How to Vary a Divorce Order?

29th March 2021

All married couples verily bound themselves with a solemn vow till death do them part during their wedding ceremonies When “till death do us part” does not work for you and your wife, both of you divorce. In the divorce order, you promised to do certain things including but not limited to, paying some money to your children and your ex-spouse based on your ability and financial capability, bear future education, insurance, living and welfare expenses for the kids etc.
Few years down the road, the situation changes and you find it hard or near impossible to fulfill your obligations as stated in the court orders anymore. You are in a dilemma. If you fail to comply with the divorce order, you would commit contempt of court orders and you may end up in jail or being fined.
What should you do now? In this kind of situation, you may apply to the courts to vary the terms of the divorce orders. It is trite law that if the court order was entered by way of consent, such a consent order must be rarely disturbed unless there are exceptional circumstances that warrant the intervention of the court (Ng Say Chuan (h) v Lim Szu Ling (w) and another application [2010] 4 MLJ 796).
The Court had varied the divorce orders in the past due to the reasons below (which is not exhaustive):
1. Breach the Terms of a Child’s Custody
The nature of the custody rights of a child can be changed if parents possess the rights of custody have breached the court orders. For instance:
(a) In the case of Low Swee Siong v Tan Siew Siew [2011] 2 MLJ 501, the Court varied the decree nisi to grant the wife the right of custody of the child after considering the welfare and interest of the child. The wife was in a financially better position than the husband to bring up the child and evidence showed that during the time the husband had custody of the child, he had left the care of the child entirely to his sister and her husband.
(b) In the case of Lu Dong  v Chin Mou Long [2020] MLJU 1888, the Court varied the decree nisi to grant the husband the right of custody of the child because the child was unilaterally brought to another country for approximately four (4) years without the other parent’s knowledge and consent.
2. Maintenance Expenses of a Child
The amount of the agreed monthly maintenance expenses may be changed if scenarios below occur at a later stage:
(a) In the case of Lim Tian Deng v Koh Poh Gaik (P) [2018] MLJU 1192, the Court varied the amount of maintenance for the children from RM1,500.00 to RM700.00 per month because the ex-husband’s financial position took an adverse change when his company came under financial difficulties with high debts and liabilities. The applicant’s contention was proved and supported by the representation from the Jabatan Bantuan Guaman (JBG) of the financial difficulties he presently faced.
(b) In the case of Baheerathy a/p Arumugam v V Gunaselan a/l V Visvanathan [2012] 6 MLJ 868, after considering the financial situation for both parties, the court varied the amount of maintenance for the children from RM600.00 to a reasonable sum of RM1,200.00 until the children attain 18 years old.
3. Mistake of Facts and Misrepresentation
The Court may exercise its discretion to vary the terms of the divorce order if the court finds that there are mistake of facts and misrepresentation at the time when the divorce order is recorded (Geh Thuan Hooi (h) v Serene Lim Paik Yan (w) [2010] 4 MLJ 673).
4. Material Change of Circumstances / Exceptional Circumstances
The Court may also change the terms of the court orders if there is a material change of circumstances or extraordinary circumstances. For instance,
(a) In the case of Choo Tzit Howe (L) v Tham Pik San (P) [2017] MLJU 1609, the Court allowed the wife’s application to vary the court order and granted the right of custody of the child to the wife because there is a material change of circumstances as follows:
(i)         the child did not stay at the matrimonial home;
(ii)        the child did not attend to an agreed school; 
(iii)       the child is not under the care of the husband. The husband took the child to Malacca to stay with his parents
and went to school in Malacca; and
(iv)       the wife was not allowed to see the child at the school.
(b) In the case of Zhu Jiji v Yeoh Ee Seong & Anor and another case [2020] MLJU 2106, the Court dismissed the husband’s application for right of custody to the husband. The facts that the wife had remarried and had a new husband and a baby residing with the child do not constitute a material change of circumstances to vary the right of custody.
5. Child Abuse
The court may also vary the court orders at its own discretion when the court finds that the child is physically and/or mentally abused by the husband or the wife or their family members.
6. Either Parent Committed Criminal Offences
The applicant can also apply to vary the court orders if either parents committed crimes and are unable to take care of the child.
7. Bankruptcy
In some circumstances, Mr A is required to transfer ownership of a property to Ms B as settlement of a divorce. Unfortunately, A is adjudged as a bankrupt before the ownership of the property is successfully transferred to Ms B. The court may vary the court order to allow the officer from the Malaysian Department of Insolvency to step into the shoes of Mr A to sign all relevant documents and complete the process of transfer ownership of the property to Ms B.
In a nutshell, there isn’t any hard and fast rule to apply to vary a divorce order. The courts exercise its discretion sparingly on a case-to-case basis and when it deemed fit and just to do so. The paramount test here is that “there is material change of circumstances and/or exceptional circumstances that warrant its intervention”. Any little change which does not cause severe impact to the spouses or the children as a whole is not justifiable to vary a court order.
The contents of this article do not constitute legal or other professional advice or an opinion of any kind. It is provided for general information purposes only. Please contact us for further enquiry.