Saturday, April 17

Making sure no one is homeless after a divorce


A jointly-registered home prevents either spouse from leaving the other roofless. — Bernama file photo

IN thesundaypost of Jan 24 of this year, there was published a statement with the caption ‘Law weak in protecting families after divorce’. It was made by Voon Lee Shan, a former member of Sarawak’s State Assembly, a legal practitioner in the city, and the chief of a political party vying for power in the state.

He said that “despite court order, many times I’ve come across husbands failing to maintain their wives and children after divorce”, claiming to have personally known of cases where “women and children had been chased out of the house”. For a solution of the problem, he suggested to criminalise the failure of the husband to maintain his wife and children after a divorce.

If I may be allowed to chip in at this stage, my understanding is that to disobey a Court’s Order (conduct that obstructs or tends to obstruct the proper administration of justice) is already a criminal contempt of court, an offence punishable by jail sentence and/or a fine.

What is lacking, however, is the effective enforcement of the law – the means by which a defaulting husband is made to comply with the court’s order to pay maintenance or financial provision. The difficulty to catch the fellow is not new. The government has been handling this problem through the normal channels – through the various traditional or religious systems in addition to the civil courts. Eventually, the law will catch up with the defaulting husband.

Take a leaf out of New Zealand’s law  

My immediate concern is the right of ownership of a wife (and child or children under her custody) to a home after the marriage break-up. I have reliable sources who have told me that there are many cases of abandoned wives.

I have a suggestion to make. There may be a way out for a wife (and child or children under her custody) without having to move out of the house after a divorce. Take it for what it is worth. However, it does not directly address the problem where a wife is left without a means to pay rent of a house/room, but it may help her cope with the problem of accommodation, if she cannot continue with servicing the housing loan after a divorce or death of the husband.

For this suggestion, take a leaf out of the page of a New Zealand’s law: Joint Family Homes Act 1964. A bit of history first: way back in 1895, there was a law in New Zealand governing ownership of family home but it was not good enough to give security to the former wife (and child, if the Court decided that the wife had the custody of the child), after a family break-up. The necessity for a more effective legislation was mooted as early as 1950. Then years later, the JFH Act was introduced to Parliament to prevent the husband from leaving the former wife and child in the lurch.

The Joint Homes Act is said to be an advanced and unique social legislation that provides for joint family home in New Zealand. One of its main features (subject to any amendments to the Act) is that the family home can be mortgaged. Maori land can also be settled for housing under this legislation. Stamp duty is exempted when the joint property is sold (ownership transfer). The settlor must be solvent, other than debts charged on the property.

The main effects of the joint registration are that the husband and wife enjoy equal rights in the home. Upon death of either spouse, the property automatically devolves upon the survivor. Most importantly, the property is protected against creditors though the property is not protected against the mortgagee’s exercise of power of sale or any disposition directed by the court. Advantages of registration of the joint family home include certain exemptions from gift or estate duty. Even in case of insolvency, there was (1964) an exemption of NZ$12,000 (about RM36,000).

If there is new legislation similar to New Zealand’s Joint Homes Act, failure in servicing the loan for the first five years of the mortgage should not force the wife and children out of the house. If I remember correctly, way back many years ago, there was such an arrangement worked between the mortgagor/mortgagee/ guarantor in Sarawak. This was to protect the wife from being chased out of the house immediately after her husband’s death. At least for the first five years of the mortgage on the house, the insurance company would pay the housing society or the bank on default of loan servicing.

For this arrangement to be effective, the house must be built on land that is legally registered with the land office. In Sarawak, legislation should be introduced to protect the wife if she is a registered co-proprietor of the land on which the family stands.

I hope the local legislators, including potential legislators, will think about introducing such legislation in the State Assembly that protects the wife and children from being chased out of a house simply because she cannot afford to continue with the loan servicing after a legal separation.

No harm looking to New Zealand law for ideas. Modify them, if necessary, to suit the local conditions. Our Kiwi friends have the right idea when it comes to dealing with a pandemic; anyway, the whole world should follow their example! And when it comes to amending family laws, that is the job of the lawmakers whom we elect from time to time.

Comments can reach the writer via [email protected]