Maintenance for Spouse & Former Spouse

Jennie* has been married to Ari* for more than twenty years. For the past eight months, Ari has been behaving rather distantly, and have been returning home late after work.. Lately, he has also not been sleeping in the same room as Jennie. Unable to understand this sudden change, she asked Ari if anything was the matter. He insisted that it was because he did not want to disturb her when he comes home late at night.

Disbelieving his flimsy excuses, Jennie confronted Ari again. Finally, Ari admitted to her that he has been having an extra-marital affair.. Deciding that it is pointless to ask him to stay when his heart is no longer with her, she agreed to the divorce. However, she has been a housewife for many years and does not have an income of her own. Is it possible to ask Ari for maintenance even if they do not have any children together?

For marriages under the civil law, the Law Reform (Marriage and Divorce) Act (LRA) 1976 provides for maintenance of the spouse. You can get financial support for yourself from your husband through maintenance if your marriage was legally registered; or if not, you were married according to religious or customary rites (e.g. tea ceremony, temple marriage) before March 1982. It is important to note that maintenance ends once you remarry or if your ex-husband dies. However, maintenance for your children - which is separate from maintenance for yourself - will continue even after you have remarried until s/he is 18 years-old, or at another age as the court decides.

The court can order a maintenance during divorce or custody proceedings when a decision or hearing is still pending or when the court is granting or has granted judicial separation or decree in divorce.

In making its decision, the court will refer to your needs. Make sure that you list down carefully your expenses and monthly budget for yourself and for your children. The court in its decision on the amount will bear in mind the degree of responsibility each party bear for causing the breakdown of the marriage. If you played a major role in breaking down the marriage, then chances are, the maintenance order will be small.

The WAO experience has been that most ex - wives face great difficulty receiving maintenance on a monthly basis from their e x- husbands even after a court order. We advise you to ask the court, through your lawyer, to order an automatic monthly deduction ( attachment of wages ) from the husband's salary to be banked into your account. This is only possible if he has stable job and an employer.

The court may also exercise its power to order the man to secure his maintenance. This means that he will have to put his property or properties under trust, and ask his trustees to pay the maintenance from the income earned by this property.. In terms of your matrimonial home, if you have contributed to it - even if not in terms of money - you usually have a share in this property upon divorce.

You will have to appoint a lawyer to deal with all divorce, maintenance and custody matters. When filing your divorce case, let your lawyer know that you would also like to apply for maintenance order for yourself. If you cannot afford a lawyer, you can contact the government's Legal Aid Bureau (Bureau Bantuan Guaman) or a Legal Aid Centre (Pusat Bantaun Guaman) nearest to you for legal representation at a nominal fee. You can get the number from telephone directory at 103.

For Muslim marriages, a court may, subject to "hukum syara' order a man to pay maintenance to his former wife under the Islamic Family Law. There are two types of maintenance that the wife can apply for, first she is entailed to "nafkah eddah" which is maintenance to be paid by the husband for a period of 3 months and 10 days after the divorce. If the wife is pregnant by the husband , the "nafkah eddah" is for the duration of the pregnancy. owever this will be withdrawn if she is living in adultery during this eddah period. .

The wife is also entitled to receive a compensation - "nafkah mutaah" or referred to as wang ganti rugi which is a one-off payment to the wife. This is granted especially if she is divorced without just cause. The court in deciding this one - off payment, will take into consideration the effect of the divorce on the wife, her ability to work and earn a living, her health etc. If the husband cannot afford to pay the nafkah mutaah at one go, he can arrange for monthly payments. However, both these type of maintenance will not be given if the wife is declared as nusyuz or if she remarries.

Nusyuz means that the wife has been "disobedient" or "recalcitrant" to her husband. For instance, leaves the home against his will, refuses to move into another place with him or refuses association with him. However, if she leaves the house because of his cruelty, in example if he has been abusing her, then he must still pay her maintenance. In this situation, it is best to report the abuse to the police station as well as you're nearest Religious Department.

You can submit an application for maintenance at the same time while submitting your application for divorce.

Always check first with your nearest Religious Office (Jabatan Agama Islam), Legal Aid Bureau or any practicing Syariah lawyer for differences in State Muslim Family Law before proceeding.

*Name and particulars changed to protect WAO's client's confidentiality.

Prepared by Jaclyn Kee
Women's Aid Organisation - 20 Years of Service to Women and Children

Fortnightly Column by WAO on Sunday Mail (Reprinted with permission from Sunday Mail)