Justice Evrol Mariette Peters said although the remarriage may amount to a change in circumstances, determining whether it was material enough to merit a variation of the terms governing ex-spousal maintenance required a more nuanced examination.
Peters said the entry by the ex-husband, anonymised as PAN, into a new marriage did not alter his financial responsibilities in the original spousal maintenance arrangement.
“These obligations were based on the financial needs and circumstances of both parties at the time the (maintenance) terms were agreed upon,” the judge said when dismissing PAN’s application for a variation order.
Peters said the rationale behind such terms was to ensure that the ex-wife, anonymised as NAN, who may have become financially dependent during the marriage, continued to receive the necessary support.
“This consideration remained pertinent regardless of PAN’s new marital status,” she said in the 21-page judgment released on July 28.
The facts of the case revealed that PAN and his ex-wife NAN were judicially separated in 2000, with the husband agreeing to pay the wife RM5,000 monthly as maintenance.
The couple was divorced in 2015, with PAN agreeing to contribute the same amount as maintenance.
In 2017, he attempted to vary that order to reduce his monthly maintenance payments to RM2,500. The application was dismissed.
Early this year, the PAN returned to the court seeking a variation – this time to RM1,000 a month, citing among others his advanced age of 78, declining health and the need to provide for his new family, which included funding his daughter’s education overseas.
The daughter, now 22, was born as a result of his relationship with his current wife while still being married to NAN.
PAN’s lawyers argued he needed to channel his funds to support the daughter’s education in Australia, which he claimed was costing him RM10,000 a month.
Peters said courts generally do not view voluntary changes in financial circumstances as grounds for modifying the spousal maintenance terms.
The judge said PAN’s decision to send his daughter overseas, despite having the option to choose a more affordable local education, did not constitute an involuntary or unforeseen change in his financial situation.
“If PAN had refused to ‘cut his coat according to his cloth’, it would be unfair for NAN to be at the receiving end of PAN’s action.
“The court must ensure that the spousal maintenance terms, which were designed to provide financial stability to NAN, are upheld unless there was a substantial and involuntary change in circumstances,” she added.
Peters said PAN’s ability to set aside RM10,000 monthly to fund his daughter’s education overseas had significantly compromised the credibility and truthfulness of his claims.
He had asserted that his income had depleted and that he was unable to fulfil his financial obligation towards the ex-wife.
“The court is not in a position to pontificate on PAN’s choice to remarry and start a new family,” the judge said.
However, while that was PAN’s right, Peters said it did not automatically justify reducing spousal maintenance for NAN.
“Therefore, PAN’s financial burden to fund his daughter’s overseas education could not amount to a material change in circumstances to warrant a variation of the terms of the monthly spousal maintenance,” she added.