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Understanding Civil Marriage & Divorce

Before 1 March 1982, marriages carried out according to traditional or customary rites were considered valid and deemed registered. However, after 1 March 1982, all marriages must be registered in accordance to the Law Reform (Marriage and Divorce) Act 1976 (LRA), otherwise they are not valid. In 2018, significant amendments to the LRA were passed and came into effect on 15 December 2018.

Civil Marriage

Requirements for Valid Non-Muslim Marriage

  • The man and woman must be at least 18 years old;
  • A person who is above 18 but below 21 years of age must obtain consent from his/her father/mother;
  • A girl who is above 16 years but below 18 years must get a special licence from the Chief Minister/Menteri Besar;
  • Both parties must be non-Muslim;
  • Both parties must not be within the prohibited relationship category;
  • Both parties must freely consent to the marriage; and
  • Both parties must be single or if they have been previously married must have had their marriages validly terminated by court order or death of the spouse.

Monogamous Marriages

No polygamous marriages are allowed after 1 March 1982. This means a person who is already married cannot re-marry until his/her spouse dies or the marriage is dissolved/annulled by court order. Marrying another person during the lifetime of a spouse (commonly known as bigamy) is an offence under Section 494 of the Penal Code and is punishable by imprisonment for up to 7 years and liable to a fine. The subsequent marriage will also be deemed void which means the new spouse and children will not have a right to inherit the property of the person when he/she dies.

Prohibited Relationship

Marriages between family members including grandparents, parents, children, grandchildren, uncles/aunts and siblings, etc. are not allowed even if the relationship arises through marriage/adoption.

Procedures for Marriage

A marriage can be solemnised in 3 different ways:

  • At the Registrar’s Office;
  • Under special licence from Chief Minister; or
  • Through religious ceremony, custom or usage before a validly appointed Assistant Registrar of Marriage.

Every marriage must be solemnised in the presence of at least 2 witnesses and where the Registrar/Assistant Registrar is satisfied that both parties freely consent to the marriage.

Solemnisation of marriage at the Registrar’s Office

Both parties should fill in a form for a notice of marriage to the Registrar of Marriages of the marriage district where they live. The Registrar will publish the notice by posting a copy on the notice board of the Registry, until he/she grants the certificate of marriage. The parties must make a date for the Registrar to solemnise the marriage at his/her office within 6 months of the date of the notice. If the marriage does not take place within this period, the notice and all subsequent proceedings become invalid, and a fresh notice has to be given. The parties will be legally married after the solemnisation by the Registrar.

Solemnisation of marriage under special licence from Chief Minister

A special licence from the Chief Minister is required when:

  • the parties want to dispense with giving of notice and the issue of a marriage certificate (provided the necessary consent has been obtained and there is no legal impediment);
  • the prospective wife is between the age of 16 and 18 years old; or
  • the Chief Minister is satisfied that it is more convenient for a civil marriage to be solemnised in some place other than the office of a Registrar.

A marriage authorised by a special licence from the Chief Minister must be solemnised within a month from the date of the licence, failing which the licence becomes invalid.

Solemnisation of marriage through religious ceremony, custom or usage

Any person appointed as Assistant Registrar of Marriages may solemnise any marriage in accordance with the religion which the parties to the marriage or either of them practise. The person may be a clergyman, minister, or priest of any church or temple who has been appointed as the Assistant Registrar of Marriages. Before the marriage is solemnised, a prescribed statutory declaration stating that the parties have complied with all requirements and that there are no legal impediments to the marriage must be delivered to the Assistant Registrar of Marriages.

Caveat (Objection) Against A Marriage

A caveat or objection against a marriage is a legal notice filed with the Registrar of Marriages to prevent a marriage proceeding until the objection can be heard. A caveat acts as a warning to both parties to the marriage that the intended marriage is not complying with the requirements of the Law Reform (Marriage and Divorce) Act 1976. Any person may lodge a caveat in the prescribed form costing RM20 with the Registrar of Marriages. If there is a caveat entered, the Registrar will not issue the marriage certificate. The Registrar will make enquiries of both parties on the objections, and then decide whether to issue the marriage certificate. If the caveat entered is subsequently withdrawn by the person who entered it, then the Registrar can issue the marriage certificate. Where there is doubt, the Registrar may refer such cases to the High Court to decide.

Marriage Abroad & Foreign Marriages

Solemnisation of marriages abroad in Malaysian Embassies

A marriage may be solemnised by an appointed Registrar at the Malaysian Embassy, High Commission, or Consulate in the country abroad under these conditions:

  • that one or both of the parties is a Malaysian citizen;
  • that each party has the capacity to marry according to the Law Reform (Marriage and Divorce) Act 1976;
  • where either party is not domiciled in Malaysia, the proposed marriage, if solemnised, will be regarded as valid in the country where such party is domiciled; and
  • that notice has been given within the specified time period and published both at the office of the Registrar in the Embassy, High Commission, or Consulate where the marriage is to be solemnised and at the Registry of the marriage district in Malaysia where each party was last ordinarily resident, and no caveat or notice of objection has been received.
Registration and procedure of foreign marriages

Any person who is a citizen a of Malaysia who is married abroad must:

  • register the marriage within 6 months after the date of marriage at the nearest Registrar abroad OR before any Registrar in Malaysia; and
  • the person must produce the marriage certificate to the Registrar and fill in the prescribed form with the declaration in it. The Registrar may dispense with the appearance of one of the parties to the marriage if he/she is satisfied that there is good and sufficient reason for such party’s absence.

Civil Divorce

Understanding Civil Divorce for Non-Muslims

A person, once married, cannot marry again until his/her marriage has been dissolved by court order or the spouse dies. All valid polygamous marriage entered before 1 March 1982, are recognised under the present law.

Although the Law Reform (Marriage and Divorce) Act 1976 generally applies to non-Muslims, it is important to note that it also applies in divorces where:

  • one party converts to Islam after the filing of the petition or after the pronouncement of a decree; or
  • the divorce is applied for on the grounds that one party has converted to Islam. In such circumstances, any decrees or orders made by the civil court shall be valid against the spouse who has converted to Islam.

Any person who wishes to apply for a divorce needs to be legally married. The requirements for divorce are as follows:

  • Your marriage must be registered or recognised by the present law.
  • Both parties must be married for at least two years (except where the divorce is sought because one party has converted to Islam); and
  • Both parties must have been living in Malaysia. However, a wife can still file even if the husband is not in Malaysia if her husband has deserted her (or has been deported) and had been living in Malaysia before he left her, or the wife has continuously lived in Malaysia for 2 years just before filing the divorce.
 

Types of Divorce

By joint petition

This is where both parties agree to all the terms of the divorce. These includes custody of children, access to children, maintenance for spouse and children, and division of the matrimonial assets. Both parties will file a joint petition in court through a lawyer. The court usually requires both parties to be present in Court on the day of the hearing of your petition. This type of divorce is simpler, faster, and cheaper.

By contested (single) petition

If your spouse does not agree to present a joint petition, you will have to file a contested (single) petition for divorce. To do so, you must first refer your marital problems to the Marriage Tribunal at the office of the Registrar of Marriages where you last lived with your spouse.  The Marriage Tribunal will try to reconcile both of you. If this fails, the Tribunal will give you a certificate which you need to have to file for your divorce in court.

To obtain a divorce, you will need to state in your divorce petition and prove that your marriage has irretrievably broken down on one or more of the following grounds:

  • Your spouse has committed adultery and you find it intolerable to live with him/her
  • Your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her (has been cruel to you, been violent towards you, failed or neglected to maintain you and/or children, etc)
  • Your spouse has deserted you for a continuous period of two years before you filed the divorce petition
  • Both of you have lived apart for a continuous period of at least two years before you filed the divorce petition

In addition to the above, you will also need to state in your divorce petition, and provide proof accordingly, of your claims in relation to:

  • custody, guardianship and access arrangements for your children
  • maintenance for yourself and/or your children
  • your share of matrimonial assets
Divorce on Ground of Conversion to Islam

Where one party to a marriage has converted to Islam, either or both parties may petition for a divorce under the Law Reform (Marriage and Divorce) Act 1976, and the civil court can make orders for maintenance, custody, etc accordingly. The minimum two-year marriage requirement does not apply to petitions for divorce where one party has converted to Islam.

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 three 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 Cost Involved

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

  • Joint Petition: on average it takes three to six months, and may vary from RM4,000 to RM6,000 in Penang.
  • Contested Petition: On average it takes a minimum of one year, and may cost a minimum of RM6,000 in Penang. It could even go up to RM50,000 or higher depending on the terms of the divorce. For those with an income below RM2,500 you can approach the Legal Aid Centre of the Bar Council or the Legal Aid Department for free legal aid.
 

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. 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.

 

Void Marriage

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

  • 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.
  • 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. The parties are within prohibited degrees of (close family) relationship unless Chief Minister grants a special license.
  • Parties are not respectively male and female.
 

Voidable Marriage

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

  • The marriage has not been consummated due to the incapacity of either party to consummate it;
  • The marriage has not been consummated due to the wilful refusal of the respondent spouse to consummate it;
  • Either party to the marriage did not validly consent to it, whether because of duress, mistake, unsoundness of mind or otherwise;
  • 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;
  • At the time of the marriage, the respondent spouse was suffering from a communicable venereal disease and the petitioner was not aware of this.
 

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.

Frequently Asked Questions (FAQs)

How do I go about filing a petition for divorce?
You have to first see if your spouse will agree to file a joint petition for divorce. If both of you can agree on all issues, i.e., custody of children, access to the children, maintenance for spouse and children, and division of your joint assets, you can file a joint petition. You cannot file a joint petition if some but not all the terms are agreed to.

What do I do if my spouse does not agree to the divorce or to some of the terms?
You can file for divorce even if he does not agree to the divorce, but you must first refer your problems to a Marriage Tribunal at the Registration Department in the state where you last lived together. The Tribunal will call both of you a few times and see if there is a possibility of reconciliation. If there is none, then the tribunal will issue you a certificate to say it can’t reconcile both of you and you can use it to file the petition.

Currently my husband and I are staying in Penang, but I registered my marriage in Kuala Lumpur. Do I need to file the divorce in Kuala Lumpur?
No. You can file your divorce in Penang or in the High Court nearest to you if you and your husband are living in different states or towns.

Do I have to be separated from my husband for at least 2 years before I can file a petition for divorce?
No, you don’t. Two years’ separation is only necessary if you are using separation or desertion as a ground for divorce. There are other grounds that may be applicable in your case like unreasonable behaviour of your spouse (domestic violence, mental or emotional cruelty, abusive behaviour, persistent failure to maintain, neglect, infidelity or a combination of these) or adultery. If your husband has committed adultery you can bring in the other person involved as a third party and claim damages from her but there must be actual proof of adultery. If you cannot prove adultery, you can use his relationship with another woman to show your husband’s unreasonable behaviour. But you and your husband must be married for at least two years (except in the case where one party has converted to Islam) before filing for a divorce.

If I have been separated from my husband for two years or more will we be considered automatically divorced?
There is no such thing as an automatic divorce. All divorces can only be given by the High Court. Even if you have been separated for two years, you have to prove that the separation has caused a breakdown of marriage. The court can dismiss the petition if the court finds that there is no breakdown of marriage in spite of the separation.

If my husband has converted to Islam, can I file for divorce?
Yes, however you have to wait 3 months after your husband has converted to file for divorce. The 3-month period is to allow you a chance to convert to Islam as well.

Is my marriage considered automatically dissolved if my husband converts to Islam?
No, it is not. The marriage is still valid and will only be considered dissolved if the High Court makes an order dissolving the marriage upon the application of one or both parties. The High Court can at the same time make an order making provisions for you and for the support, care and custody of your children.

How much does it cost to file for divorce?
The cost of divorce varies considerably depending on what your claims are and the value of the parties’ claims involved. In Penang, it may cost a minimum of RM4,000 to RM6,000 for a joint petition and will be a lot more if there is dispute on custody and access of children, maintenance and matrimonial property. If there are additional applications which become necessary in the course of the trial, e.g., taking an injunction against your husband because he is stalking or harassing you, you will have to pay much higher fees. You will also have to pay the court expenses for filing all your divorce papers and getting the orders from the court.

Can I claim all these expenses from my husband?
You can claim your costs of the petition but the court may not always allow your claim or full expense. Anyway, you have to advance all these payments first and not expect your lawyer to wait until your claims are allowed by the court.

What happens after my petition for divorce is filed in court?
Your petition will have to be served on your husband. He will be given time to defend the case and to answer the allegations and claims you have made against him. Once all the necessary documents have been filed in court, the court will fix a hearing date. On the hearing date both sides will be given an opportunity to tell the court how the marriage broke down and prove their claims in court. The court will then decide if the divorce should be granted and what claims should be allowed.

My husband keeps telling me I won’t be able to get my divorce or any of my claims as he wouldn’t turn up in court even if he is served the divorce papers. What should I do?
It is not true that you cannot get a divorce decree or any of your claims if your husband does not defend the case or turn up in court. So long as he has been duly served the divorce papers and has been informed of the hearing date, the court will proceed with the petition as an undefended matter and grant you the divorce and the orders you asked for if he does not turn up in court.

What happens if my husband does turn up and resists the petition or any of my claims? Will my case take a long time to finish?
Not necessarily. It depends on how both parties conduct their case and how busy the court is. Nowadays, with the fast track system being applied in courts, cases cannot be delayed too long and the courts have to complete the cases as soon as possible. This applies even in contested divorce cases (i.e., cases where the other side does not agree to the divorce or any of the orders asked by the petitioner).

After three years of marriage, my husband and I decided to end our marriage. However, my husband does not want to initiate it and I do not have the money to file for divorce. What can I do?
You can go to the Legal Aid Department (Jabatan Bantuan Guaman) or Legal Aid Centre (LAC) to file the case. The Legal Aid Department is a government-funded body that provides legal advice and help to the public. LAC is run by the Malaysian Bar Council in every state providing free and confidential legal advice and subsidised legal services. Either the Legal Aid Department or LAC will assess your income and other properties owned by you before they take up the case for you.

I have already filed for divorce but my husband has refused to sign the divorce and move out of the house which belongs to me. I have lodged a police report about domestic violence but the police said that my husband still has the right to live in the house. What can I do?
If you have already filed a single petition, your husband does not have to sign the petition. The court will decide if your petition should be granted. If he refuses to move out of your house, you can, in your petition, ask for a court order to order him to leave. If the court has already granted the order to evict your husband but he still refuses to leave, you can request a court bailiff to accompany you to evict him. A court bailiff is a court officer who enforces the court’s eviction order. With the help of the Social Welfare Department (Jabatan Kebajikan Masyarakat), you can ask for an Interim Protection Order (IPO) which includes an order to forbid him from entering or living in the house. (For more details, refer to Domestic Violence Section)

How do I file for divorce if my husband has left Malaysia and I am not able to contact him?
You can file for divorce on the grounds of desertion provided your husband has deserted you for more than two years. If you can prove to the court that you have no knowledge of his whereabouts, you can be excused from serving the divorce papers on him or serve it by advertisement in the local newspapers.

What is judicial separation?
Judicial separation is different from divorce. Although the grounds like desertion, adultery and others are the same, it is different because you are still married to each other after the order is made. You just have the right to stay separately, get an order for maintenance, custody and division of matrimonial assets. If this order is made, the husband cannot inherit his wife’s property when she dies. But the wife can inherit the husband’s property should he die. These proceedings are meant to cater for people who cannot apply for divorce due to their personal or religious beliefs.

What is a deed of separation?
A deed of separation is an agreement for separation signed by both parties. This deed sets out the terms of the separation, e.g. custody, access and maintenance. It is useful for cases in which parties cannot bear to live together but do not want to get a divorce and do not want to be harassed by the other party to return to the matrimonial home.

How can I end my marriage if I have registered my marriage but have not lived with my husband because we haven’t gone through the customary or religious marriage ceremony?
If you have not had sexual relations with your husband, you can apply for a decree of nullity on the grounds of his refusal to consummate the marriage if your agreement was that you won’t live together or consummate the marriage until after the religious ceremony.

Can I apply for a decree of nullity even though we have been married for less than two years?
Yes, you do not have to be married for two years before applying for a nullity decree.

Check out useful resources on Civil Marriage and Divorce.

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