FAQ for Divorced Spouses and Victims of Domestic Violence

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As a preventive measure towards the Covid-19 pandemic, our country has since 18 March 2020 implemented the Movement Control Order (“the MCO”).

During this period, a lot of divorced or estranged parents have complained that they have issue with child access during the MCO period. A lot of separated parents are left in quandary, as the authority does not provide any guideline in this aspect. Quite apart from the issue with access, it is also reported that there has been a spike in number of domestic violence cases following the MCO.

The implementation of MCO is unprecedented. Its enforcement has undeniably caused substantial disruption to the daily affairs and livelihood of many from all walks of life which eventually led to heated arguments and conflict amongst family members or separated couple.

Here, we have prepared the following FAQ hoping to lend you a helping hand in navigating some issues you might encounter during this MCO period. We would however wish to emphasize that what we are giving here is more of a general overview, there is no straightforward answer as each family is unique and different.

Access during the period of MCO

1. Can access to the child/children be carried on during this MCO period?

   In the beginning of the MCO it appears that as long as the access is not a supervised access or access which needs to be carried out in public areas, physical access shall not be denied.However, with the recent enhanced MCO being implemented almost across the entire country, physical access might no longer be a viable option particularly should your ex-spouse need to travel interstate or more than 10km to pick up the children. Certain areas even have a complete lockdown where no one could leave or enter the residential area, making physical access totally infeasible. With this, it appears that physical access can only be carried in limited circumstances, for instance if your ex-spouse and you are living nearby.

2. What can I do if I could not carry out physical access during the MCO?

   For those who are unable to have physical access to your children, it is recommended that you communicate with your spouse to reschedule or replace the access after the MCO period. For the other party who has custody of the children, be reasonable in allowing rescheduling and/or replacement. Don’t act selfishly.Also, you could request to have virtual access for instance, regular phone calls and/or video calls with your children until the MCO is uplifted. Again, the party who has custody should encourage and/or facilitate such virtual access. Remember always act in the children’s best interest and alienating your children from the other parent is clearly not one of them. Instead of obstructing and/or restricting the access, encourage and help with virtual communication during the MCO period, for instance skype, facetime, WhatsApp video etc.

Payment of Maintenance

3. Due to financial constraint, for instance mandatory pay cut from your company, I am unable to pay the full monthly maintenance to my ex-spouse, could I reduce my monthly maintenance payment accordingly?

   Unless you have obtained a court order which allows you to vary the amount of the monthly maintenance, you have to continue paying the maintenance. You are not allowed to unilaterally reduce the payment for the monthly maintenance. Do note that your ex-spouse is entitled to enforce the order against you should you fail to pay the monthly maintenance as per the order, for instance, committal proceeding, bankruptcy etc.

   Having said so, it is recommended that you could first discuss with your ex-spouse and seek his/her consent for reduction of the monthly maintenance for the time being until thing gets better. If he/she is amenable to your request, it is advisable to confirm such agreement in writing. This is to avoid any unnecessary dispute in the future. You may want to apply to court to vary the maintenance amount if no agreement can be reached between the parties and speak to your lawyer with regard to the legal procedure.

Domestic Violence

4. 4. My spouse has been threatening me verbally, does that come under the purview of Domestic Violence Act 1994?

      Yes, it does.
      According to the Domestic Violence Act 1994, Domestic violence is defined as any of the following acts:

      • Intentionally / unintentionally attempting to cause / causing the victim fear and physical injuries.
      • Causing physical injuries to the victim knowing full well that the act in question will cause physical injuries.
      • Forcing a victim, by means of coercion or threats, to perform an act that includes but is not limited to sexual in nature to which the victim has a right to refuse.
      • Confining / Detaining / Holding a person against their will.
      • Harassment as well destruction or damage of property with the intentional / unintentional purpose of causing distress and anxiety to the victim.
      • Removing / withholding property belonging to the victim with the sole intent of causing distress and monetary loss to the victim;
      • Threating the victim with the intent of causing the victim to fear for his / her safety or the safety of a third person as well as distress;
      • Communicating with the victim or a third party with the intent of maligning or slandering the victim’s honour and good name by any means; not limited only to electronic communications.

   5. Does the Domestic Violence Act 1994 protect my children and parents?

      Yes, it does. The following individuals are protected under the Domestic Violence Act 1994:

      • Spouses
      • Former spouses
      • Children
      • Family members for eg. adult sons and daughters, fathers and mothers, brothers and sisters, and any other relatives
      • Incapacitated adults who are living as members of the family
      • De Facto spouse ie . couples who have gone through a religious or customary marriage ceremony, but did not register the marriage.

      **Note that, the Act, however, does not cover non-married couples.

   6. What should I do if I am being abused and/or experience domestic violence during the MCO period?

      For the victims who are experiencing domestic violence, you need to immediately lodge a police report against the abuser. For those who are injured physically, kindly arrange for medical assessment in a hospital. Thereafter, you may seek assistance from the police station or Jabatan Kebajikan Malaysia (JKM) to secure an Interim Protection Order.

   7. Where to seek help and/or assistance for domestic violence?

      You may reach out for help by calling these hotlines:

      • Women’s Aid Organisation (WAO): 03-7956 3488 / SMS or Whats A pp (24 hours): 108-988 8058
      • Talian Kasih Helpline (Ministry of Women, Family & Community Development): 15999
      • All Women’s Action Society (AWAM): 03-7877 4221 / awam@awam.org.my
      • Department of Social Welfare / Jabatan Kebajikan Rakyat: Headquarter Telephone No. 03 – 8000 8000 / You could head to any of the District Social Welfare Office / state near you to make inquiries.

      We urge victims of domestic violence to seek helps when necessary. Family members and public should also remain vigilant and contact the authorities if they suspect any signs of domestic violence within their neighbourhood.

This article is written by 

Toh Lee Khim
Partners, Low & Partners

Aw Yong Lei Bin
Senior Associate, Low & Partners