By Soo Ewe Jin
ROGER Tan, who is a member of the Bar Council, said it is understandable that concerns have been raised on the need to amend Section 95 of the Law Reform (Marriage & Divorce) Act 1976.
This was after the Federal Court ruled in the Karunairajah case in 2004 that the word disability in this section only covers “physical” and “mental” disability and cannot cover financial dependence.
The court held that there was no legal basis for interpreting the exceptions in Section 95 to include financial dependence for the purpose of pursuing tertiary and/or vocational education after the “child” had completed the age of 18.
It overruled the Court of Appeal which had attempted to extend the obligation of the parent after the child turned 18 by using a creative interpretation of “disability” to include financial dependence as well.
The Federal Court ended by saying: “A case had to be decided according to the law as it stands, irrespective of a judge’s personal view on it and moral obligations can never take precedence over the law. What the law should be is a matter for the legislature.”
Tan pointed out that despite the court’s interpretation of Section 95, it was clear from other provisions and other laws that the age of majority is not so clear-cut.
Under Section 3 of the Guardianship of Infants Act 1961, for example, the guardian is responsible for the support, health and education of the child until he/she reaches 21.
Tan argued that the Law Reform (Marriage & Divorce) Act 1976, which limits the maintenance of a child only up to 18 years of age, is thus contrary to the Guardianship of Infants Act and unfairly discriminates against children of divorced parents.
On a more obvious practical level, many people are aware that income tax provisions allow taxpayers to continue to claim relief (at a higher rate) for children beyond 18 years of age if the children are pursuing tertiary education thus acknowledging the responsibility of a parent to maintain his/her children beyond the age of 18.
Furthermore, in other provisions of the Law Reform Act 1976 a father’s responsibility for his child in other areas extends beyond 18 to 21 years.
For example, a person under 21 is still required to obtain his father’s consent if he/she wants to marry.
It is because of such uncertainties that lawyers feel the legislature should step in to amend Section 95 to compel the obligation to pay maintenance for children beyond 18 if they are receiving education or training.
Otherwise, parents can refuse to do so, seeking refuge behind the Federal Court decision of Karunairajah which has stated in no uncertain terms that parents are not obliged to maintain children above 18.
As the letter to The Star dramatically puts it in its headline, “Law allows dad to dump girl at 18”, it will be the children of divorced parents who will suffer the most and who would be indirectly penalised by the breakdown of their parents’ marriages.
Tan said he could understand what the “Deprived 18-year-old” is going through as she is still in college and is certainly in no position to financially fend for herself.
“It is sad that these children who are at the threshold of their education would have to waste their talent and potential, and sacrifice their future merely because the legislature has not deemed it fit to compel their parents to maintain them once they attain 18,” said Tan.