We understand that it can be hard for one to decide on ending a marriage. It may also be confusing to understand the proper divorce procedure in Malaysia.
Thus, this article will explain the types of divorce in Malaysia, the procedure, and the time required.
Divorce Procedure in Malaysia and the Laws
There can be many reasons for ending marriages, such as domestic violence, differences between spouses, and financial issues.
The law and divorce procedure in Malaysia for Muslims and non-Muslims are different. The law governing marriage and divorce for Muslims is the Syariah law, such as the Islamic Family Law (Federal Territories) Act 1984.
For the non-Muslims whom we will be focusing on in this article, the law related to marriage and divorce is the Law Reform (Marriage and Divorce) Act 1976 (‘LRA’). It also explains the divorce procedure in Malaysia.
Pre-requirements before applying for divorce
Before anyone applies for divorce in Malaysia, they must satisfy 2 pre-requirements, which are:
Marriages must last for a period of 2 years or more, as required under Section 50 of the LRA. However, one can apply in less than 2 years if one party has converted to Islam or either spouse files an application and gets permission from the Court by showing the Court that there are exceptional circumstances or hardships suffered by the applicant/petitioner.
Examples of exceptional circumstances include domestic violence. For this, the court will also consider the probability of the couple reconciling and the interests of the children.
The marriages must be registered in Malaysia. If the parties marry in a foreign country, then the foreign marriage must be registered in Malaysia. We can help you with the registration. Any overseas divorce can only be registered here if the marriage has been registered in Malaysia beforehand.
Types of divorce
After satisfying the pre-requirements, the next question is whether the parties agree to the divorce terms. This includes the division of matrimonial property, child custody and maintenance (if there is a child), and spouse alimony.
Depending on whether the spouses agree on these divorce arrangements, there are 2 types of divorce:
Joint divorce petition (also known as ‘joint petition’): This is a divorce by mutual consent when the parties agree to end the marriage and its terms.
Single divorce petition (also known as a ‘single petition’ or ‘unilateral petition divorce’): This is a contested divorce method when the spouses do not agree to divorce or to the terms or both. In this case, either spouse can apply to the Court for divorce without the other’s consent.
As for a single petition, they need to meet 2 other conditions, that are:
Conciliation: One of the spouses must refer the marriage to the marriage tribunal, that is the National Registration Department, Jabatan Pendaftaran Negara (JPN) for conciliation; as required under section 106 of LRA. This process is sometimes known as ‘jpn divorce procedure’ or ‘prosedur perceraian jpn bukan islam’ (in Bahasa Malaysia).
This process involves the JPN asking the parties to attend several sessions for reconciliation of the marriage difficulty, which usually takes about 3 to 4 months and not more than 6 months. The spouses can attend themselves.
However, this requirement can be dispensed in some situations, such as when:
One party said that the spouse deserted her and doesn’t know his whereabouts
One party is imprisoned for 5 years or more
The other party resides abroad and is unlikely to come back to Malaysia within 6 months after the court proceeding starts
Even if either spouse refuses to attend the conciliation sessions, JPN can still issue the certification of non-conciliation. This certificate is required when the spouse initiates the single petition process later.
Prove on one of the grounds that the marriage has irretrievably broken down, as follows:
Either spouse committed adultery and the other side finds it intolerable to live with him
Either party has behaved in such a way that the other side cannot reasonably be expected to live with him;
Either party has deserted the other side for at least 2 years;
Both spouses have been separated for at least 2 years (there is no automatic divorce even though a couple has been separated for 2 years or more)
Terms For Dissolution of Marriage
Before the end of a marriage, spouses can discuss and agree on the main terms and conditions of the separation. Below are the main terms:
Child Custody and Maintenance
The spouses can discuss which parent is to be given custody, care, and control of the child. This means the right to decide on the upbringing, education, and other matters related to the child.
On the other hand, the other spouse who is deprived of custody is usually given visitation rights; that is, the right to visit the child at certain times.
If there is no agreement on custody, then the Court will award the custody of the child based on the welfare and interest of the child. If the child is of an independent age, he can state his independent opinion and wishes, and it will influence the court’s decision.
Under the law, there is a rebuttable presumption that a child below 7 years old should be with the mother. However, this presumption can be rebutted too.
As parents have the responsibility to raise the children, then the spouses can also agree on the amount and payment of child maintenance for daily expenses and education. If they do not agree, then the Court can award an amount that is reasonable considering the financial situation of the parents such as income and expenses.
Spouse alimony
The couple can also discuss and agree on the amount and payment of spouse alimony. If there is no consensus, then the Court can award the alimony based on the means and needs of the couple and which side bears more responsibility for the breakdown of the marriage.
Spouse alimony is usually payable by the husband to the wife. In some cases, a court may order a wife to pay alimony to the husband when the husband is partly or wholly incapacitated from earning income because of health issues and the court considers it is reasonable for the wife, after considering her income.
Division of matrimonial property
Matrimonial property means those assets that have been acquired during the marriage or those acquired before marriage by one party and substantially improved during the marriage by the other party or through joint efforts.
The couple can also agree on how to divide the matrimonial property. If there is no agreement reached on these, then the Court will consider a few factors in deciding on the division of matrimonial property which include:
the contribution of the parties towards the acquisition of the assets and taking care of the welfare of the family
the needs of the children
debts owed by them for the joint benefit
length of marriage
Which type of divorce to choose, depends on whether the parties agree to the ending of the marriage and the terms. If they can agree, they can file a joint petition/mutual divorce. If not, either spouse can initiate a single petition process even without the other’s consent.
Court Procedure
After deciding on the type of petition, the parties can engage an experienced divorce lawyer Malaysia to file a divorce case and handle the procedure. The legal divorce procedure in Malaysia usually follows below steps:
Prepare relevant documents: These include an identification card/passport, marriage certificate, birth certificate of the child (if there is a child), a certification of non-conciliation, and related documents (such as those related to the proof of irretrievable breakdown of marriage, any prenuptial agreement Malaysia, or settlement agreement).
At the same time, the lawyer will prepare the required divorce documents, including the petition for divorce, and when the documents are ready for signing, the couple will sign the divorce petition stating they agree with the contents.
Filing in court the required documents: The law firm will file in the High Court of Malaya the required and related divorce papers that had been prepared earlier.
Serve the documents on the other side: The applicant for a single petition, also known as the petitioner, will serve the documents on the other side, called the respondent. The respondent should reply to the petition within a certain period (This step is only required for a single petition divorce and not required for a joint petition divorce matter).
Hearing- The court will fix a hearing date. On hearing days, both sides must attend the hearing. In the case of a single petition, the spouses and their witnesses must state their case with evidence in front of the Judge.
After the hearing, the Court will pronounce judgment and award a temporary order, called ‘Decree Nisi’. This is a temporary order which has not yet dissolved the marriage.
During these 3 months after the award of Decree Nisi, this period is known as the reconciliation period and if the parties reconcile during this period, either party can apply to the Court to rescind/invalidate the divorce Decree Nisi (in some cases, we can request the Court to shorten the 3 months; subject to the Court’s discretion too).
After 3 months, the parties can apply for a final order, known as ‘Decree Absolute’. This is a court order that ends the marriage.
Update- The court will send the update of new records together with the divorce order to the Registrar General, JPN to update the new marital status of each spouse and complete the divorce registration procedure.
With the update, the client can remarry and the divorce proceedings are completed. Apart from updating martial status, JPN also holds personal marriage records and issues marriage certificates and divorce certificate.
Other Alternatives to End Marriage
Other than divorce, there are other ways to end a marriage that are relatively unknown. It is through nullifying or annulment of the marriage.
One of the ways to nullify a marriage is to prove it is voidable. One can show that the marriage is voidable by showing one of the following reasons:
Marriage is not consummated due to the incapacity of either party to consummate it
Marriage not consummated due to refusal of either party to consummate it
Neither party validly consents to marriage
At the time of marriage, either party is a mentally disordered person to be unfit for marriage
At the time of marriage, either party suffered from venereal disease in a communicable form
At the time of marriage, the respondent was pregnant by some other person than the petitioner
If one party can show one of these grounds, then the court can make a declaration order that the marriage is annulled or nullified.
How long will the divorce process take?
The time taken to complete the divorce procedure in Malaysia depends on the type of divorce and the complexity of the matter.
For a joint petition, it takes about 1 month or more from the filing of documents. As for a single petition matter, the length can take longer up to 9 months or more.
If time and costs are concerns for a couple, then they should consider a joint petition, as it is considered a fast-tracked and quick divorce method due to the faster time and lower costs.
How much is the legal fees?
The legal fees for divorce matters vary depending on the type of divorce and its complexity. The cost for a joint petition is usually a few thousand ringgit, and lower than a single petition. You can contact us to get a quote.
There are generally two types of charges, the first is the legal fee, which is charged by the divorce lawyer for preparing the documents, offering legal services and advice, and representing the clients in court. The second is the disbursements, which are expenses incurred by the law firm such as filing and travelling charges.
Hiring a Malaysian divorce lawyer who is familiar with estate planning in Malaysia will help in divorce proceedings.
Conclusion
As a client, it will be easier to decide the next step after understanding the divorce procedure in Malaysia. If you are looking for a lawyer firm in Kuala Lumpur for more information, assistance, or legal advice, you can contact us. Our experienced divorce lawyer in family/matrimonial proceedings will assist you.
Frequently Asked Questions
1. How long is the divorce process in Malaysia?
The length of the divorce procedure in Malaysia depends on the type of divorce. If it is a mutual consent divorce (joint petition matter), then it is faster and takes about 1 month or more. If it is a single/unilateral petition, then it can take up to 9 months or more.
2. Can I divorce without a lawyer in Malaysia?
It is difficult to do that without the assistance of a lawyer. This is because the divorce procedure in Malaysia can be complex and the filing of documents in court is usually done through a law firm.
3. How much does it cost to get divorced in Malaysia?
The legal fee depends on the type of divorce and the complexity of each case. If it is a joint petition, the fee starts from a few thousand ringgit. A single petition will cost more as it takes a longer time.
4. Can I divorce before 2 years in Malaysia?
Yes, you can. However, you have to show to the Court that either party has converted to Islam or that there is hardship or exceptional circumstances. The court will also consider where there is a chance of reconciliation.
