BALAKRISHNAN A/L KALIAPPAN V SHAMEENA A/P NATHESA [2019] 5 MLJ 661

BALAKRISHNAN A/L KALIAPPAN V SHAMEENA A/P NATHESA [2019] 5 MLJ 661

Court of Appeal (Putrajaya)

Claim of Matrimonial Home 

1. This appeal arises from the decision of High Court Shah Alam regarding a divorce petition filed by the Respondent (‘wife’) against the Appellant (‘husband 1).
2. On 29 September 2017, the Judicial Commissioner (‘JC’) granted the dissolution of marriages and the sole ownership of their matrimonial home to the wife.
3. The husband was also not allowed to enter the same home and to have close contact with the wife due to the allegations of physical and mental abuse by the husband towards the wife.
4. The husband appealed against the decision, which the Court rejected on 25 April 2018. However, it was not the only legal proceeding filed by the wife.
5. She had filed for dissolution of marriage and obtaining sole rights to the matrimonial home in 2013, but the High Court dismissed it on 12 January 2015.
6. On 29 July 2015, her appeal to the Court was partially successful, as the decision concerning the matrimonial home was overturned.
7. On 28 September 2015, the marriage tribunal issued a certificate declaring their marriage unfixable.
8. After the appeal was dismissed and the certificate was issued, the wife filed a second petition in the High Court of Kuala Lumpur.
9. Later, the petition was moved to the High Court of Shah Alam. She filed it after making two new police reports against her husband, making the same claims of physical threats and abuse as before, as well as her inability to access the matrimonial home.

1. Whether the husband is entitled to the division of the matrimonial home?

(a)  Section 76 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) highlights the division of the property acquired during the marriage between the husband and wife. It differentiates the assets into three (3) categories as follows:

(i) First, any assets acquired by joint efforts which is classified as matrimonial property. Hence, the Court has an obligation to divide the assets based on Section 76 (1) of Act 164 which provides that –

“76. (1) The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale.”

(ii) Second, any assets acquired by one party by sole effort which is classified as non-matrimonial property. Therefore, the Court is not obliged to divide but may do so, as mentioned in Section 76 (3) of Act 164.

“76. (3) The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired during the marriage by the sole effort of one party to the marriage or the sale of any such assets. 

and the division between the parties of the proceeds of sale.”

(iii) Third, the assets acquired before the marriage, but significantly improved by other party or their joint efforts. As such, the property is not subjected to division if there is no substantial improvement. Additionally, if a property acquired before the marriage is subjected to a loan, the said property may not fall into this category under Section 76 (5) of Act 164. The provision reads as below –

“76. (5) For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.”

(b)  By referring to Section 76(1) of Act 164, the Court interpreted the words ‘matrimonial home’ and not ‘matrimonial property or asset’ to describe the house which was registered under the wife’s name and bought two (2) years before their marriage.

(c)  Hence, the matrimonial home may not necessarily be a matrimonial property or asset which the Court has the power to order for division under Section 76(1) of Act 1 64 in that a place where the parties cohabitated after the marriage may not be in their names, either solely or jointly but could belong to either of their respective families or even rented.

(d)  The wife acknowledged that the husband initially covered the deposit and lawyer’s fees for the property purchase but claimed to have reimbursed him. The husband argued that he could not secure a loan in his name due to his unstable employment at that time, which was why the house was registered under the wife’s name.

(e)   However, the Court was of the view that it was an invalid justification because there were no legal difficulties in registering the property in both their names, even if his explanation was true. The learned JC also noted in the judgment that it was common banking practice to register a property in joint names even if only one of the owners secures financing for the same property.

(f)   The provision under Section 76(5) of Act 164 clearly enunciates that assets acquired during a marriage include the ones acquired before the marriage by one (1) party but which ‘have been substantially improved during the marriage by the other party or by their joint efforts’.

(g)   Hence, the Court held that matrimonial home where a married couple lived together may not necessarily qualify as matrimonial property that the Court has the power to order division under Section 76(1) of Act 164.

(h)   The Court was of the view that even if the place where the couple lived together after marriage was not registered in their names, whether individually or jointly, it could belong to one of their families or be a rented property. Just because the house was their cohabitation place after marriage did not imply that the husband had proprietary rights or the same house.

1.  Generally, it is important to ascertain the type of assets and contribution made for the same asset in order to succeed in any claim for distribution of assets relating to divorce.
2. Furthermore, it is also equally important to determine the ownership of the assets, as it provides clarity regarding the legal rights of the owner in which profoundly affects the outcome of divorce settlement.