When is the earliest time after marriage that a couple can apply for divorce?

A petition for divorce whether it is a joint or single petition (contested or not contested) may be done after two years of marriage. Where a petition is presented before the expiration of two years, then there must be exceptional circumstances or hardship suffered by the petitioner for the Courts to consider whether to grant such decree for divorce.

I heard that a couple should live separately for 2 years before they can apply for divorce. Is this accurate?

It is not mandatory for a couple to live separately for 2 years before they can file for divorce. However, if a couple lives separately for at least 2 years, this will count towards ‘proof of irretrievable breakdown’ as a ground for divorce if a single petition (contested divorce) is filed in Court. In a joint petition, there is no such requirement.

I am a Malaysian that married a foreigner. We got married overseas. Can I file for divorce in Malaysia or do I have to go to back to the country where we got married?

Both parties must be domiciled in Malaysia in order to file for divorce in Malaysia. However, a wife has additional rights to file for divorce in Malaysia in certain cases even if her husband is not domiciled in Malaysia. A foreigner husband does not have the same rights.

I am a Malaysian that was married overseas. What happens if I have an order for divorce from another country? Is this recognised in Malaysia or do I have to file another application for divorce in Malaysia?

A foreign divorce certificate can be recognised in Malaysia by filing a petition in court to recognise the foreign divorce certificate

My spouse abandoned me and I don’t know where s/he went. Can I still file for divorce?

If the spouse has deserted you for 2 years, this would count towards ‘proof of irretrievable breakdown’ as a ground for divorce. What is required to be proved to the satisfaction of the court is one of both physical and mental attitude on the part of one or both of the spouses. If for example, you have been unable to locate your spouse over the 2 years preceding the petition, the Court will require documentary evidence that you had tried to track down your spouse. Alternatively, you can provide proof that your spouse is living elsewhere.

Do you need to provide reasons for wanting a divorce? If so, what are the “acceptable” or legal reasons to get a divorce?

When a joint petition (uncontested divorce) takes place then both parties to the marriage agree that their marriage should be dissolved and the Court may, if it thinks fit, make a decree of divorce on being satisfied that both parties freely consent and the proper division is made for the wife and children, if any.

However, if it were a single petition (contested divorce), then the Court shall take into account one or more of the facts provided in Section 53 of the Law Reform Act – whereby one party has committed adultery; or there is desertion; or parties are living separately; or intolerable behaviour of one party.

The Court hearing such a petition shall, so far as it reasonably can, inquire into the facts alleged leading to the breakdown of the marriage and if satisfied with the assertions of the parties, make a decree for divorce.

What happens if my spouse doesn’t want to get a divorce? Can the court refuse to grant an order for divorce?

A single petition (contested divorce) can be filed in Court and the Court shall take into consideration the reasons for the divorce before making a conclusive decision whether to grant a decree for divorce as the dissolution of marriage is a matter of grave consequence affecting the entire family and children in particular. If circumstances make it just and reasonable, the Court must grant a decree of divorce having regard to the alleged facts.

Are pre-nuptial agreements enforceable in Malaysia?

Please see our earlier article “Do You Need a Pre-Nuptial Agreement?”

What’s the difference between divorce and judicial separation?

Please see our earlier article about judicial separation for more information.

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This article was written by Aileen Lau. 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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