Divorce in Malaysia is regulated by the Law Reform (Marriage and Divorce) Act. This law regulates all marriages and divorces of non-Muslims in the country.
Most people who come to seek advice, have no idea how to go about the divorce proceedings. To begin, a Divorce is only for couples who have registered their marriage. Couples who have been living together but have not registered need not get a divorce as they have no legal obligations to each other.
Generally there are two types of divorce i.e. Single Petition and Joint Petition. A Single Petition is when only one of the parties to the marriage seeks a divorce. A Joint Petition is when both parties to the marriage mutually agree to divorce.
Usually a Joint Petition Divorce is much easier and straightforward. Since both parties agree to divorce, they must also agree to the terms and conditions of the divorce i.e. custody of children, maintenance, division of matrimonial property etc. If both parties can come to an agreement the Joint Petition can be filed together with the agreed terms in Court and an order for divorce can be granted in a short amount of time. The order for divorce is called a an Order of Decree Nisi. This order is temporary and the divorce is only confirmed after a period of 3 months. Anytime within this period, the parties can cancel the divorce if they choose to. After 3 months the order becomes a Decree Nisi Absolute, i.e. the divorce is permanent.
In a Single Petition however, only one of the parties to the marriage is requesting for a divorce either because the other party refuses to divorce or in some cases no longer traceable. For whatsoever reasons, not all divorces can be settled amicably, some can be quite messy.
If only one party to the marriage wants a divorce, he or she must first go to the National Registration Department and go to the Marriage & Divorce division and apply for a referral to the Marriage Tribunal for reconciliation. The Tribunal will fix a date for both husband and wife to appear and hear their matrimonial issues. If the Tribunal is satisfied that the marriage cannot be saved, they will issue a certificate stating that there is no other recourse but to proceed with the divorce. The Tribunal will also issue the certificate, if one of the parties fails to attend the Tribunal hearing for more than 3 times.
After the Tribunal issues the certificate, the aggrieved party can proceed with filing a Single Petition in Court. The Court will fix a date for both parties to appear and for pleadings to be filed. This can be a long drawn out affair depending on the attitude of both parties and the more complicated the case the more expensive the legal fees become. After pleadings has been filed, and after a hearing has been carried out, the Court will then decide on the terms of the divorce, including custody of children, maintenance, division of matrimonial property etc. Similar to a Joint Petition, the order will be for Decree Nisi which shall only become absolute after 3 months i.e. the divorce will become permanent after 3 months from the order, and during that time the divorce can be set aside.
Some couples don't bother to get a divorce and just split up and go their separate ways. But this kind of approach will only come back to haunt them the moment they want to re-marry or when inheritance issues arise.
Any other questions relating to divorce, maintenance, custody, division of matrimonial property, etc can be sent to this email: divorce.matrimony.malaysia@gmail.com
