing the petition with the High Court, the respondent will be served and given the opportunity to defend. The court will then set a hearing date. If all conditions are met, the judge will declare the marriage null and void, thereby dissolving it immediately.

The post Unraveling the Legal Maze: Divorce Within Two Years appeared first on Property & Divorce Lawyer Johor Bahru 新山律师 | Bong & Partners.

1. Spouse Maintenance
2. Child Maintenance

Law Reform (Marriage and Divorce) Act 1976, Section 77: Spousal Maintenance

The Malaysian court has the authority to order the husband to pay maintenance to the wife during the following stages:

1. During the trial;
2. After the court order.

The court also has the discretion to order the wife to pay maintenance to the husband in special circumstances, such as the husband being disabled or losing his ability to work.

Law Reform (Marriage and Divorce) Act 1976, Section 93: Child Maintenance

The court has the authority to order child maintenance during the trial process or after issuing the court order.

Determining the Amount of Maintenance

The court will make a decision based on the circumstances.

The primary principle is to allow the recipient to maintain a standard of living similar to that before the divorce. Factors considered include:

1. Income of both parties;
2. Standard of living before the divorce;
3. Financial needs of the spouse and children;
4. Reasons for the divorce.
   

Duration of Maintenance Payments

1. Spouse Maintenance: Payments will continue until the spouse’s death or remarriage.
2. Child Maintenance: Payments will continue until the child reaches 18 years of age or completes higher education. Special considerations are made for disabled children.

Consequences of Failing to Pay Maintenance

Either party can file a lawsuit (civil debt) against their ex-spouse for failing to pay maintenance. If the ex-spouse still does not comply with the court order, the following enforcement actions can be taken:

• Bankruptcy proceedings,
• Wage garnishment,
• Freezing bank accounts,
• Contempt of court actions.

The post “Maintenance 101: What You Need to Know About Spouse and Child Support in Malaysia” appeared first on Property & Divorce Lawyer Johor Bahru 新山律师 | Bong & Partners.

Questions:

(a)I have been paying the loan of the matrimonial assets with my partner over the years but my name is not the title, am I able to apply for the division of such matrimonial assets?

(b)We have been married for many years but we do not have any mutual assets, am I able to apply for the division of his/her assets?

(c)I have been taking care of the children and the family over the years but I am not employed, am I able to apply for the division of his/her assets?

What amounting to matrimonial assets?

Matrimonial assets can be immovable property, EPF, shares, stocks, monies in bank account, cars and etc

Adulterous Actions

The conduct of parties and adultery have no relevance in determining division of matrimonial assets.

Such issue only concern the award of damages of adultery and wife maintenance.

s.76 of the Law Reform (Marriage and Divorce) Act 1976 provides:

76(1): power of the court to divide the matrimonial assets between the parties upon divorce or judicial separation

76(2): factors to be considered during the division of matrimonial assets:

(a) the extent of contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family;

(aa): the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family.

(b)any debts owing by either party which were contracted for their joint benefit;

(c) the needs of the minor children, if any, of the marriage;

(d) the duration of the marriage

76(5): For the assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.

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Adopt a child through legal process

The adoption procedures may be made through a Originating Summons to the court under the Adoption Act of 1952 (for Peninsular Malaysia only). Whatever it is, the parents should not adopt a child through illegal means as the legal implication of it may affect a child for his/her entire life.

1: First hearing: Appointment of guardian ad litem

Upon an originating summon made into court, a hearing will be fixed to appoint a guardian ad litem (usually the welfare department)  to carry out an observation for a certain period. During the observation period, the guardian ad litem will conduct home visits to interview the adoptive parents and the child, monitor the home environment so as to make sure the child is fit for adopt.

It shall be the duty of the guardian ad litem to investigate as fully as possible all the circumstances of the child and the applicant, and all other matters relevant to the proposed adoption, in order to safeguard the interests of the child before the Court, and, in particular, it shall be his duty to include in his investigation the following questions:

(a) whether the statements in the form of application required are true and complete, particularly as regards the date of birth and the identity of the child;
(b) whether any payment or other reward in consideration of the adoption has been received or agreed upon, and whether it is consistent with the welfare of the child;
(c) whether the means and status of the applicant are such as to enable him to maintain and bring up the child suitably, and what right to or interest in property the child has;
(d) what insurance, if any, has been effected on the life of the child;
(e) whether it is desirable for the welfare of the child that the Court should be asked to make an interim order or, in making an adoption order, to impose any particular terms or conditions or to require the adopter to make any particular provision for the child.

(2) The guardian ad litem shall regard all information obtained by him in the course of his investigation as confidential, and shall not divulge any part of it to any other person except so far as may be necessary for the proper execution of his duty.

If the Court refuses to grant either an interim order or an adoption order on the grounds that the adoptive home is unsuitable, the Court may, if it considers it to be in the interests of the child so to do, make an immediate order committing the child to the care of the Director General of Social Welfare.

2. Second hearing : Welfare report

At the second hearing, a welfare report will be submitted to the court either to support or oppose the adoption application. The court will consider the welfare report and decide the application in the best interests of the child. The court is also entitled to and may interview the adoptive parents to confirm their intentions and the child to ascertain his or her wishes. When an adoption order is passed by the court, the child’s legal ties with the biological parents will be severed and the adoptive parents will assume all rights, obligations and responsibilities in the care and education of the child.

3. Conditions for Adoption?

Section 4 of the Adoption Act: Restrictions on making of adoption orders

(1) An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants—
(a) has attained the age of twenty-five and is at least twenty one years older than the child in respect of whom the application is made unless the Court is satisfied that there are special circumstances for the making of an order;
(b) has attained the age of twenty-one and is a relative of the child; or
(c) is the mother or father of the child.

(2) An adoption order shall not be made in any case where the sole applicant is a male and the child in respect of whom the application is made is a female unless the Court is satisfied that there are special circumstances which justify as an exceptional measure the making of an order.

(3) An adoption order shall not be made in favour of any applicant who is not ordinarily resident in Peninsular Malaysia or in respect of any child who is not so resident.

(4) An adoption order shall not be made in respect of any child unless—
(a) the child has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order;
(b) the applicant has at least three months before the date of the order by a written notification informed an officer of the Social Welfare Department of the State in which he is for the time being resident of his intention to apply for an adoption order in respect of the child.

4. Consents to adoptions?

Section: 5 of the Adoption Act : Consent to a adoption

(1) Except as provided in this section, an adoption order shall not be made except with the consent of every person or body of persons who is a parent or guardian of the child in respect of whom the application is made or who is liable to contribute to the support of the child and an adoption order shall not be made upon the application of one of two spouses without the consent of the other of them:

Provided that the Court may dispense with any consent required by this section if satisfied—

(a) in the case of a parent or guardian of the child, that he has abandoned, neglected or persistently ill-treated the child;
(b) in the case of a person liable to contribute to the support of the child, that he has persistently neglected or refused so to contribute;
(c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or
(d) in any case, that in accordance with any written law relating to the adoption of children for the time being in force in any country any competent authority has given permission or granted a licence authorizing the care and possession of the child to be transferred to the applicant.

The Court may dispense with the consent of the spouse of an applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving such consent or that the spouses have separated and are living apart and that the separation is likely to be permanent

5. Matters with respect to which Court to be satisfied

Section 6 of the Adoption Act: matters to be considered by the court

The Court before making an adoption order shall be satisfied—

(a) that every person whose consent is necessary under this Act, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights;
(b) that the order if made will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child;
(c) that neither the applicant nor the parent or guardian has received or agreed to receive, and that no person has made or given, or agreed to make or give to the applicant or the parent or the guardian any payment or other reward in consideration of the adoption except such as the Court may sanction; and
(d) that there has been a substantial change in the circumstances, if it appears that the applicant has made a previous application under this Act in respect of the same child.

6. Effect of adoption order

Section 9：Effect of an adoption order
Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent, guardian of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock.

7. Birth Certificate

In respect of the Certificate of Birth , every adoption order shall contain a direction—
(a) to the Registrar General that the word “adopted”, “adopter” or “adoptive” or any word to like effect shall not appear in the Certificate; and
(b) to the natural or adoptive parent or parents, as the case may be, to surrender to the Registrar General the Certificate of Birth of the child issued under the Births and Deaths Registration Act 1957.

8. Citizenship

Both the Adoption Act and the Registration of Adoptions Act and are silent on the issue of citizenship for adopted children. The Parents who are considering adopting a child are advised to check on this issue as the citizenship and nationality of the adoption child are separate issue to be dealt separately . An Adoption order will not change the status of the nationality of the child automatically and will subject to the discretion of Immigration Department.

The post Life-Changing Advise Before You Adopt. 8 Things You Need to Know appeared first on Property & Divorce Lawyer Johor Bahru 新山律师 | Bong & Partners.

1: Contested or Uncontested?

In Malaysia, a marriage can be dissolved by way of mutual consent via a joint petition or by way of single petition either by husband or wife themselves. Divorce by mutual consent means that the both husband and wife do not wish to contest the matter and the party can agree on terms of custody, care and control of the child, maintenance, and division of the assets.

Conversely, if one of the party refused to divorce or cannot come to a consensus on terms of the aforesaid , the matter will become contested and party will have to litigate.

2. Mutual Consent – Things needs to look out?

Couple may file for divorce via a joint petition and both husband and wife will be named as joint petitioners. The pre-requisite for filing a joint petition is that the marriage must have lapsed two (2) years.

The husband and wife shall negotiate the following:-

• Custody, care and control of the child;
• access/visitation rights;
• maintenance of the child;
• maintenance of the husband/wife;
• division of assets.

Get yourself represented by a lawyer to know about the risk of your decision and ensure all the term negotiated are water tight and can hold up in court if the other side had breached the agreement.

3. Parties had consented. Am I still need to attend court session?

Yes, indeed. Both husband and wife must be present himself/herself before the Judge on hearing date. A Decree Nisi (interim judgment) will be issued once parties have recorded their presence in court. If the party do not intend to be reconcile , the Decree Nisi will be made absolute after 3 months from the date of Decree Nisi.

The judgement will be submitted by the court to the Registrar-General of Marriages to update the personal marriage record. This may only be updated in the National Registration Department Head Office, Putrajaya.
 

The post 6 things to Know Before Getting a Painstaking Divorce. appeared first on Property & Divorce Lawyer Johor Bahru 新山律师 | Bong & Partners.

Many people gift real property after they pass away by naming individuals or organizations to inherit their property in their estate plans. However, property can also be given when you are alive (inter vivos) in a way similar to how you would give any other type of present, like for a special occasion or holiday.

There are a number of ways you can gift real estate, so let’s explore some of the things you should know about it in this post.

Tip 1: Why would I gift my real property?

People choose to gift your real property and often due to following reasons:-

1. no intention of making a will;
2. will only becomes effective when will maker passed away;
3. their heirs do now wish to go through a complicated process in probate court;
4. money saving (stamp duty exemption available for close relatives);
5. ill or elderly;
6. wish to purchaser another property and don’t want to be tied to the existing houses;
7. Converted into Singapore citizens and intend to purchase a HDB in Singapore (it is a pre-condition that the intended buyer need to give up all their properties in overseas);
8. Renounced Malaysian citizenship and intend to migrate to other country;
9. The divorcing spouse intends to settle the division of property before filing for a divorce (the spouse still enjoying a stamp duty exemption when the marriage is still subsisting).

In any event, gift your property when you are still alive is still a better idea of estate planning. More often than not, it is also cheaper compared to making a will applying probate, or even applying letters of administration when there is no will behind .If the house is appreciate over the years, the cost incurred can be higher.

Tip 2: How a property can be gifted?

In sale and purchase agreement, you give away your property in return for money. Conversely, to gift a property without any monetary consideration will be done via a Deed of Gift. A memorandum of transfer will need to be signed by stating that the property is transacted through “kasih sayang”

Tip 3: Can a gift be revoked?

A gift, once completed, is binding on the donor. It cannot be revoked by him, unless the property has been taken from him by fraud or undue influence.

Under Section 340 of the National Land Code 1965, when the title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible, unless it can show circumstances of fraud, misrepresentation, forgery , insufficient or void instrument or unlawfully acquired through any written laws.

Tip 4: How much cost I need ?

The legal fees for the deed of gift will be subject to the share you want to disposed of based on the current market value of the property, which is no different when you are buying a house.

The valuation will be conducted by JPPH (instead of the bank) to ascertain the stamp duty payable. The stamp office shall issue a valuation notice (Notis Taksiran), and you shall pay the stamp duty within 30 days. Therefore, you need to know your current market value and do budgeting before gifting your property. You may refer to the current “Cukai Harta” stated on your assessment receipt issued by your town council every year, or look for a registered valuer for a quote. Nevertheless, both are not conclusive as the ultimate decision is left to the government to decide. The lawyer will ask for a deposit upon engagement and the full fees need to be paid after the valuation is obtained.

Tip 5: Any exemption available?

Stamp duty exemptions (Exemption/Remission of Stamp Duty) (not applicable for foreign citizen).

Condition:

• limited to the the first one million ringgit or less from the value of the immovable property and fifty per centum of the stamp duty chargeable on an amount in excess of one million ringgit shall be imposed on the balance amount of the value of the immovable property which is more than one million ringgit)
• the instrument of transfer of the immovable property is executed on or after 1 April 2023
• Recipient is Malaysian
  
• The following relationships are entitled to a stamp duty’s waiver

1. spouse-100% stamp duty exemption with nominal stamp duty of RM10.00 (with proof of marriage certificate)
2. parent to child-100% stamp duty waiver with nominal stamp duty of RM10.00 (with proof of birth certificate)
3. child to parent-100% stamp duty waiver with nominal stamp duty of RM10.00 (with proof of birth certificate)
4. Grandchild–100% stamp duty waiver with nominal stamp duty of RM10.00 (with proof of birth certificate)

*Siblings and other relatives such as uncles, uncles, aunts, etc. are not entitled and must pay full stamp duty.

Tip 6: Can my gift property be taxed?

Real Gain Property Tax 

The RPGT is chargeable when there is a gain. Since there is no money consideration involved, then no RPGT is payable. Nevertheless, if the transaction were other than the abovementioned relationships or between a foreigner, RPGT is still chargeable based on the market value based on the disposal date and previous acquisition date.

Tip 7: Are the loan fully paid off?

Please aware that you cannot gift your property if the loan have not fully paid off.

Assess the Status of the Existing Loan

• Loan Not Fully Paid Off: If the property still has an outstanding housing loan, the title deed is typically held by the bank. In such cases, the owner must first seek the bank’s consent before proceeding with the transfer. This is because any change in ownership can impact the bank’s security interests in the property. The bank’s approval is discretionary and depends on several factors.

Bank’s Considerations

• Impact on Loan Security: The bank needs to ensure that the new ownership structure does not compromise its interests. For instance, the bank will evaluate whether the new co-owner can afford the mortgage payments and whether the property can still be auctioned effectively in case of default.
• Borrower’s Status: The current borrower’s continued presence on the title is not the primary concern. Instead, the focus is on the financial capability and reliability of the new or remaining co-owner(s).

Need for Refinancing

• Common Requirement: Banks often require owners to refinance the property loan when there is a change in ownership. This involves signing a new loan agreement, paying stamp duty again, releasing the previous borrower, and re-registering the mortgage on the title deed. This process ensures that the bank’s security interests are updated and maintained.

Exceptions and Special Cases

• Transfer Subject to Charge: In rare circumstances, a transfer of ownership may be allowed without refinancing. However, this is uncommon and typically subject to strict conditions. Even in these cases, the bank will perform background checks and require the new owner to submit proof of income for loan approval.

Additional Considerations

• Financial Documentation: The new or remaining co-owner(s) will need to provide comprehensive financial documentation to demonstrate their ability to service the loan.
• Legal and Administrative Costs: Be prepared for additional legal and administrative costs associated with the transfer, including legal fees, stamp duty, and possibly fees for mortgage registration.

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