Overview of the Divorce Law in Malaysia

Non-Muslim divorce in Malaysia, like most countries, is governed by a mixture of statute and court decisions. However, the primary law governing the rights of spouses and the procedure for divorce is the Law Reform (Marriage & Divorce) Act 1976 (LRA). It provides substantially for the most important issues in a divorce including the grounds for divorce, maintenance and child custody.

Marriages in Malaysia are separated into two distinct groups: those that are below 2 years and those that are 2 years and above. As will be seen below, the number of years that a marriage has subsisted will determine some of the rules that will apply in case of divorce.

In this article, we will discuss some of the most important issues that will be involved in a divorce, including:

• Child custody

• Grounds for a divorce (domestic violence)

• Divorce involving foreign spouses

• Matrimonial assets and division of property

• Mode of divorce petitions

We will also discuss the laws governing them and the procedures that spouses will be expected to follow.

However, this article is not intended to take the place of legal advice. In all circumstances, it is best to consult with an advocate qualified in Malaysia family law for more specific advice.

Types of marriages in Malaysia

As mentioned earlier, marriages in Malaysia are divided into those that are less than 2 years, and those that have lasted 2 years and above. To apply for divorce in Malaysia however, couples must be qualified to bring a petition. Two rules apply here:

• First, as provided under section 50 LRA, the marriage must have lasted at least 2 years otherwise, a petition for divorce cannot be presented. Couples in a marriage that has subsisted for longer than 2 years will have no hindrance here.

• Second, the couple is expected to refer their matrimonial difficulties to a conciliatory body before attempting divorce under section 106 LRA, if they couldn’t reach to a mutual consent for their divorce.

However, there are exceptions to the rule in both cases. A divorce petition may be submitted within the first 2 years of a marriage:

• If the petitioner shows that there are exceptional circumstances involved or that they have suffered hardship; or

• With regard to both rules, if one spouse has converted to Islam as provided by section 51 LRA

To this end, spouses that wish to make a divorce petition will need to be certain that their marriage has subsisted for more than 2 years unless the exceptions apply.

Child Custody in Malaysia

Child custody in Malaysia is governed by several statutes including the LRA and the Guardianship and Infants Act 1961 (GIA). Child custody is a strictly legal term that refers to the rules that define the relationship of parents with their children after a divorce.

As stated under section 95 LRA, child custody does not last forever, only until the child turns 18. The general rule is that both father and mother have equal rights over their children. However, in determining which parent should get custody, the court will consider the welfare of the child first. In doing this, it may have regard to the wishes of the parents or of the child, according to section 11 GIA. The following rules may also apply:

• There is a rebuttable presumption that it is best for a child less than 7 years to be with its mother. However, the court will have regard to the undesirability of disturbing the child’s life by changes (section 88(3) LRA)

• Where there are two or more children in the marriage, there is no duty on the court to place them with the same parent. Each child’s welfare will be considered independently.

• Evidence of the lifestyle of a parent will only be relevant if it would affect the welfare of the child.

Child custody is split into custody, care and control, and access. Custody relates to the right to make important decisions about the child’s life e.g. education. Care and control relate to day-to-day care of the child while access comprises visitation arrangements for the parent deprived of custody, care and control. Orders in relation to access may include:

• Alternate public holidays (a few with the deprive spouse)

• Alternate weekends

• Birthdays and important festivals

• One half of school holidays

Domestic violence

Domestic violence is considered a serious affair under Malaysia family law. It is specially provided for under the Domestic Violence (Amendment) Act 2017. It includes physical injury, sexual abuse, confinement, threats, misappropriation of property or emotional/psychological abuse by one spouse against the other.

Any spouse in an abusive relationship may seek a divorce on those grounds. Under section 53(2) LRA, either party to a marriage may file a petition for divorce on the ground that the marriage has irretrievably broken down.

A victim of abuse may file under this ground, with proof that the respondent has behaved in such a manner that the petitioner cannot be expected to live with the respondent. In the case of Renuka Muniandy Ramakrishnan v. Jeeva Kalia Perumal [2017] MLRHU 258, the petitioner filed for a divorce on this ground due to repeated acts of physical violence as well as emotional and verbal abuse perpetrated against her by her spouse.

It would not matter that the marriage is still within its first 2 years. As mentioned earlier, section 50 LRA permits spouses in such a marriage to file a petition owing to “exceptional circumstances”. The court held in Kiranjit Kaur Kalwant Singh v Chandol Narinderpal Singh [2013] 3 CLJ 724 that all forms of domestic violence fall within exceptional circumstances.

Pending divorce, abused spouses may apply for a Protection Order with the assistance of police or Non-Molestation Injunction from Court to keep their abusive spouse away.

Foreign spouse divorce in Malaysia

The rules for divorce in Malaysia may be a little more complicated than usual when it concerns foreign marriages. The general rule is that the court will have power to make an order for divorce when:

• The marriage was registered under the LRA or was contracted under a law that binds the marriage as a monogamous one; and

• The spouses are domiciled in Malaysia at the time the divorce petition is presented (section 48(1) LRA).

However, with a marriage involving a foreign spouse, there may be issues with either domicile or the law under which the marriage or divorce was conducted. The following are relevant:

• Any person can file for divorce with a foreign spouse if the marriage was conducted in Malaysia and both are resident in Malaysia.

• If the marriage was conducted elsewhere, both can divorce in Malaysia if they are both resident there.

• Ordinarily, the domicile of the husband is taken to be that of the wife. But if either party is not domiciled in Malaysia, the wife may petition for divorce if:

• Her husband is not domiciled in Malaysia and he has deserted her; or

• Her husband was domiciled in Malaysia but has been deported; or

• She is resident in Malaysia and has been resident for 2 years before filing her petition (section 49 LRA)

Division of matrimonial assets after divorce in Malaysia

Under section 76 LRA, a court of law in Malaysia has power to order a division of matrimonial assets acquired during a marriage or the sale of assets and division of the proceeds of sale. However, this can only be done on the grant of a decree of divorce or judicial separation.

Before its amendment, section 76 LRA distinguished between matrimonial assets acquired by the joint efforts of the couple and those acquired by one spouse. This distinction has now been removed and the court will treat all property acquired during the marriage as matrimonial property.

These assets will include money, movable and immovable property including the matrimonial home, insurance and retirement funds and shareholdings. The court is inclined towards equal division of marital assets, while taking the following into consideration:

• The extent of contribution by each party towards the acquisition of those assets

• The extent of contribution by each party towards the welfare of the family or home care

• Any debts owed by either party but was contracted for their joint benefit

• The needs of minor children

• The duration of the marriage

Although there is a growing trend for couples to enter into pre and post-nuptial agreements, the court ultimately has the power to decide financial matters. The court is statutorily bound to consider the factors guiding division of matrimonial assets and maintenance in the LRA. This means it may not be swayed by an agreement.

How to file a joint petition for divorce

Divorce in Malaysia is usually initiated by petition. This may be a joint petition (divorce by mutual consent) or single petition (by one spouse). When a joint petition is made, it usually means that the parties have agreed on the major issues in the divorce and do not wish to contest the divorce. It is usually straightforward.

When the divorce involves a single petition, the parties are usually not in agreement and will contest everything, from child custody to division of marital assets.

To file a joint petition, the spouses do not need to attend marriage counseling before applying for an order of divorce. However, they must:

• File the petition at the High Court, and it should be accompanied by an affidavit verifying the petition and a statement on arrangements for children.

• The hearing date will be given by High Court after filing. Both spouses will be required to attend court on the day of hearing. The court will read out the terms of the petition and ask if both parties understand and agree.

• If satisfied that the divorce is mutual, the court will grant a Decree Nisi on the hearing date.

Conclusion

As you have seen, the process of divorce in Malaysia involves several complex legal issues that should be understood first before applying. Should you require the services of an experienced Malaysia family law advocate, reach out to us at Alan Kang & Co.

Having provided quality legal representation for residents and non-residents in Malaysia for several years, we have the experience to assist you in your case. To contact us for expert legal advice and assistance, call us on +603-7972 7223 today.

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