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Divorce

Divorce

It was reported in the Malay Mail Online that there is one divorce in Malaysia every ten minutes. So it is no surprise that one of the questions that I have often encountered as a lawyer is, “how do I get a divorce?” In case you have decided to get a divorce, you may find the following information useful to you.

Under the Law Reform (Marriage and Divorce) Act 1976 , you may obtain a divorce either through the filing of a joint petition (uncontested divorce) or a single petition (contested divorce). You should consult your lawyer if…

In Malaysia, the Law Reform (Marriage and Divorce) Act 1976 (“the Act”) is the statute governing monogamous marriage and registration of such marriages and also matters relating to divorce and other incidental matters. Under the Act, you may obtain a divorce either through the filing of a joint petition (uncontested divorce) or a single petition (contested divorce). You should consult your lawyer if you are unsure which route to proceed.

In a joint petition situation, where both the husband and wife mutually agree that their marriage should be dissolved after the expiration of two years from the date of marriage, the parties can decide on the terms of the joint petition such as the custody and care of the children, maintenance for the children and spouse, division of matrimonial assets etc. So, what happens if the duration of your marriage is less than two years? In such cases, the parties will have to prove to the court that the case is one of exceptional circumstances or hardship suffered.

On the other hand, a single petition is usually filed if either the husband or the wife does not agree to divorce or if they cannot get a consensus on the terms of the divorce. The party that files the single petition will be the petitioner whereas the other party will be named as the respondent. A single petition may take a longer time and incur higher legal costs compare to a joint petition. Before the filing of a single petition, you will first need to obtain a certificate issued by a conciliatory body such as the marriage tribunal stating that it has failed to reconcile the parties.

You may also file for divorce on the sole ground if there is a breakdown of marriage.

This will include circumstances where:

  1. the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition
  2. the respondent has committed adultery and the petitioner cannot reasonably be expected to live with the respondent
  3. the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
  4. the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.

Those stated in no. 2 to 4 are usually seen in single petition.

There are also other issues such as the registration of marriage, domicile of the parties etc that the court will look into before making any decree of divorce. Therefore, it is best for you to talk to your lawyer as every situation is different, for example, a foreigner spouse who is no longer domiciled or not a resident in Malaysia will require your lawyer to give you a specific type of advice, moving forward.

Being a mediator myself, I would also recommend the parties to attempt mediation in cases such as contested divorce. Unlike litigating in court, the parties are able to determine the outcome or the terms of their divorce in a confidential manner. It is also less costly to mediate than it is to litigate. Last but not least, it is especially beneficial for parents with children as mediation prioritizes the children’s interest while helping the couple to achieve an amicable separation.

BEH LEE CHOON

LEGAL ASSOCIATE OF MESSRS RAVINDRAN