REGISTRATION OF DECREE NISI ABSOLUTE FROM A FOREIGN COUNTRY PROCEDURES

An application to register a foreign decree of divorce or annulment with the Registry of Marriages Malaysia may need be done by way of an Originating Summons.

Note that there are cases in which the court may order that such an application be made not by Originating Summons but by way of a Petition For Declaration of Divorce under s 107(3) & (4) of the Law Reform (Marriage & Divorce) Act.

The Originating Summons or Petition For Declaration of Divorce should be accompanied by a Notice of Appointment of Solicitors and an Affidavit in support exhibiting the marriage Certificates (both here and in the country where divorce obtained) and the Decree Nisi obtained in the other country together with a Notice of Appointment of Solicitors. Either one party to the divorce abroad needs to file the proceedings.

Application should be made under section 31 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) and Rule 55 of the Divorce and Matrimonial Proceedings Rules 1980.

Note that there are cases in which the court may order that such an application be made not by Originating Summons but by way of a Petition For Declaration of Divorce under s 107(3) & (4) of the Law Reform (Marriage & Divorce) Act with an Affidavit in support exhibiting the marriage Certificates (both here and in the country where divorce obtained) and the Decree Nisi obtained in the other country together with a Notice of Appointment of Solicitors. Either one party to the divorce abroad needs to Petition.

The Originating Summons/Petition For Declaration of Divorce should then be served on the Respondent, and if he or she is out of the country, a further application by ex-parte Summons In Chambers will be necessary for service out of Malaysia. If the Respondent cannot be located, then the Originating Summons or Petition For Declaration For Divorce as the case may be, should be served on him or her by way of substituted service.  Court will then fix hearing of the matter before the Judge and Applicant/Petitioner is required to attend. In the event the Applicant/Petitioner cannot attend, an Affidavit To Dispense Court Attendance by Applicant/Petitioner, needs to be filed seeking court to dispense attendance by giving reasons for unable to attend acceptable to court.

In urgent applications, Certificate of Urgency needs to be file by the lawyer in charge, giving reasons to move the court for an urgent hearing of the matter. The Certificate of Urgency needs to be exhibited with an affidavit of Applicant/Petitioner.

The Contents of Affidavit

The contents of the Applicant’s/Petitioner’s affidavit are more or less the same as affidavits prepared in the petition for the dissolution of marriage. That is, the affidavit needs to mention where, when and by whom the marriage was solemnized and reasons that lead to irretrievable breakdown of marriage and so forth. The affidavit should mention that the decree nisi absolute been granted by the court of the foreign land.

Registration of Court Order

After the order is granted by the Court, the relevant documents, that is, a sealed copy of the order, a certificate of making decree nisi absolute and a certified true copy of the decree of divorce or annulment is to be forwarded to the Registrar General of Registry of Marriages and Divorces for registration.

Once these documents been served on the Registrar of Divorce & Marriage in Putrajaya, the Registrar is expected to send a letter to the Law Firm, confirming that the decree nisi has been registered here too.

Do Take Note the Following Points

Who has the duty of sending/informing the National Registration Department of a decree absolute that has been granted?

Legal Position

Section 107(2) of the Law Reform (Marriage & Divorce) Act 1976 (LRA) states that it is the duty of the court, as the court “shall forthwith send one certified true copy of the decree to the Registrar General for registration”.

Section 107(3) of the LRA requires the parties themselves to personally register the divorce with the NRD only if the decree obtained is from a foreign court.

National Registration Department’s Position

It is the duty of the court to forward a certified true copy of the decree absolute for registration of the divorce.

In the event the court has not forwarded the decree absolute, then the parties can personally update the National Registration Department by producing the original decrees with photocopies of it, or by providing certified true copies from the court.

These steps are compulsory to avoid forged decrees being relied upon.

What is the status of a party if the marriage is annulled?

Legal Position

A distinction has to be made whether the annulment is granted under section 69 or section 70 of the LRA

• Where a marriage is annulled under Section 69 (void marriage), the party will revert to a “single” status.
• Where a marriage is annulled under Section 70 (voidable marriage), the party would be classified as a “divorcee”.
• Section 61(1) of the LRA states that every divorce must be granted a decree nisi before it can be made absolute.
• Section 73(1) of the LRA, on the other hand, states that a decree of nullity is granted as soon as the petitioner proves his/her case.

Can any person conduct a National Registration Department search on the martial status of another?

Legal Position
There are no prohibitions

National Registration Department’s Position

Any search on another’s marital status has to be conducted through a solicitor who will have to state the reason for the search. There have been cases where persons other than the parties to the marriage are seeking such information and the National Registration Department is of the opinion that there is a need to safeguard the confidentiality of the persons involved.

Is there a need to obtain a court order to register a foreign decree?

Section 107(3) of the LRA states that where a marriage, solemnised in Malaysia is dissolved or annulled by a foreign decree, then either party may apply to the Registrar General of Marriages to register the foreign decree and the Registrar General shall, if he is satisfied that the decree is valid, register the decree. There is no provision for registration of a foreign divorce in the case of a foreign marriage which is only registered at a Malaysian embassy or High Commission abroad.

National Registration Department’s Position

National Registration Department insists on having a court order before re-cognizing a foreign decree and registering the same. This is despite some instances where the court has refused to make such an order as Section 107(3) of the LRA only requires parties to register a foreign decree with the NRD, without the need for a court order.

The National Registration Department clarifies that if the marriage was solemnised lawfully in Malaysia or at a Malaysian embassy abroad, then a foreign decree may be registered. But in the case of foreign marriages, whether registered or not with a Malaysian embassy abroad, a court order is required to register a foreign divorce. Solemnisation of a marriage at a Malaysian embassy abroad has to be in accordance with Section 26 of the LRA.