Ending a marriage is a complex process, both emotionally and legally. If you are considering divorce in Malaysia, it’s essential to understand the legal procedures and your rights. This article provides an overview of divorce in Malaysia for non-Muslims, focusing on the key aspects and steps involved.
There are several ways to legally end a marriage in Malaysia. They are:
Joint Petition: Both spouses mutually agree to the divorce and its terms. This method is quicker and cheaper in comparison to Single Petition.
Single Petition: One spouse files for divorce without the other spouse’s consent. This is applicable when there is disagreement about the divorce or its terms such as the division of property, custody of children, or maintenance of spouse and children. When a divorce is contested, the time taken for the divorce is longer and more expensive.
Judicial Separation: A legal separation where the couple is no longer be required to live together. However, they are not allowed to remarry until they are divorced.
Annulment: A declaration that the marriage was never legally valid in the first place. This is relatively uncommon.
For the purpose of this article, we will focus on the most common types of divorce proceedings which are single petition and joint petition.
Steps in Filing for Divorce
Before filing any divorce petitions, the parties must have been married for at least 2 years unless there are exceptional circumstances or hardship. In situations of exceptional circumstances or hardship, the Petitioner must make an application to court for exemption before filing the Divorce Petition.
Joint Petition
Grounds: Both spouses agree that the marriage has irretrievably broken down.
Reconciliation: Not required.
Agreement: It is mandatory for both parties to reach a mutual agreement with their spouse on child custody, maintenance, and property division. It is advisable for both parties to obtain independent legal advise at this stage.
Petition Filing: Your lawyer will prepare and file the required documents, including the divorce petition, supporting affidavit, and any additional materials, with the High Court.
Court Hearing: Both parties must attend the hearing to formalize the divorce.
Timeline: About 6 months.
Cost: Usually fixed and significantly cheaper than single petition.
Single Petition
Grounds: The Petitioner must prove that the marriage has irretrievably broken down (i.e., the marriage is damaged beyond repair with no reasonable chance of reconciliation). The court will consider factors such as adultery, unreasonable behavior, desertion, or living separately for two years or more.
Reconciliation:
Before filing for Single Petition divorce, couples must attempt to reconcile their differences usually through a Marriage Tribunal. Reconciliation is not required in the following circumstances :
- Desertion: One spouse has abandoned the other, and their whereabouts are unknown.
- Respondent Residing Abroad: The respondent lives outside of Malaysia and is unlikely to return within six months of the petition date.
- Respondent Refusal to Participate: The respondent was required to appear before a conciliatory body but willfully refused.
- Imprisonment: The respondent is imprisoned for five years or more.
- Incurable Mental Illness: The respondent has an incurable mental illness.
- Exceptional Circumstances: The court believes forcing reconciliation would be impractical due to compelling reasons.
Petition Filing: Your lawyer will prepare and file the required documents, including the divorce petition, supporting affidavit, and any additional materials, with the High Court.
Service : The Petition must be served on the Respondent. “Service” refers to the official process of delivering a copy of the divorce petition and other legal documents to the other spouse (the Respondent). This ensures they are formally notified of the divorce proceedings.
Court Hearing: Attend a court hearing. Where the divorce is contested, a trial may be required usually to determine the maintenance, division of matrimonial assets and custody of children.
Timeline: 6 months and above depending on the dispute.
Cost: Significantly higher than Joint Petition given the lengthy and complex process.
Disclaimer
This article is for informational purposes only. It is not a substitute for obtaining specific legal advice. Laws and procedures may change, so it’s essential to consult a lawyer for the most up-to-date and personalized advice.