| || |
|Promoting an understanding of Islam that recognises the principles of |
justice, equality, freedom, and dignity within a democratic nation state
| | Ex-Husband neglected to pay child maintenance for five years
I divorced five years ago. After a year, I filed a claim for maintenance in the Syariah Court. My husband promised me RM250 a month for our two children and that he would pay a weekly visit to the children. In the beginning, he complied with the Court Order. After a while, he neither saw nor paid child maintenance. It has been five years since he last paid child maintenance.
It has been very difficult for me to raise the children, especially since I no longer work. My children are still in school; one is in standard one while the other is still in kindergarten. My mother and older brother are currently supporting my children and I.
I have gone to Pulau Pinang's Legal Aid Bureau for help and have been instructed to institute a new proceeding against my ex-husband. How long am I supposed to wait and do I have to initiate a new proceeding against him every time he does not pay up? I have reported this matter to the Bureau since a year ago but the response has always been that they are in the midst of sending letters. What am I supposed to do now?
Your husband's action of not paying for child maintenance even though there is a Court Order is against the law. It is a serious offence under the Malaysian Syariah law as well as that of Hukum Syara'.
Pursuant to Malaysian Islamic laws, it is clear that it is the responsibility of the father to support the children. Section 72 (1) of the Pulau Pinang Family Law Enactment 1985 states that "Unless there has been an agreement or if there is an Order of Court that provides otherwise, then it is the responsibility of a man to provide for his children's maintenance whether the children are in his care or under the care of someone else, by providing for them shelter, clothing, food, medicine, and education as is reasonable depending on his abilities and standard of living or by providing for the expenses of shelter, clothing, food, medicine and education".
Based on this, the Court has given the Order for payment of your children's maintenance. However, your husband's act of disobeying the said Court Order means he has committed contempt of Court. Section 132 of the same Enactment provides that if a person who was given an Order of Court deliberately neglects to comply with the Court Order, the Court that made the Order can have him fined or imprisoned. For this purpose, you have to file an application in the same Court that had made the Order for maintenance.
Aside from that, you can also apply from the Court for an Order to enforce the Order for payment of maintenance. This Enforcement Order is to ensure that the Maintenance Order that was made by the Court is complied with by your husband.
In order to obtain this Enforcement Order, we can refer to the Pulau Pinang Syariah Civil Procedure Enactment 1999. Pursuant to Order 159 of the said Enactment, it is stated that judicial enforcement and the types of enforcement can be made via one or more of the following methods:-
1. Seizure and Sale Order
Whereby the Court can order for the movable properties of the judgment debtor (your husband) to be seized and sold and the proceeds to be passed to your children as maintenance.
2. Garnishment proceeding
Whereby the Court will hold the movable properties of the judgment debtor (your husband) which is under the ownership or control of a third party, or any debt owed by any third party to the judgment debtor (your husband), and the proceeds from the sale of the movable properties or the payment of said debts to be given to your children as maintenance.
3. Committal Order
Whereby the Court will seize and pass to the judgment creditor (you) any property of the judgment debtor (your husband) as ordered by said Court to be used as maintenance for your children.
4. Order to withhold payment of salary
Whereby the Court may order the employer of the judgment debtor (your husband) to withhold the payment of his salary until an amount is deducted therefrom to pay for your children's maintenance.
Therefore, you have several choices in applying for a Court Order that best suits you and is most effective against your husband. The types of enforcement as listed above are some of the actions that the Court can take in order to ensure compliance on the part of your husband of the Maintenance Order.
For your information, pursuant to Order 147 of the Pulau Pinang Syariah Civil Procedure Enactment 1999, it is compulsory for your ex-husband to comply with any judgments made by the Court.
The above proceedings can help you and is very effective if you know his salary, financial situation as well as properties owned by your husband. You should discuss with the lawyer from the Legal Aid Bureau appointed to represent you in this case. Ask the said lawyer for the latest development in your case. If the lawyer informs you that he or she has already sent letters, ask him or her for the details of the letter; to whom the letter was addressed; the contents of the letter; when was the letter delivered, and what were the follow-up actions your lawyer had taken in regards to the said letter.
It is very important for you to obtain the above information so that you can decide on what to do next. Always communicate with your lawyer as he or she is the one responsible to ensure that your rights and interests are taken care of.
Panel lawyers, Sisters In Islam.