Yew Huoi, How & Associates | Leading Malaysia Law Firm

Menu

FAMILY LAW – SINGLE PETITION – JOINT PETITION – CHILD’S CUSTODY AND GUARDIANSHIP

2 Ways to file for Divorce

  • Single Petition
  • Joint Petition

Single Petition

  • EITHER party who wants to divorce can petition the court for divorce.
  • Single Petition is more complicated. It takes longer time. Usually, it takes one or more than 1 year if it is disputed.
  • Before the filing of single petition, both the husband and wife (“both parties”) are required to attend three (3) sessions of counselling/reconciliation.
  • Both parties are required to go to Jabatan Pendaftaran Negara (“JPN”) and fill up Form KC14.
  • Thereafter, both parties will be referred to a conciliatory body.
  • JPN officer will arrange three (3) marriage counselling sessions. Attendance is compulsory.
  • If either party fails/refuses to attend to the counselling session, JPN will issue a failure to reconcile letter.
  • You are required to forward the letter to your lawyer. Your lawyer will have to file in an application to the Court to exempt you from having to re-attend counselling/reconciliation session.
  • After obtaining the order for exemption of reconciliation from the Court, you may then proceed to file in your Single Petition.

What are the requirements to file in a Single Petition?

  • The marriage is registered in Malaysia;
  • Both parties reside in Malaysia; and
  • Both parties are married for at least two (2) years.

Exceptions to the requirements: –
1. One party to the marriage has converted to Islam; and/or
2. The marriage has irretrievably broken down by some other reasons.

Under what circumstances I can file a Single Petition?

  • One of the parties in the marriage has behaved in such a way that the other party could not live with him/her (ie. domestic violence);
  • One of the parties to the marriage has committed adultery;
  • Both parties have lived apart for at least two (2) years before the filing of the Single Petition; and/or
  • One of the parties in the marriage has deserted another party for at least two (2) years before the filing in of the Single Petition.

 Joint Petition

  • BOTH parties mutually agree to dissolve their marriage.
  • No requirement to prove that the marriage has broken down.
  • Arrangements must be made for: –
    1. Maintenance;
    2. Division of matrimonial assets;
    3. Children’s custody & visitation; and/or
    4. Who bears the legal fee.
  • After the filing of the Joint Petition, a hearing date will be set for the court to consider the Joint Petition.
  • Both parties are required to attend court on the scheduled date for hearing of the Joint Petition.
  • Both parties will be granted a Decree Nisi for divorce. If there is no objection raised, the Decree Nisi will be made absolute (Absolute Decree) after three (3) months.
  • When a decree is made absolute, both parties will be considered single again.
  • The entire process will take approximately three (3) to five (5) months depending on Court’s schedule.

What happens to the child after divorce?

Custody of Child

  • Custody of the child can be agreed upon to be given to either parent in a Joint Petition.
  • Custody relates to who takes care of the child’s daily needs. Access can be granted by the other party who does not have custody.
  • However, if custody is disputed, the Court will decide custody of the child after taking into consideration of: –
    1. The welfare of the child;
    2. The wishes of the parents; and/or
    3. The wishes of the child, if he/she is capable to express an  independent opinion.
  • If the child is below seven (7) years old, the Court would presume that it is for the best interest of the child to be with his/her mother.
  • However, this presumption is rebuttable if any parties can provide proof that the mother is not fit to have the custody of the child.

Guardianship of Child

  • Usually, joint guardianship will be granted to both parents.
  • Guardianship relates to control and management of the child’s property, religion, support, health and education.
  • The Court will decide the guardianship of the child after taking into consideration: –
    1. The welfare of the child; and/or
    2. The wishes of the parents.
  • The Court may at any time remove any guardian or appoint another person to be the guardian of the child.
Back to Latest Legal Updates

Sorotan Terkini

CIVIL PROCEDURE – STRIKE OUT UNDER ORDER 18 RULE 19(1)(A),(B) RULES OF COURT 2012 – EXTENSION OF TIME APPLICATION

In Badan Pengurusan Subang Parkhomes v Zen Estates Sdn Bhd [2025] MLJU 3591, the High Court reaffirmed that non-compliance with Order 37 Rule 1(5) of the Rules of Court 2012 does not automatically invalidate assessment of damages proceedings. The Court held that procedural rules must be read with the overriding objective of ensuring justice, and that the six-month time limit to file a Notice of Appointment is directory, not mandatory. Finding no prejudice to the defendant and noting active case management by the plaintiff, the Court dismissed the developer’s strike-out bid and allowed an extension of time for assessment to proceed. The decision underscores the judiciary’s commitment to substantive fairness over procedural rigidity in post-judgment proceedings.

Read More »
16 November ,2025 Tiada Ulasan

TORT – PURE ECONOMIC LOSS BAR REAFFIRMED: MMC LIABLE FOR NEGLIGENCE BUT PROTECTED FROM LOST PROFIT CLAIMS

In Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2025] MLJU 3144, the High Court awarded over RM2 million in damages against the Malaysian Medical Council (MMC) for negligence, breach of statutory duty, and misfeasance during its accreditation of Lincoln University College’s medical programmes. While the court allowed direct financial losses such as survey costs, it barred claims exceeding RM550 million for lost profits, reaffirming the Federal Court’s rulings in Steven Phoa and UDA Holdings that pure economic loss is not recoverable from public or statutory bodies. The second defendant was further ordered to pay RM100,000 in exemplary damages for acting with targeted malice, marking a rare personal liability finding against a regulatory officer.

Read More »
16 November ,2025 Tiada Ulasan

ERINFORD INJUNCTION – COURT OF APPEAL CLARIFIES: EX-PARTE ERINFORD INJUNCTIONS ARE THE EXCEPTION, NOT THE RULE

In Edisijuta Parking Sdn Bhd v TH Universal Builders Sdn Bhd & Anor [2025] 5 MLJ 524, the Court of Appeal clarified that ex parte Erinford injunctions at the appellate stage should only be granted in truly exceptional circumstances where giving notice would defeat the purpose of the order. Wong Kian Kheong JCA held that, under rule 50 of the Rules of the Court of Appeal 1994, such applications should generally be heard inter partes to ensure fairness and prevent abuse. Exercising powers under section 44(1) of the Courts of Judicature Act 1964, the Court granted a conditional interim Erinford injunction pending appeal, fortified by a RM200,000 deposit and an undertaking to pay damages. The ruling provides clear guidance on balancing urgency, procedural fairness, and judicial efficiency in appellate injunctions.

Read More »
16 November ,2025 Tiada Ulasan

TOTAL FAILURE CONSIDERATION – FEDERAL COURT OVERRULES BERJAYA TIMES SQUARE: TOTAL FAILURE OF CONSIDERATION REDEFINED

In Lim Swee Choo & Anor v Ong Koh Hou @ Won Kok Fong [2025] 6 MLJ 327, the Federal Court unanimously overruled Berjaya Times Square Sdn Bhd v M Concept Sdn Bhd and clarified that the doctrine of total failure of consideration applies only to restitutionary relief, not to contractual termination. The Court held that the correct test is whether the promisor has performed any part of the contractual duties in respect of which payment is due, adopting Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574. Finding that the appellants had partly performed their obligations and the respondent had derived benefits, the Court rejected the respondent’s claim for restitution and restored the appellants’ contractual claim. The landmark decision restores clarity between contract and restitution, reinforcing commercial certainty in Malaysian law.

Read More »
16 November ,2025 Tiada Ulasan

CONTRACT (BILL OF LADING) – NO DUTY TO DETECT FRAUD: COURT CLEARS MAERSK OF LIABILITY FOR FALSE CONTAINER WEIGHTS

In Stournaras Stylianos Monoprosopi EPE v Maersk A/S [2025] 2 Lloyd’s Rep 323, the English Commercial Court held that carriers are not liable for fraudulent misdeclarations by shippers where bills of lading are issued for sealed containers. The Court ruled that Maersk had no duty to verify or cross-check declared weights against Verified Gross Mass (VGM) data under the SOLAS Convention, as its obligation under the Hague Rules extended only to the apparent external condition of cargo. However, the judgment signals that a limited duty of care could arise in future where a carrier is put on notice of fraud. For now, carriers may rely on shipper declarations, but consignees must exercise commercial vigilance and due diligence when relying on bills for payment.

Read More »
16 November ,2025 Tiada Ulasan

EXEMPLARY DAMAGES – STATUTORY BODY DUTY – DAMAGES – OBTAINING APPROVAL

In Big Man Management Sdn Bhd v Tenaga Nasional Bhd [2025] 5 MLJ 290, the Federal Court reinstated nearly RM3.56 million in special damages and awarded RM100,000 in exemplary damages against TNB for wrongfully disconnecting electricity to an ice factory. The Court ruled that “strict proof” of special damages does not mean a higher burden beyond the civil standard of proof and affirmed that TNB, as a statutory monopoly, breached its statutory duty by using disconnection as leverage to collect payment. The judgment underscores that public utilities cannot misuse statutory powers, and consumers wrongfully deprived of essential services may be entitled to punitive remedies in exceptional cases.

Read More »
16 November ,2025 Tiada Ulasan
ms_MYMY
en_USEN zh_TWZH ms_MYMY
× Hubungi Kami