The breakdown of a relationship preceding a divorce is distressing enough, coupled with the lengthy and complex process to file for a divorce, it can be overwhelming. In Malaysia, divorce is governed under the Law Reform (Marriage and Divorce) Act 1976 for non-Muslims whereas for Muslims, it is governed by the Islamic Family Law (Federal Territories) Act 1984.
This article listed down some of the common FAQs in regard to divorce under the Law Reform (Marriage and Divorce) Act 1976.
Q: I have been married to my husband for a year. Can I seek for a divorce?
Generally, a divorce proceeding by joint or single petition can only be initiated at least two years after the date of marriage.[1] Be that as it may, the court may still allow a petition for divorce before the two-year period on the ground that the case is one of exceptional circumstances or where the petitioner suffered hardship from the marriage.[2]
Q: What are the avenues available for divorce?
Parties could either seek for a joint petition divorce where the husband and wife mutually agreed that their marriage should be dissolved.[3] Alternatively, a single petition divorce could also be sought for if mutual consent for a divorce could not be obtained between the parties,[4] or in other words, it allows one party to contest against the other party’s decision in seeking for a divorce.
Q: What is the general process for joint petition and single petition?
Q: What is the timeline for joint petition or single petition application?
The duration for a joint petition takes about six (6) months whereas a single petition divorce would take at least nine (9) months, subject to the complexity of the matter.
Q: If my spouse is dead, do I need to file for a divorce prior to getting remarried?
A divorce is not needed as the marriage will automatically be dissolved upon the death of one of the parties to the marriage.[5]
Q: Do I apply for divorce through Syariah Court or Civil Court if my spouse has converted to Islam?
The party who has not converted may petition for a divorce via Civil Courts but a petition as such could only be presented three months after the date of the conversion of the other party.[6]
Q: What’s the fastest and most amicable route for a divorce?
The fastest and most amicable route to petition for a divorce is to apply for a joint petition, as opposed to a single petition where some extent of fault is required to be proven in order for the divorce to be granted. An amicable dissolution of marriage via a joint petition would allow the parties to decide on the maintenance for the wife and make arrangements for the custody of the children to the marriage.[7]
Q: What are the common scenarios in a petition for divorce?
Both or either party to the petition has/have to prove that the marriage has irretrievably broken down.[8] Some common scenarios include[9]:-
● Adultery committed by the respondent and it is intolerable for the petitioner to live with the
respondent;
● Unreasonable behaviour of the respondent;
● Desertion of the petitioner by the respondent for a continuous period of two years or more;
● Where the parties to the marriage have lived apart for a continuous period of two years or more
immediately preceding the presentation of the petition.[10]
Q: Can I petition for a divorce if I have committed adultery?
Unfortunately, no. The party whose conduct falls under any of the scenarios of a breakdown of a marriage would not be able to initiate a petition for a divorce.
Q: How likely would my divorce petition succeed on the grounds that my husband had committed adultery?
An allegation of adultery must be proven beyond reasonable doubt, wherein the evidence adduced must be beyond a mere suspicion. More often than not, there must be witnesses who have seen and can testify to the act of adultery.[11] Thus, the likelihood of success in a divorce petition via adultery would differ as each case would vary depending on the facts.
Q: What kind of behaviour would be deemed unreasonable or intolerable in a divorce petition?
Whether a behaviour of the respondent is unreasonable to live with will be considered subjectively from the perspective of the petitioner. The court will take into account the characters and personalities of the parties,[12] as well as other factors such as whether there was a lack of affection and/or communication by the respondent,[13] or whether there was a lack of intimacy.
Minor unreasonable behaviours which could have the effect of being seriously unreasonable when taken altogether will also be considered by the court in determining whether those behaviours were so intolerable to the petitioner that the marriage has broken down.[14]
Q: Could a former husband get maintenance from his former wife?
Yes. However, this is only the case where the former husband is unable to earn a living by reason of mental or physical injury or ill-health and that the court finds it reasonable for her to do so.[15]
[1] Section 50(1) Law Reform (Marriage and Divorce) Act 1976 [2] Section 50(2) Law Reform (Marriage and Divorce) Act 1976 [3] Section 52 Law Reform (Marriage and Divorce) Act 1976 [4] Section 53 Law Reform (Marriage and Divorce) Act 1976 [5] Section 4(3)(a) Law Reform (Marriage and Divorce) Act 1976 [6] Section 51 (Marriage and Divorce) Act 1976 [7] Section 52 Law Reform (Marriage and Divorce) Act 1976 [8] Section 53 Law Reform (Marriage and Divorce) Act 1976 [9] Section 54 Law Reform (Marriage and Divorce) Act 1976 [10] Section 54(c) & (d) (Marriage and Divorce) Act 1976 [11] Lim Siaw Ying v Wong Seng & Anor [2009] 4 MLJ 409 at para [77] [12] Joseph Jeganathan v Rosaline Joseph [1989] 3 MLJ 106 [13] Wong Siew Boey v Lee Boon Fatt [1994] 1SLR 323 [14] Jackson and others, Rayden’s Law and Practice in Divorce and Family Matters in All Courts (13th edn, London: Butterworths 1979) [15] Section 77(2) Law Reform (Marriage and Divorce) Act 1976
Authored by Tiffany Ding and Caylene On
Kindly note that this legal article does not, and is not intended to, constitute formal legal advice by the Firm, instead all information, content and materials available on this site are for general informational purposes only. If readers require further clarification or legal advice, please email office@kevinwuassociates.com.
