In brief
- Every marriage solemnized in Malaysia after March 1, 1982 will last until it is dissolved (a) by the death of one of the parties; (b) by an order of a court of competent jurisdiction; or (c) by a court of competent jurisdiction declaring the marriage invalid and void. The High Court of Malaya has exclusive authority to handle divorce and matrimonial cases under Section 24 of the Courts Judicature Act 1964.
How to get a divorce?
- They are eligible to apply for a divorce by way of a joint petition under Section 52 Law Reform (Marriage and Divorce) Act 1976 if the parties agreed to the divorce, one of them is domiciled in Malaysia (or a Malaysian citizen), and they have been married for at least two (2) years at the time of the presentation of the Petition for Divorce (Act 164).
- On the other hand, if one of the parties does not agree with the divorce or cannot agree on the conditions of the divorce, they might hire an attorney to file a single petition. Hence, it will be conducted by the Marriage Tribunal at the National Registration Department of Malaysia as both parties are required to attend the meeting before the single petition has been filed.
What do I need to do in order to file for divorce in Malaysia?
- Under S.48(1) of the Law Reform (Marriage and Divorce) Act 1976 (LRA) must be compiled before a decree of divorce can be made by the court where it states that the marriage must be registered or deemed to be registered under Malaysian law or a foreign legislation that recognizes monogamy. Except in unusual or hardship instances, both parties live in Malaysia or consider Malaysia to be their permanent home, and both parties have been married for at least two years.
Q. What if the husband is neither a Malaysian resident nor a Malaysian citizen? Does the court still have authority to proceed with the divorce petition?
A. In these circumstances, the court still has the additional jurisdiction in proceedings as the wife has to prove that she has been deserted by the husband or the husband has been deported from Malaysia and she must be a resident in Malaysia for a period of 2 years.
Conciliation and Reconciliation under Section 106 of LRA 1976
- After determining that all attempts at reconciliation had failed, the court would decree a divorce of marriage. In reality, prior to filing for divorce, attempts at reconciliation are required. That is, every divorce petition must describe what measures were done to reconcile the parties.
- According to Section 106 of the LRA, the marital conflict must be submitted to a conciliatory authority before filing a petition for divorce in court. Unless one or more of the exceptions listed under sub-sections (1)(i)–(vi) of section 106 of the LRA apply, a spouse intending to petition for divorce on the grounds that his or her marriage has irretrievably broken down must have first referred the matrimonial difficulty to a conciliatory body and obtained a certificate from that body confirming that it has failed to reconcile the parties. These exceptions apply in cases where the respondent has been imprisoned for five years or more; or has deserted the petitioner and the petitioner has no idea where the respondent is; or l the respondent resides abroad and is unlikely to enter the jurisdiction within six months after the date of the petition.
Q. If you had filed a divorce petition and the court agreed with it, however, how does the court divide the matrimonial assets after a divorce?
A. The court can split assets acquired during the marriage by joint efforts of the spouses, or assets possessed prior to marriage by one spouse and significantly enhanced during the marriage by the other spouse or through their joint efforts. It’s also worth noting that the court won’t always divide the assets EQUALLY; instead, the court will usually divide the assets/money based on the facts of the case, taking into account either spouse’s contribution in money, assets, work, or debts for the benefit of both parties, as well as the needs of young children.
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