In Malaysia, a non-Muslim divorce is governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”).
There are two types of divorce petitions under the LRA 1976 namely a single petition and joint petition. Although both proceedings aim to achieve similar objectives resulting in divorce, they are nevertheless accompanied by distinctive procedures.
Joint Petition / Uncontested Proceedings (Section 52 LRA 1976)
A joint petition is where both spouses can mutually agree to the dissolution of their marriage. It is a cost effective, quicker and relatively straightforward process compared to single petitions due to the presence of mutuality from both spouses throughout the entire process as the divorce petition is filed without any allegation of fault made against the other party.
It begins with both spouses reaching a consensus regarding the terms and conditions of the divorce. The solicitor will then submit a divorce petition in Court.
At the divorce hearing, to the satisfaction of the Court that the parties involved freely consent towards the divorce and that proper divisions have been made for the wife and for the support, care and custody of the children (if any), the Court will then grant a decree nisi* to the parties, which will become absolute after 3 months if there are no further objections as to the notion of the said divorce.
Once the decree nisi has been granted as absolute, the divorce proceedings will then officially conclude.
It should however be noted that the mutual consent between the parties cannot itself oust the jurisdiction of the courts to inquire into, if it thinks fit, and decide whether in all the circumstances it is just and reasonable that the decree should be made.
[*A decree nisi is an order by the High Court stating the date on which a marriage will be officially terminated unless a good reason to not do so is produced.]
You may read more on joint petitions here.
Single Petition / Contested Proceedings (Section 53 LRA 1976)
In the event where both spouses are not able to reach a consensus on the divorce, one of the parties can file a single petition without consent of the other party. Filing a petition of this nature is slightly more complicated, costly and time-consuming than joint petitions due to its one-sided nature where most of which can be attributed to the absence of mutuality of both spouses.
Parties who intend to file a single petition must first demonstrate that the marriage has irretrievably broken down by showing one of the following grounds namely:-
- The other party has committed adultery;
- The other party has behaved in such a way that the Petitioner could not reasonably be expected to live with the other party;
- The other party has deserted the Petitioner for a continuous period of at least two years before the presentation of the Single Divorce Petition; and
- Both parties have lived apart for a continuous period of at least two years immediately before the presentation of the Single Divorce Petition.
The parties are also required to initiate reconciliation proceedings by making an application to the Tribunal of Reconciliation of Marriage at the National Registration Department. The tribunal will then endeavour to resolve / persuade the spouses to reconcile through counselling sessions. However, if this process fails a certificate will be formally issued by the tribunal granting the parties the avenue to proceed with a divorce.
A divorce petition can then be filed by either one of the spouses and similarly a hearing date will be set for the court to consider the petition and give directions / make decisions on matters relating to custodianship of children, child maintenance, spousal alimony, division of matrimonial property etc (if any). Following which the court may grant a decree of divorce having been satisfied that the marriage should be dissolved.
This article was written by Aileen Lau (Partner) and Yeoh Kai Shin (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, adoption, payment of alimonies and division of matrimonial property.