Divorce procedure in Malaysia -

In Malaysia, there are two types of divorce procedure for non-Muslims:
1) divorce by mutual consent, i.e. both parties agree to the divorce
2) divorce without mutual consent i.e. one party refused to divorce/sign any divorce documents or one party had leave matrimonial home and lost contact

MUTUAL CONSENT DIVORCE (JOINT PETITION)

Husband and Wife agreed jointly to file a divorce petition in the court. The couple must have been married at least two (2) years at the time the divorce petition is filed in the court. With this type of divorce method, Husband and Wife can freely decide to the maintenance for wife & children, custody and care of the children, division of matrimonial assets.

DIVORCE WITHOUT CONSENT (SINGLE/ UNILATERAL PETITION)

Either party to a marriage may file a petition to divorce without consent of the other party, on the ground/ reason that the marriage has broken down. The break down of the marriage can be grounded on several reasons as follows:

1) that the other party has committed adultery i.e. tt is defined as voluntary sexual intercourse between a married person and someone who is not their spouse;

2) that the other party has behaved in such a way that it cannot reasonably be expected to live together i.e. It refers to any behavior that causes physical or mental harm to the other spouse. It can include physical abuse, emotional abuse, and harassment;

3) that the other party has deserted for a continuous period of at least 2 years; OR

4) that the parties to the marriage have lived apart for a continuous period of at least 2 years.

WHO HAS THE RIGHT OVER THE CUSTODY OF THE CHILDREN?

In a joint petition, both parties can mutually agree to propose any arrangement to the children.

In a single petition, either party can make application for the custodianship. The court will decide the custodianship after considering all factors including: 1) The welfare of the children 2) The wishes of the parents 3) The wishes of the child if the child is eligible to express an independent opinion.
There is a rebuttable presumption that the custodianship of a child below 7 years belongs to the mother. Kindly take note that this is a presumption which is rebuttable by the father.

WHO HAS THE RIGHT & INTEREST OVER MATRIMONIAL PROPERTY?

In a joint petition, both parties can mutually agree to divide or transfer the property.

In a single petition, either party can make application to the court for the division of matrimonial property. If the property is acquired by the sole contribution of the party, the court may divide the property as the court thinks reasonable. The party upon whose contribute the assets were acquired will receive a greater proportion. If the property is acquired by joint contribution, the court may divide the property as the court thinks reasonable after considering factors like the extent of the contributions made by each party.

HOW LONG IT TAKE TO FOR A DIVORCE TO BE COMPLETED?

For Joint petition usually within 3 months.

For Single petition depend on the complexity of the case, the more matter contested, the longer time it needs to complete.

HOW MUCH IS THE LEGAL FEES?

For joint petition’s legal fee is cheaper than single petition.

legal fee is chargeable varies from one case to another depending on the following factors:

1) The complexity of the case as it affect the amount of time & skill a lawyer need to spend;
2) The complexity of the Petition’s Content ( i.e. The complexity of the Divorce Arrangement & Settlement)
3) Whether the divorce petition is contested. Legal fee for contested matter is generally higher than uncontested matter.

WHO SHOULD BEAR THE LEGAL FEE? HUSBAND OR WIFE?

For joint petition, legal fee can be paid by one party or share equally between the parties.

For single petition, each party has to pay their own legal fee .

WHAT IS THE PROCEDURE FOR MUTUAL PETITION?

1) Find a lawyer
2) With lawyer’s advice, make arrangement of children, property & maintenance (if any).
3) Sign the documents prepared by your lawyer.
4) Wait for the hearing date after the filing of your application in the High Court.
5) Attend the hearing with your lawyer.
6) Obtain divorce certificate at least three months after a divorce order is granted by the judge.