Publication Date : Oct – 2021
Author : Wee Wui Kiat
ISBN : 9789672919896
Format : Hardcover + eBook
Country : Malaysia
In the breakdown of a marriage, one of the most important considerations for divorcing parties (alongside the custody and care of children of the marriage) is the division of matrimonial assets. Malaysian Law on Division of Matrimonial Assets (Second Edition) is a comprehensive text covering all the principles which govern the judicial division of matrimonial assets incidental to a court decree of divorce or judicial separation. The main provisions of the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) and its accompanying rules, the Divorce and Matrimonial Proceedings Rules 1980 that govern this area of law in relation to non-Muslims are analysed and explained in great depth and detail. The law applicable to Muslims and the application of native customary laws are also covered.
To elucidate the application of the law in various factual scenarios, copious court decisions – selected from Malaysia and countries with similar laws, such as the UK, Singapore and Australia – are thoroughly reviewed, to provide a good grasp of the different considerations in ascertaining how matrimonial assets should be divided. Important issues such as what constitutes matrimonial assets, the duty to make full disclosure, and the relationship between the law on division of matrimonial assets and other laws such as contract, trust, and succession laws are given due focus.
This second edition has been updated with two new chapters: Chapter 15 covers the nexus test for determining whether an asset is to be regarded as matrimonial property and the division of such properties, which was introduced in Yap Yen Piow v Hee Wee Eng. Chapter 16 surveys the Law Reform (Marriage and Divorce) (Amendment) Act 2017, and its impact on section 76 of the LRA 1976 for the purposes of division of matrimonial assets.
Family law practitioners will welcome the treatment given to practical matters such as the procedure for making an application for property division, the types of orders that a court may issue, and the means available to resist attempts to defeat any potential claim for division of matrimonial assets, as well as the methods of enforcement when there is non-compliance with a division order.
Key Developments Covered in this Edition
Chapter 6 provides discussion on key authorities such as Hong Leong Finance Bhd v Low Thiam Hoe (2016) (leave for amendment of pleadings), Liew Chong Yee v Chai Yem You (2020) (amendments of pleadings after close of pleadings and commencement of trial), Ng Yuet Mooi v Leong Yee Heim (2018) (the time to make applications for orders for ancillary relief) and Ng Boon Chwee v Yan Shuwei (2018) (rescission of decree nisi).
Chapter 8 discusses fragmentation of ownership (Tan Su Lin v Andrew Lim (2018)).
The Nexus Test in Yap Yen Piow v Hee Wee Eng (2017) is discussed extensively, including a review of its application in recent cases like Wong Chong Kiew v Lee Hock Seng (2019), Poonageswari a/p P Krishnan v Bailand a/l Govindanam (2019) and Wong Chong Kiew v Lee Hock Seng (2019).
The workings of the Law Reform (Marriage and Divorce) (Amendment) Act 2017 are explored in detail in cases such as Kamalahasan a/l Singaram v Portia Ceri Poorans (2019), Shilashshree Shirely Gomez v Raymond Shilendran a/l Simon (2019), Theynarasi a/p Selambaram v Periasamy a/l Chinnappan (2019).