JOINT PETITION FOR DIVORCE (part I)
PART 1- MUTUAL DIVORCE PROCEEDINGS IN MALAYSIA (FOR NON-MUSLIMS)
This article is Part 1 of a monthly series of articles that will be written to answer the usual questions or queries we get from our clients on family law matters.
We will start Part 1 of our Series by addressing the topic of Mutual Divorce Proceedings.
“Do you think there is anything that can be done to save this marriage?” is usually the question I ask when I consult clients who are looking for legal advice on matrimonial matters. If the client feels that there is still an avenue for saving the marriage via counselling or mediation, we are quite happy to guide them in the right direction so they get the right type of assistance.
However, if the answer to my question is resolute and the client believes that the marriage has irretrievably broken down, we are then able to proceed to the next level.
One must remember that everything one needs to know about divorce proceedings in Malaysia is set out in the Law Reform (Marriage & Divorce) Act 1976 (“the Act”). However, there are other Acts of Law that may come into play depending on individual circumstances ie. Guardianship of Infants Act 1961, Child Act 2001, Married Women & Children (Maintenance) Act 1950, Married Women Act 1957 and Married Women & Children (Enforcement of Maintenance) Act 1968.
If both husband and wife have agreed that it is best to part ways, then the mode of obtaining a divorce is by way of a “Joint Petition”, which simply means both parties have mutually consented to dissolve their marriage.There are some general matters that one must take note of when filing for a Joint Petition.
First, pursuant to the Act, a marriage can only be dissolved after the expiration of two years from the date on the marriage certificate. However, a Judge may allow a presentation of a joint petition before the expiration of the two year period in exceptional circumstances and where the Petitioner is suffering from any particular hardship.
Second, a Court can only make a decree of divorce where the domicile of the parties at the time when the petition is presented is in Malaysia. This simply means that both parties would have to show and state that they were living in Malaysia at the time of the presentation of the joint petition. A wife does not have a separate domicile of her own under Malaysian law, but acquires her husband’s domicile on marriage. However, there is an exception to the ‘domicile’ rule : (1) when the wife has been deserted by the husband or the husband has been deported from Malaysia; or (2)the wife is resident in Malaysia and has been ordinarily resident in Malaysia for a period of two years preceding the commence of divorce proceedings.
Third, where one party to a marriage has converted to Islam, the other party who has not converted may petition for divorce after the expiration of a period of three months from the date of the conversion.
Fourth, if one party to a marriage has been continuously absent for a period of seven years and above, the other party may present a petition for divorce on the presumption of death.
The petition for divorce will be presented by filing, among other things, of a Petition and a Statement, Affidavit in Support, Notice of Appointment of Solicitors and Statement as to Arrangement for Children.
For Joint Petitions, there is no need for service on any party as it is a mutually consented divorce. One firm of lawyers would suffice for the filing of a Joint Petition. However, if either party wishes to be legally represented by a different firm of lawyers,that is also possible.
Fifth, pre-nuptial Agreements do not have a place in the Act and as such generally are deemed to be unenforceable in Malaysia.
Division of Assets
If there are any assets that were acquired during the period of the marriage, then those said assets will fall within a category called “matrimonial assets” and in the course of the joint petition, be subject to division between husband and wife.
For the purposes of this Article, I will focus on immovable property ie. landed property, condominiums, serviced apartments, holiday homes etc. Matrimonial Home is defined as a property acquired during the period of marriage (even if it is acquired by one party alone) and everything which is placed into it by either spouse. This will include furniture, fixtures and fittings, cost of construction and improvement of the property, maintenance and service of the property, hiring of maids or help to upkeep the property.
Under a Joint Petition, it all depends on what is negotiated and agreed upon by both husband and wife. I’ve had instances where both parties have agreed to sell the matrimonial assets and split the proceeds 50:50. In another scenario, the husband and wife held their respective share in the property on trust for their children, until they reach the age of majority. In another situation, the property remained in joint names and the wife be allowed to stay in the property until the children complete their higher tertiary education after which the property shall be sold and assets be divided. So it all depends on how one mediates, negotiates and agrees on division of assets.
However, apart from Movable Property, matrimonial assets have been widely interpreted and can include:
- Immovable property;
- Monies (Cash in Hand and Bank Accounts);
- Insurance and retirement funds, unit trusts;
- Shareholdings in companies; and
- Assets in the names of nominees or held on trust (subject to proof).
Maintenance of Wife
A wife can ask for maintenance from her husband under the Married Women & Children (Maintenance) Act 1950 and The Law Reform (Marriage & Divorce) Act 1976. Again, since we are discussing Joint Petitions, it all goes back to the parties and how they decide to negotiate and agree to a sum for maintenance. When negotiating on maintenance for my clients, I usually ask a few questions: (1) Is the wife employed? (2) How much does the wife and the husband earn respectively? (3) What are their respective expenses and costs? (3) Is there a particular lifestyle that the wife has been used to during her course of marriage which she wishes to maintain after the divorce?
Usually, the right to maintenance of the wife will cease upon her being remarried.
The court also has the power to order a woman to pay maintenance to her husband or former husband where he is incapacitated, wholly or partially and cannot earn a livelihood by reason of mental or physical injury or ill-health, taking into account the wife’s means.
Maintenance of Children
Married Women & Children (Maintenance) Act 1950 and The Law Reform (Marriage & Divorce) Act 1976 are also applicable for the matters pertaining to maintenance and custody of children.
It is the duty of the parents to maintain and contribute to the maintenance of their children, whether or not their children are in the custody of the said parent. In that regard, parents are expected to provide their children with accommodation, clothing, food and education as may be reasonable.
How does one gauge or ascertain what is the right amount for maintenance of children? It is pertinent to keep in mind that as children grow, the cost of upkeep and care will also increase and so one must always remember that one may need to vary an order to increase child care costs in the future. It is wise to have insurance policies taken for education and medical. It is advisable to have a long term plan which both parents can contribute to so as not to neglect the needs of the child as he or she grows.
When agreeing to terms of maintenance for children, it is good to start by documenting expenses incurred over the last 6 months so you can identify the common thread that runs through your household expenses. Look at immediate and recurring costs for example, tuition and school fees, food and accommodation, medical check-ups, extra-curricular activities, medical card, education policies etc.
Once that is documented, it is easier to ascertain how, moving forward, these expenses are to be shared between parties.
Custody and Access to Children
Insofar as custody matters are of concern, the paramount consideration is always the welfare of the child.
What one must consider when deciding on matters pertaining to custody is age, gender, religion of the child, customs of the place the child was brought up, background, race, culture and finally, behavior of the parents, If the mother is a stay at home wife who has always taken care of the child, while the father is constantly travelling for work, it is likely that the mother will be the better candidate as custodian. Also, if the child is still an infant and needs the care and constant attention of the mother, then it is advisable that the mother gets custody with reasonable access and visitation rights given to the father.
When speaking about access to children, one can always have a structured visitation schedule set out as part of the terms of the petition. One can decide which days of the week the child will spend with the mother and father respectively, festivals, birthdays, public holidays and school holidays can also be factored into the Petition.
If the child is of an age where he or she can make an independent decision, then it is best to have a heart to heart talk with your child and make him or her part of the decision.
It all boils down to what will be the best arrangement for the child.
The order for custody ceases automatically when the child reaches the age of 18 or if the said child has a physical or mental disability, on the ceasing of the said disability.
I personally believe that matrimonial and family disputes and legal proceedings mostly involve matters of the heart and need to be managed with much care, especially if it involved the well-being of the children in the marriage. The decisions you make will impact and affect all members of your family and so it is wise to ensure you are properly advised and have considered every possible aspect of legal matters before filing of a petition for divorce.
Founder & Principal of Messrs Ravindran
The Law Reform (Marriage and Divorce) Act 1976 by Nuraisyah Chua Abdullah, Sweet & Maxwell Asia
Divorce and Matrimonial Proceedings by Yin Yook Khai, Thomson, Sweet & Maxwell Asia
Family Law in Malaysia by Kamala M.G Pillai, Lexis Nexis
Family law in Malaysia: overview by Foo Yet Ngo and Kiran Dhaliwal, Y N Foo & Partners, Thomson Reuters