Highlights

  1. Joint Petition and Single Petition
  2. The requirements to bring a divorce claim
  3. The valid grounds for divorce
  4. The procedural requirements for foreign divorce to be recognized in Malaysia
  5. The factors to be considered by the Court in assessing the maintenance
  6. Wife pay maintenance to husband
  7. Unmarried father’s obligation to pay child maintenance
  8. Duration of child maintenance order
  9. The factors to be considered by the Court in dividing matrimonial assets
  10. Pre-marital wealth or inheritance is not subject to division between the parties as matrimonial property
Divorce in Malaysia

 

Q1. How do I get a divorce?

Answer:

There are two types of divorce petitions:

a) If both parties agree to the divorce and terms, they may apply for a Joint Petition at the Court; and

b) If one of the parties disagree with the divorce or could not come into an agreement with the terms of the divorce, they may apply for a Single Petition. Before filling Single Petition, both parties must attend to a meeting conducted by the Marriage Tribunal at the National Registration Department of Malaysia. However, this procedure can be exempted under exceptional circumstances.

Q2. What are the requirements to bring a divorce claim?

Answer:

a) The marriage must be
registered or considered to be registered under Malaysia law;

b) The marriage was monogamous marriage;

c) Both parties live in Malaysia; and

d) Both parties are married for at least 2 years, except for exceptional or hardship cases.

Q3. What are the valid grounds for divorce?

Answer:

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 facts:

a) your spouse has committed adultery and you finds it intolerable to live with him/her; or

b) your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her; or

c) you and your spouse have lived apart continuously for at least 2 years; or

d) your spouse has left you for a continuous period of at least 2 years.

Q4. I could not find my spouse and/or I have lost contact with my spouse, can I still get a divorce without his/her consent?

Answer:

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

Q5. Is foreign divorce recognised in Malaysia? If so, what are the procedural requirements, if any?

Answer:

If the marriage registered in Malaysia under LRA is dissolved by a foreign court, either party may apply to the Registrar-General for the registration of that foreign decree.1

If the marriage not registered in Malaysia under LRA is dissolved by a foreign court, either party may apply to High Court for a Declaration Order recognising that foreign decree.2

Q6. What are the factors to be considered by the Court in assessing the maintenance?

Answer:

In assessing maintenance, the court considers:-

a) primarily on the means and needs of the parties

b) the standard of living the parties were accustomed to during the marriage; and

c) the degree of responsibility which the court apportions to each party for the breakdown of the marriage.3

Q7. In what circumstances would the court order the wife to pay maintenance to her husband?

Answer:

A woman may be ordered to pay maintenance to her ex-husband where he is incapable of earning a livelihood by reason of mental/ physical injury or ill health.4

Q8. In what circumstances does a spouse have no right to maintenance?

Answer:

The right to maintenance shall cease if the spouse is living in adultery or if he/she remarries.5

Q9. I am an unmarried mother. Can I claim child maintenance against unmarried father?

Answer:

Yes. The court may order unmarried father to make monthly allowance to maintain an illegitimate child of his which is unable to maintain itself. However, unmarried mother is not entitled to spousal maintenance.7

Q10. What is the duration of a child maintenance order?

Answer:

An order for maintenance of a child, unless expressed to be for a shorter period or where such order has been rescinded, expires when the child reaches the age of 18 years unless the child:

• Has physical or mental disability.

• Is pursuing further or higher education or training.

In such cases, the maintenance order expires on the ceasing of the disability or on completion of education or training, whichever is later.8

Q11. How does the court divide the matrimonial assets after a divorce?

Answer:

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.9

Whether jointly or solely acquired, the court will incline towards equality of division of any assets acquired during the marriage, while taking into consideration:

• The extent of the contributions made by each party in money, property or work towards the acquisition of the assets or payment of expenses for the benefit of the family.

• The extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family.

• Any debts owing by either party which were contracted for their joint benefit.

• The needs of the parties’ minor children.

• The duration of the marriage.

Q12. 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?

Answer:

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

Q13. Whether pre-marital wealth or inheritance is subject to division between the parties as matrimonial property?

Answer:

No. Property acquired before marriage and inherited property acquired during marriage is not subject to distribution between the parties as matrimonial property.

FOOTNOTES 

[1] Section 107(3) LRA 1976

[2] https://www.jpn.gov.my/en/soalan-lazim/perkahwinan-dan-penceraian

[3] Section 78 LRA 1976

[4] Section 77(2) LRA 1976

[5] Section 82 LRA 1976

[6] Section 3 Married Women And Children (Maintenance) Act 1950

[7] T v O [1993] 1 MLJ 168.

[8] Section 95 LRA 1976

[9] Section 76 LRA 1976

[10] TAY CHONG YEW & ANOR v. ONN KIM MUAH [2016] 2 CLJ 579 

THIS FAQ IS PREPARED AND PUBLISHED BY GENERAL LITIGATION, CORPORATE INSOLVENCY AND APPELLATE DEPARTMENT OF THE DISPUTES RESOLUTION OF MESSRS GAN & ZUL, ADVOCATES & SOLICITORS.
Prepared by:

Ben Lee Kam Foo (Partner)
Head of Dispute Resolution
Arbitrator & Adjudicator
Fellow of ADR, AIAC
Cross Border Taxation Planning

Shafihani Binti Md Ali (Associate)
General Dispute Resolution
Appellate Division
Contractual, Land and Commercial Disputes
Pre and Post Liquidation Disputes

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