This document provides an overview of the law on maintenance for children and equal responsibilities between parents in different jurisdictions. It begins with definitions of maintenance from legal and Islamic sources. It then outlines the position in international law and conventions, before comparing the laws in Malaysia, the UK, Australia, Indonesia, and Islamic law principles. Key points covered include authorities and obligations for child maintenance, applicable ages, formulas for determining amounts, and treatments of shared custody arrangements.

1. THE LAW ON MAINTENANCE
FOR CHILDREN-EQUAL
RESPONSIBILITIES BETWEEN
PARENTS
NAME : WAN NURUL HAYYU BINTI W. MAHMOOD
MATRIC NUMBER : G1817684
MASTER OF COMPARATIVE LAWS
SEM 1 2018/2019

2. OUTLINE OF PRESENTATION :
 DEFINITION OF MAINTENANCE
 AUTHORITIES OF MAINTENANCE
 POSITION IN CONVENTION ON THE RIGHTS OF THE CHILD
 POSITION IN MALAYSIA
 POSITION IN UNITED KINGDOM
 POSITION IN AUSTRALIA
 POSITION IN INDONESIA

3. DEFINITION OF MAINTENANCE
The Osborne Law Dictionary : the supply of the necessaries of life for
a person.
Under Islamic law : all things which are necessary to the support of life
like food, clothing and lodging.
Faridah Hanim Bt Omar v Abd Latiff Ashaari : sustenance for all
necessary things such as food, clothing, home and so on.

4. AUTHORITIES
At Talaq 7 : In all these respects, let him who has ample means spend in
accordance with his amplitude; and let him whose means of subsistence are
scanty spend in accordance with what God has given him: God does not burden
any human being with more than He has given him - [and it may well be that]
God will grant, after hardship, ease.
Al-Baqarah 233 : In such a case, it is incumbent upon him who has begotten the
child to provide them (i.e. divorced women) their sustenance and clothing in a
fair manner. But none shall be burdened with more than he is able to bear;
Hadith narrated by Aishah that Hindun binti Utbah said: “O Rasulullah, Abu
Sufyan is a stingy man. He did not give my children and me sufficient amount of
maintenance unless I took it out of his knowledge. Rasulullah saw said take what
is sufficient for you and your family in a good manner.”

5. Position in United Nation Convention on Rights of the Child (UNCRC)
Article 18 : Parental responsibilities
1. States Parties shall use their best efforts to ensure recognition of the principle that
both parents have common responsibilities for the upbringing and development
of the child. Parents or, as the case may be, legal guardians, have the primary
responsibility for the upbringing and development of the child. The best interests
of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present
Convention, States Parties shall render appropriate assistance to parents and legal
guardians in the performance of their child-rearing responsibilities and shall ensure the
development of institutions, facilities and services for the care of children.
3. States Parties shall take all appropriate measures to ensure that children of working
parents have the right to benefit from child-care services and facilities for which they
are eligible.

6. POSITION IN MALAYSIA

7. MUSLIM NON-MUSLIM
DUTY S.72 of IFLA : duty of a man to
maintain his children, whether they
are in his custody or the custody of
any other person
S.93 of LRA 1976 : Duty of father to
maintain the children
EXCEPTIONS S.72(2) duty of a person liable under
Hukum Syara', to maintain or
contribute to the maintenance of
children if their father is dead or his
whereabouts are unknown or if and
so far as he is unable to maintain
them.
S.93(2) of LRA 1976: empowers the
court to order a woman to pay or
contribute towards the maintenance of
her child where it is satisfied that
having regards to her means it is
reasonable so to order
DURATION S.79 of IFLA : shall expire on the
attainment by the child of the age of
18 years, but the Court may, on
application by the child or any other
person, extend the order for
maintenance to cover such further
period as it thinks reasonable, to
enable the child to pursue further or
higher education or training.
S.95 of LRA 1976 : expire when the
child attains the age of 18, or where
the child is under a physical or mental
disability, on the ceasing of such
disability

8. Sivajothi a/p Suppiah v Kunathasan a/l Chelliah [2006] 3 MLJ 184,
the court came up with a strong statement that “ it is a settled law that it
is the duty of the father to maintain the standard of living the children
had enjoyed in the past i.e., during the existence of the marriage.
In Lau Hui Sing v Wong Chuo Yong [2008] 5 MLJ 846, the court
stressed that it has been an accepted norm that the duty to maintain falls
on the father.
Failure to comply [Section 12 (1) and (2) of Married Women and
Children (Enforcement of Maintenance) Act 1968 (Revised 1988)]
they shall be liable on conviction to imprisonment for a term not
exceeding one year or to a fine not exceeding one thousand ringgit or to
both. However, there shall be a defence for a person charged with failing
to comply to prove that he took all reasonable steps to comply with the
attachment of earnings order to which the failure relates

9. Formula in Deciding Amount to be Awarded for Maintenance of Children
by Family Support Division in Department of Islamic Judiciary 2009
No. of
Children
Rate (%) (RM)
1000 1500 2000 2500 3000 3500
1 23% 230 345 460 575 690 805
2 33% 330 495 660 825 990 1155
3 40% 400 600 800 1000 1200 1400
4 and above 53% 530 795 1060 1325 1590 1855

10. Nor Halwani v Muhammad Fathil [2017] 3 SHLR 59 :
The plaintiff and the defendant were married on March 8, 2002 and had four daughters. In the present action,
the plaintiff filed a claim for child maintenance under s 73 of the Islamic Family Law (State of Selangor)
Enactment 2003.
The issues for the court’s determination were: (a) whether the defendant was a person who was liable, or not,
to bear maintenance of a child based on Hukum Syarak and the law; (b) whether the defendant was
financially capable of providing the maintenance of the welfare and educational needs of the children;
Court held :
It was clear that the responsibility to maintain the child was on the shoulder of the father.
The defendant was able to provide for the maintenance of the children in accordance with Kitab Fiqh and
Islamic Law. It was a norm and custom for a doctor to earn more than RM5,000 on a basic salary by grade or
the grade such as the defendant. In fact the job comes with other additional income and was generally
accepted. The defendant was never declared a bankrupt and had the capacity to bear all the needs of the
children. The defendant also acknowledged that he was only supporting his own needs and had no new or
new family obligation
the court ordered: (a) to compel the defendants to pay the monthly maintenance of RM2,000 each month
from March 2012 to the next; (b) payment of maintenance shall be made by holding the defendants' monthly
income (monthly salary deduction), the latest by the 30th of each month and deposited with the plaintiff's
CIMB account; (c) the entire school’s annual tuition and fees are fully borne by the defendant;

11. POSITION IN UNITED KINGDOM

12. Child Support Act 1991
1. The duty to maintain
(1) For the purposes of this Act, each parent of a qualifying child is responsible for
maintaining him.
(2)For the purposes of this Act, an absent parent shall be taken to have met his
responsibility to maintain any qualifying child of his by making periodical payments of
maintenance with respect to the child of such amount, and at such intervals, as may be
determined in accordance with the provisions of this Act.
(3)Where a maintenance assessment made under this Act requires the making of
periodical payments, it shall be the duty of the absent parent with respect to whom the
assessment was made to make those payments.

13. 3. (1) A child is a “qualifying child” if–
(a) one of his parents is, in relation to him, a non-resident parent; or
(b) both of his parents are, in relation to him, are non-resident parents.
The parent of any child is a “non-resident parent” in relation to him, if–
(a) that parent is not living in the same household with the child; and
(b) the child has his home with a person who is, in relation to him, a person with care.
A person is a “person with care”, in relation to any child, if he is a person–
(a) with whom the child has his home;
(b) who usually provides day to day care for the child (whether exclusively or in conjunction with
any other person); and
(c) who does not fall within a prescribed category of person.

14. Under UK law, a person might be responsible for child maintenance if they:
• Are the child’s biological parent
• Are the child’s adoptive parent
• Are the legal parent because of donor insemination or fertility treatment, or
• Are the legal parent under a parental order if they were conceived by a
surrogate mother
• A person who is not the child’s parent, perhaps a relative or friend, but
provides day-to- day care for someone else’s child for at least 104 nights a
year, can also apply for child maintenance from either or both of the child’s
parents
Period of payment
The paying parent is normally expected to pay child maintenance up until the child
turns 16, or 20 if they’re still in school or college doing A-levels, highers or something
equivalent

15. Child Maintenance Rate under Child Support
Maintenance Calculation Regulations 2012
There are five rates of maintenance and non-resident parent
will pay whichever suits their individual circumstances.
1) Nil rate
2) Flat rate
3) Reduced rate
4) Basic rate
5) Basic plus rate

16. Flat rate
Non-resident parent will pay a flat rate of £7 per week child maintenance if their gross weekly
income is less than £100 a week or if they, or their partner they live with, receive any of the
benefits listed below.
The £7 will normally be taken from either non-resident partner or their partner’s benefit if it is
paid by the Department for Communities (DoC) however, if it is not and is paid for example
through an Armed Forces Scheme, they should informed CMS.
• Income Support
• Income-based Jobseeker’s Allowance
• Income-related Employment and Support Allowance
• Pension Credit
• Contribution-based Jobseeker’s Allowance
• Contribution-based Employment and Support Allowance
• Category A, B, C or D Retirement Pension
• State Pension
• Incapacity Benefit

17. JOINT RESIDENCY
Number of nights of shared care
each year (shared care bands)
Reduction of child maintenance (for
each child with shared care)
52 to 103 nights 1/7th
104 to 155 nights 2/7ths
156 to 174 nights 3/7ths
175 nights or more
½ (50 per cent) plus an extra £7 a week
cut for each child in this band

18. POSITION IN AUSTRALIA

19. Legislation and Policy
1) Family Law Act 1997
2) Child Support (Assessment) Act 1989
3) Child Support (Registration and Collection) Act 1988
4) Child Support (Assessment) Regulations 2018
5) Child Support (Registration and Collection) Regulations 2018
Eligibility for child maintenance
(i) Legal parents
- One is married to the other parent when the child was born
- One is named on the child’s birth certificate as a parent, it can be Australian or from a
reciprocating jurisdiction
- One is named in adoption papers as a parent
- A male and lived with the mother any time between 20 to 44 weeks before the child’s birth
- a clear statement from a relevant court identifies one as the child’s parent, or
One is a parent under the Family Law Act 1975 - this covers artificial conception and surrogacy

20. Statutory declaration:
- One states that they are the child’s parent, or
- made by the other parent stating one is named on the child’s birth certificate, or
- made by a non-parent carer stating one or both parents are named on the child’s birth certificate
(ii) Non parent carers
If someone cares for a child and they are not their parent, they may be able to receive child
support from one or both parents.
One can apply for non-parent carer child support if all of these matters are proven:
- They care for the child for at least 128 nights a year
- They are not the partner of either of the child’s parents
- They do not have joint care with either of the child’s parents
- the people they are asking for child support from are:
- the child’s parents
- living in Australia or a reciprocating jurisdiction on the day they apply, and
- the child’s parents have agreed to them caring for the child - they do not need to agree to this if
it would be unreasonable for them to care for the child

21. Family Law Act 1975
- responsibilities is not changed by separation & divorce/ the re-marriage of one
or both parents
- both parents are responsible for the care & welfare of their children until they
attained 18 years old but can be more if it is necessary to enable the child to
complete their education, or because the child has a physical or mental
disability (Section 66L)
Section 66E : does not allow a court to make a child maintenance order if the
Registrar could make a child support assessment for the child. This means that
most of the child support matters are dealt with under the Child Support
(Assessment) Act 1989.

22. Section 152 of CS(A) A 1989 : If the Registrar is notified of a court order that appears to contravene section
66E, the Registrar will advise both parents that they may apply for an assessment. If the Registrar accepts an
application for assessment the court order will cease to have effect from the start date of liability of the
assessment
Registered – will not be deregistered – advise to continue with order-unless either parent apply for
assessment
Section 66C : Either one or both of the child's parents can apply for child maintenance
Section 66 D : The child's step-parent can also apply for child maintenance
Under the FLAct, a child maintenance order will end:
1) if the child dies (section 66U),
2) if the payer dies, unless the order expressly provides for it to continue after the death of the payer (section
66U),
3) if the payee dies, unless the order expressly provides for it to continue after the death of the payee and
nominates a person to whom those payments are to be made (section 66U),
4) if the child is adopted, marries or starts a de facto relationship (section 66V),
5) where the child maintenance order is for a child under 18, when the child turns 18 unless the order says
that it will continue after that (sections 66L and 66T),
6) where the child maintenance order is for a child aged over 18, which was made to enable the child to
complete his or her education, when the child ceases education (section 66VA), or
7) where the child maintenance order is for a child aged over 18, which was made because the child has a
physical or mental disability, if the child ceases to have the disability (section 66VA).

23. Management of Child Support
1. Self-management (parents decide the way they want to pay)
2. Child Support Assessment (apply to the Department of Human Services Child
Support)
3. Child Support Agreement
(i) limited (agreement between parents or carers about child support for limited amount
to be paid, no requirement for legal advice, equal or more than assessment amount)
(ii) binding (a written agreement between parents or carers about child support
payments. Both parents must sign it, can only be made if they had legal advice, more or
less than assessment amount)
4. Court Order for Child Support

24. Assessment formula (Section 5 of CSA)
the annual rate of child support payable is calculated using 1 of 6 formulas (section 35B).
The 8 Steps of the Basic Formula
The Registrar must follow the 8 steps of the basic formula (section 35) in making an assessment
when neither parent has another child support assessment and only the parents provide care for
the children. This is referred to as a single case assessment.
Step 1 - Child support income
Step 2 - Combined child support income
Step 3 - Income percentage
Step 4 - Percentage of care
Step 5 - Cost percentage
Step 6 - Child support percentage
Step 7 - Costs of the child
Step 8 - Annual rate of child support for the child
*refer to the example of calculation

25. POSITION IN INDONESIA

26. Governing law :
Muslim - Compilation of Islamic Law 1991
Non-Muslim – Law Number 1 Year 1974 on Marriage
child support responsibility after divorce in Indonesia law from the perspective of
national, Islamic or custom law does prioritize men to uphold the responsibility
Articles 149(d) and 156(c,d) of the Compilation of Islamic Law state that the father is
responsible for the wellbeing and education of children until they reach the age of 21,
and that the husband is required to provide financial support during the subsistence of
marriage, during the iddah (waiting period), and also to pay mut’ah (consolation gift),
and maintenance post-divorce.
Likewise, Article 41 until Article 54 of Law Number 1 Year 1974 on Marriage
provides that parents are obliged to raise and educate children who has not yet
attained 18 years old until the children get married or become independent. This
responsibility remains even though parent’s marriage dissolves due to divorce or death.

27. Illegitimate child
Interestingly, based on Constitutional Court Decision No. 46/PUU-VIII/2010 dated February
12, 2012, it stated that "the child's relationship with a man as the father is not solely because of
the marriage bond, but can also be based on evidence of the blood relationship between children
and the men as the father".
Percentage spousal and child support agreements of total divorces :
Out of court
(alimony survey
2009)
Included in Islamic
court decisions
(2007)
Child support 30% 2.7 %
Spousal support 23% 2.7 %

28. Divorced women's perception of their economical situation after the divorce :

29. REASONS :
1) Support by family (Sundanese cultural practice)
2) Independence of women as the sole parent
3) Poor contribution from former husband. Father rather choosing to give pocket money than child support.
SUMMARIZATION
1) In Malaysia, despite pile of cases for maintenance due to neglect from father, I would consider that we do
have a complete law to cover on child maintenance. However, it is recommended that the provision relating
to the duty of person to maintain should be harmonized where the duty to maintain by the father under the
LRA should be extended to the person liable namely the paternal grandfather and the paternal uncle similarly
under the IFLA.
2) In United Kingdom and Australia, Child Support Agency will prevail over court order. However there will
be a problem when it comes to insemination and fertilization issue; to whom does the responsibility should
be imposed and divided.
3) As for Indonesia, there should be a proper mechanism to provide or promote enforcements of legal
guarantees for the wellbeing of women and children.