Law Reform Marriage and Divorce

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Analysis of Section 88(2) and The Welfare Principle Section 88(2)[1] of the Law Reform (Marriage and Divorce) Act 1976 states that ‘In deciding whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard—

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  1. to the wishes of the parents of the child; and
  2. to the wishes of the child, where he or she is of an age to express and independent opinion.’

Section 88(2) gives the jurisdiction to the court on the matter placing the custody according to the situation. Under Section 88 (2) (a) of the Law Reform (Marriage and Divorce) Act 1976 said that custody of a child can be decided with the regards to the wishes of the parents of the child which is also being emphasize in Section 11 of the Guardianships of Infant Act 1961. However in practice, the application of Section 88 (2) (a) is only relevant when other parties are involved in the custody of the child as usually the custodial battle only happens between parents and no one else. This can be seen in the case of Chuah Thye Peng & Anor v Kuan Huah Oong[2] where a child at the aged of seven was left orphaned and the caregiver was the maternal grandmother after the death of their parents in a plane crash. The paternal grandparents applied for custody of their grandchild. It was then disclosed that the welfare of the infant can be served together by both parties. However the court granted the custody of the child to the paternal grandparents due to religion reasons. The deceased parents’ wishes was for the infant to be brought up with proper guidance in the Buddhism which the paternal grandparents are actually Buddhist. If the custody was given to the maternal grandmother, the wishes of the parents will not be fulfilled as the maternal grandmother was a Methodist (Christian). Section 88(2)(b) of the Law Reform (Marriage and Divorce) Act 1976 indicates that the custody of the child can be decided with the regards to the wishes of the child in condition that the child is of age that is able to express an independent opinion. A child opinion is taken into consideration as it is stated in the UN Convention on the Rights of the Child[3] which can be seen in Article 12. However it is up to the judges to decide based on whether the opinion given by the child is reliable enough to put a weight on the case. The opinion of judges varies accordingly to the situations. In the case of Manickam v Intherahnee[4], an appeal was made to the Federal Court as the previous court didn’t question the opinion given by a 8 year-old child. However, the Federal Court held that the child at the age of 8 years was not capable to express any independent opinion on his preferences due to reasons of that he was in the custody of one parent and his family which favouritism might be an influence towards his judgement. The opinion of the child will only be considered if it is consonant with child’s interest. The judge in the case of Chang Ah May V. Francis Teh Thian Sar[5] said that “‘Now it has been judicially accepted that if a child is old enough to express its own wishes, the court will consider them, not so that it can give effect to those wishes but to be better to judge what is best for the child’s welfare. It must also be remembered that if the child’s own wishes are so contrary to its long-term interests, the court may feel justified in disregarding them altogether[6].” The Welfare Principle The Law Reform (Marriage and Divorce) Act 1976 and also the Guardianship of Infant Act 1961 usually becomes the dominant law in deciding the proceedings concerning a child’s upbringing or the administration of a child’s property. The Child Act 2001 dictates the court’s overriding consideration shall lie in the welfare of the child. The court has to make decisions and choices in the favour of the welfare of the child before any other matters to be decided. This mean welfare of the child bring beneficial to help to pursue to the right way for the child. There are many example of child that would be needing for welfare principle such as those has been neglect, forsake or exposure of children as stated under Chapter 3 in Child Act 2001. The victim(s) should be given more antecedence in order to make them feel safer around each other. In proceedings involving family law, a child is defined as an individual under the age of 18 and therefore. In a definitive English cases such as J. & Anor. V C. & Ors, the ‘overriding consideration of a children welfare defined as … a process whereby, when all the relevant facts, relationship, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighted, the course to be followed will be that which is most in the interests of the child’s welfare[7].’ In a decided Malaysian case of Mahabir Prasad v Mahabir Prasad, the judge drafted the factors that must be regarded in order to decide on the question of the welfare of the child as the paramount consideration. Ajaib Singh J (as he then was) said: It is well established that in an application for custody of a child the court will in exercising its discretion regard the welfare of the child concerned as the first and paramount consideration. It is equally established that this does not mean that the court will not take other relevant factors into consideration. Indeed in order to decide on the question of the welfare of an infant as of paramount importance it is necessary to take into account such matters as the conduct of the parties, their financial and social status, the sex and age of the child, his wishes as far as they can be ascertained depending on the age of the child, the confidential reports which a social welfare officer may put up and whether in the long run it would be in the greater interest, welfare and happiness of the child to be with one parent rather than with the other. But always it is the welfare of the child which is of paramount importance’[8]. However the meaning of welfare is not properly defined in the Child Act 2001, hence a proper guidance is provided to show the relevant considerations which are to take to place by the judge. In the circumstance as mentioned, a court should view in particular to:

  1. the discoverable wishes and feelings of the child involved (considering the aspect of his age and understanding)
  2. his emotional, physical and educational necessity
  3. the possible consequence on him of any changes in his conditions
  4. any damage which he has suffered or he is at the possibility of suffering
  5. his age, sex, family history or any characteristics of his which might interest the court to consider it relevant to the proceedings
  6. the ability of each of his parents or any other party in relation to whom the court conceives the question to be relevant, is of meeting his needs;
  7. the range of powers which are conferred to the court under the Act concerning the proceedings.

This guideline’s main aim are to achieve uniformity in the method of dealing with the proceedings of the court.

[1] Law Reform (Marriage and Divorce) Act 1976 s 88(2) [2] [1978 ] 2 MLJ 217 [3] ‘Convention on the Rights of the Child’ (United Nations Human Rights ) <> accessed 26 December 2014 [4] [1985] 1 MLJ 56. [5] [1991] 1 CLJ 309. [6] Ibid., pp. 312-313 [7] [1970] AC 668, pp.710-711 [8] [1982] 1 MLJ 189.

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Law Reform Marriage and Divorce. (2017, Jun 26). Retrieved December 3, 2022 , from

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