INTRODUCTION

Child maintenance is defined in both United Kingdom(UK) and Malaysia as a regular

financial support that assist with covering the day-to-day expenses of raising the child
after the parents divorced. Even though the parents does not see their children, both
will still be financially accountable for their upbringing.

In UK, child maintenance is governed by Child Support Act 1991(CSA 1991) and
was administered by the Department of Work and Pensions (DWP), and Child
Maintenance Service (CMS). Meanwhile, in Malaysia, child maintenance is
governed by Married Women and Children Maintenance Act 1950 ( MWCMA)
and Married Women and Children (Enforcement of Maintenance) Act
(MWCEMA) 1968 for non-Muslim , Islamic Family Law (Federal Territories)
Act 1984 (IFLFTA) for Muslim and Law Reform (Marriage and Divorced) Act
1976 (LRA).
 ENGLISH LAW

The CSA 1991 defines a child as a person under the age of 16, or an individual
between the age of 16 and 19 who is either enrolled in a full-time non-advanced
education or, eligible for child benefit. The non-advanced education refers to
secondary education, which involves doing A-levels or other post-16 courses but does
not include university education.

In UK, according to the CSA 1991, child maintenance is determined by court on a

case-by-case basis. Formulaic approach would be use and it will be administered by
the Child Support Agency which was now had been take over by CMS. Section 1(2)
CSA 1991 provides such that an absent parent is presumed to have satisfied his
commitment to support a qualifying child by making periodic payments of
maintenance to the child in the amount and at the intervals specified by the CSA
1991. Section 1(3) of CSA 1991 then provides that when a maintenance calculation is
established, it is the responsibility of the absent parent for whom the calculation is
prepared to make those payments.

Meanwhile, according to Section 1(4) of CSA 1991, the person with care (PWC) or
the absent parent may request a maintenance evaluation from the Secretary of State.
In the context of child support, a person is a PWC if they are the person with whom
the child lives, give day-to-day care for the child (either alone or in collaboration with
another individuals), and do not fit within a predefined type of person, such as a
parent, guardian, or someone specified in a Child Arrangements Order as a person
with whom the child is to reside. As for "absent parent", it is a legal phrase that
describes how some parents relate to or do not relate to their children. These parents
are the non-custodial parents who do not live with the child.

Only an absent parent is required to pay child support. If both parents agree, child
maintenance can be handled privately between parents through the CMS. Divorcing
parents have the option of incorporating a child support arrangement into a court
order known as a consent order. The agreement then will explain on how they are
going to divide up their assets.
When a parent is unable or unwilling to pay enough child support, an application can
be filed to the CMS. Under the CSA 1991, the CMS has the authority and
responsibility to calculate and review child maintenance, as well as collect and
enforce payment. When financial provision is sought through the courts, it may take
the form of maintenance or a lump sum payment. Orders for property can also be
made to or for the benefit of children.

In addition, According to the Children Act 1989, the Court should prioritise a child's
well-being. A parent, guardian, special guardian, or anyone with whom a child resides
under a Child Arrangements Order can make an application to the Court for financial
assistance for the child. A child arrangements order is typically used when parents
cannot agree on how to divide custody of their children. The order's objective is to
guarantee that the child's well-being comes first and foremost.

During the Child Arrangements Order hearing, the court may consider some factors
such as the wishes of the child, the child’s needs, whether the child is suffering from
any abuse or neglect, or how the changes to arrangements will be impacting the child.
The court can make order such as the ‘settlement of property’ order where the parents
home will be sold and the proceeds will be divided or it could also become the child’s
property. The court also could make a ‘transfer of property’ order where the property
will be transferred to the receiving parent or the guardian or the child. Besides that,
the court could also make orders for periodical payments, secured periodical
payments, or lump sum order.

This could be seen in the case of Re P(A Child)( Financial provision)[2003] where
a mother sought financial assistance from a multi-millionaire for her child. The High
Court was concerned that the rule did not provide for an unmarried partner through
the backdoor. The mother's right to an allowance as the primary caretaker should be
examined but not decreased by the lack of a direct legal claim. The court should
recognise the obligation, and frequently sacrifice, of the unmarried parent (usually the
mother) who was to be the child's primary caretaker. The carer should have authority
over a budget that reflects her and the father's social and financial positions. As a
result, the mother received a £1 million house fund, £100,000 for interior decorating,
and £70,000 in annual payments.
Meanwhile, in Lord Lilford v Glyn: CA 1979, the judge had exceeded the Act's
authority, and the appeal was successful. Children have the right to a proper
environment, an upbringing, and an education that is fit for their family's
circumstances and way of life. However, unless they have a unique need, they are not
eligible to long-term support into maturity. In this case, the priority is only to be given
to the child's well-being throughout his or her minority. This maintains the previously
well-established idea that orders for children should be tied to their reliance and
should not, in the absence of particular needs such as mental or physical impairment,
provide for continued care into maturity.

Furthermore, in UK, if a person designated as the absent parent disputes that he (or
she) is the parent of a qualifying child, the CMS cannot calculate maintenance unless
paternity can be proven. The CMS may, however, under Section 26(2) of CA 1991,
infer paternity and calculate maintenance when the alleged parent has adopted the
child, has been proclaimed to be the parent by a declaration of parentage issued under
Section 55A of the Family Law Act of 1986 (Declaration of Status), or has been
determined to be the father by the court.
If a maintenance calculation is determined based on one of the foregoing
presumptions, a person could challenge the calculation on the grounds that he or she
is not the parent. The court has the authority to order a scientific test to determine
parentage, and the CMS also offers optional DNA testing.

The calculation of maintenance is based only on the absent parent's net income or
benefit status, with no regard for the child's age or specific requirements. The amount
of child maintenance is determined by variables such as the number of children who
qualify for child maintenance, the income and circumstances of the absent parent, and
the number of any relevant 'other child' living with the absent parent. In most
circumstances, maintenance is calculated as a percentage of the absent parent's net
weekly income (income after deducting National Insurance, tax, and pension
payments). The income of the PWC or either individual's current partner is not
considered.
There are five rates of maintenance and pay based on the circumstances of the absent
parent: the Basic Rate, the Reduced Rate, the Flat Rate, the Nil Rate, and the Default
Rate. The rate is determined by the absent parent's gross weekly income. In most
circumstances, the standard rate applies. However, if the absent parent earns little or
receives specific benefits, the reduced rate or flat rate applies. Special rules apply in
unusual circumstances. For example, if child (or children) care is shared, the level of
support paid by the absent parent is decreased.

Subsequently, where there are relevant 'other children' living with the absent parent,
the absent parent pays less child support. Hence, if there is one relevant other child,
the absent parent's income is decreased by 12%, 16% if there are two relevant other
children, and 19% if there are three or more relevant other children.

The absent parent may also request that certain specific expenses (such as contact fees
or costs incurred as a result of a relevant other child's long-term sickness or
impairment) be included in the calculation of maintenance due. On the other hand,
credit card bills, company debts, fines, some loans, and obligations related to divorce
or separation are not considered prior debts. Except in the event of expenditures
originating from a relevant other child's long-term sickness or disability, the
exceptional expenses must exceed a certain amount each week.
 MALAYSIAN LAW

In contrast, for Malaysian law, there is no provision in civil law that mandates the
parent to give maintenance if the kid is pursuing post-secondary education.
However,The Law Reform (Marriage and Divorce)(Amendment) Act 2017
amended Section 95 of the LRA with effect from 15.12.2018, extending the duration
of payment of maintenance for a child who continues to pursue higher education or
training to the completion of the child's high education or training. On the other hand,
according to Islamic Family Law, the maximum age for a child to be eligible to
support is 18 years old. It is also said that if the child is pursuing university education,
a claim for educational expenditures can be filed against the parent in a Shariah court.

As mention before, MWCMA 1950 and the MWCEMA 1968 are Malaysian
legislation that protect the rights of a non-Muslim wife and children. In principle, an
application for child support under these provisions can be made at any time. Both
Acts state that men are responsible for the upkeep of their children and provide the
court the authority to create and enforce a monthly allowance if he neglects or refuses
to provide for his wife, legitimate and illegitimate children.

The MWCMA 1950 was enacted to address circumstances in which a man refuses to
pay maintenance, which is exacerbated when the guy is imprisoned (Mimi
Kamariah, 1999). When marriages fail, maintenance difficulties become a major
source of friction. This Act states that only the wife and children are entitled to
support. A Court may order a parent who neglects or refuses to support his kid or wife
to provide a monthly allowance in proportion to his means that the Court considers
equitable and reasonable under the said Act.

The lack of provisions in MWCMA 1950 was the impetus for the passage of
MWCEMA 1968. The change in the title of the Act indicates that the emphasis has
switched from authorising courts to award maintenance orders to also empowering
courts to execute the orders. The new Act empowers the court to enforce the
judgement by attaching the wages of the spouses and personal assets. Enforcement
through wage attachment varies depending on the nature of the spouses' employment
situation.
If the spouse is working under a contract of service, either public or private, the court
can require the employer to take maintenance from the spouse's wage and provide it
to the concerned spouse and child under Section 4 of the MWCEMA 1968. On the
other hand, under Section 13 (4) of the MWCEMA 1968, for couples who are under
contractual for services, the court can order a forfeiture of the non-compliant spouse's
personal assets. If the personal assets are insufficient to fulfil the court's support order
or any arrears, the court may impose a committal procedure, which is a one-month
incarceration of the defaulting spouse.

Although the new Act has resulted in certain beneficial developments in the
administration of maintenance for spouse and children, it has also resulted in new
issues and disputes because the new Act does not apply to East Malaysia. This has
caused controversy since maintenance orders are issued under the MWCMA 1950,
which applies to both East and West Malaysia, however enforcement is handled
differently due to the MWCEMA 1968 is only applicable to West Malaysia. This
contradiction was highlighted in the case of Maria Anak Pupot (F) v Jacob Sim
(M). Thus, having a legislation that only applies to a portion of Malaysia contradicts
the necessity for a nation's laws to be uniform. A fundamental problem that must be
addressed by amending the present law to guarantee consistency of protection.

Meanwhile, as for the Muslim, child maintenance is governed by the IFLFTA 1984
which is in accordance to Shariah. Shariah establishes standards for determining what
is adequate (kifāyah) and acceptable (ma'ruf) for the sustenance of wives and
children. IFLFTA 1984 provides that the maintenance of one's wife and child is
determined based on the parties' means (capabilities) and needs. The 'means' is
genuinely a consideration of the ma'ruf criteria, while the 'needs of parties' is a
consideration of the kifāyah criterion as stated by fuqaha(expert in Islamic Law).
However, when it comes to interpreting what is regarded in both criterion (kifāyah
and ma'ruf), this study discovers that there is no explanation or information about any
handbook or guidelines to be utilised by judges to assess both criteria for the parties
involved as specified by Shariah.
Due to the vagueness of these laws and the lack of precise guidance, Malaysian
judges interpret the provisions based on their understanding of the evaluation
techniques to decide maintenance. In Sarah binti Hamzah v Adam Stanislaw
Naglik@ Adam bin Abdullah (2018), a case heard in the High Court of Shah Alam,
the plaintiff sought interim maintenance of RM16,000 for the first child to continue
their education at the University of Leiden in the Netherlands, worth to RM8700 per
month, and RM4505 per month for the second child. The plaintiff's salary was
RM27000, and after subtracting his costs of RM18000, the remaining was RM9000.
The court reasoned that the child should be provided with what he or she requires at
the level of his or her daruriyyat(necessities) and hajiyat(needs), which are required
for survival, rather than tahsiniyyat(luxuries), which is the finished item in life. The
court also determined that the plaintiff's request was ridiculous and unreasonable.

Since the plaintiff failed to specify the daruriyyat and hajiyat products required by the
children, the court preferred the plaintiff's offering to maintain both children for
RM8000 per month. The references establishing the amount's reasonableness are
missing from the written case report, but the court considered that RM8000 was fair
for the children's requirements at the time and according to what the respondent could
pay. As a result, there was no thorough description of how the monthly payment of
RM8000 for both children was decided in the decision, as well as if the criterion of
kifāyah was taken into account.

Meanwhile, in the case of at Siti Norzatulshima bt Abdullah v Abdul Aziz bin Mat
Hassan (2015), the plaintiff appealed a Shariah High Court ruling that established a
rate of support for her children that was contradictory to their ages, requirements, and
current costs. The plaintiff was dissatisfied with the previous verdict, claiming that the
judges failed to calculate the amount of maintenance based on the children's
requirements, ages, and current costs. As a consequence, the Appeal Court calculated
the real amount required by the children based on their lifestyle in Shah Alam,
Selangor, where the plaintiff and her children reside.

In addition, when examining the kifāyah criterion, courts appear to prioritise the
payer's (father or husband's) condition above the demands of the wife and children.
This was addressed in the 2010 case of Sri Utama Dewi Kasman v Abu Bakar bin
Abdullah. Although the judge in this instance considered the wife's and child's
fundamental requirements, the husband's capacity to pay nevertheless had an impact
on the decision.

Furthermore, it is also provided that if a man proclaims himself impoverished or if the

plaintiff (who claims the support) is unable to show relevant proof, the judge will
lower the maintenance at the request of the defendant (payer). It is possible that the
plaintiff's rate is merely enough for survival. When courts cut maintenance based on
the defendant's incapability to pay the amount demanded by the plaintiff, efforts to
provide basic requirements are less successful.
 COMPARISON BETWEEN ENGLISH LAW AND MALAYSIAN LAW FOR
CHILD MAINTENANCE

After discussing things regarding child maintenance law in both UK and Malaysia, it
can be seen that there is a major difference between the two. The Family Law
(Maintenance of Spouses and Children) Act (FLMSCA) 1976 protects women and
children in the UK. In contrast to Malaysia, where only women may seek for
maintenance, Section 5(1) of the Act states that any spouse can apply. Besides that,
Section 9A of the Act provides for the implementation of maintenance orders. Non-
compliance with court orders for maintenance is considered contempt of court, and
the court has power to impose appropriate punishment on the defaulter. Section 10 of
FLMSCA 1976 also includes provisions for the attachment of wages.

In UK, depending on the threshold of the periodic sum awarded, parties can petition
to the courts to enforce the order in District Court, Circuit Court, or High Court,
unlike in Malaysia, where claims for maintenance and enforcement of maintenance
are only handled by the High Court. This had put more works for the high court.

Furthermore, there is still inconsistency in regards to Malaysian Law for child

maintenance. As previously discussed, MWCMA 1950 covers both East and West
Malaysia, but MWCEMA 1968 just covers Peninsular Malaysia. The woman can
apply to the court for an attachment of wages order under the 1968 Act to guarantee
that the husband does not fail on payment. The Court ruling requires the employer to
take the maintenance payment from the husband's paycheck so that it can be delivered
directly to the wife through the court. The 1968 Act also stipulates penalties for
failure to comply with attachment of earnings orders, with the defaulting spouse
facing imprisonment for a term not exceeding one year or a fine not exceeding one
thousand ringgit, or both. In contrast, the 1950 Act has no such provision requiring
the court to issue an attachment of earnings order. The 1950 Act simply specifies that
the Court may order a monthly allowance to be granted to the wife or child in
proportion to such person's means as the court deems appropriate. In UK it is more
consistent as it is regulated by one specific Act namely CSA 1991.
Additionally, UK had bodies to administered and review child maintenance, as well as
collect and enforce payment which are the CMS and DWP. However, in Malaysia,
there is no specific body to administered the child maintenance order. Hence, there
are clear difference between UK and Malaysia law for child maintenance.

CONCLUSION
In conclusion, UK law is more consistent than Malaysia law regarding child
maintenance. Malaysian law is more ambiguous in the usage of terminology in both
MWCMA 1950 and MWCEMA 1968, contradictions between the two Acts, and a
lack of consistency in the implementation of maintenance orders between East and
West Malaysia. Therefore, most of the scholars agree that improvements in this area
of legislation are critical to ensuring that women's and children's rights in Malaysia
are consistent with those of other countries throughout the world.

(3233 words)
 BIBLIOGRAPHY
Article
Nora Abdul Hak, Roslina Che Soh, Noraini Hashim, ‘Right of a Child to Maintenance:
Harmonising the Laws in Malaysia’, International Islamic University Malaysia, Kuala
Lumpur, Malaysia.

Thambapillay, S, Jal Zabdi Mohd Yusoff 2012, ‘Proceedings of International

Conference on Public Policy and Social Science’, UiTM Melaka, Malaysia.

Case law

Lord Lilford v Glyn: CA 1979 1 WLR 78

Maria Anak Pupot (F) v Jacob Sim (M) Kch 74-31-2011

Re P(A Child)( Financial provision)[2003] EWCA Civ 837

Sarah binti Hamzah v Adam Stanislaw Naglik@ Adam bin Abdullah (2018) 46 JH
145

Siti Norzatulshima bt Abdullah v Abdul Aziz bin Mat Hassan (2015) 42 (1) JH

Sri Utama Dewi Kasman v Abu Bakar bin Abdullah (2010) 30 (1) JH 111-129

Internet

Holley,C(2023), Child maintenance: the statutory scheme explained, Farrer&Co,

United Kingdom, accessed on 16.09.2023,
<https://www.farrer.co.uk/news-and-insights/child-maintenance-the-statutory-
scheme-explained/ >

Waldron,D 2023, New Child Maintenance Laws You Need To Know About, Holland
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Journal
Syuhaeda Aeni Mat Ali, Azhani Arshad 2014, Global Journal of Business and Social
Science Review, Vol. 2, No.1, page 11-17.
Bahiyah Ahmad, Raihanah Hj. Azahari, Asmak Ab Rahman,Mazni Abdul Wahab
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Heama Latha Nair , Saroja Dhanapal, Jenita Kanapathy 2014, European Journal of
Business and Social Sciences, Vol. 3, No. 4 , ISSN: 2235 -767X, page 257-272.

Legal Body

Department of Work and Pensions (DWP)

Child Maintenance Service (CMS)

Legislation

Children Act 1989

Child Support Act 1991

Family Law Act of 1986 (Declaration of Status)

Family Law (Maintenance of Spouses and Children) Act 1976

Islamic Family Law (Federal Territories) Act 1984

Law Reform (Marriage and Divorced) Act 1976

The Law Reform (Marriage and Divorce)(Amendment) Act 2017

Married Women and Children Maintenance Act 1950

Married Women and Children (Enforcement of Maintenance) Act 1968

Thesis

Thambapillay, S 2017, ‘A Critical Analysis of the Statutory Framework on

Maintenance of Non-Muslim Children and Young Persons in Malaysia’, Degree
Thesis, University of Malaya, Kuala Lumpur.