Ex-spouse maintenance order enforceable against bankrupt without leave, says court
Published on: Friday, August 09, 2024
By:
FMT, V Anbalagan
The Court of Appeal ruled that a woman could apply to attach the earnings of her former husband under Section 4(1) of the Married Women and Children (Enforcement of Maintenance) Act 1968 without leave of the bankruptcy court.
PUTRAJAYA: The Court of Appeal has ruled that a former wife is not required to obtain leave from a bankruptcy court to enforce a maintenance order against her bankrupt former husband.
Justice Wong Kian Kheong said a rebuttable presumption exists that the legislature is deemed to have known of the existence of Section 4(1) of the Married Women and Children (Enforcement of Maintenance) Act 1968 (MWCA) when it enacted Section 8 of the Insolvency Act 1967.
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Wong said if Parliament had intended to do away with the primacy of Section 4(1) of the MWCA, the legislature would have said so expressly in the Insolvency Act.
"In other words, the legislature has intended for the primacy of Section 4(1) of the MWCA to still be enforceable today," he said.
His judgment was delivered in an appeal brought by a former wife, identified only as X, against the striking out of her application to recover arrears in maintenance from her husband.
The Court of Appeal reinstated the application and remitted it to the High Court to be heard on its merits.
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On Oct 9, 2019, X was granted a divorce from her former husband, Y.
The High Court ordered Y to pay X alimony of RM1,500 and RM2,000 to her for the maintenance of their two children.
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However, Y was adjudged a bankrupt on Feb 9, 2022.
X filed a proof of debt with the director-general of insolvency (DGI) for RM136,448.19, being the arrears under the maintenance order.
On July 4, 2022, she filed an application in the family court to attach Y’s earnings under Section 4(1) of the MWCA.
Meanwhile, Y obtained the DGI’s sanction to oppose the application.
On April 11 last year, both the DGI and Y raised a preliminary objection to the application, claiming that X had failed to obtain leave of the bankruptcy court before filing the attachment application.
The High Court upheld the objection and struck out the application on grounds that it had been filed prematurely, giving rise to the present appeal.
The High Court had said Y’s creditors, which included X, did not have any remedy against the bankrupt’s property.
It said the debt due from Y to X under the maintenance order was a "debt provable in bankruptcy".
However, in an 18-page judgment released this week, Wong said X did not need to secure leave of the bankruptcy court to bring an application under Section 4(1) of the MWCA.
Wong said Parliament had expressly provided for the primacy of Section 4(1) by the provision’s opening words, which read: "Notwithstanding any written law to the contrary"..
He said those words expressly conferred priority to Section 4(1) over all other written laws, except for the Federal Constitution and the Courts of Judicature Act 1964 (CJA).
"When the legislature employs the term ‘notwithstanding’ in a particular legislation, this indicates the intention of the legislature for that legislation (MWCA) to prevail over all other written laws (other than the constitution and the CJA)," he said.
He said Justice Azimah Omar concurred with his judgment. The third member of the bench, Justice Kamaludin Said, who chaired the panel when the appeal was heard, retired in June.
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