5th May 2020 By Chloe Lim & Carmen Leong
Upon hearing of the divorce petition, the court may award some orders requiring the husband and wife petitioners to comply with the provisions regarding custody of children, division of matrimonial assets, money, maintenance for spouses and children and so on.
On an average, the ex-spouse would breach and ignore the court orders after 3 years. The ex-spouse might deny your access to your children, abscond with your children, abuse your children, fail to transfer ownership of the property to you and/or fail to pay the alimony and/or the living costs of the children.
In Malaysia, you may enforce the court orders against the one who ignores the court orders by the methods below:
Committal Proceedings
Here, committal proceedings means that your ex-spouse had committed contempt of court by failing to perform certain acts within stipulated timeline as stated in the Court Orders. The relevant law can be found under Order 52 of Rules of Court 2012 and Rule 74 of Divorce and Matrimonial Proceedings Rules 1980 (DMPR 1980). The ex-spouse who is in breach of the court orders may be liable to a fine or imprisonment as determined by the Courts.
Before one can invoke committal proceedings, there must be a penal clause endorsed in the Court Orders in accordance with Order 47 of the Rules of Court 2012.
Judgment Debtor Summons
It is common that many ex-spouses defaulted payment of alimony and children expenses after some time. The aggrieved spouse can apply to recover the money by way of judgment debtor summons proceedings under Rule 72 and 73 of DMPR 1980 (see Wong Mi-Li v Tan See Hwee [2018] MLJU 902).
The outstanding sum must be as certain as the judgment sum.
This application requires leave of the courts supported by an affidavit (Rule 72 of DMPR 1980). Upon obtaining the leave of the courts to commence the judgment debtor summons proceedings, the applicant can file the judgment debtor summons and serve it on the defaulter by hand not less than 10 clear days before the hearing.
Attachment Of Earning Order
Alternatively, you may apply to the Courts to attach your ex-spouse’s wages to be paid to you as the alimony and/or children expenses. This is propounded under Section 4 of Married Women and Children (Enforcement of Maintenance) Act 1968. Your ex-spouse’s employer must attach his wages to satisfy the order (Ng Ee Loon v Tan Peng Lee [1998] 7 MLJ 173).
However, this method is applicable in the situation where your ex-spouse is under employment. This method cannot be used if he/she is self-employed.
Routes for the Muslim Divorcees
For muslims, the divorced women may file a complaint to the Family Support Division established under the Malaysian Syariah Judiciary Department if your former spouse defaults the alimony and child expenses under the Court Orders.
Alternatively, the aggrieved spouse can resort to any of the methods as follows to enforce the Court Orders:
(a) Attachment of Earning Orders;
(b) Seizure and Sale;
(c) Garnishee Proceedings;
(d) Committal Order;
(e) Judgment Debtor Summons; and
(f) Criminal Proceedings.
[Sources: How Divorced Women Can Effectively Enforce the Financial Support Orders: The Legal and Administrative Actions by Muslihah Hasbullah, PhD]
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