Divorce in Malaysia – What you should know before getting one
Being caught at the end of a marriage can be challenging, a very real occurrence that arises from all the social changes causing an increase in divorce in Malaysia. There are numerous elements that may have caused the separation such as financial problems, infidelity, lack of affection and domestic violence, to name a few. An interesting side-note is that the popularity and ubiquity of social media has led to the phenomenon of online flirting, further making matters worse.
With increased levels of education, financial stability and social empowerment, women today are not bound to be married in Malaysia, or may exist in an unhappy one. Couples in Malaysia are marrying later in life; the average age of being married was 18.5 years old in 1940, rising to just over 22 in 1970. Today, according to the National Population and Family Development Board survey, it is in the early 30’s.
Likewise, divorce rates are on the rise; Figures vary but according to a report in The Star, a Malaysian newspaper, some 274,000 marriages between Muslim couples in Malaysia alone were dissolved from 2010 to 2016. That equates to 125 each and every day or almost 1 every 10 minutes. In the past year, this has climbed further to a whopping 156 per day. Interestingly enough, most reports suggest that rates of divorce in Malaysia between arranged and love marriages are roughly equal.
If you are seeking for a divorce, here are the guidelines as to what you should know before proceeding with one. Be aware that there are requirements you will have to fulfil before filing for divorce, the paramount of which is to have a properly registered marriage, which must be registered under the local laws. In Malaysia, there are separate proceedings for Muslims and non-Muslims who seek for divorce. In addition to being subject to the law of the land, Muslims are also subject to Shariah Law. This article will focus on the non-Muslim requirements which are governed by the Law Reform (Marriage & Divorce) Act 1976 (LRA), in particular Part IV of the act for which a petition can be brought on 3 main grounds:
- dissolution by mutual consent,
- either party petitioning for single petition or
- dissolution by the conversion of either party to Islam
Mutual Consent filing in Malaysia
For dissolution by mutual consent in Malaysia, both parties will be able to appoint a lawyer together and will be in a healthier position to negotiate the terms and conditions, such as, care and custody of children, equal distribution of matrimonial properties and even maintenance sum for both wife and child. This process will take about six to nine months depending on the facts of the case. The pre-requisite for this petition and a single petition is that the couple must be married for at least 2 years at the time of the petition unless permitted by the court based on special circumstances.
The basic procedures when it comes to filing for divorce for joint petition would be to sign the divorce petition and relevant documents prepared by your legal counsel. A hearing date will then be given upon the submission and filing of your application in the High Court. Upon attending the hearing, an order called a “decree nisi” will be issued. Three months after the divorce hearing, a final order refered to as the “decree absolute” will be issued.
Single Petition filing in Malaysia
On the contrary, for single petition, you will be required to apply to the marriage tribunal at JPN (Jabatan Pendaftaran Negara). The sole purpose of the tribunal is to act as a counsellor to give the parties a chance to reconcile before taking further measures. If both parties fail to reconcile, then a letter will be issued by the Tribunal stating that the reconciliation process has failed and the party still insists on filing for divorce. The procedure afterwards will be unpredictable because it would depend on the spouse’s actions whether to contest or not to do so for the divorce matter.
On the other hand, for either party petitioning under single petition, there is only ONE ground for divorce in Malaysia to be established and that is the irretrievable breakdown of a marriage. However, to prove that the marriage is beyond repair, the reasoning for the application of divorce should fall within these 4 facts that is;
- Adultery (proving this could be challenging, so it’s best to seek advice) or
- Desertion (your spouse have deserted you continuously for more than 2 years) or
- Intolerable behaviour (domestic violence usually falls under this category) or
- Two years separation (you and your spouse have been living separately for a continuous period of at least 2 years)
Conversion to Islam
What happens after the wedding when everything was going smoothly and then suddenly either one party finds that they wish to convert to Islam? Due to the way the laws are made in Malaysia where one marries a Muslim they have to convert irrespective if they are man or woman, however a provision in the law was made for times like above. If one of them chooses to convert after the marriage the other party who has not chosen to convert may petition for a divorce in Malaysia. The way the law is worded is that there is a 3 month period for the parties to give the conversion a real chance of surviving within the marriage, after which the non-converting party is free to make the petition.
After the Court dissolves the marriage they may make provision for the wife or husband and additionally for the support, care and custody of the children of the marriage if they have come to be. The Court also retains the power to impose any conditions to the dissolution of marriage as it may think suitable. Another important difference between a regular dissolution of marriage and this is that here there is no requirement for the marriage to have lasted a minimum of 2 years before any petition for dissolution can be brought. Here the parties are only limited by the 3 months period as well as their volition to save their marriage regardless of what religion is attached to it.
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Will it cost a fortune to get a divorce in Malaysia?
Notwithstanding the emotional cost it has, there are two primary variables to consider, the court fees and legal fees. The court charges are fixed; where else to a great extent the latter’s expenses relies upon the complexity of the case and the lawyer’s charge. In the case of single petition, it is very much unpredictable as it would depend on the complexity of facts of the case. Keep in mind that this process might be a long, expensive process if proper advice is not given by the lawyer. As an example a local divorce lawyer notes that uncontested divorces can run between RM4,000 to RM 5,000 in costs. If the divorce is not mutual, and further proceedings drag it out, it can easily climb over RM30,000.
As much as the law seeks to balance the rights of both genders there is still an inherent imbalance present. The Law Reform (Marriage and Divorce) Act 1976 acknowledges the non-financial contributions of women to a marriage; giving up work and a career to look after the children. Though, in practice, it is often the case that the husband generally receives a larger share of the couple’s assets. A local family lawyer stated in an interview that the law still discriminates against women. Here the ability of a man to earn an income is weighted more heavily than a woman’s role in child bearing.
Seeking for divorce is still seen as a taboo even though we are living in the 21st century but a divorce could genuinely be a fresh start rather than a conclusion to those who seek for it. Having a positive attitude towards any hurdles in our lives do help and ideally, I do hope this article would clear any doubts for those seeking for divorce.
You need not look far but several couples who have gone through a divorce with a positive attitude always end up maintaining a healthy friendship after the fact. In cases where there are children involved, this healthier approach tends to leave the child in a better understanding of what has happened rather than being at risk of emotional scaring. A final thought to note, before it gets to the point of no return though, there are several marriage counsellors in Malaysia in private practice who is ready to lend an ear, and for Muslims, the State Islamic Affairs Department provides free counselling for those who need it.