As explained in our post outlining the divorce process in Malaysia, generally there are two types of divorces, joint petition divorce (mutual consent divorce) and unilateral petition divorce. Upon obtaining the Order, the parties are deemed divorced pursuant to the terms agreed in the Order.
What happens if the parties (either one party or both parties) want to amend, or vary the terms of the Divorce Order (also known as Decree Nisi Absolute)?
Both parties agree to vary the Divorce Order
If both parties agree to vary the Divorce Order, regardless whether the divorce is a joint divorce petition or unilateral divorce petition, pursuant to the case Zainudin Bin Muhammad V Atsco Ltd & Anor [2003] 1 MLJ 369, both parties can make an application supported by both parties’ affidavit by filing the application to the Court, where is it for the matter of maintenance or the custody or maintenance for the child. The Court usually will not interfere and will allow the application to vary the terms of a Divorce Order unless it is too irrational or unreasonable.
Only one of the parties wants to vary the Divorce Order
The difficulty arises when only one party wants to vary the Divorce Order.
Section 62 of the Law Reform (Marriage and Divorce) Act 1976 states that there is no right to appeal against a Divorce Order, where the time for appealing against a Divorce Order has expired without an appeal. The time limit to file an appeal is 30 days from the date of the Divorce Order.
Luckily for all the divorced couple, there are always be rooms for all laws. Under Section 83 and 96 of the Law Reform (Marriage And Divorce) Act 1976, the Court can vary the terms of a Divorce Order for an order for maintenance or an order for custody or maintenance of a child from the marriage if the Court is satisfied that the Divorce Order was made because of misrepresentation, mistake of fact, or, that there is any material change in the circumstances.
Misrepresentation might occur in situation where one party has represented the false fact to the other party or to the Court, and mistake of fact might occur in situation where one of the parties has mistaken, for example, their finances to the other party or to the Court.
The most commonly used reason to vary the terms of a Divorce Order is the last reason, material change in the circumstances. Since the statute does not provide any further explanation, we will then explain the arguments of material change in the circumstances using case laws that has been decided by Malaysia’s court.
In the case YWS v LZT [2020] MLJU 1246, in deciding whether is there a material change in the circumstances, the Court look into the time between the date when the Divorce Order was made, and the time the application to vary the Divorce Order is made.
What is material change of circumstances?
In the same case, YWS v LZT [2020] MLJU 1246, the Court held that the husband’s consistent drop of income is a “material change of circumstances”.
In another case, Sim Bee Khim v Eugene Leong Weng Kong [2021] MLJU 1102, the Court held that the burden is on the Applicant to prove that his circumstances have a material change of circumstances. It is immaterial whether the other party, the Respondent has a material change of circumstances.
In the case of YCC @ JCC v LSY [2006] 7 MLJ 137; the Court held that the applicant has to prove that there is a material change of circumstances that warrants a change for the court to decide whether to vary the terms of a Divorce Order. As such, the key consideration taken into account by the Court is thus, whether there is any material change of circumstances that warrant a change.
What should be included in the application to vary a Divorce Order?
In the case of Ngu Chu Chiong v. Lina Soo [2008] 3 MLJ 42, the Court gave the judgment that any application for a variation of an order must be made in accordance with the Divorce and Matrimonial Proceedings Rules and that such application should be made by way of a Notice in Form 11 of the Divorce and Matrimonial Proceedings Rules, and the Affidavit supporting the Notice should include, amongst other: –
- Details of the parties
- Details of the divorce, including the Divorce Order
- Facts and reasons to vary the Divorce Order
How long does it take to vary a Divorce Order?
The length to vary an undisputed application to vary the terms of a Divorce Order, depending on the listing of the Court, is between 3 months to 6 months.
If the application to vary the terms of the Divorce Order is disputed, it takes much longer than an undisputed application to vary a Divorce Order.
Conclusion
In conclusion, if you are considering to vary the terms of a Divorce Order, you should speak to an experienced divorce lawyer who can advise you on the legal procedures. Varying a Divorce Order, whether it is disputed or undisputed application between the parties requires compliance with the laws of Malaysia, which requires legal technicalities.
