In Malaysia, we handle non-Muslim divorce cases. The Civil High Courts handle non-Muslim family law matters. The Law Reform (Marriage and Divorce) Act 1976 [Act 164] of Malaysia governs non-Muslim marriages and divorces. This Act excludes those who are Muslims.

Divorce has become a common aspect of Malaysian society. About 25% of married couples registered legally in Malaysia, divorce annually. Under the Law Reform (Marriage & Divorce) Act 1976, a married couple could dissolve a marriage with a divorce proceeding by presenting a petition to the court. The Law Reform (Marriage & Divorce) Act 1976 only governs non-Muslim marriages and divorces in Malaysia. The Law Reform Act 1976 states that a petition for divorce can be filed after two years of marriage and that the marriage has irretrievably broken down. Under The Law Reform (Marriage & Divorce) Act 1976, the court is empowered to award maintenance to the particular spouse as well as child custody and child maintenance and division and distribution of assets and properties. On the other hand, unregistered and customary marriages are void and so are bigamous or polygamous marriages. The Law Reform (Marriage & Divorce) Act 1976 has profound impact on civil marriages.

1) What is this Law Reform (Marriage & Divorce) Act 1976 about?

The Malaysia Law Reform (Marriage & Divorce) Act 1976 makes all Malaysian civil marriages monogamous and makes bigamous and polygamous marriages illegal.

2) Are customary weddings legal?

No. Only customary marriages that took place before March 1, 1982 are legal. After 1 March 1982, all customary weddings are illegal.

3) What is the purpose of the Law Reform (Marriage & Divorce) Act 1976?

– to legalise all non-Muslim civil marriages.

– to provide legal divorces and mediation settlement.

– to provide for wife maintenance.

– to provide for child custody and maintenance.

– to provide for division of matrimonial assets.

– to govern, void and voidable marriages.

– to safeguard and protect the welfare and financial interest of the married women.

4) Can the Law Reform (Marriage & Divorce) Act 1976 protect the spouse from physical and mental abuse?

Yes, under Section 50(2) of Law Reform (Marriage & Divorce) Act 1976, the spouse can file a single divorce petition.

5) Does the Law Reform (Marriage & Divorce) Act 1976 govern Muslim marriages and divorces?

No. This act excludes all Muslim marriages and divorces. Muslims are governed by the Syariah Courts.

6) My husband has converted to the Islamic religion but I am a Christian. Can I file for a divorce?

Yes. The Law Reform (Marriage & Divorce) Act 1976 allows you to file for single divorce petition but it does not provide any equivalent right to the spouse who has converted.

7) Can I remarry without getting a divorce first?

No, this is illegal.

Divorce by Mutual Consent (Joint Petition Divorce) is when both spouses (husband & wife) mutually agreed to apply for divorce together to end their marital contract.

This is also commonly known as Joint Petition since both parties are jointly applying for divorce.

Generally, both parties can decide freely on maintenance to wife & kids, custody & care of kids and division of assets.

Divorce Without Mutual Consent (Single Petition Divorce) is when either one of the spouse wants to apply for divorce on his/her own without other party. There are various reasons for Single Petition divorce application. Most common reasons are adultery, unacceptable behaviour of spouse, and separated for a long time and couldn’t locate the other party.

This is also known as Single Petition as one party is initiating it.

The General Procedure For Uncontested Divorce / Joint Petition

1. Consult a lawyer.
2. Come to a common agreement with your spouse concerning arrangement for your children, property and maintenance (if any).
3. Sign the divorce petition prepared by your lawyer.
4. Wait for the hearing date after filing your application in the High Court.
5. Attend the hearing with your lawyer (if you or your spouse cannot attend, refer to your lawyer for solution).
6. Obtain your divorce certificate at least 3 months after a divorce order is granted by the judge.

The General Procedure For Contested Divorce/Single Petition

1. Consult a lawyer.
2. File the necessary applications to the High Court.
3. Marriage Tribunal at Jabatan Pendaftaran Negara (JPN) – get a certificate from the Marriage Tribunal before filing for the contested divorce petition.
4. Attend JPN Tribunal to divorce.
5. Sign the divorce petition prepared by your lawyer.
6. Wait for the hearing date after filing your application in the High Court.
7. Attend the hearing with your lawyer (if you or your spouse cannot attend, refer to your lawyer for solution).
8. Get your divorce certificate after a divorce order is granted by the judge.

The General Procedure For Divorce On The Ground Of One Spouse’s Conversion To Islam

1. Consult a lawyer.
2. File the necessary applications to the High Court.
3. Start counselling process with JPN (a conciliatory body) as required under the law before starting the divorce process.
4. Sign the divorce petition prepared by your lawyer.
5. Wait for the hearing date after filing your application in the High Court.
6. Attend the hearing with your lawyer (if you or your spouse cannot attend, refer to your lawyer for solution).
7. Get your divorce certificate after a divorce order is granted by the judge.

There is really only one ground for divorce – the irretrievable breakdown of a marriage. This is proved by establishing one or more of the following facts:

Intolerable Behaviour

You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her.

Adultery

You must prove beyond reasonable doubt, either through actual admission or by way of sufficient circumstantial evidence that sexual intercourse has taken place between your spouse and another person of the opposite sex and that you find it intolerable to live with your spouse. Proving this may be complex and you should seek advice. Adultery can be used as the basis for a divorce petition whether you and your spouse are still living together or have separated.

Two Year Separation

You and your spouse have been living apart, for a continuous period of at least two years before the filing of the petition. There may be circumstances where a Court may be of the view that spouses have been living separately even when they are living under the same roof. You should seek advice as to whether this applies to you.

Desertion

Where your spouse has deserted you for a continuous period of at least two years before the filing of the petition.

You will NOT need to prove the above facts, if your divorce is mediated and a separation agreement is reached. Your divorce may then be reached by filing a Joint Petition based on these settlement terms.

If you are considering to file for a divorce based on your wife or husband’s actions, the Court may consider the following question of facts:

• Whether your wife or husband has committed adultery?
• Whether your wife or husband has deserted you for a continuous period of 2 years?
• Whether you have lived apart with your husband or wife for a continuous period of 2 years?
• Whether your wife or husband has committed physical or mental abuse against you?
• Whether your wife or husband is addicted to drug or alcohol?

1) How do I file a divorce petition?

In Malaysia, there are generally two (2) types of divorce petition:

1. Joint divorce petition (where both you and your partner agree to the divorce and the terms of separation); and
2. Unilateral/Single divorce petition (where either you or your partner disagrees with the divorce or any of the terms of separation).

2) How and when to file for a joint divorce petition?

As long as the joint divorce petition is filed two (2) years after your marriage, the Court may make the order of divorce if both you and your partner freely consent to the divorce, and proper arrangement has been made for the wife and children (if any).

3) What are the grounds for single divorce petition?

Unlike a joint divorce petition, there must be a proof of breakdown of your marriage, that is to say, that there must be:-

1. Commission of adultery by either party;
2. Unreasonable behaviour of either party;
3. Desertion of either party for two (2) years; or
4. Both parties have lived apart or separately for two (2) years.

4) Is there any time period to obey before applying for a Divorce?

S.50 of Law Reform (Marriage & Divorce) Act 1976 says that a petition for a divorce may be done only after 2 years of marriage. But there are exceptions to this Rule when the Petitioner suffers from ‘exceptional circumstances of hardship’.

5) Is it a must to be separated for 2 years before applying for a Divorce?

Although it is not mandatory for the spouses to stay separately, they are advised to stay separately for more than 2 years. Especially, for single petition, this will amount towards ‘proof of irretrievable breakdown’ of marriage.

6) How long does it take for the divorce proceedings to complete?

In the case of a joint petition divorce, it takes about 3-5 months. As for single petition divorce, it takes a longer time. The actual time frame is very much depending on the circumstances of the cases.

7) How much does it cost to file for divorce in Malaysia?

If both parties have agreed to a divorce (joint petition), the legal fees may cost around RM3,500.00 to RM8,000.00 in Malaysia (excluding transfer fee for property post-divorce matter).

For single petition, divorce fees will depend on how complicated a divorce case is. Reasons such as distribution of assets, financial support or children custody will be taken into consideration as well. Other than that, the fees may vary depending on a lawyer’s seniority and level of experience.

8) How do I get a divorce?

If both parties agree to the divorce, get our lawyers to file a joint petition for divorce. If one spouse wants a divorce, then get our lawyers to file a single petition for divorce.

9) Do I need to engage a lawyer for my divorce? Can’t I deal directly with the High Court myself?

It is advisable to appoint a lawyer when filing for a divorce. The lawyer can guide you through the whole tricky process of divorce.

10) Can I file for divorce in Malaysia in the case of incompatible personalities?

If you have been married for more than 2 years, you can do so.

11) If I live separately with my spouse for more than 2 years, can I file for divorce immediately?

Yes. If you have lived apart continuously for at least 2 years, you can do so.

12) Who must attend the court hearing for divorce?

The lawyer must be present. As a general rule, both husband and wife must also be present.

13) I have an unfaithful husband involved in adultery. What legal action can I take?

Engage a divorce lawyer to file for a single divorce petition.

14) I could not find my partner and I have lost all contact with my partner. Can I still apply for a divorce?

You can apply to the court for a single divorce petition through a lawyer.

15) Can I remarry my former spouse after the divorce?

Yes you can.

16) If I am not satisfied with the High Court’s decision, can I file an appeal?

Yes. You can appeal twice. First to the Court of Appeal and secondly the final appeal to the Federal Court.

17) What shall I do if I cannot afford to hire a lawyer?

You can get help from 2 organisations offering legal aid.

– The Bar Council Legal Aid Centre set up by The Malaysian Bar.

– The Legal Aid Department under the Prime Minister’s Department.

Before you qualify for legal aid, you have to take an online test to determine if your financial capabilities fall within the necessary boundary. The second test assesses the merits of your case.

18) Who shall pay for the divorce?

For joint divorce petition, either party pays for the whole legal fee or both parties share the legal fee. For single divorce petition, each party has to pay the legal fee.

Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.