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Most divorced women find it very difficult to get maintenance from their ex-husbands even after a court order

THE institution of marriage existed even in the days of ancient Mesopotamia albeit in a different form. During those times, divorces were documented simply because they happened. Some causes of divorce took cognisance of adultery even as polygamy was considered a standard practice back then.

Early forms of marriage and causes of divorce that existed in the Cradle of Civilisation have continued till today. Causes of divorce, for instance, are still the same although recent additions to its grounds have made marriage a rather easy exercise that can be cast, shaped and allowed to die at will, especially by abusive and deceitful spouses.

In Malaysia, there is only one ground for divorce — when the marriage has irretrievably broken down. You have to prove any one of the following:

• Adultery has been committed by your spouse;

• You and your spouse have been separated for two years or more;

• You have been deserted by your spouse for two years or more;

• Your spouse has behaved in such a manner that you find it impossible to live with him or her.

One may petition for a divorce by mutual consent — both parties agreeing to the divorce by way of a joint petition or if there is no mutual consent, by way of a contested petition.

Any person wishing to file for divorce needs to be legally married. If you were married according to traditional or customary rites before March 1, 1982, you have a valid marriage and it is considered registered.

However, marriages must be registered after March 1, 1982, otherwise it is not valid in accordance with the Legal Reform (Marriages & Divorce) Act 1976. Under the Act, the conditions for divorce are that both parties must be married for at least two years and have been living in Malaysia. A divorce may be granted only by a court’s competent jurisdiction.

A divorce is always the least to be expected from a marriage, yet the number has risen to ‘worrying levels’.

According to statistics from the Women, Family and Community Development Ministry, the number of divorces reported annually is on the rise.

In 2006, for instance, 27,266 cases nationwide were recorded compared with 20,502 in 2005. In the case of Sarawak, 1,484 divorces were reported in 2006 compared with 1,130 in 2005.

The statistics also show about 136,550 divorces between 2000 and 2006 throughout the country and of these, some 6,719 were reported in Sarawak.

In the event of a divorce, does the wife, as the aggrieved party, have the right to demand payment of maintenance from the husband even if they no longer live together or are in the process of divorcing?

That’s what Lizy wants to know. She has been married to Eto for six years. (Both their names are changed to protect their confidentiality).

About three years ago, things between them began to change.

Eto, who worked in town, had not been going home and giving money to Lizy and their three young children. He also never called home.

Perplexed by his behaviour, Lizy often asked Eto if anything was wrong. His usual answer was that he was busy and financially tight.

Tired of his flimsy excuses, Lizy decided to get the truth out of Eto. Finally, he confessed he had been carrying on an extra marital affair. Realising it was pointless asking him to stay when his heart was somewhere else, she filed for divorce.

However, because she had resigned from her job on her husband’s request two years ago, she was jobless and did not have any income. How would she be able to cope?

thesundaypost did some research on the matter and found that for civil marriages, the Law Reform (Marriage and Divorce) Act 1976 provides for maintenance of the spouse.

The wife can get financial support for herself and the children from the husband through maintenance if their marriage was legally registered or if they were married according to religious or customary rites before March 1982.

But maintenance ends once the woman remarries or if her ex-husband dies. Maintenance for the children (which is separate from maintenance for the wife) will, however, continue — even after the woman remarries — until they are 18 years old, or at another age so decided by the court.

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 the wife’s needs. She has to list down her expenses and monthly budget for herself and her children.

The court, in deciding the amount, may look at the degree of responsibility each party bears for causing the breakdown of the marriage. If the wife played a major role in breaking down the marriage, chances are the maintenance order will be small.

Lizy claimed she had submitted her application for divorce and maintenance through the Legal Aid Bureau, and the court order had been issued to the husband to pay for her as well as their children’s maintenance effective sometime early last year. Till this day, she has never received a single payment.

After enquiring from a few informed quarters, thesundaypost was made to understand that most divorced wives faced ‘great difficulties’ getting maintenance (let alone on a monthly basis) from their ex-husbands even after a court order.

Attempts to obtain the number of such reported cases proved fruitless. But according to the Single Mothers’ Association of Sarawak (Pitsa), there are long overdue cases of men failing to pay maintenance not only among Muslim but also non-Muslim divorcees.

“As long as the man, regardless of race and religion, has that irresponsible attitude, I believe he won’t be bothered about his obligation even after a court order,” Pitsa chairperson Salmah Ibrahim said.

She added that the association had no records of its members receiving maintenance from their ex-husbands, believing that most of them are ‘fully on their own’.

“We have more than 600 members statewide. As far as I know, our members are mostly independent and motivated and involved in various types of small and medium scale business.”

The maintenance is believed payable from the date of neglect or refusal or from such date as is stated in the court order.

Under the Law Reform (Marriage and Divorce) Act 1976, if the husband fails to make payment, he can be imprisoned up to one month for each of the monthly maintenance he defaults. If it’s one month, he can be jailed one month; if it’s one year, he can spend that time behind bars.

The laws are already there to protect both civil marriage and Muslim divorcees, yet many husbands can still get away with their irresponsible conduct. What can be done to the defaulters?

Pitsa calls for strict enforcement of the court order and pressuring the culprits to face the reality that they are legally obliged to pay their ex-wives and children maintenance on a monthly basis.

“Over the past years, we could say enforcement was lacking. We hardly heard of any husband being sent to prison for not complying with the court order.

“Despite defaulting on maintenance (alimony) for years, husbands are still free when they should be put behind the bars according to the country’s laws,” Salmah said.

She pointed out that Pitsa welcomed any move by the authority to sort out this pertinent issue.

According to lawyer Detta Samen, failure to comply with a court order is itself contempt of court which can result in the offender being sent to jail.

He said divorced wives should apply to the court for enforcement.

“Unfortunately, many are not aware of their legal rights or maybe they don’t have the means to engage a lawyer. So far in my experience, after I submitted an application to the court for enforcement, the wives made no more noise. But whether they are still receiving maintenance or not, I don’t know.”

He said by right, male divorcees should continue paying maintenance because the kids were still their children.