According to the statistics on violence against women provided by the Ministry of Women Family and Community Development, a total of 5796 cases of domestic violence were reported in 2016. The rising numbers of domestic violence cases reported to the police are a huge cause of concern in Malaysia and many of those had lack of awareness that emotional or verbal abuse could constitute to domestic violence; not knowing their rights; and the fear of their safety.
Domestic violence, as defined in the Domestic Violence (Amendment) Bill 2017 (“DVA”), includes:
- causing physical injury to the victim by such act which is known or ought to have known that physical injury would be a result;
- sexual abuse;
- confining or detaining the victim against the victim’s will
- dishonestly misappropriating the victim’s property which causes victim to suffer distress due to financial loss;
- threatening the victim with intent to cause victim to fear for his safety or the safety of his property or safety of a third person or to suffer distress
- emotional and psychological abuse;
The introduction of an Emergency Protection Order (“EPO”) by the DVA now allow victims of domestic violence to seek immediate protection against their abusers. The EPO can be issued by a social welfare officer within two hours and is valid for seven days. Victims no longer need a police report or a court hearing to obtain a protection order. EPO seeks to be the first and immediate temporary relief for victims to ensure their safety. EPO also provides them a safe space for them to consider their next move – whether to file for a divorce or a judicial separation.
Many women in an abusive relationship remain in the relationship for their children and also for the hope that their husbands would change. In cases where victims do leave their abusers, it is common for them to file a divorce by way of a single petition.
A divorce may be contested or uncontested. A contested divorce is where the parties have not come to an agreement on the terms of the divorce and hence an application for divorce shall be made by way of a single petition. Whereas an uncontested divorce or joint petition is usually pursued when both parties to a marriage can amicably establish an agreement on the terms of their divorce
In order for a party to a marriage to apply for a divorce by way of single petition, the Court shall take into account Section 53 of the Law Reform (Marriage and Divorce) Act 1976 [“LRA”] – Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.
Section 53(2) of the LRA states that it is the duty of the Court to inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances is just and reasonable to do so, make a decree of divorce.
In inquiring into such facts, the Courts shall take into account one or more of the facts provided in Section 54 of the LRA ie:
- the petitioner (ie the spouse filing for divorce) finds it intolerable to live with the respondent (the other spouse) as the respondent has committed adultery;
- the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition; and/or
- the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition.
The petitioner in Renuka Muniandy @ Ramakrishnan v. Jeeva Kalia Perumal  MLRHU 258 filed an application of divorce on the ground that the Respondent husband had behaved in such a way that she could not reasonably be expected to live with him. The Respondent husband had, on many occasions, committed physical violent acts against her and had also emotionally and verbally abused her in the eyes of the public.
Although a petition for divorce shall not be made before the expiration of two years (Section 50 LRA), the Courts may allow the petition for divorce before such expiration where it is one of exceptional circumstances or where there is hardship suffered by the petitioner. Any form of domestic violence will fall within the ambit of “exceptional circumstances”, as affirmed in the case of Kiranjit Kaur Kalwant Singh v Chandol Narinderpal Singh  3 CLJ 724.
This article was written by Aileen Lau (Partner) and Natalie Ng (Intern). Aileen heads the family law practice at Donovan & Ho. She has extensive experience in both contested and uncontested divorce proceedings, and has advised clients on family law matters ranging from child custody, payment of alimonies and division of matrimonial property.
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