Divorce Procedure
The law and procedures for divorce in Malaysia depend on the religion of an individual, that is, whether is Muslim or non-Muslim. The divorce law for non-Muslim couples is the Law Reform (Marriage and Divorce) Act 1976 (‘LRA 1976’). This law states the procedure to resolve matrimonial disputes, and with the guidance from the right divorce lawyer or divorce lawyer firm, the outcome in divorce proceedings can be different.
There are 2 types of divorce in Malaysia, namely:
1st type: Contested divorce (also known as ‘single divorce petition’).
Either party applies for it without requiring the consent of the other spouse. The single petition is usually used when the spouses don’t agree to divorce or the spouses don’t reach an agreement on the divorce terms.
2nd type: Uncontested divorce (also known as a ‘joint divorce petition’)
The spouses apply for the divorce jointly and it requires mutual consent from both spouses on the divorce terms and arrangements.
If the spouses can agree on the main divorce terms with the assistance and guidance of professional lawyers, a joint divorce petition is a better way, as it is faster and cheaper. The main divorce terms are explained below.
Divorce Terms
Before deciding on the type of divorce, the couple/clients can discuss the main divorce terms. If they can agree on the divorce terms, they can apply for a joint divorce petition, and if unable to, then either spouse can apply for a single divorce petition.
The terms include child custody, division of marital property, and spousal maintenance. Each of the terms is further explained below.
Child Custody and Support
The divorce arrangements include the right to have day-to-day custodianship, custody of the child, and the right to decide on major things related to the upbringing of the child. The other parent who does not have custody will usually get access to the child through visitation rights.
In deciding child custody, the courts usually award custody to either parent and the main factors to consider are the welfare and wishes of the child. While matrimonial proceedings are ongoing, the court can also award temporary custody of the child to either spouse.
Furthermore, parents have the main responsibility to pay a certain portion of the child support/maintenance, which will differ based on the parents’ income and the child’s needs.
Division of Matrimonial Assets
Matrimonial assets mean matrimonial properties acquired during the marriage by the couple through sole or joint efforts, and also properties that either spouse owned before the marriage but have been substantially improved during the marriage. These usually include houses, matrimonial homes, cars, and other assets.
In deciding on the division of matrimonial assets, courts usually consider a few factors such as financial and non-financial contributions by both spouses, needs of children, and any loan obtained to acquire the assets.
Spouse Alimony
Spouse alimony is the financial support provided by either spouse to the other during or after the divorce to maintain the lifestyle. Spouse maintenance is usually paid by the husband to the wife.
In deciding on the amount of spousal maintenance/alimony, the courts consider some factors such as responsibility for the breakdown of the marriage and the income of the spouses.
Divorce Pre-requirements
After discussing the above terms and if they can agree on the divorce terms, they can opt for a joint divorce petition. If they disagree on any of the terms, then they must opt for a single divorce petition.
And before initiating the divorce process for termination/dissolution of marriages, the couples need to meet some pre-requirements, which differ depending on the type of divorce. The requirements are explained below:
For both types of divorce
The requirement is that the couple's marriage must have been registered in Malaysia and have lasted for at least 2 years or more. However, this 2-year requirement can only be dispensed with in exceptional cases or circumstances, such as hardship or domestic violence suffered by either spouse.
For joint divorce petition only: Both spouses must agree to the divorce terms as explained above.
For a single divorce petition only: There are 2 more pre-requirements:
(a) 1st requirement- The spouse initiating the divorce (called as ‘petitioner’) must first refer the marriage to the marriage tribunal, National Registration Department, Jabatan Pendaftaran Negara (JPN) for marriage counselling/reconciliation of the emotional turmoil.
When counselling does not work out after a few attempts, JPN will issue a certificate of non-reconciliation, one of the documents required for a single divorce petition.
(b) 2nd requirement- The applicant must prove one of the reasons for the irretrievable breakdown of the marriage. Some of these grounds are:
(i) The other spouse has behaved in a way that makes it impossible for the spouse to reasonably be expected to live with him/her
(ii) The other spouse has committed adultery, and it is intolerable to live with him/her. Adultery means the happening of sexual intercourse with a third party other than the spouse. Having an affair with a third party may amount to unreasonable behaviour, but in some cases, not amount to adultery. Thus, adultery claims cannot be taken lightly without sufficient evidence.
(iii) There is desertion by the other spouse for a continuous period of at least two consecutive years.
(iv) There is a separation between the couple for at least two consecutive years
Divorce Process
After satisfying the pre-requisites above, the couple can jointly apply for divorce if they agree on the divorce terms. If there is no agreement, then either spouse can apply for single divorce petition.
There are 5 steps to the divorce procedures in Malaysia, which are explained in detail below:
Prepare the required documents
The party initiating the divorce, known as the ‘petitioner’, through its professional divorce lawyers in Malaysia, should prepare some relevant 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) JPN's non-conciliation certificate (for single divorce application)
(e) Other related documents such as a prenuptial agreements
For foreign marriages that had been dissolved through a foreign court order, the couples can apply for a declaration order to recognise that foreign/overseas divorce court order as an order of our court system. Once it has been done, then the JPN can mark the marriage in our country as ‘dissolved’.
Signing and Application to the court for divorce.
If it is a single divorce petition, the petitioner should sign and file the relevant documents at the High Court of Malaya to initiate the court divorce process. If it is a joint divorce petition, then both spouses can appoint a lawyer on their behalf to file a joint petition for divorce in the High Court.
There are several branches of the High Court in Malaya, and usually the case is filed at the nearest High Court where the couples reside. For example, couples staying in Selangor will file at the Shah Alam High Court.
Serving divorce documents on the other spouse
If it is a single petition for divorce, the petitioner must serve the legal documents on the other spouse, known as the ‘respondent’, and the respondent must answer and respond to the allegations. If it is a joint divorce petition, service is generally not required.
After that, for a single petition divorce, the court, through its officers named ‘Registrar’, sometimes will encourage the parties to take part in mediation sessions, led by a mediator.
These mediation sessions are intended for negotiation, and if the parties can agree on the terms, then the terms can be recorded in the court system as a ‘settlement agreement’ in the form of a consent order.
Hearing
The court will then set a court hearing date. On that date, the spouses, together with their witnesses (if any) must appear in court for the full trial. After hearing the evidence and arguments from both parties in the contested divorce proceedings, the judge will issue a divorce court order, known as a "decree nisi’. This is a temporary order that does not dissolve the marriage yet.
3 months after the decree nisi is given, the spouses can apply for a decree nisi absolute. This is also known as a ‘divorce certificate in Malaysia’ and this order confirms the dissolution of marriage. However, the judge has the discretion to dispense with or reduce the 3-month waiting period.
If either spouse is dissatisfied with the court’s judgment, then they can appeal to a higher court, with the highest court being the Federal Court. With the support, expertise, and legal guidance of professional divorce lawyers in Malaysia, one can go through the legal process and achieve good results in divorce matters without any legal complications.
Update marital status
After getting the divorce order, the parties can update their latest marital status with the JPN. With the update, the process of divorce is complete.
JPN also issues confirmation of personal marriage records through issuing documents such as a single status certificate Malaysia (which is to confirm that an individual is currently single). This is usually provided on request by citizen who intends to marry in overseas countries.
Family conflicts usually can be handled well with the assistance of legal professionals, especially with good divorce lawyers in Malaysia.
Get Professional Divorce Lawyer’s Services
Professional divorce law firms play an important role in the successful outcomes of divorce matters. They help clients in a few areas:
Legal advice
They provide legal advice, legal strategy, and guidance on the types of divorces and evaluate strengths and weakness of each case.
Application to court
Professional divorce lawyers in Malaysia represent clients to make application to the court to initiate divorce case. They prepare the related paperwork and guide them throughout the process.
When choosing the right Malaysian family law firm to represent you, here are few qualities to look for.
Experience and legal expertise
He should understand the related divorce practices, divorce and family laws, and court rules for non-Muslim divorces, such as the LRA 1976.
(a) Reputation and references
Investigate the reviews from past clients if you want to know more about their quality of services and experience in divorce matters. A good lawyer should have a good reputation amongst past clients.
(b) Responsiveness and other related legal services
Apart from being skilled attorneys, also choose a lawyer who responds quickly to your concerns and questions and keeps you updated. Other than that, clients should also seek for a Malaysian law firm with a legal team that provides other family law services, such as adoptions, to address clients’ legal needs for different services.
The best divorce lawyers or top divorce lawyers don’t come cheap or give free legal advice. However, they are worth for value, especially for contested divorces. If you have any legal needs and are looking for a divorce lawyer in Malaysia or divorce lawyers in Kuala Lumpur for divorce services, you can contact us during working hours to request an appointment.
Fees
The cost of a joint divorce petition is lower than a single divorce petition. It is because a joint petition divorce takes less time to complete.
Some of the fees usually include the following expenses:
Legal fees
These are the fees charged by the lawyer for representing the clients in the divorce proceedings.
Disbursements
This includes the court filing fees for documents, travelling, and photocopying documents.
You can request a quote for the legal fees from us. However, fees should not be the only criterion in selecting a law firm in Malaysia. A skilled family lawyer or a good attorney doesn’t come cheap. As with anything, know your budget and choose the best family/matrimonial law firm within that range. What is an affordable family law firm to one may differ for another
