In Malaysia, non-Muslim marriages are governed by the Law Reform (Marriage and Divorce) Act 1976. The Act regulates the rights of spouses, the procedures, and grounds for divorce. It also sets out the law regarding maintenance and child custody.
The Act allows a married couple to file for divorce by filing a petition to the High Court.
Marriages are separated into two groups:
The length of the marriage determines some of the rules that apply to divorce proceedings.
If the parties have been married for more than two years, they can file a joint petition (by mutual consent), or one party can file a petition for divorce without consent under section 50(1) of the Act.
There are exceptions to the two-year requirement where the court can grant a divorce provided certain conditions are met.
Section 50(2) allows the court to grant a divorce within the two-year period if the petitioner can show exceptional circumstances or hardship also suffered by the petitioner.
The court will consider the interests of any children and whether there is a reasonable probability that the parties may reconcile before granting the divorce.
Another exception to the two-year requirement is where one party converts to Islam. Section 51 allows the party who has not converted to apply for divorce after three months of the conversion, regardless of the length of the marriage.
As stated above, parties can agree to get divorced and file a joint petition, or if only one party wants a divorce, that party can file a petition for divorce without consent.
If the parties mutually agree to the divorce, the court may, under section 52 of the Act, make the decree of divorce if it is satisfied that:
The parties are free to agree on the division of property, maintenance for the wife, and arrangements for the care and custody of the children.
Under section 53(1), either party to the marriage may file a petition for divorce on the grounds that the marriage has broken down irretrievably.
In such cases, the court will evaluate the circumstances to determine whether the breakdown is truly irretrievable. The court may only grant a decree for divorce if it is satisfied that it would be just and reasonable to do so.
Section 54 provides a list of circumstances that would be considered factors leading to the irretrievable breakdown of the marriage.
These factors are:
Proving adultery (i.e., voluntary sexual intercourse between your spouse and another person) may not always be easy. The court may, however, rely on circumstantial evidence to infer adultery.
To determine what is reasonable, the courts will consider what a reasonable, right-thinking person would expect.
To prove desertion, you need to establish if:
Once one of these factors is established, the court must consider under section 53(2) whether it is just and reasonable to grant the divorce.
In deciding whether it is just and reasonable to grant the divorce, the court will consider all the circumstances, including the parties conduct and how the interests of any children may be affected by the divorce.
If the court feels it would be wrong to grant the divorce, it can dismiss the petition after considering all the circumstances.
The court may also make a decree nisi and include terms and conditions as the court may think fit.
A decree nisi is a “temporary” or “provisional” order.
Under section 61(1) of the Act, every divorce decree will first be a decree nisi. It will only become a final decree after three months unless the court specifically fixes a shorter time.
If at any stage of the divorce proceedings, the court believes there is a reasonable possibility of the parties reconciling, the court may adjourn the proceedings to enable the parties to seek such reconciliation.
Filing a petition initiates divorce proceedings.
When filing a unilateral petition, the parties usually don’t agree on anything. Section 55 requires the parties to attend counselling and seek assistance to reconcile before the court considers the proceedings.
When the parties agree on a divorce, they can file a joint petition agreeing that the marriage has broken down. They can still go for counselling if they wish, but it is not required.
Filing a joint petition is relatively straightforward.
Section 57 of the Act sets out the contents of a divorce petition.
Every petition must include the following:
There is no definite answer. The duration of your proceedings will depend on the complexity of your case and whether you and your spouse can reach agreements and settlements.
If the divorce is contested, it takes much longer than a mutual consent divorce.
In a joint petition, the parties usually agree on arrangements for the children and the division of the property.
In a unilateral petition, the parties can make applications to the court for the care and custody of the children, maintenance, and the division of property.
In deciding on the care and custody of the children, the child’s welfare is paramount.
To determine what is best for the child, the court will consider:
Section 88(3) states that there is a rebuttable presumption that it is for the good of a child below 7 years of age to be with their mother. However, this presumption is rebuttable, and the court will consider that it is not desirable to disturb the child’s life by changing custody.
Under section 76, the court has the power to order the division of matrimonial assets acquired during the marriage or order the sale of assets and the division of the proceeds of the sale.
Since December 2018, section 76 has been amended to consider the non-financial contributions made by a spouse toward the family. Previously, the court first determined if the asset was acquired by the joint effort of both spouses, or the sole effort of one spouse. This distinction is no longer a determining factor.
When deciding on the division of property, the court will now have regard to the following:
Whether acquired jointly or by the sole efforts of one party, the court is generally inclined towards a fair and equitable division of property.
In conclusion, if you are considering getting divorced, you should speak to an experienced divorce lawyer who can advise you on your rights and the legal procedures. Divorce in Malaysia can be complex. An experienced lawyer will help you to navigate the process and achieve the best outcome for your situation.
