100Divorce

Question 98
When deciding whether to award custody of the child to the father or mother, will the court consider the child’s wishes?
Yes. When listening to the child’s wishes, the court will also evaluate whether the child has reached an age capable of expressing an independent opinion, while treating the child’s welfare as the paramount consideration.

Question 99
If the parties have more than one child, are there any additional considerations for the court?
The court tends to lean towards awarding custody of multiple children to the same party so that the children can grow up together in the company of their siblings.

Question 100
Can I request the court to impose additional attached conditions when applying for child custody?
The court may attach conditions to a custody judgment, including:

The child’s residence, education, or even religion;

Allowing the child to visit the other party or the other party’s family members at specified times and frequency;

Granting access rights to the other party or the other party’s family members;

Restraining the party granted custody from taking the child out of Malaysia.

Question 96
Will custody of my child under 7 years old definitely be awarded to the mother?
Under normal circumstances, the court leans towards awarding custody of children under 7 years old to the mother, but this is not absolute. The court must also consider other factors, with the best interests of the child being the paramount consideration. Other factors that may affect the court’s decision to award custody of a child under 7 to the mother include:

Whether the mother causes physical or psychological distress to the child;
The mother’s mental condition;
Whether she is a fit mother.
Question 97
When deciding whether to award custody of the child to the father or mother, can the court request a third party to provide an evaluation report?
The court can order the Welfare Department to intervene and interview the child. The Welfare Department will then prepare a report and submit it to the court for reference.

Question 94
Under what circumstances can the court make adjustments or variations to previous arrangements (Variation Order) after the divorce application is completed?
Applications to vary arrangements are limited to specific circumstances, including misrepresentation, mistake, or a material change of circumstances.

Question 95
Can I apply to the court for child custody before filing for divorce?
Yes, you can. The court can make a decision regarding child custody at any time, and “at any time” means that a divorce proceeding does not need to be filed beforehand.

Question 90
I am afraid that my husband might suddenly go back on his word after the divorce and refuse to transfer the house to the child. How can I prevent this situation?
🔸 You can express this concern to your lawyer and request them to apply in court for an order stating that if the other party refuses to sign the necessary documents to transfer the house to the child, the court has the authority to sign the documents on their behalf. Of course, you can also apply to the court for a caveat to lock the property, preventing him from transferring the house away.

Question 89
What if I want to leave the house to a child under 18 years old after the divorce, is it possible?
It is possible. In this case, the court will require one party to hold the house on behalf of the child and transfer the house to the child after they reach 18 years old.

Question 91
The court ordered both parties to jointly pay the housing loan, but my husband refuses to pay. Do I still need to pay? How can I resolve this?
You can take legal action against him for contempt of court. In serious cases, he may face imprisonment.

Question 92
The house is jointly owned by my husband and me. If we want to sell it, must both parties sign?
You can express this concern to your lawyer and request them to apply in court for an order stating that if the other party refuses to sign the necessary documents to sell the house, the court has the authority to sign the documents on their behalf.

Question 93
The court ordered both parties to jointly pay the housing loan until it is fully settled and then transfer the house to me. However, I am afraid he might renege and refuse to sign the transfer documents at that time. How can I avoid this situation?
If you are worried, both parties can put up a sum of money first to pay off the house loan.

Question 87
The house is jointly owned by my husband and me, but he has always been the only one paying the mortgage. If the house is sold, how much can I get?
This depends on the court. The court will comprehensively consider the direct and indirect contributions of both parties and determine the division ratio based on the principle of fairness.

Question 88
If I want to leave the house to my child after the divorce, is it possible?
Yes, but the child must be 18 years old or above to hold property. However, this requirement must be clearly stated in the court order. This way, if the other party fails to comply with the court order in the future, we can take action to enforce it.

Question 84
The house is under my husband’s name, and I have never paid the mortgage, but we have lived in that house since we got married and our child was born there. Is it possible for me to get that house after the divorce?
Yes, it is possible. You might be able to get the house or a part of it. As for how big a share, it will depend on the court and the contributions made by you and the other party to the house.

Question 85
The house is under my husband’s name, and the loan is also under his name. I have never paid the mortgage, but I paid the down payment for the house and also paid for the renovations. Is it possible for me to claim that house?
Yes, it is possible. However, this depends on the court. The court will consider various factors, such as your contribution to the house, and make a fair and reasonable judgment.

Question 86
The house was purchased before marriage and is under my husband’s name. However, I have always been the one paying the mortgage and I also bought the furniture. Is it possible for me to claim that house?
Yes, it is possible. The court will consider various factors, such as your contribution to the house, and make a fair and reasonable judgment.

Question 79
When claiming child maintenance from the child’s father, must I present receipts for the expenses?
Generally, unless the court orders a fixed amount, receipts must be presented to claim child maintenance. Ultimately, this depends on the court order issued.

Question 80
What can I do if the child’s father refuses to pay when I claim child maintenance from him?
You can take legal action against him for contempt of court. In serious cases, he may face imprisonment.

Question 81
What can I do if I find out that my husband is secretly selling or transferring properties when I apply for a divorce in court?
You can apply for an injunction from the court to restrain him from transferring or selling the properties.

Question 82
What are the criteria used by the court when making arrangements for the division of assets?
The court first needs to determine whether the assets constitute matrimonial assets, as well as the contributions made by both parties to the properties, among other factors.

Question 83
Is the division of assets always an equal split?
Not necessarily. It depends on many factors, including:

The contributions made by both parties to the properties;

Any debts incurred by either party for the joint benefit of both parties;

The needs of the children of the marriage.

Question 76
If the child needs to study abroad in the future or if the child’s maintenance is no longer sufficient due to certain reasons, can I apply to the court again to adjust the amount of child maintenance?
Yes. You can inform your lawyer, and the lawyer will apply to the court for a variation of the court order. After that, your lawyer will serve the documents to the other party, and the court will fix a hearing date. The other party will then hire a lawyer to appear in court and defend.

Question 77
Does child maintenance include the expenses for the child to attend university?
Generally, if a child chooses to attend university, the university expenses will be a part of the child maintenance.

Question 78
I heard that in the past, child maintenance was only paid until the child reached adulthood (18 years old). Has there been any amendment to the law up to now?
In 2017, the law was amended to state that if a child chooses to attend university, the child maintenance arrangements will continue until the child graduates from university. This amendment came into effect in 2018.

Question 73
Must child maintenance always be paid by the child’s father? Can it be paid by the mother?
Under normal circumstances, the court will primarily require the child’s father to be responsible for child maintenance, unless the court deems that the child’s mother has the capacity to be responsible, for example, if the mother is employed and possesses a certain earning capacity.

Question 74
What will the court consider when making arrangements for child maintenance?
The court will consider the financial capacity and circumstances of the parents before making arrangements.

Question 75
Apart from family law, what other legal provisions can I use to claim child maintenance from the child’s father?
If one party in the marriage is unwilling to maintain the child or even abandons the child, the court can make additional arrangements for child maintenance under the Married Women and Children (Maintenance) Act 1950. This procedure can be applied for in the Subordinate Courts (Magistrate’s Court / Sessions Court).