In Malaysia, non-Muslim marriages are governed by the Law Reform (Marriage and Divorce) Act 1976. (“LRA”) The Act regulates the rights of spouses, the procedures, and the 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 petitioning the High Court.
Marriages are separated into two groups:
- Marriages that lasted for more than two years; and
- Marriages that lasted for less than two years.
The length of the marriage determines some of the rules that apply to divorce proceedings.
Marriages that have lasted for two years or more
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.
Divorce Within Two Years of Marriage
LRA prohibits any petition for divorce from being presented within two years of the marriage. However, under Section 50(2), there is an exception; a married couple may be given by the judge permission for a divorce within that time on the ground of exceptional circumstances and hardship.
The court will consider the interests of any children and question whether there is a reasonable probability that the parties may reconcile before granting the divorce.
Another exception to the two-year requirement is when 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.
Two types of divorce petition
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 single petition (divorce without consent)
Divorce by Mutual Consent
Section 52 of LRA provides that if both the husband and wife mutually agree to end their marriage, they may present a joint petition to the court and must prove that they:
- both consent freely to the divorce; and
- proper provisions are in place for the wife and the children’s support, care, and custody.
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.
Petition for divorce without mutual consent (single petition)
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 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:
(1) Adultery and Intolerability – The respondent committed adultery, and the petitioner finds it intolerable to live with the respondent.
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.
(2) Behaviour and Unreasonable to Live – The respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
The courts will consider what a reasonable, right-thinking person would expect to determine what is reasonable.
(3) Desertion- The respondent has deserted the petitioner for at least two years immediately preceding the petition.
To prove desertion, you need to establish if:
- The respondent intended to separate from you permanently.
- The respondent had no good reason to separate from you.
- You did not consent to the separation.
- The parties have lived apart for at least two years immediately before filing the petition.
Once one of these factors is established, the court must consider under section 53(2) whether granting the divorce is just and reasonable.
Just and reasonable requirement for 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. Every decree of divorce shall start with a decree nisi and generally will only be made absolute after the expiration of three months period unless the court fixes a shorter period.
Provisions regarding reconciliation
If the court believes there is a reasonable possibility of the parties reconciling at any stage of the divorce proceedings, the court may adjourn the proceedings to enable the parties to seek such reconciliation.
Filing a petition for divorce
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.
- The parties will usually consult with a lawyer to formalise their agreements and arrangements regarding property, maintenance, custody, and care of the children.
- They will sign the petition and file it with the High Court.
- The court will set a hearing date.
- Both parties should attend the hearing.
- You will receive the divorce order three months later if the decree is granted.
What should be included in the divorce petition?
Section 57 of the Act sets out the contents of a divorce petition.
Every petition must include the following:
- Particulars of the marriage and all children of the marriage.
- Facts giving the court jurisdiction.
- Particulars of any previous matrimonial proceedings between the parties.
- A statement sets out the allegations with which the party seeks to prove an irretrievable breakdown of the marriage.
- Any agreement or the petitioner’s proposals (in the absence of agreements) for the division of property, maintenance, and arrangements for the children.
- The relief sought.
- Steps were taken for reconciliation.
How long will my divorce take?
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.
Care and custody of the children
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 the following:
- The wishes of the child if the child is eligible to express an independent opinion; and
- The wishes of the parents.
Section 88(3) states that there is a rebuttable presumption that it is for the good of a child below seven 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.
Division of matrimonial property
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 sale proceeds.
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:
- Expenses paid (or the contributions made by each party towards the payment of expenses) for the benefit of the family.
- Contributions made (by the party who did not acquire the assets) to the family’s welfare by looking after the home or caring for the family.
- Debts incurred by either party but contracted for their mutual benefit.
- The duration of the marriage.
- The needs of minor children.
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, the main objectives of LRA are to uphold and support marriages and to allow a dead marriage to be ended as painlessly as possible, where the law should not make the divorce so easily obtainable that spouses have no incentive to work out their difficulties. Most importantly, LRA ensures that the marriage should be dissolved with the minimum bitterness, distress and humiliation. If you are considering getting divorced, you should speak to an experienced divorce lawyer to navigate the process and achieve the best outcome for your situation.