Ancillary Relief

8/12/2019 Ancillary Relief

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Ancillary relief

Distribution of matrimonial asset,

maintenance


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Distribution of matrimonial

assets


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Jurisdiction and power of court

Section 76:

- when granting a decree of divorce

- or judicial separation

Case : Ong Ah Mai v Ling Pooi Ming 1984 Wife applied for custody of her 2 children,maintenance for herself and division of thematrimonial property. There was no divorcepending. Ct held that as far as maintenance and

custody the court can hear them but not divisionof matrimonial assets unless there is anapplication for divorce.


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Power of court

1. order the division of the assets

2. sale of any such assets and division of

proceeds of sale


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Meaning of matrimonial assets

Case Wachtel v Wachtel

The meaning family assets refers to the things

acquired by one or both parties with intention

they should be continuing provision for them andtheir children and used for the benefit of the

family as a whole. It will include capital assets

such the matrimonial home and the furniture in

it, and revenue producing assets such as theearning power of the husband and wife.


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Matrimonial assets

Money,

Land,

Houses Jewellery

Shares

Cars Furniture


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Matrimonial asset

Bank account

- common pool account or joint account

- beneficial joint interest in the amountand purchase made


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Matrimonial home

-usually the only assets .

- look at who acquires

- when is it acquired - who contributed for down payment and

amount of contribution

- under whose name is it registered - the value at the time of divorce


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Guide line on division

Section 76(2) Court shall have regards to:-

1.the extent of the contribution made by

each party in money, property or work

towards acquiring the assets

2. any debts owing by either party which

was contracted for their joint benefit

3. the needs of minor children if any


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Contribution

Direct cash contribution to the deposit or mortgagerepayment is sufficient contribution

Indirect contribution

- spouse must show that her contribution is referable to

the acquisition of property in question. -contribution the wife makes to the housekeeping

expenses frees the husbands income so that he can paythe mortgage and without the wife contribution thehusband would not be able to buy the house

- contribution was substantial


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Home improvement

Contribution in money or moneys worth to improve theproperty will be taken into account.

Contribution must be substantial in nature and have theeffect of increasing the value of the property

It must be an improvement and not merely onmaintenance of property.

Take the value of property prior to improvement,calculate the increase in value brought by theimprovement and enlarge the share of the improvingspouse.

Case; Griffiths v Griffiths 1973


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Home improvement

DIY

Pettitt v Pettitt


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Continued mortgage repayment

If the parties separates and one party

continue to pay the mortgage payment,

then the court will provide credit to this

party


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Property acquired by joint effort

Section 76(1)

Equality of division


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Property acquired by sole effort

Section 76(3)

- division of assets

- sale and divides proceed of sale Guideline on division section 76(4)

- a) extent of contribution to the welfare of

the family by looking after the home orcaring for the family

B) the need of minor children


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the percentage of division

Ct divide assets or order sale and divide assets.

The party who acquires the assets get a greaterproportion.

Thus usually 1/3

Case ; Lee Yu Lan v Lim Thain Chye 1984

Parties married 26 years. Matrimonial home bought by Hin 1969. H had relationship with another woman in 1980.H sold the house for RM191000.00 W wanted a share in

the matrimonial home. Her contribution in kind. Courtawarded her RM60000.00. 1/3 of the purchase price.


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Lump sum payment

Re Heng Peng Hoo & Another

Marriage dissolve on joint petition.

W asked for distribution of matrimonialassets. Court ordered lump sum RM

10000.


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Maintenance for spouse

Jurisdiction of court to order man to pay maintenance to wife.section 77

-. Maintenance pending suit

- amount enough to maintain wife and children at subsistence level

- payment to start not earlier than the date of the petition and ending

with the date of determination of the suit. - when granting or subsequent to the grant the decree of divorce orjudicial separation

- if after decree presuming her to be dead she is found to be alive.

Correspondence power to order woman to pay maintenance tohusband. Section 77 (2)

- husband must be incapacitated, wholly or partially from earning alivelihood by reasons of mental or physical injury or ill health andhaving regards to means it is reasonable so to order.


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Types of maintenance

Lump sum payment

Section 80

Periodical payment Monthly or weekly

Security for maintenance

Section 79


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Assessment of maintenance

Based on the means and needs of the

party regardless the proportion bears to

the income of the husband or wife.

But shall have regard to the degree of

responsibility which the court apportion to

each party for the breakdown of the

marriage.


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When will it ceased?

Section 81

Section 82


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Additional

Variation of maintenance section 84

Maintenance inalienable section 85

Recovery of arrears Section 86 - when to recover

- when it will be lost


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Special power of court

Section 102

Ancillary Relief

Documents

Transcript of Ancillary Relief