~ Contributed by Sumitha Shaanthinni Kishna (Executive Officer)
KUALA LUMPUR: Having not made much headway with the proposal presented to the AG Chambers in September 2005 to amend S95 of the Law Reform (Marriage & Divorce) Act 1976 extending the legal obligation of parents to maintain their children beyond the age of 18 years, it was a pleasant surprise when Bar Council was contacted by YB Chong Eng, MP from Bukit Mertajam for a meeting on 27th May 2008 to brief her team of Pakatan Rakyat (PR) women representatives on the proposal.
The Bar Council’s Family Law Committee (FLC) representatives, Foo Yet Ngo (FLC Deputy Chairman), Vigneswary Alakahone, Pushpa Ratnam, Sharmini Jayan and Sumitha (Executive Officer) met a sprightly group of Pakatan Rakyat women representatives, YB Chong Eng, YB Dr. Lo’Lo’ Mohd Ghazali (Titiwangsa MP), YB Hjh Fuziah Salleh (Kuantan MP), YB Nurul Izzah Anwar (Lembah Pantai MP), YB Teo Nie Ching (Serdang MP), YB Siti Zailah Muhd Yusoff (Rantau Panjang MP), YB Zuraida Kamarudin (Ampang MP), YB Senator Hjh Mumtaz Binti Md Nawi (Ahli Dewan Negara), Fahda Nur Ahmad Kamar (Advocates & Solicitors, Syariah Counsel, Exco Pendidikan Persatuan Peguam Syarie Malaysia) and Nurul Izzah Ab Halim (Special Officer of Kota Raja Community Service Centre) and others in the cosy Briefing Room on the 1st Floor of the Parliament Building at 1.00pm.
After a brief general chitchat, the meeting commenced with YB Chong Eng welcoming and thanking the FLC representatives for attending the meeting at such short notice. YB Chong Eng stated that the PR women representatives were in the midst of forming a caucus to deal with women, children and family issues and hence invited the FLC representatives to brief them on S95 of the 1976 Act to be the first issue taken up by the group.
Thanking them in return for their support and interest in the proposal, the FLC representatives presented an updated memorandum on the proposal to amend S95 of the 1976 Act to extend the legal obligation for parents to maintain the child beyond the age of 18 years, if a child intends to pursue further education or training for a trade, profession or vocation. The FLC representatives highlighted the shortcomings in the present provision, which terminates the obligation of a parent to maintain a child upon attainment by the child of the age of 18 years. The only exception to this i.e. when the obligation to maintain may be extended is when the child is under a physical or mental disability whereupon the obligation shall expire only upon the ceasing of the disability. The existing provisions saw several attempts by the Court of Appeal, using judicial innovation, to read into existing provisions and extend the obligation where the child is undergoing university or tertiary education on the basis that such involuntary financial dependence constitutes a disability within the section. These cases were dealt a resounding blow when the Federal Court in a recent case of Karunairajah (2006) held that the word disability in the section only covered physical and mental disabilities but not financial dependence. The Federal Court stated categorically that any extension of the legal obligation to maintain is a matter for the legislature.
In support of the proposed amendments, the FLC representatives pointed out that various other legislation e.g. S3 of the Guardianship of Infants Act 1961 states that the guardian is responsible for the support, health and education of the child until he/she reaches 21 and our income tax legislation allows a taxpayer to continue to claim relief (at a higher rate) for his/her child beyond 18 years of age pursuing tertiary education. The FLC representatives also drew upon similar provisions not only of other jurisdictions e.g. Singapore, Australia and United Kingdom all of which recognised parental obligations to children extend beyond them attaining 18 years if the children are pursuing tertiary or further education, but also our very own Malaysia’s Islamic Family Law Act which has the very provision itself.
The FLC representatives also stressed that the proposal to amend S95 of the 1976 Act was based on gender equality principals and thus applied equally to the mother and father. Although it was raised and acknowledged that enforcement of maintenance orders need to be looked into (the present provisions being highly ineffective), the FLC representatives felt that the amendment to S95 of the 1976 Act should be prioritised, as the right of a child to tertiary education is a necessity and not a luxury.
The PR women representatives gave an assurance that they would lobby for support and push for the amendments in the august House. The FLC and PR representatives would also work together to look into other areas of family matters. The meeting ended with the exchange of contact numbers, a photo session and coffee treat by YB Chong Eng at the posh coffee house on the ground floor.
Note: It was reported in The Star, 29th May 2008 that PR and BN women MPs have agreed to set up a non-partisan parliamentary women caucus to only focus on tackling women-related issues and the first issue the caucus would lobby was the amendment of laws relating to the maintenance of single mothers.
This article is taken from the Website of Malaysian Bar Council.