Divorce is the legal termination of a marriage, formally ending the relationship between a married couple. In Malaysia, divorce procedures for non-Muslims are governed by the Law Reform (Marriage and Divorce) Act 1976. Below is a detailed explanation of the divorce procedures in Malaysia:
1) Types of Divorce
There are two types of Divorce in Malaysia:
Joint Petition Divorce: Both parties agree to the divorce and reach consensus on the terms such as division of matrimonial assets, child custody, child & spousal maintenance etc.
Single Petition Divorce: Only one party agrees to the divorce, while the other does not, or both parties agreed to divorce but unable to agree on the divorce terms.
2) Preconditions for Divorce
Marriage Duration Requirement: The marriage must be registered for at least two years before filing for divorce.
Marriage Duration Less than Two Years: An application may be made to allow the presentation of a petition for divorce before the expiration of the period of two years from the date of marriage, provided there is exceptional circumstances such as: domestic violence, abuse, or if the applicant is experiencing extreme hardship. If you're uncertain on your situation, feel free to reach out to us for a consultation.
For Single Petition:
Irretrievable Breakdown of Marriage: The applicant must prove that the marriage has irretrievably broken down. This may be demonstrated through the following circumstances:
The spouse has committed adultery, making it intolerable to live together
The spouse’s behaviour is intolerable, making cohabitation reasonably impossible
Desertion by the spouse for at least two years
Separation of at least two years
3) Procedure for Joint Petition Divorce
Engaging a Counsel (Lawyer): Both parties may jointly appoint one counsel to handle the divorce, or each of them may appoint their own counsel.
Drafting of Cause Paper: The counsel will draft the divorce petition based on the agreed terms, and both parties will need to sign these documents. The terms outlined in the petition should cover the division of matrimonial assets, child custody, access and visitation rights, and maintenance for the child and spouse.
Court Filing: All the executed cause papers will be filed to the Court and a hearing date will be fixed thereafter. Both parties must attend to the hearing. If your spouse is currently abroad, you may reach out to us for a consultation.
Court Hearing: The Court will review the documents and confirm the consent of both parties, grant a divorce order thereafter.
Duration: The divorce process usually takes around 2–3 months plus another 3 months for the decree nisi made absolute (cooling-off period). This cooling-off period may be waived under exceptional circumstances, you may reach out to us for a consultation.
4) Procedure for Single Petition Divorce
Counselling Requirement: If there are no exceptional circumstances, the applicant must first apply for counselling at the Jabatan Pendaftaran Negara (JPN) or a conciliatory body. Counselling may be waived under the following conditions:
The applicant has been deserted by their spouse and is unaware of their whereabouts
The spouse resides abroad and is unlikely to return to Malaysia within six months following the date of the petition
The spouse is imprisoned for a term of 5 years or more
The spouse is suffering from incurable mental illness
Other exceptional circumstances deemed satisfactory by the Court (application required)
Engaging a Counsel (Lawyer): The applicant may appoint a counsel after obtaining the letter (KC28/KC29) issued by JPN. In a single petition proceeding, the applicant may pray for terms such as sole child custody, sale of matrimonial assets, and spousal maintenance. If the other party disagrees with these terms, they enter appearance in the court to contest the claims/prayers. If the other party does not appear, the Court is likely to grant all reasonable prayers made by the applicant. The divorce process can be completed successfully even if the other party does not respond or attend the court hearing.
Court Hearing: The Court will fix case management, mediation, or, if necessary, direct a full trial, during which it will hear pleadings, evaluate evidence, witnesses' examination, and grant an order accordingly.
Duration: The divorce process takes at least six months, and if it is contested, it may take up to 2–3 years.
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Divorce in Malaysia
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