Considering a Divorce?

If you find yourself in this situation, this article will help you easily comprehend the crucial things you need to know before getting a divorce.

Basic information you should know

This guide concerns civil, non-Muslim marriages governed by the Law Reform (Marriage and Divorce) Act 1976. Separation alone does not automatically dissolve a marriage. A divorce requires an order from a court with jurisdiction. Your lawyer must check the marriage's legal status, the jurisdictional requirements and any restriction on when a petition may be presented. The main matters to check include:

• Registered or considered to be registered under Malaysian law or a foreign legislation that recognises monogamy;

• Whether two years have elapsed since the marriage, or whether an exception or permission to petition early applies;

• Whether the Malaysian court has jurisdiction: domicile is the general test, with additional statutory jurisdiction available for some petitions by a wife. Merely living in Malaysia is not always sufficient.

A judge may permit a petition within two years where the case involves exceptional circumstances or hardship suffered by the petitioner. Evidence is required, and the court considers any child's interests and the possibility of reconciliation. Separate provisions apply where one spouse has converted to Islam.

Joint or single petition?

In Malaysia, there are two types of divorce of marriage for non-Muslims:

• Divorce by mutual consent (Joint Petition); and

• Divorce without mutual consent (Single Petition)

When you approach a lawyer to initiate a divorce, the first important question your lawyer will ask you is whether your spouse agrees to the divorce. From there, your lawyer will know whether to file a single or joint petition on your behalf. The information provided below will assist you in determining which category your divorce falls under.

Joint Divorce Petition

A joint petition for divorce is filed when both parties agree to pursue a divorce. You must provide the following details when meeting with your lawyer:

• Details about the marriage and children (if any);

• Previous court cases involving the marriage;

• Maintenance, custody, and matrimonial assets division that have been agreed upon.

It is also essential for you and your spouse to discuss the cost of the divorce. It can be divided equally, or one of the parties can bear the entire cost. It is in the best interests of both parties to have a smooth separation and to move on with their lives by entering into a joint divorce.

Single Divorce Petition

A single petition for divorce is initiated by one party to the marriage. However, in order to do so, you must prove that the marriage has broken down and must also show one of the following:

• 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 be expected to live with him/her;

• Your spouse has deserted you for a continuous period of at least two years;

• You and your spouse have lived apart for a continuous period for at least two years.

You have to inform your lawyer about any other requests you want to include in the single petition such as:

• The custody of the child;

• The amount of maintenance of the children;

• Any claim for spousal maintenance and whether the statutory requirements are met;

• The percentage you wish to have from the division of the matrimonial assets.

What documents do you need for a single or joint petition?

The following are the documents that your lawyer will require in order to assist you to file your divorce petition:

• Photocopy of IC / passport of yourself and your spouse;

• Photocopy of marriage certificate;

• The conciliatory body's certificate, if required, and any documents supporting a statutory exception or application to dispense with referral;

• Related document to the assets (title of the property, sales and purchase agreement, bank account statement, proof payment of the house and etc);

• Birth Certificate of the child (petition with custody disputes).

Before a petition under the ordinary breakdown route, referral to a conciliatory body and a certificate of failed reconciliation are generally required. Section 106 excludes petitions under sections 51 and 52 and sets out further exceptions, including specified cases involving desertion, an overseas respondent, wilful non-attendance, imprisonment, incurable mental illness or exceptional circumstances making referral impracticable. Your lawyer should identify the applicable exception and any application or supporting evidence needed; an exemption order should not be assumed necessary in every excepted case.

As you can see, the divorce process in Malaysia comprises various complex legal concerns that should be grasped before applying. Should you require the services of an experienced lawyer for Malaysia family law, do not hesitate to reach out to us at GANDHI SYAHIDA & ASSOCIATES.

Contact us today for a consultation:

• Phone: 017-5190049

• Email: admin@gandhisyahida.com.my

• Office: No 5, 1st Floor, Taman Idaman, Jalan Idaman, 14100 Simpang Ampat, Penang

• Website: https://www.gandhisyahida.com.my/

Disclaimer: This article is intended for general informational purposes only and does not constitute legal advice. Every matter is unique and the information provided here should not be relied upon as a substitute for professional legal consultation. Please consult a qualified lawyer for advice specific to your situation.