Family law in Malaysia covers important aspects of family issues. This article explains the main family laws in Malaysia and how to get assistance with legal issues.
What is family law in Malaysia?
Family law in Malaysia is a set of laws that cover the legal issues among families in Malaysia. There are 4 main legal issues which are marriage & divorce, domestic violence, adoption, and guardianship of infants.
Marriage and Divorce
To have a valid marriage or marry in Malaysia, one should understand the marriage and divorce laws in Malaysia depend on the religion of an individual. For non-Muslims, their marriage and divorce are under the Law Reform (Marriage and Divorce) Act 1976 while Muslims’ marriages and divorces are under the Syariah law.
The civil courts of the High Court have the jurisdiction and power to hear legal proceedings for divorce in Malaysia for non-Muslims while the Syariah Courts hear Muslims’ divorce cases.
Before non-Muslims intend to divorce, the spouses should discuss to see whether they can agree to the divorce terms which are:
Child custody and maintenance
If there are minor children, the parents should discuss which parent is to have custody, care, and control of the child. Child custody means the right to decide on the education, upbringing, and religion of the child.
The court will consider the wishes of the child and parents in awarding the custody but the main factor regards the welfare of the child. There is a presumption that a child below 7 years old is better to be with the mother.
Furthermore, parents have obligations and must provide for and support their children. For this, the court may award child maintenance to be paid by each parent depending on the needs and standard of living and means (income) of the parent.
Division of matrimonial assets
Both spouses have the right to matrimonial assets. In deciding on property division, the court will have few considerations, especially on contribution by the couples in financial and non-financial such as by taking care of the family and also the needs of the minor children.
In appropriate cases, the court may order the sale of the matrimonial assets and proceeds of the sale to be divided between the spouses.
Spouse alimony
The court may order a spouse to pay spouse maintenance to the other party. It is usually to be paid to the wife by the husband. The court will consider a few factors such as responsibility for the breakdown of the marriage and the income of the parties.
For non-Muslims, if the spouses can agree to the divorce arrangements or terms, they can opt for a joint petition. If they can’t agree, they have to opt for a single petition. For the single petition, they have to satisfy 2 additional requirements:
Reference of marriage
Either spouse or partner will have to refer the marriage to the conciliatory body/ marriage tribunal under the National Registration Department known as the ‘Jabatan Pendaftaran Negara (JPN) for marriage reconciliation. Only in some exceptional circumstances that this requirement be dispensed with.
Provide one of the grounds that the marriage has irretrievably broken down. The ground includes adultery and conversion to Islam by the other spouse.
After opting for a type of divorce, the petitioner can proceed to file the case at the High Court. Divorce proceeding usually follows the following steps:
Filing: The petitioner or his lawyer files the case at the High Court together with documents such as an identity card, birth certificate, and prenuptial agreement.
Hearing: The court will arrange a hearing date for the couple to attend and after the attendance and the court is satisfied with the evidence, it will issue a divorce decree which is known as ‘Dekri Nisi’. This is an order which has not dissolved the marriage yet.
3 months later, the couples can apply for decree nisi absolute. This is known as ‘divorce certificate malaysia’ which confirms that the divorce proceeding has concluded. If you are looking for a divorce lawyer in Malaysia, do contact us and we will assist you with the Malaysian divorce procedure.
An alternative to divorce is judicial separation which allows the couple to be legally separated. However, judicial separation will not make the couples divorce.
Domestic violence
Under the Domestic Violence Act 1994, family members who are subject to domestic violence from family persons can get different protection orders from the courts and social welfare departments.
Depending on the facts and existence of issues of each case, the protection orders issued by the court are usually given after criminal proceedings have been taken against the offender.
Adoption
Under the Adoption Act 1952 which is the law governing child adoption in Malaysia, the Malaysian Courts have the power to award child adoption to a suitable person.
Under the provisions and principles of this law, an adoption order can only be made when:
Continuous care
The child has been continuously in the care of the applicant for at least three consecutive months before the order date;
Consent
Consent of the lawful guardian (father/mother) has been given.
Age
If the relationship between the applicant and the child is not relative or father or mother of the child, the applicant should be at least twenty-five years old and at least twenty-one years older than the child unless the courts think there are special circumstances for the exemption of this requirement.
Guardianship
Under the Guardianship of Infants Act 1961, both parents have equality of rights and powers to decide on matters related to a child as joint guardians.
Depending on the situation and manner of each case such as the death of either parent, the court can also order another individual such as a relative to be appointed as joint guardian.
Conclusion
Family law in Malaysia covers important legal issues on family law matters. If you need any assistance on this, do contact us and we will assist you.
Frequently Asked Questions
1. Can a father get child custody in Malaysia?
Yes. The court will consider a few factors such as the welfare of the child, wishes of the child and parents in awarding child custody in Malaysia.
