If you find yourself in this situation, this article will help you easily comprehend the crucial things you need to know before getting a divorce.
Basic information you should know
Divorce can be defined as legally dissolved or to end a marriage. In Malaysia, regardless of how long a spouse has been apart, there is no such thing as automatic divorce. A divorce petition must be filed at the High Court of Malaya under the Law Reform (Marriage and Divorce) 1976 in order to obtain a divorce order. In order to obtain a divorce in Malaysia, the marriage must be:
Registered or considered to be registered under Malaysian law or a foreign legislation that recognises monogamy;
Both parties have been married for at least two (2) years;
Live in Malaysia or consider Malaysia to be their permanent home.
However, there are circumstances in which the two (2) years requirement can be waived, such as if there is an abuse situation in the marriage. This exemption is fairly tough to obtain, whereby the petitioner must provide documentation and solid evidence to support it.
Joint or single petition?
In Malaysia, there are two types of divorce of marriage for non-Muslims:
Divorce by mutual consent (Joint Petition); and
Divorce without mutual consent (Single Petition)
When you approach a lawyer to initiate a divorce, the first important question your lawyer will ask you is whether your spouse agrees to the divorce. From there, your lawyer will know whether to file a single or joint petition on your behalf. The information provided below will assist you in determining which category your divorce falls under.
Joint Divorce Petition
A joint petition for divorce is filed when both parties agree to pursue a divorce. You must provide the following details when meeting with your lawyer:
Details about the marriage and children (if any);
Previous court cases involving the marriage;
Maintenance, custody, and matrimonial assets division that have been agreed upon.
It is also essential for you and your spouse to discuss the cost of the divorce. It can be divided equally, or one of the parties can bear the entire cost. It is in the best interests of both parties to have a smooth separation and to move on with their lives by entering into a joint divorce.
Single Divorce Petition
A single petition for divorce is initiated by one party to the marriage. However, in order to do so, you must prove that the marriage has broken down and must also show one of the following:
Your spouse has committed adultery, and you finds it intolerable to live with him/her;
Your spouse has behaved in such a way that you cannot be expected to live with him/her;
Your spouse has deserted you for a continuous period of at least two years;
You and your spouse have lived apart for a continuous period for at least two years.
You have to inform your lawyer about any other requests you want to include in the single petition from such as:
The custody of the child;
The amount of maintenance of the children;
The amount of maintenance for yourself (applicable for wife);
The percentage you wish to have from the division of the matrimonial assets.
What are the documents you needed for single / joint petition?
The following are the documents that your lawyer will require in order to assist you to file your divorce petition:
Photocopy of IC / passport of yourself and your spouse;
Photocopy of marriage certificate;
Marriage Tribunal Declaration Certificate (applicable for single petition); or
Order form the court for exemption to refer your case to the Marriage Tribunal (applicable for single petition);
Related document to the assets (title of the property, sales and purchase agreement, bank account statement, proof payment of the house and etc);
Birth Certificate of the child (petition with custody disputes).
It is also important to remember that obtaining a certificate from the Marriage Tribunal to prove the attempt to reconcile the marriage is a mandatory requirement for filing a single divorce petition. Otherwise, you may seek for your lawyer to assist you in obtaining an order of exemption from referring your marriage to the tribunal. The order for exemption may be granted in a few circumstances, including:
Either party to the marriage has embraced Islam;
You allege that you have been abandoned by and do not know the whereabouts of your spouse;
Your spouse has been required to appear before a Marriage Tribunal and has wilfully failed to attend;
Any situation in which the court is satisfied that there are exceptional circumstances which make reference to a Marriage Tribunal impracticable.
As you can see, the divorce process in Malaysia comprises various complex legal concerns that should be grasped before applying. Should you require the services of an experienced lawyer for Malaysia family law, do not hesitate to reach out to us at Gandhi & Associates.