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Karunairajah a/l Rasiah v Punithambigai a/p Ponniah: The Need to Amend Section 95 of the Law Reform (Marriage and Divorce) Act 1976?

Thambapillay, Sridevi, (2005) Karunairajah a/l Rasiah v Punithambigai a/p Ponniah: The Need to Amend Section 95 of the Law Reform (Marriage and Divorce) Act 1976? Journal of Malaysian and Comparative Law, 32 (1).

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Official URL: http://www.commonlii.org/my/journals/JMCL/2005/5.html

Affiliations

University of Malaya. Faculty of Law

Abstract

The recent Federal Court decision in Karunairajah a/l Rasiah v Punithambigai a/p Ponniah (hereafter referred to as "the present case") could be described as one that has shattered the hopes of children above the age of 18 years who are financially dependent on their divorced parents for the purpose of completing their tertiary education. Their hopes were raised by the Court of Appeal's decision in the case of Ching Seng Woah v Lim Shook Lin, which was followed by the High Court and the Court of Appeal in the present case. In Ching Seng Woah v Lim Shook Lin, the Court held that the involuntary financial dependence of a child of the marriage for the purpose of pursuing and/or completing tertiary and/or vocational education came within the exception of physical or mental disability under section 95 of the Law Reform (Marriage and Divorce) Act 1976(hereinafter referred to as "the LRA") so as to entitle the child to maintenance beyond the age of 18 years. Section 95 of the LRA stipulates as follows: Except where an order for custody or maintenance of a child is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, on the ceasing of such disability, whichever is the later. The objective of this article is to examine whether there is a need to amend section 95 of the LRA in light of the Federal Court decision in Karunairajah a/l Rasiah v Punithambigai a/p Ponniah. The writer intends to achieve this objective by reviewing the decisions of the High Court, Court of Appeal and the Federal Court in the present case.

Item Type:Journal
Keywords:Divorced parents, Young adults, 18 year of age, Rights
Subjects:K Law
ID Code:6109

[1] [2004] 2 Malayan Law Journal 401.

[2] [1997] 1 Malayan Law Journal 109.

[3] Act 164.

[4] Supra, n 2.

[5] [1981] 2 Malayan Law Journal 36.

[6] [1986] 2 Malayan Law Journal 58 (High Court); [1986] 2 MLJ 297 (Federal Court).

[7] Supra, n 2.

[8] [2000] 5 CLJ 21.

[9] No 36 of 1950. This Ordinance was revised in 1981 as the Married Women and Children (Maintenance) Act 1950 (Act 263).

[10] Supra, n 2 at p 120.

[11] Ibid.

[12] S 92 of the LRA provides:

Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.

[13] S 52 of the LRA provides:

If husband and wife mutually agree that their marriage should be dissolved they may after the expiration of two years from the date of their marriage present a joint petition accordingly and the court may, if it thinks fit, make a decree of divorce on being satisfied that both parties freely consent, and that proper provision is made for the wife and for the support, care and custody of the children, if any, of the marriage, and may attach such conditions to the decree of divorce as it thinks fit.

[14] Supra, n 2.

[15] [2003] 2 MLJ 529.

[16] Ibid, at p 537.

[17] Ibid, at pp 537-538.

[18] Ibid.

[19] Supra, n 1.

[20] Ibid, at p 403.

[21] Supra, n 2 at p 119.

[22] 39 RFL (3rd) 286.

[23] Supra, n 1 at p 409.

[24] Act 303.

[25] Emphasis added.

[26] His Lordship referred to ss 125, 116 and 61 of the Women's Charter.

[27] [1993] 1 SLR 574.

[28] S 125 of the Women's Charter is similar to s 95 of the LRA, save that it is 21 years of age in the former whereas it is 18 years in the latter.

[29] (1996) ALR 237.

[30] Supra, n 2 at p 120.

[31] S 12 provides that before marrying, a person who has not completed his or her twenty-first year shall be required to obtain the consent in writing of one of the persons below:

(a) his or her father; or

(b) if the person is illegitimate or his or her father is dead, his or her mother; or

(c) if the person is an adopted child, his or her adopted father, or if the adopted father is dead, his or her adopted mother; or

(d) if both his or her parents (natural or adopted) are dead, the person standing in loco parentis to him or her before he or she attains that age, but in any other case no consent shall be required.

[32] Cases such as Re Satpal Singh, An Infant [1958] MLJ 283, Allen v Allen [1951] 1 All ER 724, In re Thain [1926] Ch 676, Masam v Salina Saropa & Anor [1974] 2 MLJ 59, Teh Eng Kim v Yew Peng Siong [1977] 1 Malayan Law Journal 234 support this view.

[33] Act 21.

[34] Supra, n 15 at p 538.

[35] Mimi Kamariah Majid, Family Law in Malaysia (Kuala Lumpur: Malayan Law Journal, 1999) at p 336.

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