Tuesday, March 31, 2009

Email Question: Family Law-Divorce Proceeding

This question was actually left under the comment section of "Non Muslim Divorce Proceeding-brief email question..." topic.

'Dear En Kamarul,

I would like to seek some legal advice from you and would like to thank you in advance for your help and also answering my email.

I have been married for 3 years and last year my in laws came to my matrimonial house and quarrel with me. I left the house because my husband did not protect me throughout the quarrel (his brother almost hit me).

I left to stay in my mother's house and he didn't come to look for me. My husband went back to stay with his family. At that time I was very angry with him and issue a legal letter asking for mutual divorce. Subsequent to that I came to know that during the 3 years of my marriage, my mother in law has been putting things in my house and the food to make us husband and wife always quarrel and hate each other. I taped the conversation from the medium and let him hear. After he heard the tape recording, I brought him to the temple to listen for him from the medium. I went through a cleansing ritual and whatever I had eaten was expelled from my body. After knowing the truth we decided to reconcile and I had ask my lawyer to stop action.

However he is now under the influence and spells of his mother and insists on the divorce. I left the matrimonial house for 3 months and have now shifted back to stay in the matrimonial house. It is now almost 3 months I stayed in the matrimonial house alone.

I have received 2 letters from his lawyer. One was in reply to my initial letter and the 2nd letter is a revised terms since his lawyer did not receive my reply. So far I have ignored the letter. i do not know if it is correct for me to just ignore the lawyer letters and i do not know what will be his next step.

I do not want to divorce him because i still want to save this marriage after knowing that the unhappiness for the past 3 years was intentionally caused.

Another issue is he has not given me any money for the past 6 months. I understand that as a wife i can ask for maintenance. Is there any way I can get maintenance without going for divorce? We do not have children and i miscarriage 4 times already (twice miscarriage was hospitalized). Even though both of us working, he earns more than me.

Thank you very much en Kamarul

-depressed-'

Answer:

To simplify the matter, I will try to answer these questions issue by issue. Hope my answers will guide you in making a correct decision.

  1. Leaving the matrimonial house on the issue of safety is justifiable under the law, but you will need to prove it in court should the issue been disputed. One of good step to do to prove it is by lodging a police report, it is also good to let the police protect your safety.
  2. The issue of whether or not the husband left the matrimonial home and stay with his family until today, is a matter of separation, may also be a concrete prove in court for 'irreconcilable marriage'.
  3. You must understand that the court in most circumstances does not entertain the issue of black magic and so on. It going to be a bit difficult to prove that (the alleged act of your mother in law) in court as the 3rd party intervention in marriage so to damage it.
  4. As I always said, a lawyer is not a marriage counselor, so you have to make up your mind on what you want, whether you want a divorce or that you want to object the divorce petition.
  5. If you are not agreeable to the joint petition, then let the husband file the papers in court, and you should oppose it in due cause.
  6. As you mentioned it clearly, you don't want a divorce. Then you have to put all your effort to oppose the petition in court. You may claim in court that there was interference of third party that damaging the marriage, although in most cases the court can't do much on the issue, but the court may consider of sending the couple for a further counseling or making appropriate order as regards to the third party interference.
  7. On the issue of maintenance, you may always to go court to get a maintenance order and enforce it even before the divorce petition is presented in court. I would suggest that you go file your maintenance claim right away.

Good luck

15 comments:

  1. Mr Kamarul,
    I had been married for 6 years, but had stayed together with my husband for only 1 year. No children. We were separated by work but we met frequently. In the beginning we had a wonderful love life but now we had quarrels more and more frequently. Most of the time it was due to me requesting for more of his attention and time to be alone together. He sometimes agreed, but unwillingly so I wasn't satisfied and that was the start. Most of the time he refused to reconcile or even talk after the quarrel. I am considering a divorce. My reasons are just that I felt he doesn’t love me anymore and I was unhappy. I guess he wish for a divorce as well. But before that I need clarification & confirmation from experienced lawyer like you on the below:
    1) We jointly owned a house on a 30 year-mortgage, currently only 2 years into it. Another 3 years to go before we could refinance.
    Q: If divorced, what's the procedure to divide that asset between us? Is it included in the lawyer package to settle on this?
    Q: Does he has right to claim a bigger portion as he paid the installment but I didn't. I paid half of the down payment and part of the main furnishings. I have bills but no documents to prove that it’s paid by me.
    Q: Can I ask for the money back from him and transfer the whole ownership to him? If yes what’s the procedure?
    2) Before we stayed together we were financially independent. When I moved in to our jointly owned house he paid maintenance, which I use to pay utility bills, groceries and food for us. I did all the houseworks.
    Q: What is the law pertaining maintenance by husband to wife? If he claimed that my overall performance as wife is not good, can he refuse to pay maintenance?
    Q:Now I got back to working with low income, still do some of the housework, does he still have legal obligation on maintenance to me?
    3) Before I moved in to stay together and become a full time housewife, we both had an average income. Now he has a good income.
    Q: If divorced, what can we claim from each other or (in term of income earned after marriage)?
    Q: Is all items (whether or not a property) purchased by either party after marriage consider mutual assets(milik bersama)? If not, what’s the right of parents and siblings on the assets?
    For your kind reply and answers I thank you very much.

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  2. How do I go about getting maintenance order from court? Do I need to get a lawyer and how much would it cost?

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  3. section 88 of the Law reform (Marriage & Divorce) 1976 allow you to apply for maintenance order even during the existing of a marriage. i would not be proper for me explain in detail here the proceedure and cost. you might want to email me personally to get the answers. thank you again for visiting my blog

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  4. Hi, I m 34 chinese married and hv 2 child. I want to get a divorce from my husband. Would like to know will i get the custody of my children automatically or is there anything that i need to prove to the court that i m eligible enough to provide safety and financial support to my children..

    tq.
    madam ng

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  5. iam second wife to my husband we are legally registered in india. m an indian. my husbands is an malaysianfirst wife is a malaysian they were married in 1989 hindu custom not registered. she has an adopted daughter. what if i have a baby in my martial relationship. How safe am i

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  6. Dear Mr. Kamarul,

    I am married to my husband for less than 2years now. However, I want to get divorce from since he has been abusive and I suspected that he is being unfaithful.Though I am 31weeks pregnant, he abused me physically so badly. How can I work out for the divorce. Perhaps I can email you personally to discuss about the matter and matters related. Thank you!

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  7. My wife cheated me of my property i entrusted to her name without my knowledge together with a 3rd party guy. i hit her and it become a big police issue. She walked away with my 2 daughters n have gotten and IPO. I ve made a few police reports myself but no actions can be taken so far since she is my wife. There is descrepancies in d medical report, initial police report and also some declaration she has made. My lawyers have lost my trust in him and i found him very lagging and misleading.Just so he is wife brother fren. How unlucky i was. I m looking for someone who can be honest n a tiger.There is always an other side for every story. Ravi

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  8. Mr kamarul,
    i have been married for almost 12 years and have 2 kids. Althought i have been married for 12 years we have been together less than 6 years together. I have been separated 3 time during this time. She always change her attitude after join back with me. But this time i have set my mind to go for divorce as i cant take her attitude anymore. I seriously dont know what to do. I need your advice... my mail add sunny9577@yahoo.com

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  9. Hi Mr Kamarul

    My parents are a couple married for nearly 30 years by now.

    When their marriadge entered its 10th year, my father had an affair with a lady at his workplace in Penang. As my father and the lady intended to separate me and my elder brother when we were young in order to take only one of us into their custody, my mother had refused to agree for a divorce with a purpose for us to stay together as a family.

    My father and the lady later organized for a 'wedding dinner' after they find divorce with my mother is impossible. Soon after that, they gave birth to one child.

    For nearly 20 years, my mother had endured the humiliations from the lady and my father, my grandma once forced my mother to accept the lady into the family and my uncles and aunties from my father's family often meet up with the lady and the child for various family functions (except funerals), without inviting us to particpate in any of the family functions.

    My father no longer stay with us for years although he will visit us sometimes. Me and my elder brother still treat and respect him as our father, we even planned to celebrate father's day with him this year, although both of us cannot how he treated and still treating our mother.

    My mother seized a stable job more than 10 years ago, now she own a house under her and my brother's name, a car under her own name and registered a company to conduct her own business.

    Since both myself and my elder brother are grown up adults and have our own income to support our mother now, we talked to our mother and had agreed to file a divorce to end this torment and humiliation, for her to start a new respectful life and do what she wants to do freely.

    Here are my questions:
    1) Is there anyway to check whether my father had commited bigamy?
    2) Will it affect my father if my mother file a divorce without his consent?
    3) If our father is confirmed commited bigamy, can our mother still peacefully divorce him without him going to jail?
    4) Will my father be allowed to claim my mother's properties and company under his own?
    5) We foresee our father will refuse to agree with the divorce, since he and the lady are quite comfortable with how they are right now. What are your advises on our case?

    Appreciate if you could kindly advise. Thanks.

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  10. Dear Evelynn Lim,

    1.
    Legally speaking, bigamy is committed when a man have two wife at a same time. When I mention two wife, it simply mean that both wives were married legally to him and undergone a valid marriage registration process.


    In your case, you need to determine whether you father is legally married to her or they simply cohabitate together without having a lawful marriage knot.


    For a stating point, we advise you to make a visit to Jabatan Pendaftaran Negara and inquire more on the status of your father's marriage.

    2.
    Your mother can always file a divorce without your father 's consent. She can do so by filing a single petition divorce.

    3.
    Bigamy falls under criminal jurisdiction while divorce is a civil action. By initiating a divorce petition per se will not cause your father to be jailed. However, the problem may arise if the judge aware as to the fact that your father committed a bigamy. He may order an investigation to be done to determine whether your father had committed bigamy, and thereafter maybe he will be charged in a criminal court.

    4.
    If your father have made a contribution to your mother's property and company, the court will allow your father to claim it. But it will depends on the contribution of your father towards the property and company.

    5.
    If he disagree for a divorce, I highly advise you to file a single petition divorce since there is no requirement of your father's consent to enable your mother to proceed with the divorce.

    Feel free to contact me at khairul.aiman2@gmail.com for further information.

    regards,

    Khairul Aiman
    Messrs. Irzuan

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  11. i just finish my 3 months probation period of my divorce for the last 2 weeks and i have yet to receiev my dekrinisi mutlak letter.

    I have been following with my laywer but there have not given me any reason as to why i havent got my letter. my check to see if the judge has sign my letter and there say it's done.

    i need your advice.

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  12. dear anonymous,
    in this situation you should contact your lawyer and ask them about it. we cannot advice you on this matter because you already have a lawyer. sorry for late response.

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  13. I am married for 3 years with one 18 months old baby. Currently I am fully employed and so is my wife. We are both professionals with good income. I wish to find out the followings:

    1) Am I required to pay for her maintenance if she become unemployed after our separation/divorce?

    2) What will happen to assets under my name (inherited from my father prior and during our marriage period)? Does she has a right to claim for it?

    3) What about the assets I purchased during the period of our marriage (some from my own income, whereas some with financial support from my parents)? She did not contribute any money for these assets or living expenses. The only contribution she made was the 15% of her salary (I also contributed 15%) into a fund for the purpose of our child. This fund is properly segregated from any monies (personal saving and assets). I ever borrowed the money from the fund for our wedding expenses (but I fully paid off with interest equivalent to FD rate).

    Please advise.

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  14. dear Momo-Tizzie.
    1)you as a husband have duty to pay your wife maintenance even she have income. court will decide about the maintenance based on case to case basis.
    2)your wife can claim assets acquired during the marriage only but the portion will be determined by court.

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  15. I would like to seek advice on below situation.

    Husband and wife agreed to go for divorced and appointed a lawyer in mid 2007 (they both signed divorced petition). In 2009, the wife appointed bar council and they agreed with the term and condition and signed another divorced petition. Bar council request and waiting for the wife's respond on some document to proceed. End of 2012, the wife appointed another lawyer and filed a summon against the husband and co-respondent and giving false statement on the whole situation. one example of false statement is that the husband did not give child support, but he did give.
    For info. the husband is living with the co-respondent in the year 2008 with 3 children.
    1)From your opinion, can the wife sue the co-respondent? They went twice for the divorced agreement but never mention of 3rd party.
    2) The wife give false statement of the whole situation stated that husband never contacted for that 6 years, never wanted to settled things and never give child support. Can the husband summon the wife for false statement?
    Can you please advice on this situation. TQ

    ReplyDelete