Divorce proceedings can be a complex process to navigate through. It is, therefore, crucial to understand the various stages and options available to both sides involved. One of the compulsory stages before filing for divorce involves attending counselling sessions. This article provides valuable insights and legal advice regarding this pivotal step.
- The Role of a Counselling Body in Divorce Proceedings
- Benefits of Seeking Reference to a Counselling Body Before Petitioning for Divorce
- Potential Implications of Not Consulting a Counselling Body Before Getting a Divorce
Exploring these topics in depth will provide readers with a holistic understanding of the need to attend counselling or talking therapy with a professional counsellor before petitioning for divorce and why it is mandated under Malaysian family law to do so.
According to the Department of Statistics in Malaysia, 31,650 divorce cases were officially recorded in 2021. The principal legislation that governs divorce in Malaysia is Law Reform (Marriage and Divorce) Act 1976 (“LRA”). It is worth noting that LRA only applies to non-Muslims; therefore, subsequent discussion in this article will focus exclusively on the prerequisite for filing a single divorce petition (contested petition) in the civil High Court.
The legal requirement under Section 55 of LRA
“Provision may be made by rules of court for requiring that before the presentation of a divorce petition, the petitioner shall have recourse to the assistance and advice of such persons or bodies as may be made available for effecting a reconciliation between parties to a marriage who have become estranged.”
The LRA section encourages counselling to promote reconciliation between divorcing couples, aiming to prevent unnecessary separations. Couples considering divorce are advised to seek guidance and help from a counselling body before filing a court petition. This rule should be considered in line with Section 106 of the LRA.
Section 55(2) of the LRA emphasises the necessity of reconciliation by allowing the court to pause the divorce process to give room for reconciliation efforts if there’s a reasonable chance of reconciliation.
Section 106 of LRA
“No person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties…..”
The previous section indicates that the conciliatory body doesn’t apply for divorce cases due to one party’s conversion to Islam (Section 51) or mutual consent divorce (Section 52). In Islam conversion cases, the non-requirement of the conciliation process is apparent. However, in mutual consent divorce cases over trivial matters, the parties may still be referred to a conciliatory body to preserve the marriage and prevent needless separation.
Composition of the counselling body
A counselling body may be either;
- A council set up for reconciliation by the appropriate authority of any religion, community, clan, association; or
- A marriage tribunal set up for a specified area or district consisting of a Chairman of not less than two and not more than four other members nominated by the minister; or
- Any other body approved as such by the Minister.
Members of the marriage tribunal may include, in addition to officers and staff of the National Registration Department, officials from the Department of Social Welfare, members of NGOs, retired government officials, and interested individuals with qualifications or experience in psychology, counselling, and guidance.
Members of these bodies are left entirely on their discerning as no specific rules deal with the reconciliation process. They are best guided by common sense regarding fairness and justice in their investigations and inquiries.
Purposes of pre-divorce counselling
- Assist the couples in dealing with the financial or emotional consequences of the deteriorating marriage.
- Reach agreements in matters relating to child custody, support and access to the kids’ education, financial provision and the disposition of the matrimonial home and every other matter that results from the breakdown of the marriage
Procedure for referral to the marriage tribunal
- The petitioner must apply to the National Registration Department (NRD) office closest to their location.
- If both parties reside in different areas, the application for a marriage tribunal must be submitted to the NRD office closest to where they last resided.
- The applicant must complete and sign Form JPN KC14 before submitting it at the Marriage and Divorce Division counter of NRD.
The time frame of a reconciliation process
A counselling body must resolve the matrimonial difficulty within six months from the date of application. Both spouses shall be required to attend the hearing, where they will be given the opportunity to be heard. Other parties kin to the marriage may also be called to the proceeding, which may be adjourned occasionally if necessary.
During the divorce counselling session, no lawyer shall appear or act as such for any party, and both parties are not allowed to be represented by any person other than a member of their family without the approval of the counselling body.
Issuance of certificate
If the conciliatory body cannot resolve the matrimonial difficulty and persuade the parties to resume their married life, it shall issue a certificate and may attach any recommendations it deems appropriate regarding maintenance, division of matrimonial property, and custody of any minor children. This certificate can only be issued if the body fails to persuade the spouses to restart their married life. Therefore, no certificate shall be issued if a party fails to appear at the hearing before a counselling body. The other spouse must obtain an exemption under section 106 of the LRA to proceed with the divorce.
Exceptions under Section 106(1)
The requirement for pre-divorce counselling does not apply to the following circumstances:
- Desertion – Where the petitioner alleges that they have been deserted by and do not know the whereabouts of their spouse
- Residing abroad – Where the respondent resides abroad, it is unlikely that they will enter the jurisdiction within six months after the petition date.
- Willfully failed to attend– Where the respondent has been required to appear before a conciliatory body and has willfully failed to attend
- Imprisoned– Where the respondent is imprisoned for a term of five years or more
- Incurable mental illness – Where the petitioner alleges that the respondent has an incurable mental illness, to invoke this exception, the petitioner must show that the defendant has an incurable mental illness with evidence from medical reports.
- Exceptional circumstances – The court is satisfied that the pre-divorce counselling may be impracticable when exceptional circumstances exist. Exceptional circumstances which may exempt parties from attending counselling may include:
- both husband and wife had lived apart with no contact
- domestic violence
- the respondent threatened to harm the petitioner.
- The petitioner suffers mental stress and nervous breakdown caused by the respondent’s
If none of the exceptions listed above applies to your situation, you must report to the NRD office closest to you to have your case referred to the marriage tribunal. You can only file for divorce if you have received certification from the conciliatory body that it has failed to reconcile you and your spouse.
P v S [2015] 9 MLJ 400
In this case, it was obvious that the petitioner wanted the marriage to end. Still, the petitioner failed to establish the special circumstances arising from his marital difficulties that warranted the court to grant the divorce. Reference to a conciliatory body would be reasonable as the respondent still wanted an opportunity to be given to her to reconcile.
Even though the petition is no longer interested in the marriage, it should not be a reason to deprive the respondent of the opportunity to be heard as to how she wanted to reconcile before the conciliatory body.
Chin Pei Lee v Yap King Choong [2009] MLJU 1068
The court held no positive evidence showing that the plaintiff had an incurable mental illness. As such, the plaintiff cannot seek an exemption from referring her matrimonial difficulties to a marriage tribunal merely because she does not desire reconciliation
Obtaining exemption from pre-divorce counselling
To obtain an exemption for the counselling, the applicant, through the appointment of a family law lawyer, should file an originating summons together with an affidavit to prove that the pre-divorce counselling will be a waste of time and effort. To invoke the exception and skip the pre-divorce counselling, the applicant shall state concisely the facts in the affidavit in support and provide supporting evidence before the court may order such an exception.
If the other spouse does not want a divorce or wants an opportunity to be given to reconcile, then exemption for reference to a conciliatory body would not be impractical as there is still a chance of reconciliation.
Summary
In the realm of matrimonial law, the counselling session represents an essential stage of the divorce process where such process is established to function as intermediaries between parties seeking to dissolve their marriage, with the goals to facilitate communication and promote reconciliation, thereby potentially eliminating the need for contentious and costly court proceedings and.
This content was written and reviewed by a lawyer but does not constitute legal advice. We always recommend engaging a lawyer before taking any legal action.
