Custody, Maintenance & Matrimonial Assets (Civil)
When applying for a divorce, you will need to know about:
Custody
Custody is the right to look after a child’s welfare and physically take care of its concerns. Children below 7 years old are presumed to be better off with their mother, unless she is proven to be unfit. The older children’s wishes may be considered if the court feels they are mature enough to understand the implications of their decision.
When looking into the well-being of your children, the Court may consider:
- Your children’s preference to stay with either parent (if they are above seven years old);
- Not disturbing the daily routine of your children;
- The Welfare Report, if any prepared by the Social Welfare Department Office after conducting the interview with you and your husband and your children;
- The closeness of your children to their extended family and grandparents, uncles, aunts, and cousins living with you and your children now, babysitting and/or schooling arrangements.
If you gain custody of your children you will have to allow your husband reasonable access to them, and vice versa. Alternatively, you and your husband may opt to make fixed arrangements or have joint custody.
Guardianship
Guardianship means the legal rights over your children. You and your husband have equal guardianship rights. This means either one of you can apply for the identity cards, passports, and schools for children. (NOTE: Children 18 years old and above are considered adults.)
Maintenance
This is a monetary support you and your children may get from your husband. You can apply for maintenance before your divorce has been finalised.
Maintenance for Wife Prior to Divorce
You can make an application for maintenance to the Court once your husband has failed to provide money for your children’s education or for you to buy, for example, food and clothing for your family’s needs, even if you have not yet decided to divorce your husband.
The amount of maintenance ordered will be in proportion to the means of your husband. It can be made payable from the date he neglected to support you and your children financially.
If your husband is an employee, you may apply to have the amount of maintenance deducted from his salary. His employer will then send the said amount to you directly.
Even if your children are illegitimate (i.e., your marriage is not valid), they will be entitled to maintenance from their father, but you will not.
Note: At the time of your divorce, if your husband is physical or mentally incapacitated and cannot earn living, you may have to pay him maintenance.
Maintenance for Wife upon Divorce
In deciding the amount of maintenance to be ordered, the Court will consider the future and present income, property resources, and earning capacity of both parties. The financial needs and degree of responsibility which the Court apportions to each party for the breakdown of marriage will be the deciding factors for the maintenance.
The Court may also order the person liable to pay maintenance to provide security to guarantee payment of such maintenance.
An order for maintenance shall cease to expire if the divorced spouse in whose favour the order was made remarries or lives in adultery with any other person.
Maintenance for Children
Children from this marriage can also apply for maintenance. These are factors will be considered:
- Financial needs of the child (for example, food, tuition, school fees);
- Income, earning capacity, property, and other financial resources of the parent;
- Standard of living enjoyed by the family before the breakdown of the marriage;
- Any physical or mental disability of the child;
- Manner in which he/she was being educated and trained.
Currently, the order for maintenance expires when the child attains 18 years of age or when the child completes his or her further or higher education or training, whichever is later. If the child is physically or mentally disabled, the order for maintenance expires when the child turns 18 or on the ceasing of such disability, whichever is later.
Failure to Pay Maintenance to Wife and Children
Where a husband fails to comply with the court order for maintenance, the court may levy a fine or sentence the husband to imprisonment for a maximum term of one month for each month’s allowance that remains unpaid.
Variation of Maintenance
The Court may, at any time and from time to time, vary or rescind any order for maintenance upon application by either party where it is not reasonable or satisfactory because that the order was based on misrepresentation, mistake of fact, or where there has been any material change, for example, the earning capacity, health condition, or remarriage of either party.
Matrimonial Assets
Matrimonial assets are assets both parties acquire during marriage. This includes 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. In this situation the Court will normally order a sale of the property and divide the proceeds of the sale between the parties
The Court will take into consideration the following when making the order:
- The extent of the 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. This includes how much you and your husband contributed in terms of money to buy the property, and how much was paid to maintain/upkeep the property for the family’s benefit.
- 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. For instance, if you are a homemaker and your husband had bought the matrimonial home which is registered in his name, your contributions in looking after the home or caring for the family (e.g., cooking, cleaning, transporting the children to school, etc.) will be taken into consideration in determining your share of the asset.
- Any debts owing by either party which were contracted for their joint benefit, for example, a loan which you took to finance the purchase of the family home.
- The needs of the minor children, if any, of the marriage.
- The duration of the marriage.
Subject to these considerations, the court shall incline towards equality of division.
Therefore, it is important for you to highlight all the above factors which are relevant to your situation in your application for maintenance to ensure that your rights are protected.
Frequently Asked Questions (FAQs):
Custody, Maintenance and Matrimonial Assets
Child Custody
How does the Court determine who gets custody of my children?
The court will look at the welfare of the children and make an order which best serves their interests. The court will consider how much time, care and attention you and your husband have given the children so far and how you plan to take care of them if the order is given to you. It is always an advantage to have the children under your care at the time the application is made.
Will my chances of getting custody be poor if I am unemployed and unable to cover their expenses?
No, your husband has a legal duty to maintain the children and he can be ordered to pay you a sufficient sum to cover their expenses.
Will I lose my right to custody of the children if I file for divorce before my husband does?
No, the main consideration in a custody application is the welfare of the children, not who filed for divorce first.
Can I get custody of my children if they are under my husband’s care now and I have not seen them for some time?
You can, but you must be able to give good reasons for not having seen them so far (e.g. if you were prevented by your husband’s family from having access to them). The court’s main concern will be whether it will be better for the children’s wellbeing to remain under your husband’s care or be taken and put under your care and whether a change of custody will be good for them.
Am I automatically entitled to custody of my children if they are seven years’ old or less?
No, not always. Although the law favours the mother if the child is seven or less, the Court may still award custody to the father if it can be proven that you had neglected the children or been incompetent when you were still living together.
Do judges interview children and ask them who they prefer to live with after their parents’ divorce?
This varies among judges. Usually they do not interview the children unless they are old enough to make a proper decision. The Court may not accept the child’s choice if there are indications that they were coached or influenced or forced to choose the parent with whom the child is living. Usually the court will look at the overall circumstances before making the order.
Can a psychologist’s report be considered when applying for custody?
Yes, a psychologist’s report can be used and is important in cases where there has been physical and/or sexual abuse.
If I do not get custody of my children will I at least be allowed to see them?
Yes, the court will usually make an order giving you access to the children on a regular basis and that may include having the opportunity to take them home to stay with you for weekends, school holidays etc. The court will consider your proposals for access and make an order that is best suited for the circumstances.
Can I ask the court to deny my husband access to the children if I get custody of my children?
The court may not grant your request unless you can show that it would be detrimental to the children’s welfare for your husband to have access to them. The court may, however, limit his access or order supervised access (i.e. access in your or someone else’s presence) if there are good reasons for making such an order.
If my ex-husband refuses to pay maintenance or defaults in payment, can I stop him from visiting the children?
No. You cannot stop your ex-husband from visiting the children if he refuses or fails to pay maintenance if there is an order giving him access. In such a case you have to ask the court to vary the order so as to stop access. If there is no such order, you may be able to justify your refusal to give access due to his failure/refusal to pay maintenance.
Can grandparents apply for custody of the children if the children’s mother passed away and the father is unable to properly care for them?
Yes. However, the grandparents must be able to show that it is better for the children’s welfare that they, take care of the children in place of the children’s father.
Is it possible for a foreign wife to get custody of her children during the divorce?
Yes, however, the court will consider where the children will be living during, and after the divorce. The husband may be concerned about the wife taking the children out of the country to live and the court may impose an order that she cannot do so without the court’s or the husband’s permission. The children’s welfare is always the most important consideration.
I did not register my marriage. Do I need to get a court order to gain custody of my children?
If you already have the children with you then you don’t have to but if the children are with their father then you have to get a custody order before you can take the children.
If my husband has converted to Islam, will my children be automatically converted?
There is no automatic conversion. Also, the consent of both parents for conversion is needed, for the best interests of the child. The law recognises the equal rights of both parents in custody and upbringing of their children.
Maintenance
What can I do if my husband refuses to pay maintenance?
If your husband has not been paying maintenance, you can file a complaint with the court. Your husband will be ordered to appear before the court to provide reasons for not paying maintenance. If he does not appear in court an order will be made in his absence. If he cannot provide good reasons, he will be ordered to pay maintenance.
Can I claim maintenance for myself and my children?
Yes, you can. Your husband cannot give excuses for not maintaining the children. Maintenance for you will depend on why you left the home, if you moved out of the house and he offers to maintain you if you come back to live with him. If you have good reasons for refusing to return to live with him the court will order him to pay you maintenance. You can claim maintenance even if you are living together and your husband has failed to maintain you.
Where do I file my claim for maintenance? Does it have to be in the High Court?
No, you don’t have to file for maintenance in the High Court if you do not intend to divorce your husband. You can file in the Magistrate’s Court.
How will the amount be decided by the court?
You will have to give the court proof of your husband’s income and of your income and expenses. If you cannot give sufficient proof the court may accept your husband’s claims of a lower income or higher expenses if he shows proof instead.
Do I have to file for divorce first to get maintenance?
No. You can make an application for maintenance to the court once your husband has failed to provide money for you and your children. You don’t have to file for divorce if you don’t want to. If you decide to file for divorce and the process takes time you can apply to the Magistrate’s Court first if there is an urgent need for the maintenance. If you can wait then you can save costs by putting in your application for maintenance together with your petition for divorce.
What can I do if my husband fails to comply with the order of the court?
If the order was given by the Magistrate’s Court you can apply to the court to issue a notice to show cause why he should not be imprisoned for failing to pay the maintenance as ordered. If the order was given by the High Court then you can file a Judgment Summons for your husband to show cause why he should not be imprisoned.
Will the court automatically order my husband to be imprisoned if he fails to show cause?
No, the court will usually give your husband an opportunity to explain why he has defaulted and give him time to pay up the arrears. If he fails again he may be sent to jail until he pays.
What can I do to make sure my husband does not default in payment of maintenance ordered by the court?
If your husband works for a company/employer for a monthly salary then apply for an attachment of earnings order at the same time you apply for maintenance so that the court can grant the order to attach your husband’s earnings together with the order for maintenance.
What is an attachment of earnings order?
An attachment of earnings order helps ensure that you receive your maintenance every month. The order requires your husband’s employer to deduct your maintenance from your husband’s salary and send it to you. This order is effective for as long as he works for the same employer.
Will I lose my right to maintenance if I file for divorce before my husband did?
No, you will not. But the court will look at whether you had contributed to the breakdown of the marriage when deciding the amount.
Will I be able to claim maintenance if I am working?
Yes, but it depends on how much you and your husband earn and what both your expenses are. The court will weigh everything and decide if you should get maintenance, and how much.
Can I apply for higher maintenance after some time if it is no longer enough to cover my or my children’s expenses?
Yes, but you must show how much your expenses have increased and whether he can afford the higher amount. He can also apply to reduce or stop the maintenance if he is no longer able to pay the amount ordered by the court e.g. if he has lost his job.
Will the process take long?
It depends on whether your request is contested by your husband. It may be possible to have your maintenance backdated after you have been granted the increased maintenance.
Can maintenance be deducted from my husband’s pension?
Yes, if you have an attachment of earnings order.
Can I claim maintenance from my husband’s EPF?
No, you cannot claim maintenance from your husband’s EPF but you can claim a share as part of the matrimonial assets. The court will give you an order which can be registered with the EPF office. You may not get immediate payment, unless your husband is in the position to withdraw it.
Matrimonial Assets
Can my husband claim property that belongs to me?
Yes, if your husband can prove that it is a matrimonial asset (i.e. property bought during the marriage).
If I paid for the house and my husband did not contribute any money for the house, can he claim a share in the house?
Yes. Your husband may not have paid for the instalment, but the court will consider other contributions such as maintenance, rent, electricity, water, other utilities or improvements made to the house. For such contributions he will get a smaller share.
Can I claim a share of property or other assets held by my husband if all of it is solely in my husband’s name?
Yes. You will have to show the court that it was acquired during the marriage and that you made direct or indirect contributions towards it. Direct contributions would be money you had given him to help pay, or which you paid, for the deposit, installments, renovations etc. Indirect contributions would be what you did like paying for other expenses so that he can pay for the house/save money, cooking, cleaning, looking after children etc. If you have made monetary contributions the court is more likely to order that you are given an equal or close to an equal share. If it is indirect contribution it may be much less, 10 – 30%. To be able to get a share you must prove to the court what are the assets (property, savings, shares, insurance, EPF) held by your husband as otherwise he may not disclose them fully even if he is ordered by the court to do so. You must also be able to prove your contributions.
See also the section on Matrimonial Assets on factors the court will take into consideration when dividing such property, as well as property of deceased spouse after conversion to Islam.
If the house is under joint names, can either party lodge a caveat on the property?
Yes. A caveat means the house cannot be sold without the applicant’s knowledge. Either party can caveat the house if you can satisfy the Registrar of Titles or Land Administrator of the need to do so and that you have a right to claim a share of the other party. However, if the wife is a co-owner, the husband cannot sell the house without her signature. Therefore, there is no need for a caveat unless there is a fear that the husband may forge her signature.
If the house is under my husband’s name, can I lodge a caveat on the property?
Yes, you can. You have to prove that you are married and that you are entitled to claim a share.
Check out useful resources on Civil Custody, Maintenance and Matrimonial Assets.