In these modern days, divorce rate is increasing rapidly in Malaysia and it has become a social trend infusing Malaysians,but, this phenomenon is commonly rising among young couples. It is believed that many people are not aware of issues in divorce which may involve and include mediation and litigation between the married couples. Hence, prior to file a divorce proceeding, you must equip yourselves with the knowledge of divorce and matrimonial proceedings.
In Malaysia, the Law Reform (Marriage and Divorce) Act 1976 (Act 1976) regulates the non- Muslim marriages. And the Act 1976 is to be read in conjunction with the Divorce and Matrimonial Proceedings Rules 1980. There are commonly 2 types of divorce:
- Divorce with mutual consent
- Divorce without mutual consent
However, there are cases where unilateral peitition for divorce being filed. That is a petition filed by one spouse only. Here the court may dispense the presence of one of the other party, for example, if there is evidence that the party concerned has migrated and even been served with the divorce petition and other related documents, consents to divorce. The party unable to attend can file an affidavit giving reasons acceptable to the court why he or she could not attend court and consents to the divorce freely.
Divorce with mutual consent
- Both parties consent to divorce, by way of joint petition. Prior to joint petition, it must be assured that the marriage must have been registered or deemed registered under the Act 1976. Further, the couple must have been married for at least two (2) years from the date of their marriage and must present a joint petition to the court accordingly. If the court thinks fit, it may make a decree of divorce on the ground that both parties freely consent thereto or marriage has irretrievably broken down. THE court may decide that proper provisions and maintenance are to be made for the wife and for the support, care and custody of the children of the marriage.
- It is to note that the divorce proceedings have to be filed before the High Court. The court will fix a hearing date where both parties should be present at the hearing.
Divorce without mutual consent
One of the parties to a marriage may file a petition to divorce (contested petition) without mutual consent, for the reason that the marriage has broken down irretrievably. There are several grounds where the marriage can be grounded when:
- either party to the marriage has committed adultery; o
- either party to the marriage has behaved in such a way that it cannot reasonably be expected to live together; or
- either party to the marriage has been deserted for a continuous period of at least 2 years; or
- both parties to the marriage have lived separately for a continuous period of at least 2 years
To serve a contested petition and other cause papers on the respondent (other party), the petitioner must be present at a hearing. It depends on the respondent whether to present at the hearing after he/ she has been served with the contested petition and duly informed of the hearing date.
If the court is satisfied that he/ she has been duly served with the relevant cause papers and informed of the hearing date, yet still absence, the court may grant the decree nisi for the divorce.
Divorce petition includes contested petition and joint petition. In a divorce petition, it shall contain:
- Particulars of the marriage and the name, age and sex of the children, if any, of the marriage;
- Particulars of the facts giving the court jurisdiction;
- Particulars of any previous matrimonial proceedings between both parties;
- A statement of principal allegations which will be sought to prove as evidence of the breakdown of the marriage;
- Terms of agreement in relation to maintenance of the wife or dependents and the children (if any, of the marriage); custody of and access to the children; division of matrimonial assets; or no such agreement has been reached; the petitioner’s proposals; and
- The particulars of the relief sought.
- Lastly, it must be highlighted that the divorce petition must state measure that has been taken in effecting reconciliation and compromise between the parties in a marriage.
Custody of the Children
In joint petition, matter is easy to settle as both parties to the marriage can mutually agree to propose any agreement or arrangement to the children. Nevertheless, in a contested petition, either party to the marriage can make application for custodianship. The court has the power to make order for custody of his/ her father or his/ her mother. Only under exceptional circumstances, the court thinks it is undesirable for the child to be entrusted to either parent and or any other relative of the child, and the child usually will be placed under welfare association or officers or to any other suitable person.
Prior to decide on the custodianship, children’s welfare is at paramount consideration. The court shall have regard the wishes of the parents of the child and also the wishes of the children, in which he/ she is at an age that understand and able to express his/ her independent opinion. The rebuttable presumption lies that custodianship of a child below 7 years ago belongs to the mother. Yet, such presumption is rebuttable by the father.
In joint petition, both parties can easily mutually agree to propose any arrangement to divide the assets. In contested petition, either party to the marriage can make application for division and arrangement of the matrimonial assets. In the event the property is acquired by either party to the marriage, the court may think fit by dividing the property reasonably whereby the party who contributed will receive greater portion of the property. On the other hand, if the property is acquired by joint effort, the court may divide the property reasonably according to the contribution made by each party to the marriage.
Duration for a Divorce Case to be Settled and Completed
For joint petition divorce case, it will usually consume about 6 to 10 months to be completed. However, in a contested petition divorce case, the case will usually consume a longer time than joint petition divorce case, probably a year or more.
Documents Needed for a Joint Petition Divorce Case
- A copy of the identity card of husband
- A copy of the identity card of wife
- A copy of Marriage Certificate
- A copy of children’s birth certificate and identity card
- For minor children, Medical Certificate from doctors as to whether they are suffering from any acute illness or disability that need medical care and attention
- If there involve division and arrangement of matrimonial assets and or property, a copy of Land Title or Sale and Purchase Agreement or a copy of Motor Vehicle Registration Card is required for the procedure.
Brief and General Procedure for Joint Petition to Divorce
Consult a lawyer. With lawyer’s advice, discuss and make settlement with your spouse for the maintenance, custody, care and arrangement of the children, assets and or properties.Your lawyer will prepare related documents and divorce petition for you and you are to sign them. Your lawyer will file your application in the High Court and you will have to wait for the hearing date. At the hearing, both parties to the marriage have to attend. Judge will subsequently grant a divorce order called “Decree Nisi”. The Decree Nisi shall only have effect 3 months later. Then, you are pronounced legally divorce by an order of Decree Nis Absolute.
Legal Fee and Costs
Certainly, legal fees and costs is one of the most concern and crucial matter to be considered before one is to proceed with one’s divorce proceeding. It is difficult to ascertain the exact time and costs consumed. Only a rough estimate can be given by your lawyer.
Generally, divorce with mutual consent, the legal fees and cost are cheaper than divorce without mutual consent. The amount of legal fees and costs vary accordingly depending on few factors. For instance, complexity of the case (the amount of time and skill consumed) and complexity of the divorce petition (division of property and or assets, custodianship and maintenance of wife and children)
If you do not wish to divorce, but want to live apart from your spouse, you can opt for a separation. You are advised to seek for a lawyer’s advice. Your lawyer will draft a private agreement between you and your spouse called a Deed of Separation. All terms relating to child custody, access to children, maintenance and division of matrimonial property and or assets should also be agreed upon by both parties to the marriage. Alternatively, you may apply to the court for a Decree of Judicial Separation. All conditions prior to applying for a divorce are also applicable in a Judicial Separation.
Nullity of Marriage
You can apply to court for your marriage to be declared a nullity if your marriage is void or voidable. Then, you will be granted a Decree of Nullity, meaning your marriage will be annulled. A void marriage is a marriage which is considered never to have existed in the first place. Your marriage will be void if it falls under certain circumstances:
- Subsisting valid marriage
- Underaged parties
- Prohibited degrees of relationship
Parties of the same sex (homosexual and lesbian relationships)
On the other hand, a voidable marriage is a marriage which is considered to have existed, but after the Decree of Nullity is granted it will no longer exist. Your marriage will be voidable if it falls under certain circumstances:
- Not consummated- incapacity
- Not consummated- wilful refusal by respondent
- Invalid consent due to duress, etc.
- Valid consent, yet mentally disordered
- Venereal disease
Pregnant by others. It is up to the court to decide whether children born in a void marriage are legitimate or not. Children born in a voidable marriage are considered legitimate under the law.