Divorce

Any person who wishes to apply for a divorce needs to be legally married. If you were married according to traditional or customary rites prior to 1 March 1982, you have a valid marriage and it is considered to be registered. However, after 1 March 1982, marriages MUST be registered, otherwise it is not valid in accordance with the Legal Reform (Marriages & Divorce) Act 1976.

Conditions for Divorce

  1. Both parties must be married for at least two years; and
  2. Both parties must have been living in Malaysia.

Grounds for Divorce

There is only ONE ground for divorce, that is, the marriage has irretrievably broken down. You have to prove any one of the following:

  1. Adultery was committed by your spouse;
  2. Both parties have been separated for two years or more;
  3. You have been deserted by your spouse for 2 years or more;
  4. Your spouse behaved in such a manner that you find it impossible for you to live with him.

Types of Divorce

Mutual Consent Divorce

This is where both parties mutually agree to all the terms of the divorce. These includes custody of children, access to children, maintenance and division of the matrimonial property. Both parties will file a joint petition in court through a lawyer. There is no need to obtain a Certificate from a Marriage Tribunal or Conciliatory Body. This type of divorce is faster and cheaper.

Contested Petition

This is where one party files for divorce without the agreement of the other party. You must first obtain a Certificate from a Marriage Tribunal before filing for divorce. Both you and your husband must attend a maximum of 3 counselling sessions, wherein the Tribunal will try to reconcile the two of you within three to six months, failing which a Certificate will be issued. You may then proceed to file the petition in Court. This type of divorce is tedious, lengthy, and costly.

Court Procedure

Generally, your lawyer will have to file your divorce petition in court first. The court will then fix a hearing date for your case. You and your husband have to be present at this hearing. At the end of your case, the court will grant a ‘Decree Nisi’ which will last 3 months. At the end of the three months, the Decree Nisi will be made absolute — ‘Decree Nisi Made Absolute’ — and you will be legally divorced.

Time And Costs

It is difficult to ascertain the length of time and costs involved in a divorce. Only a rough estimate can be given.

Mutual Consent Divorce: On average it takes three to six months, and may vary from RM2,500 to RM5,000.
Contested Divorce: On average it takes a minimum of one year, and may cost a minimum of RM5,000. It could even go up to RM50,000 depending on the terms of the divorce.
For those with an income below RM2,000 you can approach the Legal Aid Centre of the Bar Council or the Biro Bantuan Guaman for free legal aid.

Main Issues to Divorce

When you have decided to apply for a Divorce, there are THREE main issues to consider in the petition:

  1. Maintenance (wife and children)
  2. Children (custody and guardianship)
  3. Matrimonial assets.

1. Maintenance (Wife and Children)

This is a monetary support you and your children may get from your husband. You can apply for maintenance before your divorce has been finalised.

Maintenance for Wife
Maintenance upon Divorce

(a) In deciding the amount of maintenance to be ordered, the Court will consider the future and present income, property resources, and earning capacity of both parties. The financial needs and degree of responsibility which the Court apportions to each party for the breakdown of marriage will be the deciding factors for the maintenance.
(b) The Court may also order the person liable to pay maintenance to provide security to guarantee payment of such maintenance.
© An order for maintenance shall cease to expire if the divorced spouse in whose favour the order was made remarries or lives in adultery with any other person.

Maintenance Prior to Divorce
  1. You can make an application for maintenance to the Court once your Husband has failed to provide money for your children’s education or for you to buy, for example, food and clothing for your family’s needs, even if you have not yet decided to divorce your husband.
  2. The amount of maintenance ordered will be in proportion to the means of your husband.
  3. It can be made payable from the date he neglected to support you and your children financially.
  4. If your husband is an employee, you may apply to have the amount of maintenance deducted from his salary. His employers will then send the said amount to you directly.
  5. Even if your children are illegitimate (i.e your marriage is not valid), they will be entitled to maintenance from their father – but you will not.

Note: At the time of your divorce, if your husband is physical or mentally incapacitated and cannot earn living, you may have to pay him maintenance

Maintenance for Children

Children of the marriage can also apply for maintenance. Factors to be considered:

  1. Financial needs of the child;
  2. Income, earning capacity, property, and other financial resources of the parent;
  3. Standard of living enjoyed by the family before the breakdown of the marriage;
  4. Any physical or mental disability of the child;
  5. Manner in which he/she was being educated and trained.

Currently the order for maintenance expires when the child attains eighteen (18) years of age.

Failure to Pay Maintenance to Wife and Children

Where a husband fails to comply with the court order for maintenance, the court may levy a fine or sentence the husband to imprisonment for a maximum term of one month for each month’s allowance that remains unpaid.

Variation of Maintenance

The Court may, at any time and from time to time, vary or rescind any order for maintenance upon application by either party where it is not reasonable or satisfactory because that the order was based on misrepresentation, mistake of fact, or where there has been any material change, for example, the earning capacity, health condition, or remarriage of either party.

2. Custody and Guardianship of children

Custody

Custody is the right to look after a child’s welfare and physically take care of its concerns. Children below seven (7) years old are presumed to be better off with their mother, unless she is proven to be unfit. The older children’s wishes may be considered if the court feels they are mature enough to understand the implications of their decision.

When looking into the wellbeing of your children, the Court may consider:

  1. Your children’s preference to stay with either parent (if they are above seven years old);
  2. Not disturbing the daily routine of your children;
  3. The Welfare Report, if any prepared by the Social Welfare Department Office after conducting the interview with you and your husband and your children;
  4. The closeness of your children to their extended family and grandparents, uncles, aunts, and cousins living with you and your children now, babysitting and/or schooling arrangements.
  5. Religion.

If you gain custody of your children you will have to allow your husband reasonable access to them, and vice versa. Alternatively you and your husband may opt to make fixed arrangements or have joint custody.

Guardianship

Guardianship means the legal rights over your children. You and your husband have equal guardianship rights. This means either one of you can apply for the identity cards, passports, and schools for children.

NOTE: Children above 18 years old are considered adults.

3. Matrimonial Assets

Matrimonial assets are assets both parties acquire during marriage. In this situation the Court will normally order a sale of the property and divide the proceeds of the sale between the parties. The Court will also take into consideration the following when making the order:

  1. How much you and your husband contributed in money terms to obtain assets – your role as a housewife will also be taken into consideration as a financial contribution.
  2. Any loan borrowed by either of you for the benefit of the family is also considered.

Where the asset is acquired by the sole effort of one party only, the Court shall consider the following facts in dividing assets:

  1. The extent of contribution made by the other party who did not acquire the property, to the welfare of the family e.g. keeping the house clean, cooking, and generally looking after and caring for the family; and
  2. The needs of the minor children, if any, of the marriage.

Judicial Separation

If you are opposed to divorce whether on religious or other grounds but you wish to live apart from your spouse, you may petition to the Court for a decree of judicial separation. In order to obtain such a decree, you must prove the same grounds as in a divorce petition. Once the Court grants judicial separation, you are no longer obliged to live with your spouse.

In a judicial separation, both you and your husband are still legally married, whereas once a divorce is granted, the marriage is legally ended and either of you is free to remarry. Similarly, couples who are judicially separated may reunite without the need to remarry. You may still petition for a divorce after a decree for judicial separation is granted.

Nullity of Marriage

You can apply to the Court for your marriage to be declared a nullity if your marriage is void or voidable, meaning your marriage will be annulled.

Void Marriage

Your marriage is deemed void if it falls under the following circumstances:

  1. Where at the time of marriage, either party was already lawfully married, the former spouse is still living and the former marriage is still in force.
  2. Where a male person marries under 18 years of age, or a female person who is above 16 years of age but under 18 years, marries without a special license granted by the Chief Minister.
  3. The parties are within prohibited degrees of (close family) relationship unless Chief Minister grants a special license.
  4. Parties are not respectively male and female.

Voidable Marriage

Your marriage will be voidable if it falls under the following circumstances

  1. The marriage has not been consummated due to the incapacity of either party to consummate it;
  2. The marriage has not been consummated due to the willful refusal of the respondent spouse to consummate it;
  3. Either party to the marriage did not validly consent to it, whether because of duress, mistake, unsoundness of mind or otherwise;
  4. At the time of the marriage, either party was a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 so as to be unfit for marriage;
  5. At the time of the marriage, the respondent spouse was suffering from a communicable venereal disease and the petitioner was not aware of this.

Marriage revokes a will

If a person is single at the time of writing his or her will, this will is automatically revoked once he or she marries. However, if he or she plans to marry in the near future, he or she can still make a will now by stating in the document that it is being made in contemplation of his or her marriage to a particular person. The name of the future spouse must be clearly stated in the will.