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Question:
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“Hi Lawyer Yeo, I would like to ask you regarding how to claim child maintenance after divorce.”
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“My ex-husband and I divorced in 2024. Under our divorce order, he is obliged to pay me RM1,500 every month as our child’s maintenance until our child reaches the age of majority.”
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“During the first year after our divorce, he followed the court order by paying the child maintenance every month, and also visited our child almost every week.”
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“However, starting February of this year, he has stopped visiting our child and also begun delaying his monthly payments. When I asked him for the overdue child maintenance, he gave me many excuses, such as financial difficulties, needing to support his parents, and so on. He even told me that he plans to remarry by the end of this year, and once he has a new family to support, he will no longer be able to pay child maintenance for our child, as he only earns about RM4,000 a month.”
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“My question is: If my ex-husband remarries, can I still legally claim child maintenance from him? If yes, what legal avenues are available for me to enforce the court order?
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“Hopefully you can give me advice on this matter. Thank you.”
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Answer:
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1. The father cannot stop paying child maintenance just because he is getting remarried or starting a new family. If a family court has issued an order for child maintenance, the paying parent (usually the father) must continue to comply regardless of any changes in his personal circumstances, including remarriage.
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2. If the father genuinely cannot pay due to his financial hardship, he must engage a lawyer to apply for a variation order in court under Sections 83 and 96 of the Law Reform (Marriage and Divorce) Act 1976 to formally change the maintenance order. Until the family court approves his application, the existing maintenance order remains legally binding on him.
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3. If the father deliberately avoids his obligation to pay child maintenance without a variation order, there are two legal options available for the wife:
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A. File a civil claim against the father to recover the unpaid maintenance as a debt.
B. Initiate committal proceedings for non-compliance with the court order.
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Civil Recovery of Unpaid Child Maintenance
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4. Under this option, the unpaid maintenance is treated as a debt, and the mother can file a debt recovery action in the civil court. However, it is important to note that under Section 86(3) of the Law Reform Act 1976, the time limit to seek the recovery of arrears of maintenance is three (3) years from the date of default of payment only.
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5. Once the court grants a monetary judgment for the arrears, various enforcement actions can be taken against the father:
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A. Garnishee Proceedings: Freeze his bank account.
B. Writ of Seizure and Sale: Auction off his movable or immovable assets.
C. Judgment Debtor Summons: Compel him to attend court and disclose his financial ability to repay.
D. Attachment of Salary: Deduct a portion of his salary directly.
E. Insolvency Proceedings: If the arrears exceed RM100,000, bankruptcy proceedings can be initiated.
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Contempt of Court for Breach of Maintenance Order
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6. This is a separate legal route where the mother files an application in the same divorce case alleging that the father has willfully disobeyed the court order.
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7. This process has two stages:
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A. Stage 1 (Leave Stage): The mother must present sufficient evidence for the court to allow the contempt application.
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B. Stage 2 (Hearing Proper): The court sets a hearing date where both parties appear, and the judge decides whether the father is in contempt of court.
8. You may refer to this news about a recent court order to the husband to pay all the outstanding child maintenance within 3 months. Failure to do so will result in imprisonment until the contempt is purged.
9. However, this method is less commonly used due to several uncertainties:
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- The court may not grant leave.
- The terms of the contempt order is at the judge’s discretion
- The application may be rejected if the maintenance order lacks a penal notice (a warning that failure to comply may result in contempt)
- Legal costs are typically higher
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10. As such, contempt proceedings are usually seen as a last resort, often pursued when the mother wishes to send a strong message or hold the father accountable in a more serious manner.
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This wraps up our legal explanation on the enforcement of child maintenance orders after divorce. If you are facing a similar situation and would like legal assistance, feel free to reach out to us on WhatsApp: https://wa.link/q3kmv5
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