Divorce laws in Malaysia can be difficult to understand. This article explains the divorce laws in Malaysia, the types of divorces, and the processes. It also explains the time required, how to hire a lawyer and the fees.
Divorce Laws in Malaysia
Divorce laws in Malaysia is the laws that apply to the marriages and divorce of marriages of an individual in Malaysia. It differs depending on the religion of an individual, that is whether is Muslim or non-Muslim.
The legal framework for divorce in Malaysia is based mainly on two laws: civil law for non-Muslims, the Law Reform (Marriage and Divorce) Act 1976 (‘LRA 1976’) and syariah law for Muslims, the Islamic Family Law (Federal Territories) Act 1984 and other Islamic laws. These laws govern the entire process of divorce, from filing for divorce to property division, child custody and maintenance.
The LRA 1976 Act applies to non-Muslim Malaysians. On the other hand, the Islamic Family Law (Federal Territories) Act 1984 and other Islamic laws apply to Muslims in our country. It is based on Islamic law and reflects Islamic principles. This article will mainly discuss the divorce process for non-Muslims in Malaysia.
Divorce Rate in Malaysia and Causes
The divorce rate in Malaysia has increased, with the National Registration Department reporting a 20% increase in divorce cases involving Malaysians between 2012 and 2017. According to the Department of Statistics Malaysia (DOSM), in 2022, there were 3,025 and 8,880 divorce cases involving non-Muslims in KL & Selangor respectively.
Divorce in Malaysia is often the result of a combination of factors. One of the reasons for divorce in Malaysia is infidelity. The breach of trust caused by extramarital affairs often leads to the breakdown of a marriage.
Financial issues are another common reason. Disputes over money management, financial responsibilities and domestic violence can put a strain on a marriage and lead to its breakdown.
Types of Divorce for Non-Muslims
In our country, there are two ways for non-Muslims to file for divorce, namely contested divorce or uncontested divorce. Spouses can file for either method depending on their circumstances.
A contested divorce (also known as ‘unilateral divorce’ or ‘single divorce petition’) is when one spouse disagrees with the divorce or the terms of the divorce. Even with the disagreements, the other spouse can still proceed with the application.
On the other hand, an uncontested divorce (also known as a ‘joint divorce petition’) is a mutual consent divorce, when both spouses agree on the divorce and its terms. As long as the spouses can reach an agreement, they can file a joint divorce, which is usually faster and less expensive.
The process to file a single petition for divorce in Malaysia takes more time and incurs higher costs. If both parties agree to divorce and also on the divorce terms, applying for a joint divorce is a better way. The main divorce terms are explained below.
Divorce Terms
Before considering a divorce, the couple should consider the divorce terms. If they are willing and able to agree on the divorce terms, then they can apply for a joint divorce. If they cannot agree on the divorce terms, then either spouse can apply for a unilateral divorce.
The terms include child custody, division of marital property, and spousal maintenance. Each of the terms is further explained below.
Child Custody
In a joint divorce, the couple can also have discussion and reach mutual agreement on arrangements for the children. This includes which parent will have custody and custodianship of the child, decide on the child's education, and live with the child.
In addition, they can also discuss visitation rights for the other parent who is deprived of custody of the child and the amount of child support that needs to be paid. In Malaysia, there is a rebuttable presumption that a child below 7 years old is better with the wife.
If they cannot agree on arrangements for the child and then file for a unilateral divorce, the court will consider several factors when deciding which parent has custody of the child, the main one being the welfare of the child. The child's wishes will also influence the judge's decision, and children usually prefer to be with the parent who spends more time at home with them.
Since both spouses have the responsibility to raise the child, the court will also order each parent to pay monthly child maintenance for the child based on the parent's income.
Division of Matrimonial Assets
Matrimonial assets include any assets acquired during the marriage through sole or joint efforts, as well as any property that one spouse owned before the marriage but has significantly improved during the marriage. These may include cars, houses, and other assets.
Both spouses have rights to the matrimonial property and can negotiate and agree on how to divide the property.
If the couple cannot agree and file for divorce unilaterally, the court will consider some factors to decide the division of assets. These factors include the financial and non-financial contributions of both spouses, the needs of the children in the marriage, and the duration of the marriage.
Spouse Alimony
Spouse alimony is the financial support provided by one spouse to the other during or after the divorce. A spouse, especially a wife, has the right to ask the other spouse, the husband to pay alimony in divorce proceedings.
In a joint divorce, the couple can discuss and reach a consensus on the amount of alimony that one spouse should pay. If they cannot agree on this and file for divorce unilaterally, the court can consider some factors when deciding alimony. These factors include the needs, financial ability, and income of the spouses.
Prerequisites before divorce
If both parties agree on all the divorce terms above, they can file for a joint divorce. If they disagree with the divorce arrangements and conditions, they must choose to file for divorce unilaterally.
According to divorce laws in Malaysia, before starting any divorce proceedings for annulment of marriages, couples need to meet some prerequisites, depending on whether it is a joint divorce application or a unilateral divorce application. The requirements are explained below:
For both types of divorce
The requirement is that the couple's marriage must be registered in Malaysia and the marriage must generally have lasted for at least 2 years or more. The marriage does not necessarily require any wedding ceremony, but it must be registered following our marriage laws. This 2 years requirement can only be dispensed with in exceptional circumstances and situation.
For joint divorce petition: Both spouses must agree to the divorce and the terms of the divorce.
For a single divorce petition: There are 2 more prerequisites:
(a) The applicant must submit the marriage to the marriage tribunal, National Registration Department, Jabatan Pendaftaran Negara ( JPN) for marriage reconciliation and counselling and there are few exemptions for this requirement.
When the conciliation fails after several appointments, the Registry will issue a certificate of non-reconciliation, which must be used for the later stage of the divorce process.
(b) The applicant must prove one of the grounds for irretrievable breakdown of the marriage. These grounds that the marriage has broken down include:
The other spouse has behaved in a way that makes it impossible for the spouse to be reasonably expected to live with him/her
The other spouse has committed adultery and it is intolerable to live with him/her. Adultery means occurrence of sexual intercourse with a party that is other than the spouse.
There is desertion by the other spouse for a continuous period of at least two consecutive years.
There is separation between the couple for at least two consecutive years
The other spouse converts to Islam
Divorce Procedures in Malaysia
There are 6 steps to the divorce procedure in Malaysia, which are explained in detail below:
Prepare documents
The applicant, known as a ‘petitioner’ should prepare some required divorce documents and information:
(a) Identity cards or passports of both spouses
(b) Birth certificates of children of the marriage (if there are children)
(c) Marriage certificate
(d) Ownership documents of marital property
(e) JPN's non-conciliation certificate (for single divorce application)
For overseas divorce of non-Muslim marriages, the couples can apply for a declaration order to recognise that foreign court order as an order of our court.
Signing and Apply to the court for divorce.
If it is a single divorce application, one spouse as the petitioner should sign and file the court documents with other supporting documents at the High Court of Malaya to apply for divorce. After applying to the court, the litigation process has been initiated. If it is a joint application for divorce, then both spouses appoint a lawyer and file a joint petition in the High Court together.
Serving documents on the other spouse
If it is a single divorce petition, the petitioner must serve the court documents on the other spouse, known as ‘respondent’ and the respondent must respond. If it is a joint divorce petition, service is generally not required.
Hearing
The court will set a hearing date. On that date, the married couple must appear in court for the full trial and hearing. After hearing the evidence from both parties and witnesses in the court proceeding, the judge will issue a court divorce order, known as a "decree nisi" (in Bahasa Malaysia, it is known as ‘Dekri Nisi’). This is a temporary order that does not dissolve the marriage.
3 months after the decree nisi is given, the spouses can apply for a decree nisi absolute (in Bahasa Malaysia, it is known as ‘Sijil Menjadikan Dekri Nisi Mutlak’), also known as a divorce certificate Malaysia. With the judge’s permission, the 3 months waiting period can be shortened.
This is a final order that will state and confirm the dissolution of marriage. If either party is dissatisfied with the court’s judgment, he can appeal to a higher court.
Update marital status
Parties can update their divorce marriage status to the JPN for divorce registration, by submitting the court order, divorce decree, and other relevant documents.
At JPN, they can also give confirmation of personal marriage records. One of it is issuing a single status certificate Malaysia, which is to confirm that an individual is currently single. This is usually required for citizen who intends to marry in overseas countries which practise monogamous marriage.
How long does it take to complete a divorce in Malaysia?
The time it takes to complete a divorce in our country depends on whether it is a joint divorce application or a single divorce application.
As for a joint divorce application, it takes 1 to 3 months to complete. As for a single divorce petition, the process can take 9 months to a year or more.
Get Legal Assistance for Divorce
When choosing the right divorce lawyer for matrimonial proceedings, you can choose a lawyer with the following qualities and considerations:
Experience and expertise
He should understand the relevant family laws and court rules for non-muslim marriages and divorces, such as the LRA 1976.
Availability and responsiveness
Choose a lawyer who is easy to contact and responds quickly to your concerns and questions.
Reputation and references
Investigate the reputation of the lawyer and check out reviews from past clients if you want to know more about their service level and experience in divorce matters.
Cost of divorce in Malaysia
The cost of a joint divorce petition is usually a few thousand Ringgit (RM). As for the cost of a single petition divorce, it is usually higher than the cost of a joint divorce petition and mainly depends on the complexity and details of the matter.
Some of the fees usually include the following expenses:
Legal fees: These are the fees charged by the lawyer for providing you with legal advice and completing the work.
Disbursements: This includes the court filing fees such as filing of decree of divorce, travelling, and photocopying documents.
Conclusion
The divorce laws in Malaysia can be very complicated. But with the help of an experienced divorce lawyers, your case can get the best outcome.
If you have any questions on legal services or need any legal advice on your circumstances, you can contact us. Our legal firm will help and guide you.
Frequently Asked Questions
1. Does the wife get half in a divorce in Malaysia?
The wife does not necessarily get half of the matrimonial assets in Malaysia. The courts will consider a few factors such as financial contribution and contribution to the family by the couple in deciding on the division of assets.
2. What are the rules for divorce in Malaysia?
The rule for divorce in Malaysia is generally the couples must have been married for at least 2 years. Then, if the couples can agree to the divorce terms, they can apply for joint divorce, that is divorce by mutual consent. If they can’t agree on the divorce terms, either apply can unilaterally apply for divorce.
