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Divorce, Custody, and Matrimonial Property in Malaysia: A Case Study (2025)

A Case Study of Nithianandha Rao A/L Atchanan v. Kavitha A/P Rajandran [2025] CLJU 651

Introduction

Divorce in Malaysia can be a painful and complicated process. Beyond the emotional strain, parties often face disputes about child custody, access rights, financial maintenance, and property division. The High Court case of Nithianandha Rao A/L Atchanan v. Kavitha A/P Rajandran [2025] CLJU 651 illustrates how Malaysian courts balance these competing interests while upholding the principle that the welfare of the children is paramount.

In this article, we provide the summarized key issues and the Court’s reasoning. We also highlight how these legal principles affect divorcing couples in Malaysia and how we can assist clients in navigating such disputes.

Background of the Case

  • The marriage between the Petitioner and Respondent was solemnized in 2011.
  • They had two children aged 11 and 7 years.
  • The Petitioner alleged that the Respondent’s behavior (emotional abuse, disrespect, refusal to compromise) caused the breakdown of the marriage.
  • The parties had been separated since December 2021, and reconciliation attempts failed.
  • Disputes arose regarding:
    • Divorce and dissolution of marriage,
    • Custody and access to the children,
    • Maintenance and financial responsibilities,
    • Division of the matrimonial home,
    • Allocation of EPF savings.

This case demonstrates the multi-faceted nature of family law disputes in Malaysia, where the Judge must weigh statutory provisions under the Law Reform (Marriage and Divorce) Act 1976 (LRA) alongside case law precedents and especially, the facts and circumstances of each case.

Key Legal Issues

The Court identified five main issues:

  1. Has the marriage irretrievably broken down?
  2. Should the Petitioner be granted access to the children despite their refusal?
  3. What is the appropriate amount of child maintenance?
  4. Should additional sums (festive, education, EPF allocation) be ordered?
  5. How should the matrimonial home be divided?

Issue 1: Dissolution of Marriage

The Law

  • Under s.53–54 LRA, a marriage may only be dissolved upon proof that it has irretrievably broken down.
  • The Court may grant divorce on grounds such as:
    1. Adultery,
    2. Unreasonable behavior,
    3. Desertion,
    4. Separation (two years with consent, five years without).

Court’s Findings

  • The Petitioner relied on:
    • Unreasonable behavior (emotional abuse, disrespect, intolerable living environment).
    • Separation since December 2021 (over two years).
  • The Court applied the test from Joseph Jeganathan v. Rosaline Joseph and Wong Siew Boey v. Lee Boon Fatt: Would a reasonable person conclude that the Petitioner could no longer be expected to live with the Respondent?
  • Evidence of persistent conflict, emotional harm, and a 2019 incident involving the maid (which led to police intervention) convinced the Court.
  • The issuance of a Certificate of Non-Reconciliation confirmed reconciliation had failed.

✅ Decision: The Court granted divorce, holding that the marriage had irretrievably broken down.

Issue 2: Access to the Children

The Law

  • Custody and access are governed by s.88(2) LRA: the welfare of the child is the first and paramount consideration.
  • Courts have held that access is the right of the child, not the parent (Leong Sam Moy v. Low Chee Thiam).

Court’s Findings

  • The Petitioner conceded custody to the Respondent but sought structured access (weekends, holidays, birthdays).
  • The Respondent argued that access should be subject to the children’s wishes.
  • The Court balanced:
    • The children’s need for stability and education,
    • The father’s right to maintain a relationship,
    • The importance of preserving family bonds.
  • The Court ordered structured access (alternate weekends, half of school/festive holidays, birthdays, and festive days like Deepavali).

✅ Decision: Father granted structured access; Respondent must encourage children to engage positively.

Issue 3: Maintenance of the Children

The Law

  • s.92–93 LRA imposes a statutory duty on both parents to maintain children.
  • Case law (Teh Eng Kim v. Yew Peng Siong) confirms that maintenance is independent of access.

Court’s Findings

  • The Petitioner applied to cancel maintenance (RM1,200/month) because the children refused to see him.
  • The Court rejected this, holding that children’s welfare must come first.
  • The Respondent’s claim for RM4,000/month was deemed excessive.
  • The Court maintained RM1,200/month but ordered:
    • 10% increase every three years,
    • RM260/month for insurance,
    • RM250–400/month tuition fees,
    • RM500 per child annually for Deepavali celebrations.

✅ Decision: Balanced maintenance order reflecting children’s needs and parents’ means.

Issue 4: EPF and Additional Financial Contributions

The Law

  • EPF governed by the Employees Provident Fund Act 1991.
  • Courts may direct allocation of savings in the interests of children.

Court’s Findings

  • Respondent requested 50% of EPF to be allocated to the children.
  • Court held this excessive but recognized the importance of securing children’s education.
  • Ordered 25% of Petitioner’s EPF savings to be held in trust until permissible withdrawal age, to be used strictly for education.

✅ Decision: 25% EPF allocated for children’s future education.

Issue 5: Division of Matrimonial Home

The Law

  • Governed by s.76 LRA. Courts consider:
    • Contributions of each party (money, property, welfare of family),
    • Debts incurred for joint benefit,
    • Needs of minor children.
  • Courts lean towards equitable division (James Jemut Masing v. Fiona Frances Masing; Wong Kam Foong v. Teau Ah Kau).

Court’s Findings

  • The Respondent sought to remain in the home until children complete their education.
  • The Court considered joint contributions and the children’s welfare.
  • Ordered that the Respondent remain with the children while the Petitioner’s financial share be addressed via refinancing and equitable adjustments.

✅ Decision: Matrimonial home division structured in a way that preserves children’s stability.

Essence of the Case

  1. Unreasonable behavior can be grounds for divorce if living together is intolerable.
  2. Children’s welfare overrides parental disputes in custody and access matters.
  3. Maintenance obligations cannot be avoided even if access is denied.
  4. EPF savings may be partially allocated for children’s education.
  5. Property division considers both financial and non-financial contributions like childcare and homemaking.

How We, JY Ko Can Help You

At JY Ko Advocates & Solicitors, we have competent experience handling:

  • Divorce petitions (both single and joint applications),
  • Child custody, access, and guardianship disputes,
  • Child and spousal maintenance claims,
  • Division of matrimonial assets including homes, cars, and EPF savings,
  • Negotiated settlements to minimize litigation stress.

Our lawyers understand that family disputes are deeply personal. We approach each case with compassion, discretion, and a strong commitment to securing the best outcomes for our clients.

📌 Whether you are seeking a divorce lawyer in Malaysia, dealing with child custody disputes, or facing property division issues, our firm provides practical and effective legal strategies.

📞 Contact us today to schedule a consultation and protect your rights.

🌐 Call us: 017-6965 966 (Call/Whatsapp) / 013-4400 128 (Whatsapp)

📩 Email Us: nick@jykolaw.com

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Disclaimer: The above proposition is subject to actual facts and circumstances and shall never be referred as the actual law without seeking legal advice. Consult us for more information!

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