There are two types of divorce petitions that can be filed in Court. A joint petition and a single/contested petition. If you or someone you know is contemplating getting divorced, then this article will guide you on what to expect during divorce proceedings. Please note that these guidelines are applicable to civil (non-Muslim) marriages in Malaysia and does not apply to Muslim marriages.
Malaysian Divorce Law
In Malaysia, divorce matters for non-Muslims are governed by the Law Reform (Marriage and Divorce) Act of 1976 (LRMD). Under this Act, only the High Court can grant a divorce. If the court has no objection to a divorce a decree nisi is granted, or the court orders the spouses to live legally separate from each other (a decree for judicial separation).
There are two types of divorce petitions that can be filed in Court. A joint petition and a single/contested petition.
Joint Petition Divorce in Malaysia
A joint petition divorce occurs when both the husband and the wife mutually agree to dissolve their marriage. Section 52 of the LRMD deals with joint petition divorces and prescribes that the parties must file a divorce petition stating the terms of their divorce (for example – custody of children, alimony, division of assets etc).
The Petition will be heard in the High Court where the presiding judge will then grant a decree of divorce – this is called a decree nisi. The court must be satisfied that consent was given freely to end the marriage. Three months after the decree nisi is granted by the Court, the decree will be made absolute upon further petitioning, provided that no one brought forth objections to the court regarding the decree. Once the Decree Nisi Absolute is filed, you are then officially divorce.
Single Petition Divorce in Malaysia
Section 53 of the LRMD 1976 provides that either party to the marriage can petition for divorce on the grounds that the marriage is irretrievably broken down. Section 54(1) gives us the grounds of what is considered an irretrievably broken-down marriage:
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- Your spouse committed adultery and you find it unbearable to continue living with them.
- Your spouse behaved in such a manner that you cannot reasonably be expected to live with them. Behavior that is deemed repugnant would be something that goes against typical customs and norms in Malaysia.
- Your spouse deserted you for a period of 2 continuous years.
- You lived separately from your spouse for a period of 2 continuous years.
Before the court hears your case, Section 53 also states that the couple must receive counseling from a conciliatory body (you can get more information from the National Registration Department). If the conciliatory body cannot resolve the issues between the couple, they will then issue a certificate affirming this.
The next step will be to petition for a divorce and the petitioning spouse will serve divorce papers to the other spouse. The responding spouse (respondent) may defend their marriage in court, however, if they do not, then a decree nisi is issued. If three months expire with no reconciliation then a certificate is granted making the divorce absolute.
In the event that Respondent chooses to contest the petition, you will then be required to have the matter disposed of during trial in open Court before a final judgment is passed.
We understand that each marital dispute is unique and strongly advise that you seek assistance from a divorce lawyer in our area. Contact us here if you wish to speak to a divorce lawyer in Kota Kinabalu, Sabah.
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