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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.
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