How to get a divorce in Malaysia
A divorce is a legal dissolution of a marriage. While there may be many reasons why couples wish to get a divorce, the following criteria needs to be considered before a divorce can be obtained: (i) duration of marriage (ii) domicile (iii) irreconcilable differences (if the parties are divorcing via a single petition divorce). In Malaysia, a couple may divorce either through a single petition divorce (often known as a ‘contested divorce’) or through a joint petition for divorce (also known as a ‘mutual divorce’). The main legislation governing marriages and divorces in Malaysia is the Law Reform (Marriage & Divorce) Act 1976, commonly referred to as the “LRA”.
Duration of marriage
Generally, couples need to have been married for at least 2 years before they may dissolve their marriage. The length of marriage is calculated from the day the marriage was legally entered into, i.e. the date the parties registered their marriage with the National Registration Department (“NRD”), and not the date that a ceremonial marriage was carried out. Although the general rule is that parties need to have been married for at least 2 years, a divorce may be granted at the discretion of the court if it can be shown that there are exceptional circumstances or hardship suffered by the petitioner to dissolve the marriage before 2 years. The bar for showing such exceptional circumstances or hardship is high.
Under the Law Reform (Marriage & Divorce) Act 1976, a wife’s domicile follows that of her husband. A person for the purposes of the Act is considered domiciled in Malaysia if he holds Malaysian citizenship, unless the contrary is proved. It is possible for domicile to be changed or obtained by choice.
The marriage has irretrievably broken down
* To clarify the terminology for our readers, the ‘petitioner’ is the person asking the court for a divorce, and the responding party is known as the ‘respondent’.
Where a couple is divorcing via a single petition divorce, it will have to be proven to the court that the marriage has irretrievably broken down. This can be shown by proving either (i) that the respondent committed adultery and the petitioner finds it intolerable to live with the respondent (ii) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (iii) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or (iv) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
It should be noted that ‘adultery’ is more than a relationship, and the person alleging that the other committed adultery will have to show that there was sexual intercourse between the spouse and the third party.
Parties divorcing via a joint petition do not have to prove that the relationship has irretrievably broken down.
Single vs joint petition divorce
Aside from not having to prove that the marriage has irretrievably broken down, a certificate from a conciliatory body is necessary before filing for a single petition divorce. The certificate would state that they have referred their matrimonial problems to the conciliatory body but that the conciliatory body has failed to reconcile the parties. The conciliatory body can be a marriage tribunal, a council set up for the purposes of reconciliation by the appropriate authority of any religion, community, clan or association, or any other approved body.
In contrast, if parties are agreeable to a joint petition divorce, it is not necessary to prove that the marriage has broken down or obtain a certificate from a conciliatory body. However, parties will have to agree to all the terms of divorce, including division of matrimonial property, guardianship, custody, care & control of any children of the marriage, and the maintenance of the wife and children. Often, the most difficult issues to agree on are division of property and issues regarding the children.
It should also be noted that joint petition divorces are often much cheaper, faster and amenable for all parties. For further information regarding joint petition divorces, please refer to our article here. It is not uncommon for contested divorces to take at least 2 to 3 years to be dealt with by the courts. A unique factor in joint petition divorces is that parties are free to determine the terms of their own divorce. For example, where children are involved, parents can put down in their divorce terms that they will have time with their children on their birthdays and special occasions. A court order is often given in much broader strokes, and may not consider these ‘smaller’ issues which are in fact, significant to the parties. Therefore, parties have a lot more control in a joint petition divorce. It cannot be guaranteed that a court will grant a divorce on the terms prayed for. The expense, time and emotional distress for all parties including the children involved should be carefully considered in deciding which route to take.
We often have clients who desire a joint petition divorce, but because he/she is unable to agree on certain terms with his/her spouse, believe that a single petition divorce is the only way. We wish to stress that this is not true – there are many ways to help divorcing couples, and we urge such couples to consider mediation and/or a collaborative practice to help them reach a mutually beneficial and amenable settlement. Please refer to our article on mediation here for further information regarding how mediation can assist. While it is true that employing the use of a third party such as a mediator will incur additional costs, these costs are often very small compared to the costs of litigating a single petition divorce. Resolving issues out of court also helps parties build and maintain civil relationships. Where children are involved, this is especially important to reduce the possible negative impact on children.
Divorce orders (Decree of Divorce)
Divorce orders in Malaysia are given in two parts. In normal cases, a decree nisi is granted first at the divorce hearing, and a decree absolute will be made three months following the decree nisi. Before the decree absolute is made, the decree nisi may be rescinded, further queried or otherwise dealt with as the court sees fit. Therefore, a divorce can only be considered ‘final’ once the decree absoluteis granted. In exceptional circumstances, the court may allow the decree nisi to be made absolute before the expiration of three months.
*This article is for informational purposes only and is not intended to provide legal advice. If you are considering a divorce, please reach out to us for a friendly consultation.