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| NOTICE: Due to overwhelming response in posting questions and limited volunteer panel lawyers, we have to temporarily stop receiving questions. Please do not post any questions till further notice. |
| Area of Law: Family Law | | Q: | My name is Diana. I wish to have your advise for the matter of i'm applying divorce at my hometown for me and my husband. I was wondering whether what i'm doing is correct and are not wasting my time.
I have been separated with my husband for 1 and half years. I apply divorce on Sept 2007 but he not willing to sign. So it needs to separate 2 years until then only can apply to court arrangement.
I had moved to another place and start working and independant without bring together with my daughter. 1st reason is i'm not able to taking care of her on my own as i just start working and don't have any relative or friends at here to rely on. 2nd reason is my husband hide her at somewhere without my notice. He refuse to let me look after her even visit her. After begging and begging, he finally agree to let me visit her after we seperate for half year. With his agrees, i can visit her every 3 months when i go back.
So if one day on court, do i have the chances to win back my child custody as i now at least have a stable income and on the mean time, my husband doesn't. As i know, he seems don't have a stable income and now also delays his housing loan and car loan. And he arrange my kid 24 hours stay at baby sitter house and only go visit her once he is free. I don't think that is good for her.
I had discuss with him before to arrange either i move back to take care my kid or my mum also can help me look after her. But he always refuses us.
So i just wondering, if i currently not stay besides my kid and look after her, will it influences the judge decision on court? Because the salary of my hometown quite low and less job opportunity, so that is why i continue to work at here. But if my husband agree to let me look after her then only i will move back. This i willing to do(doesn't mean back to him). I felt that this is unfair for my daugther as my husband always travelling and busy with his association stuff while he don't have a stable income already. I can't see any future if my daughter under his guardian.
Please give me an advise as I'm so scare to lost my kid and don't what i'm doing now will help or not.
Diana |
| | A: | Dear Diana,
Yes you need to be seperated for at least 2 years, if you want to proceed for a contested petition for divorce, (that is assuming that your husband is not agreeable to a joint petition). However there are exceptions to that rule, whereby a judge may allow a petition to be presented before the 2 years period, however for this instance, you will have to show exceptional circumstances or hardship that u have suffered.
However, before you can proceed for a contested petition for divorce, you first have to apply and obtain a certificate from the Marriage Reconciliation Body. They will call both of you and your husband for 3 times to determine if there is a possibility that the marriage can be reconciled. At the end of the 3rd interview, should they feel that reconciliation is not possible, they will issue a certificate. That certificate is a pre-requisite before filing a contested petition.
My suggestion is that you get started on this process first as sometimes it can take a couple of months before a Certificate is issued.
As to your inquiry on whether you can get custody of your daughter, of course you can apply. The fact that you have been away from her (in my opinion ) may not diminish your chances of gaining custody especially since you have been away trying to seek a better job which would enable you to give a more secure future to your daughter. All these points should be included in your application for custody of your daughter at a future date. Bhawani Manokaran
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Employment Law | | Q: | Wang Fook Pan from Kuala Lumpur |
| | A: | The answer to your 1st Question is No unless show cause letters have been given and a domestic enquiry is held. This will depend on the terms of employment as well as the severity of the breach alleged.
The answer to the 2nd Question is that it will be constructive dismissal if it is a demotion as well as a pay cut. Further, the security of tenure is taken away with the change. There must be a basis for a change whether it is due to redundancy or for some other reason. Would need more information for a clearer reply.
Deborah Kaur
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Others | | | A: | Csus cannot claim from XYZ because no privity of contract, unless there is written agreement saying that XYZ will reimburse.
It is common law principle, a person who is not a party to the contract has no right to sue on the contract and is recognised in our court.
-The principle in Dunlop Pneumatic Tyre Co. Ltd v. Selfridge & Co. Ltd [1915] AC 847 is a clear example on the rule of privity of contract. The House of Lords in this case stated:
... In the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.
Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.
- In Schmidt v. Kepong Prospecting Ltd & Ors [1964] 1 LNS 183 the Federal Court recognized the application of the doctrine of privity of contract in Malaysia that a person who is not a party to a contract cannot take advantage of provisions of the contract. In this case, the appellant assisted one Tan to obtain a prospecting permit where Tan promised to pay the appellant a tribute of 1% of the selling price of iron sold. Subsequently an agreement in 1954 was made between a company and Tan under which the company took over Tan's obligation to pay the 1% tribute. The appellant was not a party to this agreement. In 1955 an agreement was made between the company and the appellant where the company agreed to pay the appellant the 1% tribute. The appellant claimed for the tribute but the company argued that the 1954 agreement was not enforceable as the appellant was not a party to it.
The Federal Court agreed with the company where the 1954 agreement could be enforced only by the company or Tan; who were the only parties to the contract.
Hemly
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Employment Law | | Q: | Resma Raju from Kuala Lumpur |
| | A: | A. Its according to his letter of offer as it will states on how a termination in his company can be affected. He can ask his human resource dept on the standard operating procedure on employment. I have an experience of helping someone to ask and they do give it. There you can see the normal way his company fire anyone whether they suspend first or not.
B. It depend on the salary of the employee whether its more or less than RM1,500 in which if less he can go to any Labour Office and file a claim. If his salary is more, he will need to appoint a lawyer who will help him file in Industrial Court.
Khairul Anuar bin Shaharudin
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Will | | | A: | The distribution % under Distribution Act is as follow:
A stepmother - 25%
2 stepbrothers & 1 stepsister and you - 50% in equal shares a grandmother - 25%
Richard Seow
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Will | | Q: | Angela Jessie from Selangor |
| | A: | You, your sister-in-laws and your children will be beneficiaries of the deceased brother-in-law's estate if the estate form part of your husband and your brother-in-laws' estates. I suggest you seek the advice and professional services of lawyers to administer the estate of the deceased.
Thank you.
Richard Seow
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Will | | Q: | Angela Jessie from Selangor |
| | A: | Generally, the spouse of the deceased child will not be a beneficiary by virtue of the Wills Act 1959. However, if the child survived the parent(s), but died subsequently, then the spouse of the deceased child will be a beneficiary. If the child died before the parent(s), then the spouse of the deceased child will NOT be a beneficiary.
As for the children of the deceased child, they are beneficiaries irrespective of when the deceased child passed away.
I hope the above has answered your question. Moving forward, to avoid further division of the ownership of these properties, I would suggest that the spouse and the children (if above 18) of the deceased child to get their wills done in order not to further worsen the ownership issue.
If you need any assistance in preparing your will, kindly contact 03-7781 1993 or drop us an email at general@rockwills.com.
Richard Seow
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Will | | | A: | Dear Ham,
We do not encourage you to give your joint ban account with your son to your daughter because of the following reasons:
1. If the bank has a survivorship clause which is effective, your son would be the rightful owner of all the moneys in the joint bank account.
2. By virtue of the survivorship clause and the bank own policy in releasing moneys belonging to a decease joint account holder, your son may have a chance to withdraw all the moneys in the joint bank account. If the court eventually rule that the survivorship clause has no legal effect and in your will, you named your daughter as the rightful beneficiary, then it may pose a great challenge to your daughter to get back her money in her brother’s hand.
If you need further clarification on this, please feel free to contact Rockwills at 03-7781 1993. We can arrange a meeting with our experienced and trained professional estate planner to further assist you.
Richard Seow
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Property Law | | | A: | The agreement between the friend and his tenant is not valid as against the landlord if it was made without his consent.
In any case, the sub-tenant was probably on a month to month tenancy and should leave latest in a month. If he does not, the friend has to take action in court. Leong Cheok Keng
Advocate & Solicitor |
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| Note: Click the Question to read the Answer | | Area of Law: Family Law | | Q: | Serene Tan from Outside Malaysia |
| | A: | With reference to Serene Tan's query, in the absence of any order of Court to the contrary, both husband and wife have custodial rights to the child of the family and as such, although the mother deserted the family very early on, she still has a right to have access to the child as was granted by the father. But if she removes the child out of the country, such action may possibly constitute an offence of kidnapping and hence a police report may be made to initiate investigations.
In any event, in this case, the father may lodge a police report as the mother breached the promise to return the child within the agreed time frame but the police may categorize the report as a matter falling within the civil jurisdiction and no further action taken.
It must be borne in mind that there is a rebuttable presumption as pursuant to Sec 88 (3) of the Law Reform [Marriage and Divorce] Act 1976 that custody [ care and control] of a child under the age of 7 should be granted to the mother, which would be a relevant factor for consideration should the mother contest for custody of the child. But the paramount consideration would still be the welfare of the child as pursuant to Sec 88 (2) of the same Act.
Alan Chan Chee Ming
Advocate & Solicitor |
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