Divorce Proceedings in Malaysia

• How do I get a divorce?

If both parties agree to the divorce and terms, they may get a lawyer to file a Joint Petition.

The Joint petition must state:

1. Details of marriage and children, if any;
2. Previous court cases relating to the marriage;
3. Agreed terms on maintenance, custody and division of assets.

If one of the parties disagree with the divorce or could not come into an agreement with the terms of the divorce, they may get a lawyer to file a Single Petition.

Both parties must attend to a meeting conducted by the Marriage Tribunal at the National Registration Department of Malaysia before filling any Single Petition. However, this procedure can be exempted under exceptional circumstances.

The Single Petition must state:

1. Details of marriage and children, if any;
2. Previous court cases relating to marriage;
3. Proof of complete breakdown of marriage; and
4. Claim for maintenance, custody and/or division of assets.

• What are the requirements for me to bring a divorce claim in Malaysia?

The marriage must be registered or considered to be registered under Malaysia law or a foreign law, which provides for monogamous marriage. Both parties live in Malaysia or consider Malaysia to be their permanent home, and both parties are married for at least 2 years, except for exceptional or hardship cases.

• What are the grounds for divorce?

For a single petition, the parties must prove that the marriage has completely broken down, and the party must show at least one of the following:

1. your spouse has committed adultery and you cannot bear living with him/her; or
2. your spouse has behaved in such a way that you cannot be expected to live with him/her; or
3. you and your spouse have lived apart continuously for at least 2 years; or
4. your spouse has left you for a continuous period of at least 2 years.

• I have been living separately with my partner for more than 2 years, is this considered as a divorce?

No. In order to get a divorce, the parties must go through the court proceedings and obtain a court order ie. Decree Nisi/Decree Absolute for the parties to get a legal divorce under Malaysia law.

• I could not reach an agreement with my other half but I want to get a divorce, what can I do?

As mentioned above, the parties can file a Single Petition to get a divorce without the other partner’s consent.

• How long does it take to get a divorce?

For joint petition, the process takes around 6 months to complete. For single petition, the whole process takes at least 9 months to a year, depending on the complexity of the matters.

• How does the court determine child custody?

The factors that help the court to decide child custody are:

1. most importantly, the welfare of the child;
2. the wishes of the parents; and
3. the wishes of the child, if capable of independent opinion.

The court would presume that it is for the good of child below seven (7) years old of age to be with his or her mother. However, this presumption is rebuttable by providing proof of evidence that the mother is not fit to have the custody of the child.

• Can a child decide which parent to follow in the event of a divorce?

Yes. The Court could take into consideration of the wishes of the child if he/she is capable of independent opinion.

• What kind of conditions the court might impose when granting a custody order?

The court may impose such conditions as it deems fit in an order for custody and which may include:

1. Matters relating to the child’s residence, education and religion;
2. Temporary guardianship to someone other than the legal guardian;
3. Right to access to the child for parent or relative not granted custody.

• Can the court make an order to restraint a party to take the child out of Malaysia?

The court has the power to restrain the parent of a child from taking a child out of Malaysia. An application can be made either at the time when any matrimonial proceeding is pending or after an order for custody has been granted to one parent.

• How does the court divide the matrimonial assets after a divorce?

Court can divide assets obtained during marriage by joint efforts of the spouses, or owned before marriage by one spouse and substantially improved during the marriage by the other spouse or by their joint efforts.

It is also important to note that the court would not necessarily divide the assets EQUALLY, but instead the court would usually divide the assets/money based on the circumstances of the case, and consider:

1. contribution by either spouse in money, assets or work;
2. debts of a spouse for the benefit of both parties; and
3. needs of young children.

• I have found out my partner’s affair with a third party, what kind of legal action can I take?

The party may file a single petition and include the third party into the proceeding in order to seek for compensation and/or damages from the third party for causing the breakdown of the marriage.

• I have not contributed to the purchase of the matrimonial asset in monetary form, would it affect the chances of me getting my share in the matrimonial asset?

No. As mentioned above, the court would consider non-monetary contributions by either parties while dividing the assets between the parties.

• Can I apply for custody to the child while pending for my divorce proceeding?

Yes, An application can be made anytime for the party to obtain the custody of a child while pending the dissolution of the marriage.

• My partner refuses to let me have the access to the child, what can I do?

The party can apply for interim custody and/or reasonable access to the child to the court to gain an access to the child

• I have faced domestic violence in my household, how can the law protect me?

If your partner has used or threatened to use violence against you, you may seek for one of the following reliefs:

1. Apply to the High Court for an order restraining your partner from doing so.
2. Apply for an injunction from the High Court restraining your spouse from using or threatening to use violence against you.
3. Seek protection under criminal proceedings for criminal force or assault by making a police report but such proceedings will have to be brought by the police who will be responsible for prosecuting your spouse.
4. Apply to the court for a protection order and claim for compensation pursuant to the provisions of the Domestic Violence Act 1994, which apply to all members of the family.

• I could not find my partner and/or I have lost contact with my partner, can I still get a divorce without his/her consent?

The partner may apply to the court for a single petition without the other partner’s consent.