DIVORCE IN MALAYSIA
Understanding the Legal Framework
Divorce can be a challenging process, and for non Muslims in Malaysia, it is governed by the Law Reform (Marriage and Divorce) Act 1976 [LRA 1976].
LRA 1976 outlines the legal grounds for divorce, the process for filing, the associated rights of the spouses and responsibilities of spouses.
Following are the key sections from LRA 1976 when it comes to divorce process in Malaysia for Non Muslims.
What is a Joint Divorce Petition?
Joint Divorce Petition, commonly known as mutual divorce is a term used when both spouses mutually agree to end their marriage.
Joint Divorce Petition is typically less contentious, quicker and cheaper.
Both parties will require to achieve an understanding with regards to the key issues such as child custody, child maintenance, spousal alimony and the division of matrimonial assets.
S.51 of LRA 1976 governs joint divorce petition for Non Muslims in Malaysia. It allows both spouses to file a divorce petition together, asserting that their marriage has irretrievably broken down and that they agree on all related matters and the terms of the divorce.
KEY FEATURES OF A JOINT DIVORCE PETITION
- Mutually agreed – Both spouses must agree to the divorce and all related arrangement.
- Efficiency – The process is faster and more straightforward than a single petition divorce.
- Cost Effective – Legal fees are usually lower compared to single divorce petition
What is a Single Divorce Petition?
A Single Divorce Petition is filed by one spouse without the other’s consent or presence. This type of divorce can be more complex and contentious, as the petitioner must prove that the marriage has irretrievably broken down or that specific grounds for divorce exists.
Whilst S. 53 of LRA 1976 speaks about irretrievable breakdown of the marriage to be the ground of divorce, S.54 of LRA 1976 spells out the circumstances of when a marriage is deemed irretrievably broken down:
- Adultery : The Respondent has committed adultery, and the petitioner finds it intolerable to live with them
- Desertion : The Respondent has deserted the Petitioner for more than 2 years
- Behaviour : The Respondent has behaved in a way that the Petitioner cannot reasonably expected to live with them
- Separation : The spouses has lived separately for more than 2 years
KEY FEATURES OF A SINGLE DIVORCE PETITION
- Contested Divorce – Often involves disputes over the grounds of divorce, child custody, maintenance, alimony and asset division
- Complexity – The process can be lengthy and complex before reaching a conclusion
- Cost – Expensive than joint divorce petition
- Duration – The process can take 6 months to 3 years
- Emotional Strain – Contested divorces can be emotionally taxing for the spouses as well as the kids
- Counselling – The Law requires the parties to attend counselling session with JPN prior to the filing of single divorce petition.
Click here to read more on JPN requirement : JPN FAQ on Marriage & Divorce
Conclusion
Understanding the differences between joint and single divorce petition in Malaysia is crucial for those navigating the legal process.
Joint Divorce Petition is often the preferred route for spouses who can agree on the terms of their separation. In contrast, a Single Divorce Petition can be more complex & time consuming.
Having said this, it is essential to seek legal advice to ensure which route is more appropriate to protect your rights since each case is different and unique.
FAQ
How long does a joint divorce petition take to finalise?
A joint divorce petition typically takes between three to six months to finalise depending on the court’s schedule and whether the court is willing to make the Decree Nisi to be made absolute with immediate effect.
What happens if one party refuses to agree to divorce by way of joint divorce petition?
The other party may proceed to file for a single divorce petition under specific grounds outlined in S.54 of LRA 1976.
Can the terms of the joint divorce petition be changed after the filing?
Can, more often, the changes (amendments) are being done at the Hearing in the presence of both spouses to record their agreement.
Can parties file for divorce if the marriage is less than 2 years?
The Law clearly mentioned that the parties can only opt for divorce after being married for 2 years. However so, under exceptional hardship or depravity, the Court grants permission for the parties to proceed with divorce before 2 years from the date of marriage registration.
Can a single divorce petition be contested?
Yes, the Respondent in a single divorce petition can contest the grounds for divorce or the terms proposed by the Petitioner, leading to a more extended and complex legal process.
What happens if the respondent does not respond to a single divorce petition?
The court may proceed with the divorce based on the petitioner’s evidence.
What is the difference between decree nisi and decree nisi absolute?
Decree Nisi is a provisional order of divorce granted by the Court, indicating that the court sees no reason why the divorce should nit be finalised. After three months, Decree Nisi Absolute will be granted which legally ends (dissolves) the marriage. In certain scenarios, the court orders the Decree Nisi Absolute to be made immediate, which means the waiting period of 3 months is not needed.
