By Gan Jer Nynn & Joseph Cheah
According to the Marriage and Divorce Statistics, Malaysia, 2020 which was released on the 30th November 2020, the stats are as follow:
Number of Marriages
Number of Divorces
Although it is not encouraged, we want to provide an overview on the legal procedure for unhappy couples to seek a divorce in Malaysia.
We will focus our attention on Joint Petition.
A Joint Petition is governed by Section 52 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”). A joint petition is possible when both husband and wife (“Petitioners”) mutually agree and consent for the marriage to be dissolved.
There are certain conditions to be fulfilled before a Joint Petition can presented to the court, namely:
- The Petitioners must have been married for at least two (2) years at the time of the Joint Petition being filed in court unless any exceptional circumstances can be proven by them. – Section 50 of the LRA
- At least one of the Petitioners is domiciled in Malaysia or a citizen of Malaysia.
Time and Cost
Since both parties agree to a divorce, the legal procedure takes a shorter time to conclude (approximately 1-3 months depending on negotiations between parties and the court’s available time). Cost incurred will generally be lesser too – as opposed to a Single Divorce Petition (which is contested).
Furthermore, the Petitioners are not obliged to undergo the process of conciliation at the Marriage Tribunal, also known as the ‘Tribunal Perkahwinan’ at the National Registration Department (JPN).
The appropriate forum to initiate a divorce proceeding is at the High Court (Family Division). However, pursuant to the Practice Direction of the Chief Judge of Malaya No 2 of 2020 dated 22nd September 2020, which came into force on 1st October 2020, certain Session Court Judges had been conferred jurisdiction to hear a Joint Petition.
Upon mutual agreement being made and prior to the filing of a Joint Petition in court, the Petitioners will go through the process of deciding on a few key issues which will take effect once the marriage has been dissolved, inter alia, the following:
- The custody, care and control of the children of the marriage (if any);
- Maintenance for the Petitioner Wife and children (if any);
- Division of assets acquired by the Petitioners either jointly or solely throughout the marriage; and
- Any other proposals deemed relevant to the Joint Petition.
In this regard, a common lawyer will usually be engaged by the Petitioners to assist in the discussion of the proposals on the issues and for the preparation of court documents.
The Court Hearing
(i) Decree Nisi
On the day of the hearing in court, a Decree Nisi will be granted by the Court to the Petitioners, subject to the key issues already agreed between Petitioners.
However, this does not mean that the Petitioners are officially / legally divorced. They have a period of three (3) months to rethink or discuss on the said divorce prior to the issuance of a Decree Nisi Made Absolute.
(ii) Decree Nisi Made Absolute
After 3 months from the date of Decree Nisi, if there are no objections being raised by the Petitioners, the Decree Nisi will subsequently be made absolute. Thereafter, the divorce proceedings will come to an end and be made official.