30 Sep Divorce – How does it work in Malaysia?
Divorce – How does it work in Malaysia?
Divorce in Malaysia
Many of you may not know, Divorce has become a common aspect of today’s society. On an annual basis, about 25% of the married couples registered legally in Malaysia undergo a Divorce. Despite of the sad truth mentioned earlier, it is also important for a married couple to bear in mind that Divorce should always be the last option to be considered.
With that being said, if Divorce is opted as a solution to both parties, this article would assist you in understanding the procedures and the ways to best approach the situation.
Under the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”), a married couple could dissolve a marriage and/or proceed with a Divorce Proceeding by presenting a Petition to the Court. There are 2 types of Petition in a Divorce Proceeding in Malaysia which are known as:-
- Joint Petition; and
- Single Petition.
However, the Petitions mentioned earlier could only be presented to the Court by a married couple after the expiration of 2 years from the date of the marriage as stated on the Certificate of Marriage.
A Joint Petition, which is also known as “Bilateral Divorce” is presented by mutual consent of the married couple whereby both the husband and wife mutually agree that their marriage should be dissolved. The married couple who is presenting a Joint Petition must have a mutual agreement on the following issues:-
- Custody of Children below the age of 18;
- Access to Children for the non-custodial parent;
- The Maintenance for Children and Spouse; and
- Division of Matrimonial Assets.
- Custody of Children below the age of 18;
When the issues mentioned above are decided and agreed upon by both parties, there would not be the need for the Court to interfere and hence resulting in shorter process and lesser cost in comparison to presenting a Single Petition. A Divorce Proceeding presented by way of Joint Petition would usually take about 3 to 6 months to be concluded.
As opposed to Joint Petition, a Single Petition which is also known as “Unilateral Divorce” could be presented by either party to a marriage and it need not be presented by mutual consent.
The ground which allows and/or enables the Petitioner to present a Single Petition to the Court are set out in Section 54(1) of the LRA 1976 as follows:-
- The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
- The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
- The Respondent has deserted to the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; and
- The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the Petition.
The process of dissolving a marriage and/or divorce by way of Single Petition would be longer compared to Joint Petition because it involves a conciliation process and the interference of Court on the issues mentioned above. A Divorce Proceeding presented by way of Joint Petition would usually take about 3 to 6 months to be concluded.
Annulment of marriage
A petition for a decree of nullity can be brought where a marriage is void or voidable under Section 69 and 70 of the LRA 1976.
The marriage is void if:-
- At the time of the marriage either party was already lawfully married, the former husband or wife of the party was living at the time of the marriage, and the former marriage was then in force.
- A male person has married under 18 years of age, or a female person who is above 16 years but under 18 years has married without a special license granted by the Chief Minister.
- The Parties are within the prohibited degrees of relationship, unless the Chief Minister grants a special licence.
- The parties are not male and female respectively.
The marriage is voidable if:-
- the marriage has not been consummated owing to the incapacity of either party to consummate it;
- the marriage has not been consummated owing to the willful refusal of the respondent to consummate it;
- either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
- at the time of the marriage either party, though capable of giving a valid consent, was (whether continuously or intermittently) a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 of such a kind or to such an extent as to be unfit for marriage;
- at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
- at the time of the marriage the respondent was pregnant by some person other than the petitioner.
The above is brief introduction about the Divorce and Annulment of Marriage Proceeding in Malaysia. You are welcome to consult us for further advice.