Division of Matrimonial Assets in Malaysia – The key factors

In Malaysia, the division of assets acquired during a marriage (matrimonial assets) for non-Muslims is governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). Section 76 of the LRA empowers the court to distribute these assets fairly upon granting a divorce or judicial separation.

Definition of Matrimonial Assets

Matrimonial assets include all immovable and movable properties acquired during the marriage. Assets acquired or bought before the marriage are also considered matrimonial assets.

What Factors Will the Judge Take into Account?

Here’s a more detailed breakdown of the law and factors considered:
• Contributions of each spouse: This is a crucial factor. The court will analyze the financial and non-financial contributions of each spouse towards acquiring the assets. This includes:

o Financial contributions: Salaries, investments, etc.
o Non-financial contributions: Homemaking duties, childcare, managing the household – all considered valuable contributions to the marital partnership.

• Pre-marital assets: Generally, assets owned by a spouse before the marriage are excluded from division. However, if the other spouse significantly contributed to improving the value of the asset during the marriage (e.g., renovations for a house), the court might consider it for partial division.
• Needs of minor children: The court prioritizes the well-being of minor children. If a parent needs an asset (like the matrimonial home) to adequately care for the children, the court might award it to them even if the contributions weren’t equal.

Determining Matrimonial Assets: Joint Efforts vs. Sole Efforts

• Joint Efforts: There must be evidence of monetary contributions by both parties towards acquiring the property.
• Sole Efforts: Consideration is given to the non-financial contributions of the non-acquiring party to the family’s welfare.

Case Study

In the case of Shireen a/p Chelliah Thiruchelvam vs Kanagasingam a/l Kandiah [2012] 7 MLJ 315, the husband made most of the payments for the properties, while the wife mainly contributed to the family’s welfare by looking after the home and caring for the family and children. The judge, using a broad-brush approach, determined that the wife was entitled to a 35% share and the husband to a 65% share of the matrimonial assets.

The LRA grants the court broad discretion in determining the division. They consider various factors beyond just contributions, including:
• Length of the marriage: Longer marriages often result in a more equal division.
• Conduct of the parties: This can include factors like adultery (if applicable) or instances of financial mismanagement by one spouse.
• Standard of living enjoyed during the marriage: The court considers the lifestyle established during the marriage to ensure a reasonable standard of living for both parties after the divorce.

Alternatives to Court-Ordered Division:

• Mutual agreement: Spouses can bypass court and reach a written agreement on asset division. This can be a faster and less acrimonious solution.
• Pre-nuptial agreements: These agreements, drafted before marriage, can outline how assets will be divided in case of divorce. However, they can’t override the court’s power to ensure fairness, especially regarding child support.

Seeking Legal Advice:

Division of matrimonial assets can be complex and emotionally charged. Consulting a qualified Malaysian lawyer specializing in family law is highly recommended. They can provide tailored advice based on your specific circumstances, including:
• Assessing the value of your assets
• Determining the appropriate course of action (court or agreement)
• Negotiating with your spouse (if applicable)
• Representing you in court (if necessary)

Remember, this is just a general overview. The specifics of Malaysian law and how it applies to your situation can be intricate. Consulting a lawyer will ensure you have the best possible guidance during this challenging time.

If you have any questions or require any additional information, please contact our lawyer that you usually deal with.

This article is written by 

Seen Rui Yong
Senior Associate, Low & Partners