SINGLE AGAIN: Civil Law
Divorce Under The Civil Law For Non-Muslims
"Either a man or a woman can initiate divorce under the Law Reform (Marriage and Divorce) Act 1976."
Certain conditions must be fulfilled before applying for a divorce:
Both parties must have been living, and will continue to live in Malaysia;
Both parties must be married for at least two years;
The marriage must be registered, or considered to be registered, under the Law Reform (Marriage and Divorce) Act 1976.
There are two types of divorce: contested and mutual consent divorce.
Is where one party files for divorce because the marriage has irretrievably broken down, without the agreement of the other party.
This type of divorce is tedious, lengthy and costly.
To prove marriage has ‘irretrievable broken down’, must show one of the following:
Adultery was committed by your spouse,
Both parties have been separated for two years or more
You have been deserted by your spouse for two years or more
Your spouse behaved in such a way that makes it impossible for you to live with him.
Marriage Tribunal or Conciliatory Body:
In a contested divorce, you must obtain a Certificate from a Marriage Tribunal or Conciliatory Body before filing for divorce.
In order to obtain this Certificate, you and your husband must attend counselling sessions at the Marriage Tribunal or Conciliatory Body first.
You can obtain a form to refer your marriage to the Tribunal or Conciliatory Body from the Marriage Tribunal itself.
After you fill this form and hand it in, letters will be sent to you and your husband asking you both to come to the Marriage Tribunal or Conciliatory Body for counseling.
If the Tribunal or Conciliatory Body cannot reconcile the two of you within three to six months, a Certificate will be issued.
Mutual Consent Divorce
Where both parties mutually agree to divorce.
All terms relating to custody of children, access to children, maintenance and division of the matrimonial property must also be mutually agreed upon.
Both parties will file a joint petition in court.
There is no need to obtain a Certificate from a Marriage Tribunal or Conciliatory Body.
This type of divorce is faster and cheaper.
Generally, you will have to file your divorce application or petition in court first.
In a contested divorce, after filing your divorce petition you will have to follow certain procedures before proceeding to the next stage.
The court will then fix a hearing date to hear your case. You and your husband have to be present at this hearing.
At the end of your case, the court will grant a ‘Decree Nisi’. This tells you your divorce is almost complete.
The Decree Nisi will not have an effect until after three months. At the end of the three months, the Decree Nisi will be made absolute (Decree Nisi Made Absolute) and you will be legally divorced.
Time And Costs
It is difficult to ascertain exact time and costs involved in a divorce. Only a rough estimate can be given.
Contested divorces: On average it takes a minimum of one year, and may cost a minimum of RM5,000. It could even go up to RM50,000.
Mutual Consent Divorces: On average it takes three to six months, and may cost between RM3.000 to RM5,000.
If you do not wish to divorce, but want to live separately from your husband, you can opt for a separation.
You can ask a lawyer to draw up a private agreement between you and your husband called a Deed of Separation. All terms relating to child custody, access to children, maintenance and division of matrimonial property should also be agreed upon.
Or apply to the court for a Decree of Judicial Separation. All conditions prior to applying for a divorce are also applicable in a Judicial Separation.
You can apply for your marriage to be declared a nullity if your marriage is void or voidable. The court will grant you a Decree of Nullity, meaning your marriage will be annulled.
A void marriage is one which is considered never to have existed in the first place. Your marriage will be void if it falls under certain circumstances.
A voidable marriage is one which is considered to have existed, but after the Decree of Nullity is granted it will no longer exist. Your marriage will be voidable if it falls under certain circumstances.
It is up to the court to decide whether children born in a void marriage are legitimate or not. Children born in a voidable marriage are considered legitimate under the law.
In Malaysia, there are two types of divorce of marriage for non-Muslims:
1) divorce by mutual consent, i.e. both parties agree to the divorce
2) divorce without mutual consent
DIVORCE BY MUTUAL CONSENT (JOINT PETITION)
Both parties to the marriage can jointly file a divorce where they can mutually agree to divorce. To be eligible for the application, the couples must have been married for at least two (2) years at the time the petition for divorce is filed, unless approved by the court. By a joint petition, both parties can freely decide to the maintenance for wife & children, custody and care of the children, division of matrimonial assets.
DIVORCE WITHOUT MUTUAL CONSENT (UNILATERAL PETITION)
Either party to a marriage may file a petition to divorce without consent of the other party, on the ground that the marriage has broken down. The break down of the marriage can be grounded one of the reasons as follows:
1) that the other party has committed adultery;
2) that the other party has behaved in such a way that it cannot reasonably be expected to live together;
3) that the other party has deserted for a continuous period of at least 2 years; OR
4) that the parties to the marriage have lived apart for a continuous period of at least 2 years.
WHO HAS THE RIGHT OVER THE CUSTODY OF THE CHILDREN?
In a joint petition, both parties can mutually agree to propose any arrangement to the children.
In a single petition, either party can make application for the custodianship. The court will decide the custodianship after considering all factors including: 1) The welfare of the children 2) The wishes of the parents 3) The wishes of the child if the child is eligible to express an independent opinion.
There is a rebuttable presumption that the custodianship of a child below 7 years belongs to the mother. Kindly take note that this is a presumption which is rebuttable by the father.
WHO HAS THE RIGHT & INTEREST OVER MATRIMONIAL PROPERTY?
In a joint petition, both parties can mutually agree to propose any arrangement to divide or transfer the property.
In a single petition, either party can make application for the division of matrimonial property. If the property is acquired by the sole effort of the party, the court may divide the property as the court thinks reasonable. The party upon whose effort the assets were acquired will receive a greater proportion. If the property is acquired by joint effort, the court may divide the property as the court thinks reasonable after considering factors like the extent of the contributions made by each party.
HOW LONG DOES IT TAKE TO FOR A DIVORCE MATTER TO BE COMPLETED?
The actual time needed for may vary in each and every single case depending on the following factors: 1. The date of hearing granted by the court ( whether its early or late ) 2. The complexity of the case 3. The Time needed for both parties to reach a settlement ( for joint petition's case)
Generally, a joint petition divorce matter takes 6 to 9 months to be completed while a unilateral petition divorce (without mutual consent) matter takes more time to be completed. The divorce matter could take more time if it is contested.
HOW MUCH IS THE LEGAL FEES?
Generally, a joint petition's legal fee is cheaper than a single petition's ( without mutual consent ). The legal fee chargeable varies from one case to another depending on the following factors:
1) The complexity of the case as it affect the amount of time & skill a lawyer need to spend;
2) The complexity of the Petition's Content ( i.e. The complexity of the Divorce Arrangement & Settlement)
3) Whether the divorce petition is contested. Legal fee for contested matter is generally higher than uncontested matter.
WHO SHOULD BEAR THE LEGAL FEE? HUSBAND/ WIFE?
For joint petition matter, there are two choices: 1) Either party pay for the whole legal fee 2) Both parties share the legal fee in a proportion that is mutually agreed
For single petition matter, each party has to bear their own legal fee generally.
WHAT ARE THE DOCUMENTS NEEDED FOR JOINT PETITION TO DIVORCE?
Kindly download the checklist here.
WHAT IS THE BRIEF & GENERAL PROCEDURE FOR JOINT PETITION TO DIVORCE?
1) Consult a lawyer.
2) With lawyer's advice, discuss and make settlement with your spouse for the arrangement of children, property & maintenance (if any).
3) Sign the divorce petition and related documents prepared by your lawyer.
4) Wait for the hearing date after the filing of your application in the High Court.
5) Attend the hearing with your lawyer ( if you or your spouse cannot attend the hearing, kindly refer to your lawyer for solutions )
6) Obtain divorce certificate at least three months after a divorce order is granted by the judge.
DO YOU NEED A DIVORCE LAWYER?
Contact Our Panel Lawyers / The Author of this Article.
Q: Can I file for divorce within 2 years of my marriage?
A: Yes. It's possible.
Q: Do I need to separate with my spouse for 2 years before a divorce can be filed?
A: No, not necessary.
Q: Do I get 'automatic' divorce when I have separated with my spouse for more than 2 years?
A: No. You will still need to apply for the divorce in court.
Q: Can I get a divorce by applying from JPN ( Jabatan Pendaftaran Negara) without engaging a lawyer?
Q: My spouse refuse to divorce, can I still file for divorce?
Q: My spouse refuse to sign any divorce document, can I still file for divorce?
Q: I have lost the contact of my spouse, can I still file for divorce?
Q: I am a foreigner in Malaysia who had registered my marriage overseas, can I file for a divorce here?
A: Yes, if you are residing in Malaysia.
Q: I am a Malaysian who is residing overseas now, can I file for a divorce in Malaysia?
A: Yes, you can sign the divorce documents overseas, and engage a lawyer to file your divorce in Malaysia.
Q: I am a Malaysian who had registered my marriage in Malaysia and had obtained divorce certificate from overseas, is my divorce certificate recognized in Malaysia?
A: No. Oversea's divorce certificate is not recognized in Malaysia. You need to engage a lawyer to EITHER:
1) Apply for local court's declaration to recognize your oversea's divorce certificate, OR
2) Apply for a fresh divorce petition in Malaysia.
Divorce procedures in Malaysia (non-Muslim), FYI